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Obama Birth Certificate: Who Determines Presidential Constitutional Eligibility?
Obama Birth Certificate:
Who Determines Constitutional Eligibility?
The 20th Amendment:
The Mechanism for Determining Presidential Eligibility
Questions, questions, questions.
The birth certificate of Barack Obama: is he eligible to serve as president of the USA? Who or what determines the answer to that question?
The issues surrounding the birth certificate and Barack Obama’s citizenship questions continue. Some had speculated that these questions might go away after the election.
But they haven’t.
In fact, a number of lawsuits have been filed asking the courts to determine the eligibility of Barack Obama to serve as President. Are the courts the right place to be asking?
What procedures–if any–determine and ensure the eligibility of an incoming president?
Who’s in charge of determining eligibility of a presidential candidate?
For the folks in New Jersey, is it the NJ secretary of state, as posited by Leo C. Denofrio of Denofrio v. Wells?
Is it the Democratic Party, as put forth in Berg v. Obama? Is it Congress? Is it the Supreme Court?
We asked our favorite fact checker at What’s Your Evidence if she couldn’t find some information on the process–if there is a process–for determining exactly who is eligible for the office of President of the United States of America.
Here’s what she found out.
[Starts below.]
ALSO at DBKP:
The Obama Birth Certificate Questions
* Obama Birth Certificate Controversy: Who Verifies a Candidate is Legit?
* Obama Birth Certificate: WND, Kenya and African Press Internatl
* Obama Birth Certificate Forgery Story Heats up at World Net Daily
* Obama Birth Certificate, Citizenship: SCOTUS Conference Scheduled for Dec 5
* Obama Records: Obama Campaign Still Refuses to Release Medical, Other Records
* Obama Birth Certificate: Ruling in Berg v. Obama Expected In Next Two Days- UPDATED
* Obama Birth Certificate Lawsuit: Obama, DNC Fail to Respond-UPDATED
* Washington Man Files Lawsuit over Obama Citizenship Questions
* Obama College, Medical, Birth Records: Who is Barack Obama?
* Obama Birth Certificate Federal Lawsuit: Video Released On YouTube
* Obama Birth Certificate Federal Lawsuit: Updates, News and Reactions
* Obama Birth Certificate Federal Lawsuit: The Curious Behavior of the Obama Campaign
* Obama, Bill Ayers, and FactCheck.Org: All Have Ties To Annenberg Foundation
The folks arguing that a court should address this issue, are essentially arguing as follows:
“We DEMAND that you, the Courts
ignore the Constitutional limitations on your jurisdiction, and
ignore the Constitutional procedure for determining a President’s eligibility,
in order to
“protect the Constitution” (????) by ruling on whether the Constitutional requirement re: a President’s eligibility has been established.
++++++++++++++++++++++++++++++
PART I: STANDING
First, like McCain before him – Obama asked the court to follow well-established Constitutional precedent generates suspicion and the belief that “he must be hiding something” only with people who do not understand fundamental aspects of basic legal procedure. Again, the irony. The foundation of the .. Berg et al argument, is:
“We DEMAND that you ignore the Constitutional limitation on your jurisdiction – i.e., the Constitutional requirement for standing
in order to rule on the Constitutional requirement for eligibility.”
This is, quite simply, an illogical argument.
To reiterate – McCain was sued at least twice earlier this year on eligibility grounds. (Hollander and Robinson) In both cases, his first responsive pleading was to allege lack of standing.
Was McCain hiding something? Was he hiding something in the case in which he did not produce his birth certificate? No.
He (or his lawyer) was following the most basic of legal procedures – based on the fundamental Constitutional principle that a person must have standing to sue on a Constitutional issue.
Second, the Berg Case (upon which most other cases are based to at least some extent) – did not involve a “simple and inexpensive request.” Indeed, Berg made crystal clear in multiple radio interviews that even if Obama produced the original birth certificate in court, with affidavit, he would not drop the case because there were so many other issues to be resolved (Indonesia, etc.).
(Now – I’ve heard, from multiple people who have bought into this rumor – that “well, might not resolve it for Berg, but would resolve it for me,” … who then go on to raise multiple additional questions showing that .. it would resolve, at most, say # 49 on their 50-item lists of questions. It is disingenuous at best.
Moreover, again, producing it in one case (with the required affidavit authenticating it) may well be relatively inexpensive, although not the $10 people generally mention. There is a cost to getting the affidavits – in drafting them (attorney time); in getting Hawaii official to sign (admin costs to be paid to state), etc.)
Third, to say that filing a standard 12(b)(6) motion re: standing takes “great effort,” is to misunderstand some basic legal procedures. Most firms have standard templates for this, and the motion is very simple (and inexpensive) to draft.
Moreover, because a standing argument is – by law, required to be raised as the first responsive pleading to a case, in order to preserve the defense, an attorney who failed to do that would be, essentially, committing malpractice. (Of course, if for some reason, the plaintiff wanted to be sued, that’d be another story – but that’s .. uhm .. highly unusual. Here, had Obama ignored the standing issue in order to produce the certificate, he would have had to then respond to every other of Berg’s multifarious allegations. (To reiterate – he could not “ignore” standing as to COLB, but assert it as to other claims – either standing exists – or it doesn’t.)
PART II: CONSTITUTIONAL ELECTION PROCEDURE
The second argument …
“We DEMAND that you, the Courts ignore the Constitutional procedure for determining a President’s eligibility”
… is equally problematic.
