Monday, December 15, 2008

Supreme Court Turns Down Connecticut NBC Case

The U.S. Supreme Court released a new round of orders this morning from its Friday conference, which included the denial of an application for injunctive relief in a Connecticut case, Wrotnowski v. Connecticut Secretary of State, challenging Barack Obama's eligibility to serve as president under the "natural born citizen" requirement of Article 2, Section 1 of the U.S. Constitution. This is the second case the high court has turned down in as many weeks. The proponents of this legal challenge needed the approval of four justices to hear the case. There is speculation that at least two, Justices Clarence Thomas and Antonin Scalia, wanted to hear the case. Thomas resubmitted the Donofrio case to conference after Justice Souter turned down the original application. Similarly, Justice Scalia resubmitted the Wrotnowski case to conference after Justice Ruth Ginsberg turned down the original application. There are other pending cases around the country, but it seems highly unlikely this matter will be reviewed by the Supreme Court before President-elect Obama takes office on January 20, 2009. Note that Indiana's 11 electors meet today at the State House to cast Indiana's electoral votes for Barack Obama.


Anonymous said...

I'm really relieved that this lunacy is about at an end.

Tennessee has the same policy about birth certificates as Hawaii, that not even you can get a copy of the original, just a COLB.

So if Al Gore got the presidency in 2000, you could have asked him to present a birth certificate to prove he was really an American, and that the COLB he has isn't enough.

The reason the allegation happened to Obama is because Al Gore was a white man with a southern accent, and it wouldn't have sounded remotely believable.

I do happen to know one of Indiana's electors (a friends mother), and she has been getting mail like this and we were laughing about it.

It's not going to affect the electors, electors are party activists, if you had elected Republican activists for John McCain, there would have been little doubt where that was going either.

Now as for the Supreme Court, I thank all of them except Thomas and Scalia, you want to talk activist judge....

Concerned Taxpayer said...

"The reason the allegation happened to Obama is because Al Gore was a white man with a southern accent, and it wouldn't have sounded remotely believable."
No, actually, "Almighty," the reason for these blogsites and lawsuits is that for some unknown reason, "The One" doesn't feel like he has to follow convential laws and customs.
If he had nothing to hide, he would merely show his birth certificate.
Instead, he is doing a "John Kerry" and releasing only certain things and controlling even that.
This is the guy that is going to "CHANGE" America.

jbargeusa said...

As I've said before, if Obama showed his original, the right would just latch onto something "wrong" with it - "it's the type fonts! it's the color in the pixels!"
That whole Polarik thing was so badly debunked it limped off to nowheresville.
Oh yes, by the way, did you hear? Obama's grandparents put a "fake" birth announcement in the newspaper because they just knew their son would run for President!
That borders on silly.
Look, I feel your pain.
But sometimes the truth is both painful and simple.
He was born in Hawaii.
His mom is a US citizen.
And he's going to be viewed as a "natural born" citizen in the history books.
That's all.
But I am glad any right winger spends their time on this rather than effectively plotting to blunt the Dems agenda.

Unknown said...

There is speculation that at least two, Justices Clarence Thomas and Antonin Scalia, wanted to hear the case. Thomas resubmitted the Donofrio case to conference after Justice Souter turned down the original application. Similarly, Justice Scalia resubmitted the Wrotnowski case to conference after Justice Ruth Ginsberg turned down the original application.

It is true that this has caused speculation, but apparently it is current practice for resubmitted applications to be submitted to conference. There is a good description of this at Volokh -

Gary R. Welsh said...

Neither the Donofrio or the Wrotnowski case had anything to do with Obama's birth certificate. As has been explained to you multiple times, Barge, Obama's father's Kenyan citizenship made him a dual citizen at birth, a fact he even concedes. There is plenty of credible, historical evidence which suggests no dual citizen could claim natural born status. A legal treatise referenced in past Supreme Court decisions, Laws of the Nation, defines natural born in a way that would definitely exclude Obama from the presidency. It reads:

"The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."

I realize folks like you could give a damn about original intent. It would not be the act of an activist Supreme Court which would take this case. Quite to the contrary, an activist judge would fight tooth and nail to avoid hearing the case, thereby rendering the constitutional requirement for the presidency to be without effect. This "I don't like what that says so we'll just ignore it" is a very slippery slope to say the least.

