“Rudy v. Lee” Supreme Court Case Could Put Spotlight On Obama’s Constitutional Eligibility

[rangerrebew]

“Rudy v. Lee” Supreme Court Case Could Put Spotlight On Obama’s Constitutional Eligibility

The requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution...
 
Last week, our firm filed a friend-of-the-court brief in the U.S. Supreme Court, supporting a patent attorney’s claim that a law mandating an increase in patent application fees was invalid because it was signed into law by President Obama, who does not meet the constitutional requirement to be a “natural born citizen.” The lower courts in the case ruled that the question of President Obama’s citizenship is a “political question” and thus an issue for Congress, not the courts,­ to decide.

Until now, the question of President Obama’s qualifications as a “natural born citizen” has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court–and thus lacked “legal” standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90.00 because of the new law signed by President Obama.
 
Also, until now, no one has questioned the validity of a law signed by the President. Rather, previous cases have sought the removal of President Obama from the presidential ballot or from office altogether. In this case, however, the complaining patent attorney is not seeking President Obama’s removal from office, but simply a refund of his $90.00 and a declaration that, unless he is a “natural born citizen,” President Obama does not have the constitutional authority to sign a bill into law. Yet, the courts are attempting to avoid declaring what the law is based on the judge-made expedient of labeling the issue a “political question.”

In addition to possessing the standing that prior challengers lacked, Mr. Rudy’s case comes at an opportune time ­ just two months after the U.S. Supreme Court unanimously held in National Labor Relations Board v. Canning that an Order of the NLRB was invalid because three members of the board were constitutionally ineligible to serve.

Our amicus brief in Rudy argued that if the U.S. Supreme Court can decide whether members of the NLRB meet the constitutional requirements of their office, it can also decide whether the President of the United States meets the constitutional requirements of his office.

Further, as our brief demonstrated, the requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the President’s sworn oath to “defend, preserve, and protect” the Constitution of the United States.

Many object to any challenge to the eligibility of a president, or presidential aspirant; but if the law is to apply equally to every person, Presidents cannot be deemed to be above the law based on vague tests such as whether the case presents “political question.” Indeed, demonstrating that the term “natural born citizen” is a constitutional requirement that has continuing political significance that needs resolution are questions not just about President Obama, but also about Republicans Marco Rubio, Rick Santorum, Ted Cruz, and others.

Our brief was filed on behalf of U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, U.S. Border Control, U.S. Border Control Foundation, Institute on the Constitution, Policy Analysis Center, and Conservative Legal Defense and Education Fund.

 
 William J. Olson, P.C., Attorneys at Law
 370 Maple Avenue West, Suite 4, Vienna, Virginia 22180-5615
 Phone: (703) 356-5070; Fax: (703) 356-5085
 114 Creekside Lane, Winchester, Virginia 22602-2429
 Phone: (540) 450-8777; Fax: (540) 450-8771
 http://www.lawandfreedom.com

Read more at http://www.westernjournalism.com/rudy-v-lee-supreme-court-case-put-spotlight-obamas-constitutional-eligibility/#OZwmlGSWKewQql7b.99

[MACVSOG68]

Do you have an opinion on this Ranger?

[Oceander]

Further, as our brief demonstrated, the requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the President’s sworn oath to “defend, preserve, and protect” the Constitution of the United States.

Hardly.  Simple grade-school level analysis of the relevant Constitutional language demonstrates the inherent ambiguity.  The text itself states:

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

The ambiguity is whether the clause "at the time of the Adoption of this Constitution" modifies only the clause "Citizen of the United States" or if it modifies both "Citizen of the United States" and "natural born Citizen".

In other words, since the first part of the sentence provides two groups who are potentially eligible, the question is, how are those two groups defined schematically.  That is, does the list consist of:

(a) a natural born Citizen, or
(b) a Citizen of the United States at the time of the Adoption of this Constitution

or does the list consist of:

(a) a natural born Citizen at the time of the Adoption of this Constitution
(b) a Citizen of the United States at the time of the Adoption of this Constitution

?

[Oceander]

Obviously, the above is not without problems since the second listing would, technically, mean that nobody who was not alive at the time of the adoption of the Constitution could be president.  Nevertheless, it still demonstrates the sort of latent ambiguities that can be found in the Constitution.

[MACVSOG68]

Obviously, the above is not without problems since the second listing would, technically, mean that nobody who was not alive at the time of the adoption of the Constitution could be president.  Nevertheless, it still demonstrates the sort of latent ambiguities that can be found in the Constitution.