I’ve addressed the first “ignore,” above — i.e., the irony that people are "outraged" that the Berg Court — like the Hollander Court, the Robinson Court, and countless courts before them – refused to ignore the fundamental Constitutional requirement (established by 200+ years of Supreme Court precedent) that a person must have standing to bring a Constitutional claim — and what factors must be met to constitute "standing." With all due respect, you just can’t have it both ways. If you seek judicial assessment, you have to follow by the judicial rules of procedure. Assessment of substance can not be done in any reliable fashion without compliance with established procedures.
The bigger irony – most especially when conservatives argue for judicial intervention in this situation – is that such folks are essentially asking the court to usurp the Constitutionally-established process for determining this Constitutionally-established requirement. It’s like saying that in order to uphold the Constitution, you must deny this person accused of some gruesome murder – the Constitutional right to a trial by jury. It’s just crazy.
As the Court in Robinson v. Sec. of State, et al (the second 2008 McCain Case) described so well, the Constitution, and enabling statutes – clearly set forth the proper procedure for addressing this requirement:
======== ======== Excerpt ======== ========
“Article II prescribes that each state shall appoint, in the manner directed by the state’s legislature, the number of presidential electors to which it is constitutionally entitled. The Twelfth Amendment prescribes the manner in which the electors appointed by the states shall in turn elect the president:
Federal legislation further details the process for counting electoral votes in Congress. 3 U.S.C. 15. Section 15 directs that Congress shall be in session on the appropriate day to count the electoral votes, with the President of the Senate presiding. It directs that designated individuals shall open, count and record the electoral votes, and then present the results to the President of the Senate, who shall then “announce the state of the vote.” Ibid. The statute provides a mechanism for objections then to be registered and resolved:
"[e]very objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”
Ibid. The Twentieth Amendment further provides,
“if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be elected, and such person shall act accordingly until a President or Vice President shall have qualified.”
It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify.
Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300–02 (1998).
======== ======== ======== ======== ========
Now – the one thing the Robinson court did not address in legal detail (and was not required to do so, but .. necessary for this discussion) – was how electors are decided.
The Constitution does not address how electors are selected and how they vote. That is determined by enabling statutes. And, per the 10th Amendment, that decision is left up to the states.
Under current state law (all 50 states) electors are determined by the popular vote in the given state (with a couple states assigning electors by district). As these laws are not inconsistent with the Constitution, but rather are “enabling” statutes – they are part of the “Constitutional process.”
Thus … the Constitutionally-prescribed process, as enabled by appropriate state and federal statute, is as follows:
1. WE THE PEOPLE VOTE.
We, the People, have the right (and, some would say, responsibility) to vote for our candidate of choice. As the Robinson court noted, “Arguments concerning qualifications or lack thereof can be laid before the voting public before the election.”
Here, we see that that process worked quite well. Dozens of websites, claiming tens of millions of visitors, proclaimed that Obama was not eligible. News media investigated these claims. Some (interestingly, conservative media) – reported on them, essentially refuting them. Other media never reported on the claim because their investigation determined the claims to be bogus.
However, thanks to the same internet that enabled each one of us to look at Obama’s COLB, each interested voter was able to read scores and scores of articles arguing that Obama was not eligible … that Obama was hiding something .. that Obama had not proved his eligibility, etc.
Then, they voted.
Clearly, the majority of voters – the people constitutionally entrusted with making this “qualification determination” in the first instance – made their determination that Obama is eligible for the Presidency. Clearly, the “jury” – i.e., the majority of voters was satisfied with the evidence provided.
2. OUR DECISION IS TRANSMITTED TO THE CONGRESS VIA THE ELECTORAL COLLEGE VOTE
Next up, the Electoral College casts their vote to the Congress, consistent with Constitution Article II and state enabling statutes; about half of which require the elector to cast his/her vote for the "winning" candidate).
3. CONGRESS ACCEPTS VOTE; ADDRESSES QUALIFICATIONS ISSUE
Next, Congress accepts the Electoral College vote and, pursuant to the 20th Amendment, (a) determines whether the elected President qualifies, and (b)takes necessary action if the President is not qualified. Federal statute (3 U.S.C. 15) sets forth the procedures for raising and resolving any objections on the qualifications issue pursuant to the 20th Amendment (as quoted in Robinson excerpt, above).
Thus, essentially, the Constitution entrusted Congress to be the “judge” of this issue.
So – to put the whole process in “court” terms – (a) We, The People/voters are like a Jury – entrusted by the states (per 10th Amendment/state law) to evaluate the evidence and render our verdict; (b) the Constitutionally-established Electoral College is like the Jury Spokesperson, who reports the Voters/Jury’s verdict to Congress; and (c) Congress is like the Judge, empowered by the Constitution to uphold the “jury’s verdict” or – if inconsistent with the Constitution (because the President-Elect does not qualify) – to overturn the “jury’s verdict.”
To advocate that a court step in somehow – and usurp this clearly established Constitutional process – is a bit beyond the pale.
As for as the claim that some have made — i.e., “It should be the duty of … some … authoritative body to confirm citizenship.”
As noted above, it IS the duty of an “authoritative body” – the US Congress. Clearly established in the Constitution.
That being said – what may well change in the future are the individual state laws governing required “paperwork” for declaring one’s candidacy. It appears that some states require the party to file an affidavit (under oath, etc.) that their candidate would be eligible, if elected; other states require the candidate to file such affidavit that s|he would be eligible; and still others don’t even ask about that, determining that it is the party’s duty to obtain such confirmation.