Ted said...

SCOTUS has now prevented itself from acknowleding the question whether Obama is or is not a “natural born citizen” (as distinguished from “citizen”) three times and counting: First before the Nov 4 general election and twice before the Dec 15 vote of the College of Electors. Other cases on the same question are at, or are heading to, SCOTUS. Whether SCOTUS ultimately decides if Obama is or is not a “natural born citizen” only after the Electors vote, only after Congress acts on the Electors’ vote, prior to Obama’s inauguration, or only after Obama’s inauguration, SCOTUS will have to decide — or the people and/or the military will. The issue no longer is Obama. The issue is SCOTUS.

Gary R. Welsh said...

Again, your lies will not pass here "TheAlmighty" too afraid to identify his comments by name. This has nothing to do about whether Obama is a U.S. citizen. A natural born citizen is not the same as being a citizen. By operation of law, he can be a U.S. citizen because his mother was a U.S. citizen. By operation of law, Arnold Schwarzenegger can be a U.S. citizen by naturalization. Obama can never be a natural born citizen because his father was not a U.S. citizen. A natural born can only be defined at the point of one's birth. Obama was a dual citizen at birth. He cannot be a "natural born" as that term was defined at the adoption of the U.S. Constitution. People deliberately confuse changes in the immigration laws over time defining who can be a citizen with Article 2, Section 1. It has never been amended. The 14th Amendment had nothing to do with Article 2, Section 1.

jbargeusa said...

Actually the arguments have been all over the map: 1) he's born in Kenya 2) his dad wasn't a us citizen 3) the COLB is a fake
4) he's a dual citizen etc.
I have been patiently knocking them down a la wackamole but I haven't tackled the dual citizenship one yet, so that's next.
As for "original intent" that is hardly the end all be all.
I do believe women didn't have anything to do with determining citizenship and black people were considered property in half the union back in the 1700s, so instead of archaic standards I will stick to the law and common sense.
But let me do some research on it and I will get back to you on the issue of "dual citizenship".

jbargeusa said...

This whole argument falls apart because of the idea that it is the father's nationality that defines "natural born".
This was surely the case back in the 1700s when women were viewed as barely human.
But because we have become enlightened and accepted women as being equal to men, a woman who is a US citizen giving birth on US Soil has delivered us a "natural born" citizen.
After all, what if Obama's mother didn't know who the father was?
"He's not natural born because it is the father who determines 'natural born'!" would be an idea whose time came and went back in the middle ages.
Dual citizenship is another story; I haven't researched it yet, but I am here to tell you the paternity of the child carries no greater weight than the maternity in defining "natural born" today.
Original intent basically means someone is trying to game the system.
Very similar to what Obama has been accused of doing, actually.

Anonymous said...

Indeed, if we interpreted the Constitution's original intent, the second amendment does't give you the right to own guns unless you're part of the state militia.

I know a lot of people who own guns, maybe that's what the "Army of One" thing was all about. :P

The Conservatives always give themselves a lot of elbow room when interpreting the Constitution, but we Progressives have to go back to what it would have meant in 1789?

Gary R. Welsh said...

It's irrelevant which of the parents is a U.S. citizen. The U.S. government did not have exclusive jurisdiction over baby Obama when he was born. The U.S. government exercises complete jurisdiction over a natural born citizen.

Anonymous said...

You're also ignoring the United States law that doesn't recognize dual citizenship unless it's with Israel.

So the United States would claim that by being born as a US Citizen, any other claims are forfeit.

He has never had dual citizenship.

Anonymous said...

I should clarify that law was struck down by the Supreme Court, but not until 1967.

6 years after Obama was born.

Afroyim v. Rusk, 387 U.S. 253 (1967)

So at the time Obama was born, the United States did not recignize dual citizenship, it does now.

But there is still no law that this makes you "not a natural born citizen".

That provision is too broad and it's now lending an air of credibility to the Conservative crusaders.

Gary R. Welsh said...

More BS from TheAlmighty. It matters not whether the US allows dual citizenship; the only operative fact we need to know is that Barack Hussein Obama, Jr. was a recognized citizen of Kenya, a British Commonwealth, at his birth. If you want to post any more on this site, you will have to identify yourself. You and I both know you won't.

