The Indiana Court of Appeals today confirmed a common saying in the legal community that bad cases make bad law. A couple of pro se plaintiffs brought a lawsuit in Marion Superior Court in December, 2008 challenging the "natural born citizenship" status of President Barack Hussein Obama. The plaintiffs named the wrong defendant, Gov. Mitch Daniels, when they sought an "extraordinary writ of prohibition" against the governor "from issuing a Certificate of Ascertainment" or any other document to Congress containing the popular vote outcome of last year's presidential race in Indiana for the appointment of Barack Obama and Joe Biden as "Chief Electors." This complaint brought by Steve Ankeny and Bill Kruse also named the DNC, Barack Obama, the RNC and John McCain as defendants. Secretary of State Todd Rokita, who administers elections in Indiana, was not named as a defendant. Judge David Dreyer dismissed the suit for failing to state a claim upon which relief can be granted, although I give him a lot of credit for the thoughtful consideration he gave to the plaintiffs' embarrassing and poorly drafted complaint. The plaintiffs contended that Gov. Daniels had a duty to ascertain whether Obama was a natural born citizen, and that neither Obama nor John McCain were eligible to hold the office of president because neither were natural born citizens.
In an Indiana Court of Appeals opinion authored by Judge Elaine Brown, the electoral college process for electing our president is spelled out for the benefit of the confused plaintiffs. It explains that the Democratic Party nominated the state's nine electors who actually voted on behalf of Indiana to elect Obama president based on the fact that he won the popular vote in Indiana. The plaintiffs contended that Gov. Daniels had allowed Obama to become Indiana's "Elector in Chief" by permitting his name to appear on the ballot. "Plaintiffs' characterization of the electoral process in the State of Indiana simply is not consistent with the applicable laws," Judge Brown wrote. Something I uncovered a few months ago that has been overlooked by all of the parties is that the certification filed with Indiana's Election Division by the DNC and Indiana's Democratic Party omitted language certifying that Barack Obama was a natural born citizen. That's not a problem though for Judge Brown, who then went on to offer her constitutional interpretation of what "natural born citizen" means, something our U.S. Supreme Court has never done and something she had no obligation to do since there were already sufficient grounds to affirm Judge Dreyer's dismissal of the badly flawed lawsuit.
The only thing I believe the plaintiffs got right in their lawsuit was their contention that a "natural born citizen" is a person born within the U.S. to two U.S. citizen parents. Obama's father was at all times during his life a citizen of Kenya, which at the time of Obama's birth was a British commonwealth. By virtue of his father's citizenship, Obama was indisputably a dual citizen at birth. A person owing allegiance to two countries cannot be described as a natural born citizen in my opinion. The fact that Obama says he never affirmed his British citizenship before the age he was legally required to do so is irrelevant. A fact conveniently overlooked in Judge Brown's decision is that Obama immigrated to Indonesia at age 6 with his mother and became a citizen in that country as well after his step-father adopted him. Sen. John McCain also arguably was not a natural born citizen because he was born in a Panamanian hospital while his father was stationed at a Navy base in the Panama Canal Zone. Both Obama and McCain are U.S. citizens for different reasons, but the term "natural born citizen" is a unique term used in the U.S. Constitution only to define a person's eligibility to serve as president.
In determining that Obama is a natural born citizen, Judge Brown relied on the 1898 Supreme Court decision, U.S. v. Wong Kim Ark, which I've discussed at length on this blog in the past. I give Judge Brown credit for acknowledging that the Supreme Court in that decision did not conclude that Wong, a man born in the U.S. to two Chinese national parents, was a natural born citizen. "We note the fact the Court in Wong Kim Ark did not actually pronounce the plaintiff a 'natural born citizen' using the Constitution's Article II language is immaterial," Judge Brown nonetheless concluded. "Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are 'natural born citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents," Judge Brown concludes. Assuming Judge Brown's interpretation is correct, fellow attorney and blogger, Leo Donofrio, describes best what it means:
If Obama is eligible to be President then so are the sons of Osama Bin Laden, Kim Jong Il and Mahmoud Ahmadinejad if they impregnate an American woman who gives birth on US soil. The very notion is obscene. Such a person might be a US citizen under current policy, but their citizenship is not natural born and they cannot be President and Commander In Chief of the US armed forces.Judge Brown then goes on to assert as fact in a footnote the wild claim that Chester A. Arthur, the 21st president of the United States, was born the son of an Irish citizen. "We note that President Obama is not the first U.S. President born of parents of differing citizenship," Brown writes. "Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen," Brown asserts, citing a 1975 biography on Arthur by Thomas Reeves, entitled the "Gentleman Boss." Brown then goes on to discuss rumors that erupted during his presidency that Arthur was born in Canada and not the U.S. Brown's claim that Arthur's father was an Irish citizen at the time of his birth has never been proven. Indeed, Arthur's father, an immigrant from Ireland, became a naturalized citizen who ran for and was elected to public office during Arthur's lifetime, although it has been debated whether Arthur's father had become a naturalized citizen by the time of Chester's birth. It has been established that Chester lied about the date of his birth and burned most of his family's records to avoid discovery of the deceit over his date of birth.
Brown's opinion notes the authority relied on by the plaintiffs to support their claim that "natural born citizen" requires two U.S. citizen parents but dismisses it completely. "The Plaintiffs do not mention the above United States Supreme Court authority (referring to Wong Kim Ark) in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century," she writes. "To the extent that these authorities conflict with the United States Supreme Court's interpretation of what it means to be a natural born citizen, we believe that the Plaintiff' argument fall under the category of 'conclusory, non-factual assertions or legal conclusions' that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim," she concludes.
