Is the Judicial Branch Dead?
John,
One of my earliest childhood memories is of my parents talking about Nixon and the Watergate scandal. I remember the newspaper headline: “Nixon Resigns!” President Nixon’s fight against court subpoenas made international news. Yesterday President Obama completely ignored a court subpoena, and the world shrugged.
Obama’s behavior yesterday is even more disturbing than Nixon’s. Nixon at least respected the judicial branch enough to have his attorney’s show up in court and follow procedure. Nixon’s fight in the courts followed existing law. Nixon acknowledged the authority of the judicial branch even while he fought it. Obama, on the other hand, essentially said yesterday that the judicial branch has no power over him. He ordered his attorneys to stay away from the hearing. He didn’t petition a higher court in a legitimate attempt to stay the hearing. Instead he showed complete contempt for the entire judicial branch and for the rule of law. Rather than respecting the legal process, Obama went around the courts and tried to put political pressure directly on the Georgia Secretary of State. When that failed, he simply ignored the judicial branch completely.
The rule of law, and our three-branch system of government, now hang in the balance. If the Georgia court issues a ruling on the merits and an order finding Obama in contempt of court, and if that contempt order actually results in real punishment of some kind, then we will still have a Constitutional Republic. If this doesn’t happen, then Obama will have been rewarded for showing complete contempt for the judicial branch.
Understand that the goal of the Georgia ballot challenge was to have a court rule on the merits of the Constitutional question: Does the term “natural born citizen” in Article II of the Constitution require a Presidential candidate to have two parents that were U.S. citizens at the time the candidate was born? Obama wants to avoid having a court rule on this question. That is why he didn’t show up and ordered his attorneys to not show up. Obama was hoping that the Georgia court would enter a default judgment rather than rule on the merits. If the court enters a default judgment, Obama will have succeeded in avoiding the Constitutional eligibility question. He will then appeal the default judgment, get the appellate court to suspend the default judgment pending appeal, and then delay the appeal until after the primary. This is undoubtedly Obama’s plan.
If the Georgia Court rules that Supreme Court precedent must be followed and therefore Obama simply does not meet the minimum Constitutional requirements to hold the office of President, then we will at least have succeeded in finding one court in the nation willing to do its job. If that court finds Obama in contempt of court, then we still have three viable branches of government. The Georgia court has the authority to do both of these things. The world should be holding its breath.
Unfortunately the world is apparently unaware that our great Republic is on life support. The Roman Empire died a slow death. It’s death was so gradual that few people living at that time probably noticed the individual events that marked the death throes of that great empire. Apparently the same is true of America. Yesterday marked a stunning turn of events in the constant power struggle between the three branches of our government. Our President openly showed that he believes he is completely above the law. I wonder if the court even noticed its own death certificate. We will see in a few days.
I will certainly try to explain this to the court in our proposed findings of fact and law that the court requested we file before February 5th. Please pray with me that Judge Malihi rules on the merits of our case.
All of your encouragement and prayers have been greatly appreciated. They are needed even more over the next few weeks. This battle is FAR from over. And it has taken on importance beyond what we predicted (which is truly astounding). Please tell everyone you know about Obama’s contempt of the judicial branch. Please explain to them what it really means. Even those that agree with Obama politically and disagree with our ballot challenge should be shocked, appalled, and scared of Obama’s contempt for the judicial system.
In Liberty,
Co-Founder
LIBERTY LEGAL FOUNDATION
To BD's #1084:
First place, this is an administrative law hearing on an action initiated to get the Secretary of State to order delegates for the National Convention pledged to Zero off the ballot.
The Ad Law Judge set a hearing.
There isn't any default in the technical sense. The Respondent just didn't appear for the hearing. He had notice and the opportunity to appear and be heard if he chose to do so--he just didn't. The judge might think the petitionor's didn't prove their case in which case he wouldn't enter the order kicking him off the ballot in which case, the failure to appear would not be a problem.
If the judge was convinced by what he had heard or did know, he issues an order based on findings of fact that support his legal conclusion. Assuming Zero's delegates are to be excluded by the order, Zero's position is further prejudiced because if he decides to seek judicial relief vacating the order, he can only rely on the record before the ALJ (at least in most jurisdictions); he doesn't get to put in additional or new evidence that the ALJ's conclusion that he is ineligible is wrong. Since he didn't put in evidence, all he has to rely on is that put in by the petitioners.