Mike Kole said...

Not exactly Mr. Current Events, Cthulhu? This year's Heller case resolved the matter of the 2nd Amendment, proclaiming it an individual right (as are all rights contained in the Bill of Rights), not a collective right assigned only to those in a militia.

I think the birth cirtificate case a non-issue, but you damage your position when you are as unaware of the items you hang your hat on.

IndyPaul said...

The 14th amendment is relevent as it defines citizenship to include anyone born in the US, without qualification, and is, obviously, a part of the Constitution. The argument against born in the US equating to natural born relies upon reletively obscure references well prior to the 14th amendment's adoption. To the extent that birth in the US at one time did not result in citizenship (in itself questionable), that is certainly not true following the 14th amendment and the subsequent Supreme Court case in Ark (itself 110 years ago). There the reasoning that Obama is not a natural born citizen falls apart.

Moreover, there has been substantial discussion on this site of previous presidents who had a parent who may or may not have been a US citizen at the time of their births. (i.e. Buchanan, Johnson, Arthur). Yet there is absolutely no indication that this was ever raised as an issue before. I agree with jbarg - the 'original intent' and 'strict contructionist' justices have become every bit as activist as any Judge on say the Brennen Court was. One only need refer to Bush v. Gore and the majority's disregard for states' rights, a strict construction doctrine, therein.

Gary R. Welsh said...

If the 14th Amendment was intended to alter the definition of "natural born" it would have done so explicitly. It is confined to citizenship by its own express terms. That dog won't hunt here, IndyPaul.

IndyPaul said...

There is no definition of "natural born" to alter, which is why you and others espousing that natural born requires 2 citizen parents depend upon documents discussing general notions of citizenship, arguing that they show that ideas of citizenship by birth required that the father be a citizen.
Of course none of these ideas were made law let alone put in the Constitution by amendment, whereas the 14th amendment's definition of citizenship including those born in the US, regardless of the citizenship of their parents, unquestionably is.

Gary R. Welsh said...

If you are too stupid,IndyPaul, to understand that the Constitution talks of "natural born citizen" only in the context of presidential qualification and uses the term citizenship elsewhere, including the 14th Amendment, to apply to citizenship generally, then there is nothing more that I can add to try to educate you on this one. I think this is a case where you see only what you want to see.

IndyPaul said...

Please explain, then, how you conclude that there is a definition of natural born citizen? It is not contained in Article 2, Section 1 of the Constitution.

Without such a definition, you are left with the plain meaning of the words, or delving into differing versions of how one became a citizen at birth, as opposed to by naturalization.

You cannot credibly tie the two in making your argument, then disclaim any relation between the two in rebutting the arguments of others.

Gary R. Welsh said...

Again, you insist on mixing the two. If the 14th Amendment was meant to define "natural born citizens" it would have used that term. It didn't because the framers of the 14th Amendment knew that its meaning was separate and distinct from the definition of a "citizen", a term in Article I. There are many terms in the Constitution which were not explicitly defined; however, all contemporary definitions for the term in legal treatises from the period of the Constitution's adoption make quite clear that a person born of aliens could never be considered a natural born citizen regardless of whether they are born on U.S. soil or not. And again, the only president who got around this requirement is Chester Arthur. He flat out lied about his father's citizenship (he wasn't naturalized until many years after Arthur's birth) and had the family's papers burned which would have proven otherwise. It is only through recent research at the Library of Congress that it has been uncovered that he lied to avoid disqualification under the natural born requirement of the U.S. Constitution.

Ted said...

Since the Supreme Court has now prevented itself from acknowledging the question of whether Barack H. Obama is or is not an Article II "natural born citizen" based on the Kenyan/British citizenship of Barack Obama's father at the time of his birth (irrespective of whether Barack Obama is deemed a "citizen" born in Hawaii or otherwise) as a prerequisite to qualifying to serve as President of the United States under the Constitution -- the Court having done so three times and counting, first before the Nov 4 general election and twice before the Dec 15 vote of the College of Electors -- it would seem appropriate, if not necessary, for all Executive Branch departments and agencies to secure advance formal advice from the United States Department of Justice Office of Legal Counsel as to how to respond to expected inquiries from federal employees who are pledged to "support and defend the Constitution of the United States" as to whether they are governed by laws, regulations, orders and directives issued under Mr. Obama during such periods that said employees, by the weight of existing legal authority and prior to a decision by the Supreme Court, believe in good faith that Mr. Obama is not an Article II "natural born citizen".