This is understandable, given the Constitutional process already in place to confirm eligibility before permitting the elected President to actually take office (as described above).
That being said, as reported by Jeff Schreiber re: a PA legislator, I expect that some states may modify their laws to require the candidate to submit, with the affidavit, some sort of documentary proof.
HOWEVER – even then, requiring anything more than the legally-recognized COLB would surely be unconstitutional.
Thus, even if all 2008 state laws had a legal requirement that a candidate provide documentary proof of citizenship, Obama would have “met” that requirement with 50 copies of a certified Hawaii COLB.
Check the facts on Berg v. Obama: What’s Your Evidence?
So, the basic safeguards are outlined in the 20th Amendment to the Constitution.
Does this answer all the questions?
Does this answer any of the questions?
We’re sure readers will let us know.
[SPECIAL THANKS to What's Your Evidence? for preparing the above answers and facts about the 20th Amendment.]
by Mondo Frazier
Source: What’s Your Evidence?
images: dbkp file
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The question of “standing” puzzles me. Doesn’t every citizen of the US have standing in a case that involves the potential POTUS? If an illegal president is in office, doesn’t that harm all of us and our country and our future? We, the citizens, do have standing!
Reply
Walt Reply:
December 3rd, 2008 at 12:03
Julie,
The only standing for determining eligibilty after the electors have been chosen is within the Congress. The requirements are quite clear. You need to convince one Congressman and one Senator to submit a written objection.
This was true in 2000 and did not happen.
This was true in 2004. An objection was raised by 31 Democratic Congresspersons and Senator Barabara Boxer. The objection had no traction within the Congress and George W. Bush was elected to a second term.
The process is quite clear and 100% constitutional.
Reply
James Arvey Reply:
December 4th, 2008 at 15:10
We can vote for anyone, qualified, unqualified, martian etc. The qualifications of the candidate elect are determined solely by Congress. They have “standing”, we do not.
Reply
This is perhaps the best laid out argument as to the process for confirmation of eligibility. Every argument made before the courts is null and void as the constitution already provides the mechanism. Even the Donofrio claim that Obama cannot be a “natural born citizen” due to being born with dual naitonality fails on its face due to the fact that both James Buchanan and Chester Arthur were also born with dual naitonality and yet both served as president.
Anybody who doubts the certification of live birth already provided by Barack Obama digitally need find two people to agree with their doubts. One Member of the 111th House of Representatives and one member of the 111th Senate. They need to file their objection in writing.
Good luck with that…
Reply
Sue Reply:
December 3rd, 2008 at 20:16
Can you provide a source for the statement that James Buchanan and Chester Arthur had dual citizenship?
What I have found would indicate that James Buchanan did not have dual citizenship: His father, though born in Ireland, immigrated in 1783. Since the Constitution was adopted in 1787, I believe he would have acquired U.S. citizenship at that time. Buchanan the Pres. was born in 1791 in Penn., the son of U.S. citizens.
Chester Arthur’s father was also born in Ireland, and immigrated to Canada or U.S. about 1814 (i found mention of both). I did not find if he became a U.S. citizen or not. The mother was born in New Hampshire. Arthur himself claimed to have been born in Vermont, though there were rumors he was born in Canada.
Reply
And what would happen if Mr. Obama gets through the process, and it is determined that he is not, in fact, a natural-born citizen of the U.S. Do we have standing at that point to remove him for being a cheater, a liar, and a fraud by placing himself on the ballot in the first place? This all goes back to character if it is true that he is not a natural-born U.S. citizen, meaning that he tried to manipulate the system and the people, and it worked. Does he then get congratulated for not being caught and outsmarting the system? Seems like an awful lot of peer pressure to put on the Congress, to raise an objection after the people voted, and the electors cast their votes. They have crumbled under the pressure for the bailouts …. what makes us think someone would stand up and say …. uh, excuse me, I really would like to object to Mr. Obama’s qualifications … would you mind asking him if he would please be kind enough to show us his real birth certificate? For heaven’s sake … he should have to prove he is eligible and should WANT to for the sake of the American people … the ones who will be paying his salary.
Reply
Walt Reply:
December 3rd, 2008 at 12:25
There is no determination of eligibility after the electoral vote is certified by the Congress. That simple act means Barack Obama is a natural born citizen and no evidence to the contrary can ever be presented. Regardless of any evidence unvcovered after the fact, the simple act of ratifying the electoral votes means that the person so elected is, in fact, eligible under the constitution.
If you believe Barack Obama is not a natural born citizen, convince one Congressperson and one Senator to raise an objection. Then convince a majority of both houses.
Good luck with that.
Reply
Sue Reply:
December 3rd, 2008 at 12:39
Respectfully, I don’t agree with your statement that says … “That simple act means Barack Obama is a natural born citizen” … it means that he “beat the system” and lied to the American people if he is not a natural-born citizen. Again, if we find out after-the-fact that he lied and cheated his way to the White House, there has to be a way to get him out!! He will take an oath to uphold the Constitution … that means he will be committing fraud, perjury, etc. by taking that oath knowing that he, himself, is not even eligible to serve under it.
Reply
Walt Reply:
December 3rd, 2008 at 12:43
Barack Obama has provided a certified copy of his certification of live birth that serves as prima facie evidence in any court proceeding.
But putting that aside, you can still get him out of office via two methodologies.
You must first convince a majority of the House of Representatives to draft and pass articles of impeachment and then you must convince 67 Senators to convict him.
The other way is to vote him out of office in 2012.
Regarless, the absolute latest Barack Obama can hold the office of the presidency is January 20, 2017.
