Posted on 03/31/2015 9:38:45 AM PDT by yoe
You’re welcome. Thank you for your civility as well. I’ve enjoyed the dialog.
If you can find officials who can be convinced of your interpretation of nationality and citizenship, I will be most impressed.
By the way, none of the people who had standing to challenge Barack Obama’s eligibility because they could show DIRECT injury from him being elected filed suit against him. Those people who would have been granted standing are John McCain, Sarah Palin, Mitt Romney and Paul Ryan and/or the Republican National Committee on their behalf.
The first lawsuit in the 2008 election cycle (March, 2008) to be dismissed on standing grounds was Hollander v McCain in which a New Hampshire Republican Primary voter named Fred Hollander sued John McCain and the Republican National Committee due to McCain’s birth outside of the U.S.
This was months before any court challenge to Obama. The Republicans got the case dismissed on the grounds that Hollander did not have standing to bring suit.
http://moritzlaw.osu.edu/electionlaw/litigation/hollanderv.mccain.php
I would think that someone might be able to find pro-life judges who would see a connection between the two issues, but that hasn’t happened yet,
How do we know the Courts, the Congress and Executive Branch officers are aware Obama is ineligible?
Because an Eligibility Clause challenge is very similar to an Appointments Clause challenge. An Appointments Clause challenge is a challenge to the sovereignty of the United States. An officer appointed in violation of the Appointments Clause has their actions voided because the sovereignty of the United States diminished when there is a violation of the Constitution. An Eligibility Clause challenge is to the sovereignty of the United States.
In all cases where an Appointments Clause challenge has been properly made, the challenge must be addressed by the court before a motion to dismiss or a motion for summary judgment are entertained. No court has allowed an Eligibility Clause challenge to be address before a motion ot dismiss or motion for summary judgment is ordered.
The Courts are aware of Obama’s ineligibility and are avoiding it because the judges and other federal officers will be subjected to professional and personal liability if there is a decision on the merits for the allegation a sitting President is ineligible.
Since active judges and the other federal officers in the Executive Branch have a vested interest in the outcome of court challenge to Obama’s ineligibility, the only appropriate action would be to recuse themselves to allow a judge inactive since Jan. 20, 2009 to hear the case. No eligibility challenge has been heard by a judge who will not be directly, personally and professionally effected by the outcome of the trial. If the sitting President is ineligible, then Absolute immunity, Judicial immunity, qualifed immunity, derivative immunity and any other immunity for federal officers is waived.
There are many retired judges who are competent to hear a challenge to Obama’s ineligibility and rule on the merits of the allegations.
That’s always a possibility, but there have been lots of interevening years and Supreme Court ideological compositions to reverse U.S. v Wong Kim Ark.
According to Westlaw (one of the primary online legal research services for lawyers and legal professionals. Information resources on Westlaw include more than 40,000 databases of case law, state and federal statutes, administrative codes, newspaper and magazine articles, public records, law journals, law reviews, treatises, legal forms and other information resources.), the Wong holding has been cited more than a thousand times in subsequent rulings.
In the intervening 141 years since Minor v Happersett, courts have come to equate born citizen and natural born citizen.
I believe primarily because of the Wong ruling’s holding that: “[An alien parent’s] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’
“Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ’subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”
“every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.”
“The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”
There is nothing stopping the Chief Judge in any local, state or federal jurisdiction from appointing a Senior (retired) judge to hear a case. Someone challenging Obama’s eligibility should make that request.
(dryly) Yes, we noticed.
That's why pointing to decisions is such a silly argument. The Founders never intended for the Law to be so convoluted that only a select few had the 'right' to interpret it's meaning. In legal terms, a government edict is void for vagueness if a reasonable person of at least average intelligence could not determine what elements constitute the crime.
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From the last Motion to Dismiss at your link-
Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165 (1964)
So this knowledge of native born despite alien parentage concept was so well known since the time of the founding, it couldn't be found quoted closer than OVER A HUNDRED AND TWENTY ONE YEARS after-the-fact?
And don't even start with the "Blackstone said it meant born in England". I've read the original text, and it says much MORE than that.
