Judge tosses out Army captain's complaint questioning president's birth; Orly Taitz on notice

http://www.ledger-enquirer.com/news/breaking_news/story/841419.html ^

[kellynla]

BTTT

[Seizethecarp]

Please visit Leo Donofrio’s blog:

http://naturalborncitizen.wordpress.com/

Natural born, native born and naturalized are distinct.
Only natural born can be POTUS. Natural born is not a statutory definition but a condition of birth commonly understood by the founders to mean citizenship of both soil and blood without any foreign blood. The 14th did not repeal the natural born provision and Wong only concerned citizenship on US soil, not by blood. Wong was not made a natural born citizen and eligible to be POTUS by the Wong decision.

[OldDeckHand]

"Wong was not made a natural born citizen and eligible to be POTUS by the Wong decision."

So the argument is frequently made. If you read Fuller's dissent in Ark, it's clear that he thought that the practical implications of the majority decision would make Wong eligible for the office of President. I personally believe that the original intent of the framers would have excluded Obama, but the 14th and the Ark case go quite some ways in nullifying that intent.

Be that as it may, there's been no adjudication of "natural born", there's been no definition codified in US legislation, nor is there any definition of "natural born" available in the Constitution itself. Even if challenges would have been brought at the state level to Obama's name being placed on state ballots (which would have been the best opportunity to tackle this "standing" dilemma), it's not a forgone conclusion - at all - that SCOTUS would have heard the case based on such an argument. After all, we are over 233 years into this thing, and no court (at any level) and no legislative session has shown any appetite to address this issue, not even in the run-up to, or the aftermath of Chester Arthur's presidency.

[El Gato]

if you are born in the US, in order to be a natural born US Citizen. (Or at least not post 14th Amendment and the US v Wong Kim Ark decision of 1898.)

The only place "natural born" appears in Wong Kim Ark is in a footnote. Wong was ruled a citizen, not a natural born citizen. That footnote makes a distinction between "child of aliens" and "natural born child of citizens", but only to say they are equally citizens.

The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.

This was quoting "Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853".

The fourteenth amendment did not change the definition of natural born, it did make citizens of all born in the United States, similar to statutes which make various classes of people citizens at birth, even though born outside the US, even to a foreign citizen parent and a US Citizen parent, rather than two US citizens, with conditions of course. Conditions which Obamam's mother failed, if he was born outside the US.

[El Gato]

Now you're questioning the legitimacy of the Federal Rules of Evidence? Oh brother. Every time I think I can't be shocked, anymore than I already am, I'm shocked.

I'm not challenging them, I'm saying they are rules, not statute law. I also said that the statute law authorizes the courts to make such rules, which also implies the power to change them.

Try out US Code, Title 28, PRT 5, CHPTRS 111-123 - or thereabouts. Let me know what you come up with.

I already cited 18 USC Chapter 131, which is the part of the statute law that gives the courts power to make the rules (§ 2071) and defines what the rules can and cannot cover.

No where in Rule 81 does it say, "Hey, you can ignore all the aforementioned rules to get to that just, speedy and inexpensive determination, now does it?

Why would it, Rule 1 already gives the rule about how the other rules are to be *construed* and administered. That would be redundant.

The US justice system isn't - in any way - about the delivery of justice, it's about the application of US law - nothing more, nothing less.

As a law professor of mine once said, "If you want to pursue a search for truth, talk to your priest. If you want to understand the law, you've come to the right place."

The Constitution is the law too, who is applying that?

I guess you and your law professor would agree that the US Justice System is misnamed?

But you make my earlier point much better than I could.

[El Gato]

That is not a world that I for one want to inhabit.

Neither is one where the Constitution is used for so much toilet paper one which I care to live in. With only the emanations from it's penumbra being vigorously enforced.

[El Gato]

"allege sufficient facts to state a claim to relief that is 'plausible on its face.'" Read pp 7-9 of the opinion.