The constitution holds all the answers to your questions. All you must do is read.
Good luck with that…
Reply
wye Reply:
December 3rd, 2008 at 14:49
Walt: I would make one nitpick clarification to your statement: “There is no determination of eligibility after the electoral vote is certified by the Congress. That simple act means Barack Obama is a natural born citizen, as a matter of law.”
I say this because – well, as you may recall, milions of people believed (and still believe) that OJ really was guilty (of the murders) – as a “factual matter.” However, the jury’s verdict of “not guilty” rendered him – not guilty as a matter of law. No subsequent factual evidence that he actually did commit the murders, including a confession, could change that. The case was “closed” as to those charges.
Similarly, millions of people believed that Al Gore won the 2000 election – as a factual matter. However, the SCOTUS decision, which stopped the recount, rendered Bush the winner – as a matter of law. It would not have mattered if any subsequent “voluntary” recount would have determined that Al Gore had, as a factual matter, won. The SCOTUS ruling had the effect of making Bush the President as a matter of law.
As you clarifed in some subsequent comments, if information came out after the election proving that Obama was not, in fact, eligible under Article II, then the process for removing him would be the Constitutionally-established impeachment process.
(And, in the meantime, the most effective steps that folks who don’t believe Obama is eligible can take is to convince their Senator/Representative to properly raise an objection under the procedures established by the Constitution and related federal statutes.)
Reply
Steve Reply:
December 4th, 2008 at 10:18
So..let me be sure I’m clear on this…if he gets throught the process, and evidence later proves that he was not eligible, then that’s too bad for us? I suspect that if that situation ever materializes, this country will suffer severe turmoil and pain, especially those perceived to have been involved in a deliberate cover up.
Good Luck with that
Reply
blaze Reply:
December 7th, 2008 at 20:14
all congress need the boot there r a couple that standup for us like ron paul dennis k ans 2 others,.
We been living in lies like 911 lie! and OBAMA was there 2 take the eyes off of Dr Ron Paul.
And iam sure Obama wasent boren in the US or he would show us the proff and what he did show is crap.
Reply
OK, so the 20th Amendment leaves it up to Congress to object and sort it out, but after Bush, can we trust Congress to stand up and do the right thing ever?
Reply
Walt Reply:
December 3rd, 2008 at 12:26
If you don’t like the constitution, you might want to move somewhere else.
The American People’s standing in the issue ended when the last polls closed on November 4. If you want to alter the outcome now, convince one Congressperson and one Senator you are right and have them convince a majority of Congress.
Reply
Re – the question of standing – I’m suprised nothing was mentioned of Presidential Candidate Alan Keyes and his lawsuit in California. His standing can’t be denied, and he can show direct injury if Obama is shown as an unqualified candidate.
See what Mondo says about that.
Reply
Walt Reply:
December 3rd, 2008 at 12:31
Under the constitution, Alan Keyes has NO STANDING.
Only the Congress can determine the eligibility of Barack Obama now.
Read the flipping constitution.
Reply
Walt Reply:
December 3rd, 2008 at 12:32
One other thing. If Alan Keyes questions the eligibility of Barack Obama, he needs to do what any other American can do after the election.
He needs to convince one Congressperson and one Senator to raise a written objection, and then convince a majority of both houses the objection has merit.
Reply
wye Reply:
December 3rd, 2008 at 14:58
Ed, you might want to read the Robinson Order issued by a California federal court.
You’ll recall that in Robinson, an AIP member, on behalf if his candidate, Alan Keyes, filed an eligiblity suit against McCain. (Like Obama, McCain moved to dismiss on grounds of lack of standing.)
Regarding standing of Alan Keyes as a “competitor,” the Robinsin Court said:
“Plaintiff is a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best. Plaintiff has, therefore, no greater stake in the matter than a taxpayer or voter.”
Now, I agree that this is “one step removed” from Alan Keye’s actually suing. I also recognize that this was a California federal court rather than a state court.
However, the Robinson Court’s characterization of Keyes as an “obscure third-party candidate” with no realistic chance of actually competing and winning indicates that it is likely that a court addressing Keye’s standing will consider him a viable candidate for purposes of standing. (Otherwise, voters could get around the standing issue by announcing their candidacy for President.)
Moreover, while that case was a federal case, state courts will look to federal courts in their state for guidance on federal issues.
Thus, it is theoretically possible that the state court may find that Alan Keyes has standing – but that possibility is not high.
Reply
wye Reply:
December 3rd, 2008 at 15:00
Correction in bold:
However, the Robinson Court’s characterization of Keyes as an “obscure third-party candidate” with no realistic chance of actually competing and winning indicates that it is NOT likely that a court addressing Keye’s standing will consider him a viable candidate for purposes of standing. (Otherwise, voters could get around the standing issue by announcing their candidacy for President.)
Reply
Finally, a voice of reason!!!
Reply
Obama is in FACT not legally and officially president-elect until December 15th (when the electoral college votes are officially cast). Can he be stopped if it is found he is ineligible to be President? Absolutely!
In the case Donofrio vs. Wells, Leo Donofrio as a mere “Citizen” has standing! How? He did it correctly. He took the right approach and went through the proper channels. Be aware his case is in THE SUPREME COURT OF THE US. It has been referred to the full court for a conference this Friday to determine whether or not to hear the case. If he didn’t have standing, his case would not be in the Supreme Court of these United States. If his was a frivolous lawsuit, our nine Justices would not have even wasted a second on this matter. Another attorney, Cort Wrotnowski of Connecticut, is right behind Donofrio with a nearly identical case of his own that is now in the hands of Justice Scalia.