The second cite is after the federal government decided in the 50's it could incorporate the Constitution with the laws of the States AND just prior to Kennedy's Immigration Act in the 60's that was the justification of our entire 'anchor-baby flood. There's nothing legitimate there - fruit of the poisoned tree and all that. No, it was just more administrative law... crawling slowly forward and incrementally consuming the Original Intent of the Constitution than was meant to protect our Rights.
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No, you go on believing whatever you will. For me, though, I'll think I'll stick with Madison:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
James Madison to W. T. Barry August 4, 1822
From The Rights of Man, The Rights Of Man, Chapter 4 — Of Constitutions:
If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.Yes, Paine did use the term "native of the country." Does this mean "native born" instead of "natural born?" We have to look at the following statements to answer that question.In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.
Paine refers to Engish examples in order to define this. Paine cites "foreigner" and "half a foreigner" as the oppposite to "full natural" connection to the country. So, what is "half a foreigner?"
It seems to me that "half a foreigner" is a person with one parent who is a citizen and one parent who is not. This person does not have have a "full natural... connection with the country."
Paine wrote plainly of why the Framers did not want "half-foreigners" to be president, and why only people with a "full natural... connection with the country" were allowed to become President.
Paine was widely recognized as the most influential writer of the time of Independence because of his plain writing style that resonated with the common person.
In Part 1 of the same chapter, Paine writes of the general familiarity with the Constitution by the People.
Here we see a regular process — a government issuing out of a constitution, formed by the people in their original character; and that constitution serving, not only as an authority, but as a law of control to the government. It was the political bible of the state. Scarcely a family was without it. Every member of the government had a copy; and nothing was more common, when any debate arose on the principle of a bill, or on the extent of any species of authority, than for the members to take the printed constitution out of their pocket, and read the chapter with which such matter in debate was connected.
Paine's description of the meaning of Article II was written in 1791, and I take it to be reflective of the common understanding of the time. This was, after all, written just two years after the ratification of the Constitution. If Paine said that natural born citizens meant both parents were citizens, then that was the plain meaning.
-PJ
There has been a preference cascade. The issue is nonviable in the current atmosphere. I knew this was going to happen after I saw the first couple of attempts. I realized any further efforts were just going to harden judicial opposition.
Years ago, the NRA wisely avoided causing the exact same sort of preference cascade. In the 1970s and 1980s, the NRA knew better than to push any lawsuits in support of the second amendment. There were simply too many biased liberal judges on the bench at the time.
They waited until much of the judiciary had turned over, picked minimal cases with low outrage quotient to back, and slowly but consistently pushed for the courts to recognize the second amendment as a fundamental individual right.
You might call it "foreplay."
This methodology was not available to people interested in clarifying the eligibility requirements. They had little choice but to pursue a "Let's get it on" strategy. Of course the Prima Donnas wanted to be wined and dined, and when they didn't get their foreplay, they became recalcitrant.
Now it's a bigger mess than ever, and the chances of fixing it are slim to none.
"Wong" itself isn't necessarily wrong. It depends on how you apply it. The court ruled that the 14th amendment granted Wong citizenship, and that is not an irrational claim under the 14th amendment. Wong's parents were permanent residents (Denizens) when he was born, and he grew up in the United States.
He was not an "Anchor Baby". His parents may very well have chosen to naturalize and remain here, but for the fact that was prohibited by treaty.
Where "Wong" goes wrong is when people try to apply it outside of the very narrow scope that applied specifically to Wong. ~Permanent resident parents and born in the country. They were here legally, (legal denizens) and for long enough for him to grow to manhood.
Unfortunately courts subsequently decreed "anchor babies are citizens!" which is a stretch too far for "Wong", but misapplied precedent is hard to correct.
It was only an expression of my determination to believe what my own eyes tell me instead of what's dictated to me by political overlords.
Again...I am SO sorry if you thought I was being insulting.
Have a great weekend!
-PJ
My point was only that the Wong ruling began the process of judges equating 14th Amendment Born Citizens and Article 2 Natural Born Citizens.