Sounds like a judgment call to me. That's what they pay judges for.

But such facts *were* alleged, an apparant Kenyan Birth Certificate, a piece of paper with signature and seal, and the best they could do with an affidavit about it's origins.

I would have left out all that other cr, er stuff, as well. It wasn't germane to the main issue, eligibility to the office of President.

Ms Taitz could tone it down a notch or too, at least this early in the process, and with no jury involved. Later...well they let Edwards channel dead babies in court, so I guess a little hyperbole and emotionalism when going before the jury would be OK.

[El Gato]

The sentence you quoted doesn't assert as a fact that Obama is not a natural born citizen due to his admission against interest that he was a dual citizen status at birth, rather it only asks Obama to confirm a weak confusing statement he is not eligible due to his father not being a US citizen.

Perhaps because that is the real test, that is the father's nationality. What some other country considers a person to be is of no importance. It's the parent's citizenship when the child is born, not the child's "dual" citizenship, if any. Even if the parent's country doesn't consider the child one of it's nationals, the child may not be a natural born citizen.

[El Gato]

Besides, the fact that his father was a British subject was well known BEFORE Obama became president and if there were any substantial law which prevented him from becoming president, why did NO ONE on a national level (such as the Republican Party) challenge his placement on the ballot for that reason?

We are seeing what happens to anyone, Hillary, Bill, tea party participants, who challenge The One. They are termed Racists, and beat about the head and shoulders incessantly in the press.

[EDINVA]

If you think of that time period, between 9/21/01 and 12/21/01, President Bush could have nominated (and in retrospect maybe should have) absolutely anyone he wanted and that person would have been approved quickly with a voice vote.

This wasn’t a strong case from what little I was able to understand of it, but the opinion is just as bad.

[Sibre Fan]

"* * * Be that as it may, there's been no adjudication of "natural born", there's been no definition codified in US legislation, nor is there any definition of "natural born" available in the Constitution itself. Even if challenges would have been brought at the state level to Obama's name being placed on state ballots (which would have been the best opportunity to tackle this "standing" dilemma), it's not a forgone conclusion - at all - that SCOTUS would have heard the case based on such an argument. After all, we are over 233 years into this thing, and no court (at any level) and no legislative session has shown any appetite to address this issue, not even in the run-up to, or the aftermath of Chester Arthur's presidency.

I generally agree with this, although I will say that one court did directly
discuss the issue, in the context of finding a child born to foreign parents to be a US citizen: Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844). (Link - See p. 236).

Lynch v. Clarke, cited with approval by the majority in Wong Kim Ark (and other subsequent cases), went through an exhaustive discussion of the statutes and common law of the original 13 colonies and states on the issue of citizenship/natural born citizenship to conclude that the original intent of the Founders was that a child born in the US was a (natural born) citizen.

The court also posited the specific question of Presidential eligibility:
"The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President," ... The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen." (See pages 246-247 at link above.)

This discussion was not a "holding"/precedent, of course, because presidential eligibility was not the issue of the case. However, this is one case that discussed the issue.

[Sibre Fan]

Sounds like a judgment call to me. That's what they pay judges for. But such facts *were* alleged, an apparant Kenyan Birth Certificate, a piece of paper with signature and seal, and the best they could do with an affidavit about it's origins.

Actually, according to the documents on PACER, the Complaint attached the "Photocopy of Alleged Kenya Birth Certificate issued in 1964 concerning B.H. Obama" -- not the Lucas Smith Kenyan BC, accompanied by his affidavit. However, she must have read Smith's affidavit into the record during the hearing, because it is not attached as an exhibit on any document in the pleadings (on PACER) -- but the Court does discuss it. Even so, the Smith Affidavit does not properly authenticate the document under FRE 902(3).