I highly recommend you read Donofrio’s “Application for Emergency Stay”:
http://www.fortheconstitution.com/download.php?f=donofriostayapp.rtf
This is the argument that is now before the Supreme Court.
Please do not assume that because you know “some” or a “piece” of the story, that you know the full story. We are all entitled to our opinions based on what we know, but realize they are all OPINIONS and nothing more! Now it is in the hands of our highest court to decide the FACTS. We don’t decide the facts, they do.
Respectfully, and God Bless
Reply
Jill Reply:
December 3rd, 2008 at 15:28
Donofrio had standing in NJ because NJ is traditionally pretty lenient on who it grants standing to. And his case is NOT ‘being heard’ by SCOTUS — SCOTUS is conferencing on it to see if it will hear the case – which hinges, NOT on Obama’s eligibility, but rather on whether NJ SOS Wells properly ‘vettted’ the candidates on NJ’s ballot.
FTR, any yahoo with pen and paper can submit a case to SCOTUS – it has nothing to do with the ‘merits’ of the case.
And Donofrio’s entire case is here:
“…this proposition leads to the logical conclusion that a natural born citizen is a citizen born in the United States to parents,
neither of which is an alien. Having an alien parent would tie such person at birth to the possibility of other loyalties and laws.”
This, if it were true, would mean that the presidencies’ of Andrew Jackson (son of 2 immigrant parents), Thomas Jefferson, James Buchanan, Chester Arthur, Woodrow Wilson, Herbert Hoover were all unconstitutional. Obviously, such was NOT the intent of the founding fathers, and for Donofrio to make such a claim goes against established precedent.
Reply
Thom Reply:
December 3rd, 2008 at 16:04
Alien parents would mean “not US Citizens” at the time of their child’s birth. It is my understanding that the presidents you cited were born to parents who may not have been born in America, but were Naturalized Citizens. As long as the aforementioned Presidents were born to parents who were legal Citizens at the time of the birth, then it does not matter if they were immigrants. Donofrio argues that Obama’s father was Kenyan and NOT at Citizen at the time of Obama’s birth, and therefore Obama cannot be “natural born”, but is “native born” (according to Donofrio’s distinctions.)
Anything we say is merely conjecture anyway. We’ll see what the Supreme Court has to say on the matter.
Reply
Jill Reply:
December 3rd, 2008 at 16:31
Jackson was the first first-generation American to become president — I can’t find anything supporting the idea that his parents were ‘naturalized’ in any way other than by being ‘here.’ (he was born in 1767)
Reply
Sue Reply:
December 3rd, 2008 at 23:32
Jackson would have been a British subject at the time of his birth, 1767, since the U.S. didn’t exist — we were still a British colony. I believe that he, and all other residents, became U.S. citizens when the Constitution was adopted in 1787. Article 2 Sect. 1 of the Constitution states that the President must be a natural born citizen “or a Citizen of the United States, at the time of the Adoption of this Constitution” — which would apply to Jackson.
Reply
Thom:
Re….your post.
Obama is in FACT not legally and officially president-elect until December 15th (when the electoral college votes are officially cast). Can he be stopped if it is found he is ineligible to be President? Absolutely!
——————
I agree with your statement that Obama is not yet officially president elect until December 15th.”
As for “can he be stopped”? Yes – when Congress convenes to certify (or not) the Electoral College vote.
Conceivably, he could also be stopped if enough Electoral College voters refuse to vote for him on December 15th, although all states’ EC members have already pledge to vote for the “winning” candidate. (See http://www.archives.gov/federal-register/electoral-college/state_responsibilities.html – #1 in discussion for process; see http://en.wikipedia.org/wiki/Faithless_elector for discussion of “faithless electors”; http://www.thegreenpapers.com/G04/EC-Appointed.phtml for list of states whose laws require the elector to vote for the person to whom s/he has pledged; and see http://www.thegreenpapers.com/P08/D-PU.phtml to calculate which/how many have to become “faithless electors” in order to change the final result.)
However, SCOTUS won’t stop it. (Or, to be perfectly precise, it is HIGHLY unlikely that SCOTUS will stop it. Recall that in Bush v. Gore, one of the grounds for reversing the Florida Supreme Court’s order to recount, was that a constitutional recount could not be completed by December 12, when – pursuant to state law – Florida was required to designate its pledged electors. See http://en.wikipedia.org/wiki/Bush_v._Gore ) Given that SCOTUS refused to move/modify any statutory deadlines re: electoral college vote – in a case where the winner was (so Gore argued) substantially in doubt, it is HIGHLY unlikely that SCOTUS would permit delaying those same deadlines in this case. Especially since the Constitution already provides a procedure for determining Presidential qualifications – i.e., Congress).
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“In the case Donofrio vs. Wells, Leo Donofrio as a mere “Citizen” has standing! How? He did it correctly. He took the right approach and went through the proper channels. Be aware his case is in THE SUPREME COURT OF THE US. It has been referred to the full court for a conference this Friday to determine whether or not to hear the case.
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Donofrio had standing in NJ courts because he did NOT challenge Obama’s eligibility. Rather, he challenged the Secretary of State for, allegedly, not following state law regarding the federal election. It has not yet been determined by SCOTUS that he has standing there.
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If he didn’t have standing, his case would not be in the Supreme Court of these United States.