IndyPaul said...

Ted, there is no existing legal authority indicating that President elect Obama is not a natural born citizen that could form the basis of a "good faith belief." I expect the response to such an inquiry would be that Obama is a natural born citizen under the plain meaning of the term, which has been widely accepted - he was born in the US.

jbargeusa said...

According to the US Constitution the President has to be a “natural born citizen”.
Does Barack Obama fit the bill?
This has been a thorny one.
First off, original intent: in essence the Founding Fathers wanted to make sure that only “Americans” were President, not foreigners or those who had immigrated.
But oddly, they were vague about it.
Famously there’s no definition of “natural born”, nor is there an enforcement mechanism.
They certainly didn’t import the “common law” of Blackstone in mass, and for good reason. They much disliked the idea that Great Britain could claim them and their progeny as British citizens by simple fiat.
Indeed, it appears that very practice had some input behind the war of 1812.
Certainly they could have easily expressed in plain language “the President must have a father who is an American citizen” or, “The President cannot ever have been a dual citizen” or, well, anything they wanted to say.
But they did not.
Later the issue of citizenship was addressed to nationalize the issue away from individual states (both originally in 1866 then more definitively in the 14th amendment).
Oddly when the 14th amendment was passed, congressmen at that time state that allegiance of the father does define ‘natural born’ but yet they made no case that they were doing anything about the Constitutional requirement for the Presidency.
Indeed the 14th amendment says someone born on US soil and “subject to the jurisdiction thereof” is a citizen (though nothing about natural born).
Now you could read that as being subject to the jurisdiction of the US, and if you’re also under the jurisdiction of Kenya due to the citizenship laws of the British Empire, that’s not a problem, as long as you are under the jurisdiction of US law as well.
Indeed, the 1866 language states that the birth needs to be under the “exclusive” jurisdiction.
But they left that word out of the 14th amendment!
Furthermore the congressmen of the time say that they mean that the 14th amendment is to be “exclusively” subject to the jurisdiction.
Unfortunately, while they said so at the time, they simply didn’t write it that way.
Original intent is a factor, to be sure. But so is plain English.
When you sign a contract, and find yourself in court about it, a judge very well might say, “If you meant that, you should have said so in writing.”
However, it has also been pointed out that the 14th amendment has no bearing on “natural born’ anyway, or that it wasn’t meant to address it.
My own personal gut feeling is that it does, or it was.
In the 14th amendment they were trying to nail down various definitions of citizenship and nationality, and they were trying to shed some light on “natural born”.
But for whatever godforsaken reason, they refused to be explicit.
So where are we?
Barack Obama was born in Hawaii, to US citizen mother and a Kenyan citizen father.
According to British law, the son of a British colony citizen is considered a citizen of that colony.
So Barack Obama very likely did have dual citizenship of the US and of Kenya.
But at the age of 21 his Kenyan citizenship automatically lapsed, in accordance to the Kenyan constitution.
This is where it gets thorny.
There is much literature about “loyalty” – is it to the place of birth, or is it to the bloodline of the father?
Blackstone makes much of it being the place where you were born.
Others go to the bloodline.
There’s simply no definitive answer there, only opinions.
Others state that it is “jurisprudence” or ‘dual loyalty’ that defines the issue.
US Immigration policy puts emphasis on current location of an individual for jurisdiction issues.
The fact that Kenya never attempted to exercise it in the case of Barack Obama, and the fact that his dad soon left the scene, means that the “dual loyalty” was not an act but just an unused theoretical construction.
Certainly Kenya has no current jurisprudence now over Barack.
But because it possibly could have exercised it during his childhood (it did not), does that mean that he is not a citizen who is “natural born”?
I’m guessing not.
Barack Obama is a full fledged citizen. The falling away of Kenyan citizenship occurred without him taking a single step, i.e. “naturally”.
SCOTUS will rule that he is a “natural born” citizen.
Thank you for your time.