Wong Kim Ark’s parents went back to China and never returned to the United States. “Permanetly domiciled” has come to mean having a U.S. address and not being a tourist.
The last of the major state-level challenges to Obama’s eligibility was dismissed on Tuesday in Mississippi.
The lawsuit was a RICO (Racketeer Influenced and Corrupt Organizations) Act civil action alleging a conspiracy to place an ineligible candidate on the Mississippi ballot. The plaintiffs were eligibility attorney Orly Taitz plus several Mississippi residents and the defendants were the Mississippi Democrat Party, Barack Obama, Obama For America, Nancy Pelosi, Hawaii government officials Health Director Loretta Fuddy (now deceased) & state Registrar and keeper of the Obama birth certificate Alvin Onaka, plus Delbert Hosemann, the Republican Secretary of State of Mississippi, and Michael Astrue, the Bush appointed former Commissioner of the Social Security Administration.
This lawsuit was notable because both the plaintiffs and the defendants submitted copies of Obama’s long form birth certificate as exhibits. The plaintiffs’ copy alleged a forgery and the defendants’ copy alleged authenticity and was accompanied by a Letter of Verification from Hawaii state Registrar.
The judge is a Reagan appointee, U.S. District Court Judge for the Southern District of Mississippi, Henry T. Wingate.
Judge Wingate wrote a sixty-four page Memorandum Opinion which granted the defense Motion for Judgement on the Pleadings.
Taitz v Obama s.d. Ms Ecf 118 - Order
http://www.scribd.com/doc/260543303
A Motion For Judgement on the Pleadings “is a party’s request to the court to rule in his/her favor based on the pleadings (legal briefs) on file, without accepting evidence, as when the outcome of the case rests on the court’s interpretation of the law.
A function of a motion for judgment on the pleadings is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings is the proper procedure when all of the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all factual issues, judgment on the pleadings is generally inappropriate.”
No problem at all. I love spirited debate!
I believe this is certainly correct for subsequent courts. I do not think this was the intent of the Wong court, (Plessy v Ferguson) but I am not completely certain about this.
Wong Kim Ark’s parents went back to China and never returned to the United States.
I don't remember for sure anymore, but they may not have had a choice. I *think* the treaty required them to return. In any case, it was customary at the time for people to want to return to China before they died. I think they would also send bodies back when people died. I believe this is mentioned in the Debates on the 14th.
“Permanently domiciled” has come to mean having a U.S. address and not being a tourist.
That is my understanding as well. At the very least some sort of long term Denizen.
An unsuccessful effort was made during World War II in 1942 by the “Native Sons of the Golden West” to convince the Supreme Court to revisit and overrule the Wong Kim Ark ruling, in a case entitled Regan v. King challenging the citizenship status of roughly 2,600 U.S.-born persons of Japanese ancestry. The plaintiffs’ attorney termed Wong Kim Ark “one of the most injurious and unfortunate decisions” ever handed down by the Supreme Court and hoped the new case would give the court “an opportunity to correct itself”. A federal district court and the Ninth Circuit Court of Appeals summarily rejected this contention, each citing Wong Kim Ark as a controlling precedent, and the Supreme Court declined to hear the case.
I think many of have been barking up the wrong tree on this topic for a long time. Last year I realized that the early courts did not count citizenship as having started June 21, 1788, (US Constitution ratified.) they regard citizenship as having started July 4, 1776.
It was the Declaration of Independence that created American Citizenship, not the US Constitution. Therefore, in order to understand the meaning of "natural born citizen", one must look to the document that created it, not the one that merely mentions it 11 years later.
The underpinnings of the Declaration of Independence are "Natural law", a very widespread and dominant philosophy of the early Republic. It's influence is acknowledged in the Declaration's preamble:
...and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them,...
But who's version of "natural law" was the basis for the Declaration of Independence? The Monarchy had their version of natural law ("Divine Right of Kings") and then there was Vattel.
Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.
Gee, That's the same Idea that the founder's had. How about that? :)
The Founders and Framers who were in Congress in 1790 passed a bill and President Washington signed it into law which said: “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”.
The only piece of legislation to use the term “natural born citizen.”
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