It does, just as some would suggest the 2d Amendment does.  Assuming though that the Founders did intend for future generations to have a chance at the presidency, the argument over the meaning of natural born citizen was I believe, up until the 14th Amendment, somewhat valid, until put to rest in 1898 with Wong. 

[Oceander]

All of that being said tho', the decision of the Supreme Court is a foregone conclusion:  the Supreme Court will dismiss this case as being a political question.  And the blunt, brutal, basic reason for that is this:  anything else would wholly destroy the United States by making the last 6 years of the federal government null and void, other than, perhaps, the actions of federal agencies exercising powers granted to them by laws enacted prior to Jan 21, 2009.

Any gloss the Court happens to put on the phrase "natural born Citizen" will amount to something along the lines that satisfaction of this requirement can only be judicially questioned prior to the election of any challenged holder of the presidential office, and that once the presidential election results have been certified to the federal government by the respective states, that question has been determined via the political process and can no longer be challenged via the judicial process.

And an underlying principle for such a holding can be found in the mutual respect each branch of the federal government is Constitutionally bound to have for the others, and in the fact that a holding to the contrary would wholly undermine the system of checks and balances written into the Constitution under which each branch has some limited ability to check the actions of the others, but has no ability to completely veto the actions of any other branch.

This latter principle has been articulated since just after the adoption of the Constitution, in the case of Marbury v. Madison.  In that case, the Supreme Court held that (a) the courts, and the courts alone, were the final authority on what any part of the Constitution meant, but that (b) in certain instances what some provision in the Constitution meant was that the courts were not empowered to interfere in the results of that provision.

As an analogous example, the states have varying requirements for a candidate to appear on the ballot for the presidential election.  For example, in Arizona all that is required is that the candidate submit a nomination paper, complete with a notarized, original (photocopied sheets not allowed) signature from the candidate.  In Louisiana, candidates  can either turn in a total of 1,000 signatures from members of their respective party throughout the state. These signatures must include residents of each of the state’s eight congressional districts.  Or, if a candidate prefers, they can submit a filing fee of $1,125.

Conversely, in Illinois, to qualify for the presidential preference ballot, a candidate must submit no fewer than 3,000 and no more than 5,000 signatures.  On top of that,  to qualify for ballot access in a specific congressional district, a candidate must submit 600 signatures per district, for each of the state’s 19 congressional districts.

Certain state requirements have been found unconstitutional, but only on the basis that the requirement violated a candidate's First Amendment right to freedom of speech.  For example, Virginia's requirement that signatures on ballot petitions can only be witnessed by Virginia residents has been held unconstitutional; Libertarian Party of Virginia vs. Judd (4th Cir., 2013).  The petitions for writ of certiorari in that case were denied by the Supreme Court.

However, if a particular candidate fails to contest the residents-only provision prior to the deadline for ballots to be finalized - itself different in the various states - then that candidate has foregone the right to challenge that requirement.  Perry vs. Judd (Dist. Ct. VA, 2012).  As the judge in Perry v. Judd stated, "[ h]ad the plaintiffs filed a timely suit, the court would likely have granted preliminary relief, ....  In essence, they played the game, lost, and then complained that the rules were unfair."

Taken together, these various strands suggest that the Supreme Court is likely to rule that (a) the determination of whether any particular candidate for president is a "natural born Citizen" is to be determined by each state and, in particular, that the guidelines used by each state may vary from those of the others - just as some states have more onerous ballot requirements than other states - and (b) that to successfully challenge either the constitutionality of those requirements, or of the issue whether the states can make that determination at all, a complaining candidate must file suit prior to the time the ballots are complete and certainly prior to the time the presidential election is held.

So, on the first point, the Court could uphold a finding that this is a political question by holding that the Constitution has left that determination to the states and therefore, absent some clear violation of another constitutional right - most likely the First Amendment - there is no standing to contest any particular state's determination.  Further, the Court could hold, although this might just be dicta, that since none of the states objected to his status as a "natural born Citizen" that, by necessary implication, each state did consider him to be a "natural born Citizen" and therefore the question has been conclusively determined and the result cannot be undone by the courts.

If it wanted to punt, the Court could in essence adopt the language from Perry v. Judd and simply hold that the challenge to Obama's qualification as a "natural born Citizen" should have been brought prior to the time he was place on the ballot or, at the latest, prior to the election in which he was elected president, and that even if the Court were to find that the issue of whether a sitting president was a "natural born Citizen" the plaintiff's suit must fail because it should have been brought prior to the presidential elections in which Obama was elected president.