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This statement is factually inaccurate. SCOTUS has not yet ruled on Donofrio’s case (except for Ginsberg’s order denying his initial application – which did not contain the reasons for the denial).
The fact is that anyone can file ANYTHING before SCOTUS. Some cases are rejected by the Court Clerk (consistent with SCOTUS procedure). Many of the 8,000+ cases filed by writ or application each year get thrown out for, among other things, lack of standing. Only about 80 of the 8,000 writs filed each year get accepted by SCOTUS for merits briefing and decision.
From http://library.findlaw.com/1999/Jan/1/241457.html:
“It is an often-expressed view among members of the private Supreme Court bar that the Court now passes over quite a few cases that it should hear. Even so, there is no doubt that most of the responsibility for the extremely low rate of grants of certiorari lies with petitioners. It is as true today as when Justice Harlan voiced the complaint in the late 1950s that “a great many petitions for certiorari reflect a fundamental misconception as to the role of the Supreme Court” and have no chance whatever of being granted. These petitions receive dismissive treatment. Justice Brennan routinely decided that a case was not certworthy by looking at the “Questions Presented” on the first page of the petition — and reading no farther. Justice Brennan could decide so quickly, he explained in a 1973 law review article, because 60% of paid petitions he saw were “utterly without merit.” The Chief Justice, in a more recent article, has chided that 2000 petitions each year are so implausible that “no one of the nine [Justices] would have the least interest in granting them.”
This article (FindLaw) has a great discussion of the general process for those interested. See also http://www.abanet.org/publiced/preview/scprimer.pdf (page 9) and See also Supreme Court Practice, By Robert L. Stern – page 56, et seq. http://books.google.com/books?id=sURrQsdSeI0C&printsec=frontcover&source=gbs_summary_r&cad=0#PPA56,M1 (in which the author notes that 60% of all writs filed are utterly meritless, and another 20%, while seemingly plausible, fail to pass critical analysis – which means that 80% of the cases likely never even get to the actual justices; they’re essentially determined by the law clerks. (More discussion on the law clerks’ role is in subsequent pages of the book).
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If his was a frivolous lawsuit, our nine Justices would not have even wasted a second on this matter.
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This is also inaccurate. First, as a technical matter, if one Justice refers a case – however frivolous – to the full court conference, then the full court conference will meet on it. (As noted above, that does NOT mean that each Justice actually reviews the merits of the writ/application – rather, law clerks do a big part of the screnning process.)
If you browse through the SCOTUS Docket (at http://www.supremecourtus.gov/docket/docket.html), searching for “application,” you will see that in almost* every case where an application was initially denied by a single justice, the second justice refers the case to conference. *I say “almost” because I only searched back through a couple years – and may have missed one or two.
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Please do not assume that because you know “some” or a “piece” of the story, that you know the full story. We are all entitled to our opinions based on what we know, but realize they are all OPINIONS and nothing more! Now it is in the hands of our highest court to decide the FACTS. We don’t decide the facts, they do.
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I agree that we are all entitled to our opinions, based on what we know and how we interpret information.
I will note, however, that our “highest court” will NOT decide the “facts” of this case. That assumption, which I’ve seen on countless blogs and bulletin boards, is simply .. wrong.
In Berg v. Obama, SCOTUS will decide ONLY whether he has standing. SCOTUS will not get into the facts of Berg’s allegations – it is not permitted to do so by law. It has “appellate” jurisdiction to review only whether the decision below was correct. So – assuming, for argument’s sake, that SCOTUS grants Berg’s writ and decides the case, the “best case scenario” for those supporting Berg is that the case gets remanded to the District Court, and Berg gets to start all over – at the District Court level. (See http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States – “Jurisdiction” for a discussion on this issue.)
In Donofrio, the issue (per Donofrio’s request for relief) is that the Court to:
(a) issue a stay prohibiting the use of defective NJ ballots for candidates Obama, McCain, and Calero;
[Note: this point is likely moot now, as all states have already designated their electors, per the law, noted above. Even if not "moot," no factual basis for such a determination was before the lower courts. As noted in http://library.findlaw.com/1999/Jan/1/241457.html, "A sure-fire way to guarantee rapid denial of certiorari is to file a petition disputing findings of fact rather than determinations of law; presenting questions of state rather than federal law; or asking for review of a decision that rested on adequate and independent state law grounds even if the court below also addressed a federal issue." Here, Donofrio is asking SCOTUS to rule on the basis of factual allegations that were not addressed or ruled on in the lower courts– something the Court cannot do – and has never done since the beginning of US history.]
(b) order the NJ Secretary of State to remove those “defective ballots” because, Donofrio contends, they are not “natural born citizens.”
[Note: this point is likely moot now, as all states have already designated their electors, per the law, noted above. See also above note re: SCOTUS resolving/addressing factual issues.]
(c) if the Court agrees that McCain, Obama, and Calero are not natural born citizens, to stay the national election.
[Note: This point is moot now, as the election occurred. See also above note re: SCOTUS resolving/addressing factual issues.]
(d) “In the alternative, while Appellant’s original complaint requested an order staying the ballots until Respondent might complete a proper investigation as to the Presidential eligibility of the candidates, Appellant respectfully submits that the Constitutional issue now before the Court is of the utmost public importance and is also here now before this most Honorable Court as a matter of first impression.”
[Note: See above note re: SCOTUS resolving/addressing factual issues. Here, Donofrio is essentially asking SCOTUS to determine factual issues – i.e., whether Obama is a "natural born citizen" based on factual allegations not addressed or ruled on by the lower courts -- something the Court cannot do – and has never done since the beginning of US history.]
