Tuesday, December 9, 2008

Obama and the “Natural Born Citizen” Clause

Obama and the “Natural Born Citizen” Clause
by Randall Hoven

On Monday, the Supreme Court decided not to hear the Donofrio case concerning whether Barack Obama is a natural born citizen and therefore qualified to be President. Also, David Horowitz diagnosed those who claim Obama is not natural born as being afflicted with “Obama Derangement Syndrome”; Horowitz told people to “shut up about the birth certificate.” A bad day for those of us in tinfoil hats. Even Michelle Malkin is against us.

Mr. Horowitz whizzes right by the issue of whether or not Obama is constitutionally qualified. He simply says it doesn’t matter. He asked, “What difference does it make to the future of this country whether Obama was born on U.S. soil?”

When the US Constitution is clear on a matter, we are not supposed to rethink “what difference does it make to the future of this country.” If we do this rethinking at every step, we would not need a Constitution; we would merely cogitate on how proposal X will affect our future. In short, no need for a Constitution.

In this case, the Constitution is very clear. Article II, Section 1 states, “no person except a natural born citizen . . . shall be eligible to the Office of President.” No fuzz there. No need to look into penumbras and emanations. If a guy ain’t natural born, he can’t be President.

But, the election already happened. Too late, right? That’s Horowitz’s contention: “How viable will our Constitution be if five Supreme Court justices should decide to void 64 million ballots?”

Again, the Constitution is clear on this in the 20th Amendment:

“If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified. . .” (emphasis mine)

The US Constitution tells us exactly what to do in the current situation. The election is not some kind of deadline. Even the true election by Electors is not the deadline. The deadline is “the time fixed for the beginning of his term.” That would be January 20, 2009. We have not yet reached the Constitutional deadline. The Constitution even hints that there is, or should be, some kind of qualification process: “if the President elect shall have failed to qualify.” (By the way, that part of the Constitution was not written by dead white guys some 200 years ago; the 20th Amendment was ratified in 1933.)

If we find that Obama is not natural born, then the Constitution says Joe Biden shall be President until the President thing gets sorted out. Everything about that is horrible. Unfortunately, it is exactly what the Constitution says we shall do. It does not “suggest”; it says “shall.”

Are we to apply the Constitution only in cases where it is convenient to do so?

Those of us concerned about this, at least some of us, are not driven by keeping Obama out of office. Look, we’re talking President Biden. We’re talking disqualifying the first African-American to be elected President. We are talking Constitutional, existential crisis. Riots in the street, even civil war, maybe. This is a very bad situation.

But for all I know, there is a simple way to get past this. Perhaps some kind of retroactive redefinition of “natural born” that would handle Obama’s particular technicality. I don’t know, I’m not a lawyer. I’m actually hoping someone knows a clean way out of this.

For all I know, the facts of this case could turn out to be wonderful: Barack Obama is indeed natural born and we all live happily ever after. But the facts are key here. If he is not natural born, we should not ignore that fact.

Unfortunately, the facts are not clear. Multiple witnesses say Obama was born outside the US, that his father was not a US citizen and his mother was a minor. If those are the facts, he was not “natural born” per the laws in place at the time. Other cases have advanced different arguments challenging Obama’s eligibility under the natural born citizen clause.

As much as we wish the bad thing to go away, the “evidence” brought forth to prove Obama’s natural born status is next to nonexistent, despite what you might have read or heard. Yes, there was a birth announcement in the Honolulu newspaper at the time. Yes, the state of Hawaii said his birth certificate has been verified. Yes, we’ve seen Obama’s birth certificate and it says he was born in Honolulu.

Each of these claims falls apart upon the slightest examination. For those of you tired of the subject, skip to my Conclusion. For anyone curious about the evidence presented to prove Obama’s natural born status, read on.

The Birth Announcement
A birth announcement in a newspaper means nothing. Although Michelle Malkin waxed a little snarky on this, “Did a fortuneteller place it in the paper knowing he would run for president?” it is fairly common to run such announcements for babies born outside the area of the announcement or even the US. Proud grandparents, for example, could have run the announcement just to let people know they are now grandparents.