The appeal is then to the Secretary of State. How that works is dependent on Georgia Law. Absent a meritorious appeal, the Secretary of State says he will issue an order removing zero from the primary ballot and you assume he will do so.
In most states, the appellant would be required on any appeal to claim that the decision is contrary to law; and/or contrary to the factual record.
It isn't clear to me what the issues really are on eligibility. I view the argument for ineligibility on the grounds of citizenship of zero's father as without merit. I believe some of the petitioner's but not all, were there on the grounds that he was born outside the US. The Best Evidence on the issue and really the only evidence is Zero's statements that he was born in Kenya so presumably and hopefully Orly or our other counsel put in copies of affidavits affirming those statements.
It might also be wise to put in a claim based on information and belief, that there are valid birth certificates attesting the birth of Barack H. Obama II to have occurred in Kenya.
Other evidence of place of birth are the claimed Florida birth documents (the fake birth certificates; the announcement records; etc.). So counsel should also have put in evidence that the birth documents are fake.
If that is really the record, the ALJ's decision excluding delegates should be viewed as sound.
Presumably the Secretary of State affirms the decision.
Zero's remedy then would be to ask a state court to reverse the decision on the same grounds as he sought to have the SOS reverse it.
However in all of the states in which I have practiced, that appeal would be on the record as made before the ALJ--no new facts. The fact that the judge admitted digital copies of the Birth Certificates doesn't accept them as valid certificates but only proves copies were admitted. The judge might view them as valid; he might view them as fake depending on the factual record provided by the petitioners. But on this kind of appeal, at least in most jurisdictions, zero doesn't get to put in additional evidence.
I don't see a Federal issue here on these assumed facts and law. Georgia might elect delegates to the Dem Convention and it might not. Seating of delegates or what they are bound to do depends on the Convention Rules and on Georgia Law.
In theory, all that is at issue here is delgates to the Dem Convention. However if we get to a nomination of zero which I suspect we will not, a new action would lie against the Secretary of State to keep zero off the ballot.
Although findings of fact and conclusions of law in this proceeding would be relevant and introduced at a successor hearing, zero and his counsel would have the right to introduce evidence and reargue the law.
You can't predict how that kind of proceeding would come out because you don't know what facts zero would produce.
And there is at least a reasonable claim that in the case of an adverse decision by the Secretary of State on an appeal, zero would have a federal question and could proceed to federal court on those grounds or on a Bush v. Gore or other equal protection claim.
There is an Erie issue on the extent to which the federal court would review the facts--if the ALJ found he was born outside the US, can the federal court take new evidence on that question not presented to the ALJ? I don't know the answer to that--I think the answer varies by circuit.
My viscerial reaction to this is that the primary election ballot issue is only a dry run for a battle over eligibility to the ballot for electors to the electoral college. Although as one of you point out, getting a decision like this, even at the early stage affecting only convention delegates, will focus the country and the media on the issue as it has not been considered to date.
And it further seems upon a cursory look not supported by research, that the second battle may be more complicated than the first.
So at that point, you would want to have your legal effort prepared for an action in select states immediately following the Democrat convention, assuming that zero is likely to be the nominee.
Seems to me that you would challenge eligilibity in states where you would expect zero to be competitive but which you might win--Florida; Ohio; Pennsylvania; Nevada; Michigan; etc. You would want to know whether your appeal is to the state ballot officer or to a court; in some states, you might be able to start your court proceeding at the same time you started your administrative proceeding before the state ballot officer. You would be in on day one seeking to shorten time; and with an offer of proof which included everything you had.
One of the many things our side did wrong in 2008 was fail to see the need for a coordinated legal effort starting at the appropriate time.
Another avenue that could be considered would be an action by appropriate ballot officers against the Democrat convention and appropriate officers of that convention to enjoin nomination of an ineligible person on the theory that you might be able to pursue that action in federal court as early as this summer.
All that said, and the legal thoughts are only thoughts not supported by extensive legal research, I remain convinced that the only effective legal claim of ineligibility is based on place of birth; that in fact the place of birth is the United States (although not Hawaii); and thus I expect the ineligibility claim to fail as a legal basis for exclusionary relief long term.
I have not seen the actual documentation demonstrating place of birth and so the possibility exists that when such documents are obtained, they may turn out to be as fraudulent as the Hawaii birth documents we have seen. So at a minimum, it seems as though pursuit of an ineligibility case to a decision on the merits is a productive effort because it should ultimately force zero to come up with a description of his true birth situation and parentage.