If the Court does end up accepting certiorari in a case like this, it would be very interesting to see how the various members of the Court came out on the issue.  My guess, given the Roberts' Court's penchant for trying to find consensus where possible, is that the Court's holding would be unanimous and would hold that the challenge to Obama's eligibility was too late - that it should have taken place prior to the election - and that there would be a variety of concurring opinions in which some of the justices might suggest that they thought it was a justiciable issue, not a political issue.

[aligncare]

 

[Oceander]

It does, just as some would suggest the 2d Amendment does.  Assuming though that the Founders did intend for future generations to have a chance at the presidency, the argument over the meaning of natural born citizen was I believe, up until the 14th Amendment, somewhat valid, until put to rest in 1898 with Wong. 

I assume you mean United States v. Wong Kim Ark, 169 U.S. 649 (1898)?

Interesting case.  I don't think that it's controlling precedent in this situation because it involved the question of whether an individual who was physically born within the geographic confines of the United States was a citizen of the United States, notwithstanding that his parents were subjects of China at the time of his birth, and holding that he was a citizen by birth.  In the case under discussion, however, the question is - assuming arguendo that Obama wasn't actually born within the geographic confines of the US - whether an individual who is born to a US citizen is a "natural born Citizen" of the United States, notwithstanding that his birth took place outside of the geographic limits of the United States.

That being said, I do think that the case contains some persuasive value, inasmuch as the majority opinion cited to the opinion of Fish, then Secretary of State to Grant, including the following language:

"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it."

"Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father."

Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance (1873) 17, 18; U.S. Foreign Relations, 1873-74, pp. 1191, 1192.

(emphasis mine)


Essentially, this is the basis for dual citizenship, namely, that a child whose father is a citizen of Country A is also a citizen, by birth, of Country A, even if that child's physical birth took place outside the geographic territory of Country A, and within the territory of Country B.  In other words, that child is both a citizen, by birth, of Country A, and a citizen, by birth, of Country B.

The fact that the Court in Wong Kim Ark cited approvingly to Mr. Fish's opinion would be persuasive authority for the proposition that even if, assuming arguendo, Obama was born outside the geographic confines of the United States - say, in Kenya - he was still a citizen, by birth, of the United States (i.e., a "natural born Citizen") because his mother was a citizen of the United States.  Of course, it would go without saying in that situation that Obama would also be a citizen of Kenya.


Personal tangent:  my brother actually was physically born in Kenya, although both of our parents were, and still are, American citizens.  The difference, though, is that we were part of the US consular mission to Kenya and thus, under these arguments, my brother would not be regarded as a citizen of Kenya, notwithstanding that he was born within the physical territory of Kenya.


So, if the Supreme Court really wanted to get ornery and assert its fully authority to not only say what the Constitution means, but to make presidential eligibility as a "natural born Citizen" a justiciable matter, then the Court has reasonable precedent on which it could rely to hold that Obama was a citizen - by birth - of the United States because his mother was a citizen of the United States - an uncontested fact - regardless of whether his birth physically took place within or without the geographic territorial limits of the United States.


That being said, I am still of the view that the Supreme Court will most likely punt and hold that the challenge is untimely, or else hold that the issue of eligibility as a "natural born Citizen" is a political question that the courts cannot weigh in on.

[MACVSOG68]

If the Court does end up accepting certiorari in a case like this, it would be very interesting to see how the various members of the Court came out on the issue.  My guess, given the Roberts' Court's penchant for trying to find consensus where possible, is that the Court's holding would be unanimous and would hold that the challenge to Obama's eligibility was too late - that it should have taken place prior to the election - and that there would be a variety of concurring opinions in which some of the justices might suggest that they thought it was a justiciable issue, not a political issue.

Good analysis (well for an attorney, lol).   

The only conclusion I would question is the possible conclusion by the Court that it would be too late.  I think we are too close to the next election where the issue could arise once again.  If they accept the case, which I doubt, I think they would settle it one way or another.

[MACVSOG68]

That being said, I am still of the view that the Supreme Court will most likely punt and hold that the challenge is untimely, or else hold that the issue of eligibility as a "natural born Citizen" is a political question that the courts cannot weigh in on.