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wye Reply:
December 4th, 2008 at 15:49
Correction: I said, above …
The statement “….pursuant to state law – Florida was required to designate its pledged electors….” was – imprecise. I MEANT to say that Florida was required by state law to certify the election (i.e., complete and certify the recoung) by Dec. 12 (… so that electors could be designated and vote on the (statutorily-mandated) Dec. 15 Electoral College vote.
Apologies for any confusion that caused.
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Appreciative Reply:
December 6th, 2008 at 08:59
Thank you so much for this cogent and detailed explanation.
I would like to note a couple of corrections on minor points above:
You provided this link:
“see http://www.thegreenpapers.com/P08/D-PU.phtml to calculate which/how many have to become “faithless electors” in order to change the final result”
The page linked is actually to a count of Democratic primary delegates — with the pledged vs. unpledged columns being the distinction between the regular and super delegates — you’ll note that the listed candidates are Clinton, Obama, and Edwards. So that won’t help in calculating the electoral college numbers or addressing the “faithless electors” problem.
You wrote:
“This statement is factually inaccurate. SCOTUS has not yet ruled on Donofrio’s case (except for Ginsberg’s order denying his initial application – which did not contain the reasons for the denial).”
Donofrio’s initial application was denied by Justice Souter; see:
http://origin.www.supremecourtus.gov/docket/08a407.htm
I do want to thank you for taking the time to browse through dockets of other cases to see how common the practice is of submitting the petition to conference by a 2nd judge; this is what the court represents its usual practice to be in “A REPORTER’S GUIDE
TO APPLICATIONS” (Prepared by the Public Information Office Supreme Court) http://www.supremecourtus.gov/publicinfo/reportersguide.pdf — so that is more support you can provide to anyone who doubts you.
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wye Reply:
December 8th, 2008 at 23:55
Appreciative,
THANK YOU!
Yep – my error – you are absolutely correct that “The page linked is actually to a count of Democratic primary delegates” rather than the general election delegates. I will try to find the link to the general election delegate list and repost it here.
You are also correct that it was Justice Souter who denied Donofrio’s initial application. Ginsberg denied *Wrotnowski’s* initial application.
And thanks for the link to the Reporter’s Guide to Applications – very helpful!
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Outstanding post and the best analysis I’ve seen to date. Yes, the answers to legal questions are usually found by reading carefully the U.S. Constitution.
Just because something is legal does not prove a person didn’t lie or cheat.
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The idea that the popular vote is the “jury” on eligibility requirements is asinine. The popular vote does not decide the election. “We the people” have no right to vote for President and in fact, we do not vote for President. We are voting for a slate of electors. Those electors have a duty to ONLY elect a President who is qualified under the Constitution to assume the office. If citizens (electors) have no standing to determine who is eligible and it’s left to a partisan Congress, the entire system is corrupted and perverted. Finally there is nothing in the Constitution that REQUIRES electors to base eligibility on nothing more than faith in the candidate. This is what happens when lawyers get involved.
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wye Reply:
December 3rd, 2008 at 19:41
The idea that the popular vote is the “jury” on eligibility requirements is asinine. The popular vote does not decide the election.
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I guess the use of quotes around the words, and the “like a jury” — in order to put in court concepts that folks understand from TV shows – wasn’t clear. It was meant to be metaphorical. Oh well
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“We the people” have no right to vote for President and in fact, we do not vote for President. We are voting for a slate of electors. .
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I agree that we vote for a slate of electors … in many (but not all) states. (Some states don’t include the electors on the ballot; they provide that the residents vote for the President. Then, the electors designated/appointed by the winning political party are deemed, by law, to be the electors for that state.)
In any event, even in the states where we vote for electors, the state statutory codes grant We, the People, the right to vote for President, as our votes for electors of a particular party determines what political party’s candidate’s electors will vote in the Electoral College.
Thus, We, the People, *do* have the right to vote for President, because under applicable law, it is our vote for the candidate that determines the electoral college electors, and those electors vote, *almost* always vote for their party’s winning candidate — which then gets submitted to Congress for confirmation. If anything, it is Congress, not the EC, who determines who is president, because regardless of popular vote, and regardless of EC vote, Congress has the Constitutional power to confirm the EC vote or reject it if the President is not qualified.
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Those electors have a duty to ONLY elect a President who is qualified under the Constitution to assume the office.
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Can you provide a cite to the law which provides that? I can’t find that in the Constitution. And, while I’ve read most of the applicable state statutes regarding the duties of electors, I haven’t seen that requirement in any of them. In fact, the only “duty” addressed is typically the duty to vote for the candidate who won that state’s popular vote. (*See source, below)
Finally, I note that in Ray v. Blair, 343 U.S. 214 (1952), the US Supreme Court held that:
“Where a state authorizes a political party to choose its nominees for Presidential Electors in a state-controlled party primary election and to fix the qualifications for the candidates, it is not violative of the Federal Constitution for the party to require the candidates for the office of Presidential Elector to take a pledge to support the nominees of the party’s National Convention for President and Vice-President or for the party’s officers to refuse to certify as a candidate for Presidential Elector a person otherwise qualified who refuses to take such a pledge.” See Syllabus of Case; see full text of decisionhere.
In other words, SCOTUS has already held that a state law permitting political parties to REQUIRE an elector to take a pledge to support that party’s nominee, and to REJECT any elector who refuse to so pledgs — does *not* violate the US Constitution.
