Friday, December 05, 2008

Turley: Courts Should Hear Obama NBC Cases

Respected constitutional law professor Jonathan Turley doubts claims that Barack Obama does not meet the natural born citizenship requirement. Nonetheless, he believes the standing hurdle should not get in the way of the courts hearing cases challenging Obama's natural born status. He doesn't understand why Obama doesn't produce his original certificate, and he thinks allowing the matter to fester only propels conspiracy theory notions. Turley writes on his blog:

Litigants want a court to review the original birth certificate, which is locked in a state vault. However, they face serious standing problems. I believe that these lawsuits are meritless, but I have great problem with these standing barriers to review. Standing has been so narrowed in the last few decades that there are now some constitutional provisions that seem unenforceable in court for lack of anyone with standing. Moreover, I am not sure why the original isn’t simply produced for a more open review.

Today it was reported today that the certificate was reviewed by an independent group and a conservative organization, which accepted its authenticity. It is a shame for such cases to be resolved on purely technical standing grounds. This is the type of claim that should not be allowed to fester and enter the realm of conspiracy theory on the blogosphere. This is precisely what happened with Chester Arthur who claimed that he was born in Vermont but was thought to have been foreign born in Canada just across the border. The value of court review is to remove such clouds of doubt and to assure citizens that the constitutional requirements have been satisfied. I have included the factual allegations of one complaint below.

It was inevitable that we would deal with this controversy since both John McCain and Barack Obama had people challenging their eligibility. However, still stinging from the Bush v. Gore controversy, this is not the type of case that either conservatives or liberals on the Court will likely embrace — absent the strongest possible evidence.

On Turley's Chester Arthur point, Leo Donofrio, the New Jersey man whose case is now pending before the Supreme Court, says his research of former presidents of parents born abroad confirms they were all born on U.S. soil to parents who were both U.S. citizens with the exception of Chester Arthur. Donofrio says Chester lied about both his mother and father, as well as his own age.

UPDATE: Donofrio's updated research on Chester Arthur can be found here. It is a fascinating read. Donofrio theorizes that Arthur lied about his birth date not because he was born in Canada (he was born in Vermont) but because his father had not bothered to initiate the 5-year naturalization process as soon as he moved to the U.S. from Canada, which meant he wasn't a citizen at the time of Arthur's birth. Donofrio notes that Arthur burned all of his papers, except for the family Bible, which proved his actual date of birth. A lawyer for New York, Donofrio claims, diverted attention away from the real problem by trying to prove Arthur was born in Canada or Ireland. Sound familiar?


Anonymous said...

This case has no legs. I suspect the writ of certiorari will be denied.

IndyPaul said...

I agree, Joshua. It is a novel argument that has no basis in 220 years of law under the Constitution. Natural born rather obviously means those born in the USA. Moreover, Federal Courts have said that only other candidates have standing in Court to challenge the qualifications of their opponents. Even if their had been any question as to Mr. Obama's qualification, Mr. McCain was hardly in a position to challenge them, having been born in the Canal Zone, which was never explicitly recognized as a part of the United States. Finally, New Jersey appoints electors to vote for president, so it seems that a suit against the Secretary of State could address the qualifications of those electors, but not the person for whom the electors vote.

Even though it has no relation to the qualifications of a president, I find the question regarding the presidents' parents interesting as an academic exercise. Donfrio's piece hardly confirms that former presidents' were all born on U.S. soil to parents who were both U.S. citizens. His article with regard to Arthur and Johnson are pure conjecture: "I can find no allegations that Jacob [Johnson] wasn’t a citizen when Andrew was born." "So if William [Arthur] had taken action on being naturalized in his first year, then he very well could have been a US citizen when Arthur was born." He also raises the possibility that Chester lied about his date of birth in order to fix a problem with his father's naturalization date, though he cites to no evidence whatever that William was ever naturalized.

Similarly, Donfrio argues that Buchanan's father was a citizen by virtue of the 'Treaty of 1783', also known as the Treaty of Paris, which ended the revolutionary War, when 'colonists chose to be United States citizens'. Of course there was no such thing as a 'United States citizen' yet - only citizens of individual states. Moreover, Donfrio cites no evidence that Buchanan's father himself so chose Pennsylvania citizenship or retained his Irish citizenship (Ireland was still independent in 1783). The most revealing fact of this discussion is that despite the unanswered questions regarding the citizenship of these presidents' fathers, there is no indication that there was any concern whatever raised abouth these questions at the time of each president's election.

Meanwhile, Turley points out that "it was reported today that the [original birth] certificate [of Obama] was reviewed by an independent group and a conservative organization, which accepted its authenticity." As if verification from the State of Hawaii was not enough.