I don't know if that would be the rationale or not but I do agree the Court is likely to punt.  It may simply refuse to accept is as it has done several times in the past.  The two cases involving members of the military were both I believe not accepted by SCOTUS.  And they certainly would have had standing in refusing to comply with an order they believed was not constitutionally given. 

And you're right that Wong wasn't about the issue of natural born citizen, but of citizenship based on birth period.  But the author of the majority opinion reasoned at length that we followed the British norm that anyone (almost) born within the jurisdiction of the realm would be natural born subjects.  Other cases (although not directly ruling on that issue) took a similar position, and none to my knowledge to the contrary.

Federal laws also considered the issue of dual citizenship and allegiance, and handled that by asserting that absent evidence to the contrary US allegiance is assumed.  BTW, my son was born in the Dominican Republic when I served there as a military advisor. 

Bottom line is I agree with you that it is unlikely the Court will take it on, but if it does, I don't think it will simply postpone a final determination, though with Roberts, one can never tell.  And certainly they can punt as being a political issue.  I hope they don't.

Sometimes the simplest answer is right.  If you're born within US jurisdiction or by at least one citizen parent (with exceptions), you're a natural born citizen, versus one who gains citizenship through the naturalization process.

And I despise Obama as much as anyone.  But just to make sure:

                                                                             :vote:

[Bigun]

It does, just as some would suggest the 2d Amendment does.  Assuming though that the Founders did intend for future generations to have a chance at the presidency, the argument over the meaning of natural born citizen was I believe, up until the 14th Amendment, somewhat valid, until put to rest in 1898 with Wong.

You keep asserting that and I continue to say NOT TRUE!

I hope that some day we get a definitive answer as to which of us is right.

[MACVSOG68]

You keep asserting that and I continue to say NOT TRUE!

I hope that some day we get a definitive answer as to which of us is right.

After our last discussion I didn't think you wanted to reengage on this issue.  But feel free to jump in.  Better than a "me too" thread.

[rangerrebew]

Do you have an opinion on this Ranger?

I do.  No matter what the law says, the Supreme Court will find him eligible somehow.  To do otherwise would create a massive problem in government so they will not make him ineligible no matter the law.

[MACVSOG68]

I do.  No matter what the law says, the Supreme Court will find him eligible somehow.  To do otherwise would create a massive problem in government so they will not make him ineligible no matter the law.

I do agree that the SCOTUS would likely not initiate a terrible constitutional crisis and the subsequent social unrest over something that at best has more than one interpretation.  Not sure there's any law here at issue, but rather an interpretation of a phrase that may or may not have been altered by the 14th Amendment.  If OTOH a single district or appeal's court ruled in favor of a plaintiff, SCOTUS might feel compelled to put this to rest. 

[rangerrebew]

Until now, the question of President Obama’s qualifications as a “natural born citizen” has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court–and thus lacked “legal” standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90.00 because of the new law signed by President Obama.
 

This is being very kind to the court system.  How they can rule no one has suffered any personal injury compensable by a court is just wrong - in my opinion - and, as the article says, is a dodge and not a legal principle that makes it a problem.  If is not eligible, the whole world has suffered a compensable loss based on his decisions like people being out of work, corruption sanctioned, apparently, at the highest level of government, using IRS to harass people, etc.  Even if he is eligible, the world has suffered.

[aligncare]

Anyway, our long, national nightmare is almost over. That is, if we can get to 2016 without having a total financial/economic, societal/moral or defense/security collapse. I suspect we'll get there okay and when we do, the golfer-in-chief will be gone. Yaay!! 

[MACVSOG68]

Even if he is eligible, the world has suffered.

But that's not the job of the SCOTUS to resolve, rather the people and Congress.

[Oceander]

This is being very kind to the court system.  How they can rule no one has suffered any personal injury compensable by a court is just wrong - in my opinion - and, as the article says, is a dodge and not a legal principle that makes it a problem.  If is not eligible, the whole world has suffered a compensable loss based on his decisions like people being out of work, corruption sanctioned, apparently, at the highest level of government, using IRS to harass people, etc.  Even if he is eligible, the world has suffered.

Courts can, and do, all the time.  It's not a dodge.  The simplest being lawsuits against municipalities that often have very short notice requirements.  For example, in NYC you have to give the city notice within 90 days of your intent to sue or you lose your case, period.  You are permanently barred from suing.

Even under the common law people lost out all the time.  The most obvious being the common law doctrine of laches - if you sit on your hands and wait an undue amount of time before bringing suit then you lose, precisely because you waited too long and the person you want to sue reasonably relied on that delay.