Were the case ever to get to discovery, Obama would not just print out a copy of the COLB published online and submit it with his affidavit of how he got it. He would provide an "original" stamped copy of the COLB, and in all likelihood, would also provide an affidavit from the appropriate Hawaii DOH official stating that the official is a custodian of records under (cited) Hawaii law; that the records re: Obama were maintained by the DOH according to the law; that attached, certified COLB is a true and accurate copy of the birth records maintained according to that law. Because the COLB is a domestic document, he would not necessarily be required to provide the affidavit under the Rules, but he probably would, to remove all doubt.

[Seizethecarp]

My understanding from Donofrio:

Chester Arthur’s non-citizen father was not discovered until just this year by Donofrio and his sister! Arthur was only suspected of being born in Canada.

It is Arthur’s appointee to SCOTUS who wrote Wong. Some (Donofrio) suspect an attempt to cover for Arthur’s secret non-citizen father. In that decision Wong was deemed a citizen at birth due to his permanent resident parents under the jurisdiction of the US with the same rights as a natural born citizen, not the same as a natural born citizen. Obama’s father was not a permanent resident, only a student, and was “governed by” Britain, as was Obama as stipulated against interest by agents of Obama during the campaign.

Citizen rights are distict from status at birth. All citizen rights are equal, but not all citizen status at birth is equal.

Fuller’s dissent misstates the Wong Opinion, according to Donofrio.

[Seizethecarp]

Orly described Obama’s father as his natural rather than legal father and cited the father's non-citizenship rather then the child of the father being “governed by the BNA of 1948.

This appears to me to be a deliberate attempt to call Obama’s eligibility into question even if discovery were to show that either there was no legal marriage recorded in HI or the marriage was bigamous.

However, absent a legal marriage between Obama’s parents, Stanley Ann was a single US citizen mom and the 1948 BNA would not have made Obama a dual citizen. No foreign sovereign would have any claim over Obama, as the founders stated to be their concern at the time of the drafting the natural born citizen language.

[El Gato]

No foreign sovereign would have any claim over Obama, as the founders stated to be their concern at the time of the drafting the natural born citizen language.

It's not so much claims of foreign sovereigns that the founders were worried about, but actually loyalty to foreign nations and/or their sovereigns. Of course at the time the US was almost unique in not having a sovereign. Switzerland, IIRC, also did not have one at that time.

[Sibre Fan]

From the other thread on this same issue:

Orly has filed a Motion For Reconsideration.

[Non-Sequitur]

She failed to sign them again I see.

[OldDeckHand]

I'll give her this much, in the thousands of motions, briefs and rulings that I've read, this one is BY FAR the most entertaining court filing, ever. Did anyone not laugh out loud when reading it?

Orly must have lost her internet connection the day her "law school" covered justiciability. It's already been well-established that she missed the class on the subject of the locus standi.

[Sibre Fan]

I'll give her this much, in the thousands of motions, briefs and rulings that I've read, this one is BY FAR the most entertaining court filing, ever. Did anyone not laugh out loud when reading it?

I choked on my coffee a few times, yes.

Accusing the court of treason the day after he's threatened you with sanctions for frivolous filings is just ... NOT a good idea.

Accusing a Bush-appointed judge of being subservient to the current Democratic President is ... NOT wise.

On a less hyperbolic note, arguing that the Judge was wrong for dismissing the case (along with the TRO) because local rules grant a "right" to file a response when (a) the local rules do not grant that right and (b) her own motion violates the local rules by exceeding maximum page count and failing to sign it is just ... NOT smart.

Seeking reconsideration of the TRO Order on the grounds that she had no opportunity to file a response to the Motion to Dismiss papers (a completely separate issue) is ... NOT bright.

The list could continue, but - you've already read it, so no need.

[papasmurf]

I agree with the “ample opportunity” part of his statement.

We all told anyone who would listen, and many who wouldn’t. That, especially, included John McCain!

Sarah set up the play, majestically, and McManiac threw the ball out of bounds. Wisconsin, Oct, 2008.