Now, logically, if there is some Constitutional duty for electors to ensure that the “winning” candidate meets the Article II requirements before voting for him/her, then such state statutes would be unconstitutional because, as applied, they effectively *required* the elector to vote for the “winning candidate” regardless of his/her qualifications.
Thus, I’m very very interested in knowing the basis for your statement, because I can’t find any support for it despite rather extensive searches for such support.
*For those interested in the subject of an elector’s duties under state law, you can find a list of the state statutes here: http://www.thegreenpapers.com/G04/EC-Appointed.phtml. You then need to either Google the state code cited there, or go to the states legislature home page, find the link to their statutes, and then review the law there. You then often have to browse around a bit to find all the applicable sections, but it’s doable! I think that this link is a great resource, whatever “side” of this issue you happen to be on.
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If citizens (electors) have no standing to determine who is eligible and it’s left to a partisan Congress, the entire system is corrupted and perverted.
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That may be so, but that’s what the Constitution provides. (And the partisan nature of the first Congress, between federalists and anti-federalists, etc., was just as “heated/divided” as the partisan nature of today’s Congress.)
Of course, We, the People, can opt to amend the Constitution – we have several times in its history. I would not be surprised to see a movement to amend the Constitution coming out of this election. I guess that time will tell
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Finally there is nothing in the Constitution that REQUIRES electors to base eligibility on nothing more than faith in the candidate. This is what happens when lawyers get involved.
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I agree that nothing in the Constitution *requires* electors to base their vote on “faith in the candidate.” So too, *nothing* in the Constitution *requires* electors to confirm that any candidate is “eligible” before voting for him/her. Indeed, Constitution expressly left that aspect of the process in the hands of Congress. And, as discussed/referenced above, many states’ laws DO require the electors to vote for the popular winner or permit the winning party to REQUIRE the electors to vote for the popular winner.
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I read at the WSJ law blog that the Supreme Court has refused to hear the case.
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I find the whole issue to be very disheartening. I feel that the American people have no recourse to get answers to their questions. Trying to find a Congressman to question the eligibility of Obama would be next to impossible. No one wants to touch this with a 10 foot pole. Everyone is afraid of riots. No mention of the millions of people who voted against him. Apparently, they don’t count, they have no rights and no one is afraid that they will riot. If he is found to be ineligible after being sworn in, he has set a dangerous precedent for all future elections. I have a very hard time believing that to be put on a ballot you just have to say you are eligible. It appears to be easier to run for office than to get a driver’s license or a passport. I also am discouraged that no one cares to uphold the Constitution. If the people have no standing and the states don’t have to do anything and the Supreme Court does not want to get involved, I can’t imagine that my Democratic Congressman wants to help resolve this. I know more about “Joe the Plumber” than Mr. Obama. How sad.
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R A Fontana Reply:
March 13th, 2009 at 13:42
I am very disheartened as well. I feel extremely cheated in this election. As I do not fill mr O has truthfully be open with the people just filled their heads with lies and thier eyes with stars.
There is no way he can be a NATURAL BORN CITIZEN. \with all the controversay even of his adoption in Indeonesia, I wonder if he is even a legal citizen at all.
WE THE PEOPLE do have a right to know everything about who lives in OUR White House. I say ok Mr O fire all the attorneys and release all your records to the public, thats if he has nothing to hide. He expects it of other Governmental leaders. So why does he get to hide all his past records?
Who cares about riots, if Mr O was really an above board citizen he would be happy to have all his records produded and open to the public.
I hope he gets caught up and serves the rest of his life in jail for fraud.
Haven’t WE THE PEOPLE be lied to enough!!
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As stated above: …”Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.”
Wondering if you can assist. I can’t seem to find my resource now, yet I do believe there is a judical practice/ruling/statement/law (whatever it’s called?) that specifically states SCOTUS was unable to do anything UNTIL he was pres.elect (obviously due to the sequence that needed to be followed: people–>electors–>congress)
Can you point me in this direction please?
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Relying on the Democrat Congress to actually vet their own candidate is very much like sending the fox to guard the hen house. If this is so clear, then why is it necessary for Mr. Obama and the DNC to send lawyers at great expense to all of the court cases for the apparent sole purpose of blocking the disclosure of what someone who claims to be “open” would have disclosed willingly.
I’m not a lawyer and I don’t claim to understand the Constitutional issues here although it appears the OP has sure detailed them pretty well. I’m just a guy who’s lived a long time and has learned that people who have nothing to hide don’t behave as Mr. Obama is behaving.
If Congress is our only recourse to get the truth out of this devious individual in the White House, we are screwed.
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Ok there is two ways to see this and there is no gray to it. WHERES THE REAL PAPERS as he has ran for PUBLIC OFFICE there are no closed records. So ether he committed fraud with the student aid, making him a liar and thief or when he ran for both offices he has held. Either way you slice it he belongs in jail not the White House. It’s time WE THE PEOPLE TOLD WASHINGTON WHERE TO GET OFF. IT IS FOR THE PEOPLE BY THE PEOPLE. TELL YOUR CONGRESS WE WILL NOT VOTE FOR THEM. THEY ARE THERE TO SERVE US THE PEOPLE OF THE UNITED STATES. Unless we rid ourselves of this communist bastard we will be standing in line asking PLEASE SIR I WOULD LIKE SOME MORE. I REFUSE TO BE SHEEP. This great nation was not built on fraud it has been built by hard work and the blood of our troops that have defended this COUNTRY. So WAKE UP FROM YOUR SLEEP AMERICA BEFORE IT IS TOO LATE.
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