It is worth noting that of the dozens of cases that have been brought forth over the past year challenging whether Obama is a natural born citizen, this is the only opinion that has been decided on the merits of the claim that he is not a natural born citizen. Every other decision refrained from making any determination on the actual merit; instead, the courts dismissed the complaints for lack of standing on the part of the plaintiffs to bring the constitutional eligibility challenge. There's a reason other courts failed to reach a conclusion Judge Brown reached in this opinion. It is based upon the long-held rule of constitutional interpretation that a court should refrain from deciding a case on constitutional grounds when the case can be disposed of on other non-constitutional grounds. Procedurally, this case had to be dismissed because the plaintiffs sued the wrong defendant and lacked standing to sue. There was no reason for the court to decide a constitutional question as it did in this case, and that's what makes it so disturbing. Judge Terry Crone and Melissa May signed on to Judge Brown's decision. Gov. Mitch Daniels appointed Judge Brown to the Court of Appeals last year. I bet we won't hear Gov. Daniels complaining about the judicial activism of his own appointees like he did the judges who ruled Indiana's voter I.D. law unconstitutional.
UPDATE: Leo Donfrio, who had his own case before the U.S. Supreme Court from New Jersey denied a hearing, offers this perspective on how the the Indiana Court of Appeal tripped over the natural born citizen issue with this decision:
The Indiana Court of Appeals in the Arkeny and Kruse case has just issued a lame judicial attempt at defining the “natural born citizen” clause. The errors of fact and law incorporated into the decision serve as a beacon outlining the desperation certain government factions now face. Obviously, the British birth issue is getting on their nerves and this was clearly an attempt to derail further national discussion on this issue.
The Indiana Court of Appeals held that the plaintiffs did not state a claim upon which relief might be granted, but then they went ahead and visited some of the underlying merits of the case in a rather cavalier manner. Since any appeal of this decision will be dismissed on other procedural grounds, no appellate court will ever review them on this issue. The upper courts will simply deny the appeal without reaching this aspect. So they took a crack at stopping this in its tracks.
And they failed miserably. And it’s very encouraging. The arguments presented by the Indiana Court of Appeals are weak. The facts used by them are also a fantastic attempt at propaganda. For example:
With regard to President Barack Obama, the Plaintiffs posit that because his father was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the Office of the President. The bases of the Plaintiffs‟ arguments come from such sources as FactCheck.org, The Rocky Mountain News…
That’s interesting. Later in the decision they reject this fact. Amazing. It appears that the Indiana Appellate Court was not willing to accept that Barack Obama Sr. was the President’s father. That alone tells you something was rotten in Denmark. But the legal arguments they proceed upon, particularly their selective quotations from the Minor and Wong Kim Ark cases illustrate a wonderful example of a court acting as one of the advocates.
Their main argument is to state that citizens are only born or naturalized. That fails to take into account the framers (and other original citizens) who themselves were neither born citizens nor were they naturalized. So the Court proves itself a bit wonky on that point. Still, I certainly do not dispute that today all US citizens are either born or naturalized. But that’s not the point. The necessary evaluation requires consideration of the various types of born citizenship. And on this important issue, the Indiana Court of Appeals has failed.
Born citizens can be broken up into three groups:
1. natural born
2. citizens by statute
3. 14th amendment citizens
- All three classes were born as US citizens, but not all three are the same. Persons born abroad are citizens by federal statute.
- A person born on US soil to alien parents who were domiciled here, according to Wong Kim Ark, is a 14th Amendment citizens.
- Natural born citizens are born on US soil to parents who are citizens.
All of the above are citizens, but each reaches their citizenship through different circumstances.
To be “natural born” is a circumstance of citizenship. It is not a separate level of citizenship. All citizens have equal rights. If that was not true, then naturalized citizens would be eligible for the office of President. But they aren’t. This is because the natural born citizen clause is a national security measure, not a right of citizenship. The Indiana Court conveniently ignores this point.
Born citizens are not necessarily bestowed with citizenship in the same way. Some require a statute. Some require the 14th Amendment. Some were natural born and their citizenship was self-evident.
The Indiana court also pointed to dicta in a 7th Circuit Court of Appeals case which labelled two children of an illegal alien as natural born. That case stated:
The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States.
But nothing about the issue was discussed. The children were mentioned in passing dicta. Whether the children were natural born was not an issue in that case. And it was a mistake for the court to say they were natural born.
The Indiana Court of Appeals acknowledges that the Supreme Court in Wong Kim Ark did not hold that the man was a natural born citizen. Essentially, the Indiana court acknowledges that the US Supreme Court exercised judicial restraint, but the Indiana Court of Appeals here doesn’t feel that they are restrained in that regard. How brave of them.
Furthermore, the Indiana Court chose to ignore the most relevant aspect of Wong Kim Ark where the SCOTUS clearly indicated that Wong Kim Ark was not natural born:
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate…and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…’
That tells you right there that the child of the citizen and the child of the alien are not both natural born.
“…and his child… ‘If born in the country, is as much a citizen as the natural-born child of a citizen…”
Justice Gray does a very revealing compare and contrast here:
- he compares two children
- on the one hand, he mentions the US born child of a resident alien
- on the other hand, he mentions the “natural-born” child of a citizen
He clearly states that only one is natural-born: the child of the citizen.
He says that both are citizens. But only the child of the citizen is natural born – for this is what he is comparing the other one to. So the holding indicates Wong Kim Ark was as much a citizen as any other citizen despite not being natural-born.
The Court does not say that the child of the alien is a natural-born citizen.
The Indiana Court conveniently ignored this analysis. And that comes as no surprise to me. They had to ignore it because there was no possible way for them distinguish it.