This whole attempt to attack Obama's eligibility - and to throw the entire country into a fatal disarray - over all of $90 is stupidity on stilts (second cousin to nonsense on stilts).  Its proponents are, to be charitable, "useful idiots" doing the work of the democrats to make the republicans and conservatives, and anyone else who can be tarred with this, look stupid and conspiratorial at the same time.

The Supreme Court won't rule against this idiot because they're too scared to, they'll rule against this idiot because the equities are so far against him it's not even funny (and so is the law, as far as I'm concerned).

[MACVSOG68]

Courts can, and do, all the time.  It's not a dodge.  The simplest being lawsuits against municipalities that often have very short notice requirements.  For example, in NYC you have to give the city notice within 90 days of your intent to sue or you lose your case, period.  You are permanently barred from suing.

Even under the common law people lost out all the time.  The most obvious being the common law doctrine of laches - if you sit on your hands and wait an undue amount of time before bringing suit then you lose, precisely because you waited too long and the person you want to sue reasonably relied on that delay.

This whole attempt to attack Obama's eligibility - and to throw the entire country into a fatal disarray - over all of $90 is stupidity on stilts (second cousin to nonsense on stilts).  Its proponents are, to be charitable, "useful idiots" doing the work of the democrats to make the republicans and conservatives, and anyone else who can be tarred with this, look stupid and conspiratorial at the same time.

The Supreme Court won't rule against this idiot because they're too scared to, they'll rule against this idiot because the equities are so far against him it's not even funny (and so is the law, as far as I'm concerned).

Interesting take.  Thanks.

[Oceander]

Interesting take.  Thanks.

How so?

[Bigun]

After our last discussion I didn't think you wanted to reengage on this issue.  But feel free to jump in.  Better than a "me too" thread.

Thanks but I have nothing to add to what I have already posted elsewhere and all are free to read that at their leisure. http://www.gopbriefingroom.com/index.php/topic,146483.msg594134.html#msg594134

[MACVSOG68]

How so?

The time consideration, not something I had put into the equation. 

[MACVSOG68]

Thanks but I have nothing to add to what I have already posted elsewhere and all are free to read that at their leisure. http://www.gopbriefingroom.com/index.php/topic,146483.msg594134.html#msg594134

So if I understand you correctly, you are "Sourcery" from TOS?  He has been credited with that document on some of the birther sites including one by Leo Donofrio who I'm sure you know.  And it's word for word what you say you authored.  BTW, Sourcery is a regular poster on TOS and has been since '98.  Much of his analysis came from the work of John Greschak beginning in 2008 after the first lawsuit on this issue. 

Anyway, assuming as you say, this is your work, did you and Mr. Rogers ever have any further debates?  I found his counter-arguments on the 14th Amendment interesting.  BTW, you answered questions well and in much detail over there.  I did notice you were going to research the question of one vs two parent citizenship requirements.  Did you ever do that? 

[Bigun]

So if I understand you correctly, you are "Sourcery" from TOS?  He has been credited with that document on some of the birther sites including one by Leo Donofrio who I'm sure you know.  And it's word for word what you say you authored.  BTW, Sourcery is a regular poster on TOS and has been since '98.  Much of his analysis came from the work of John Greschak beginning in 2008 after the first lawsuit on this issue. 

Anyway, assuming as you say, this is your work, did you and Mr. Rogers ever have any further debates?  I found his counter-arguments on the 14th Amendment interesting.  BTW, you answered questions well and in much detail over there.  I did notice you were going to research the question of one vs two parent citizenship requirements.  Did you ever do that?

I am not  and never said that I was. It just happens that I completely agree with what was said and chose to post it here in response to what you said.  I had a long PM exchange with the author at TOS after it was posted there and don't recall that I ever said a word on the thread there.  (I happen to know and respect the author a great deal outside TOSl)

[MACVSOG68]

I am not  and never said that I was. It just happens that I completely agree with what was said and chose to post it here in response to what you said.  I had a long PM exchange with the author at TOS after it was posted there and don't recall that I ever said a word on the thread there.  (I happen to know and respect the author a great deal outside TOSl)

Okay, that would explain your hesitancy at discussing it.  Even though I disagreed with him on his conclusions and some of his facts, he was quite willing to explain and defend his work.  I still think he got his concepts  and some of legal references from Donofrio and Greschak from what I could see.