The announcement is not exactly informative. It says “Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Hwy, son. Aug 4.” That’s it. It ran on page B-6 of the August 13, 1961, edition of The Sunday Advertiser. It is not an official document of any kind and makes no claim of the location of his birth in any case. It announces a birth, period.

The “Verification”
Here is how the story was reported by KITV: “The state’s Department of Health director on Friday released a statement verifying the legitimacy of Sen. Barack Obama birth certificate.”

That looks pretty black and white — at first glance. And that is how it normally gets reported. But read it again and then the whole article. The above statement simply says the birth certificate is legitimate. The actual quote from the Department of Health director is

“I as Director of Health for the State of Hawai’i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai’i State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures.”

All they did was verify that Obama’s original birth certificate is on record. But that doesn’t tell us what we need to know. What we need to know is where he was born.

Surprisingly, Hawaii happens to issue birth certificates for babies born outside Hawaii. The Hawaiian law on that states:

Certificates for children born out of State. (a) Upon application of an adult or the legal parents of a minor child, the director of health shall issue a birth certificate for such adult or minor, provided that proof has been submitted to the director of health that the legal parents of such individual while living without the Territory or State of Hawaii had declared the Territory or State of Hawaii as their legal residence for at least one year immediately preceding the birth or adoption of such child.

The state of Hawaii did not say what was on the certificate and it won’t release a copy out of privacy considerations. The state of Hawaii simply verified that Obama has a birth certificate on record; it did not verify that he was born in Hawaii.

The released birth certificate
It is often claimed that Obama has already released his birth certificate. What we have is an online copy via the website FightTheSmears.com. There are several significant questions about this certificate.
  • Did this really come from Obama? Is FightTheSmears an official conduit of information from Obama?

  • How genuine is the document? Is it a Photoshopped or Microsoft Word fake, ala Dan Rather’s memo? (I am not a forensic documentarian, so I will remain silent here. Snopes says it isn’t a forgery.)

  • The document itself says, “ANY ALTERATIONS INVALIDATE THIS CERTIFICATE” (emphasis original), and it has been altered by, at least, a redacted certificate number.

  • Most importantly, rendering the previous points moot, this is not Obama’s original birth certificate (the “long form”) and thus does not tell us what we need to know. Even if totally genuine, it is not the document necessary to prove he was born in Hawaii.
As Joe the Farmer reported in the American Thinker, “Even the Hawaii Department of Home Lands does not accept a certified copy of a birth certificate as conclusive evidence for its homestead program. From its website:

In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL.”

The essence of the complaint is that the “Certification of Live Birth” that is used by FightTheSmears, the Annenberg Political FactCheck and others does not have the same information as an original birth certificate, including location of birth.

The irony is that this would not take a protracted trial with tons of evidence and counter-evidence, examination and cross-examination, expert testimony from forensic anthropologists, or satellite imagery. All it should take is for Obama to authorize the release his original birth certificate, the “long form,” the one the state of Hawaii says it has on record.

That’s it; release the real certificate. If the “long form” birth certificate says Obama was born in the US, I think we are done.


But even if it doesn’t, we are not in Constitutional crisis or civil war just yet. Real lawyers could review the law and determine that Obama’s birth circumstances still meet the “natural born” criteria. Let’s get this issue out of the newspapers and the blogs and into a courtroom. A courtroom, you know, where facts and the law are dealt with in this country.

But if that doesn’t end it, we are still not in a crisis. Legislators could come up with some kind of retro-active legislation. I hear it’s been done before. Again, I’m not a lawyer, but it doesn’t seem hopeless.

Only if all of the above fail prior to January 20, 2009, would we be required to follow the constitutional remedy of installing President Biden.

I think this series of actions is what lawyers call due process and due diligence. That, in my mind, is what we should be doing rather than ignoring the entire matter because it is so unpleasant. We should also not be rope-a-doping the legal situation just to push the issue past January 20, 2009. Simply address the issue in a straightforward legal and Constitutional manner. That’s all I ask.

But please, do not tell us to deny the facts, ignore the Constitution and “shut up.” George Orwell reminded us that “Freedom is the freedom to say that two plus two makes four. If that is granted, all else follows.”

Two plus two makes four. And the US President must be natural born.

Randall Hoven can be contacted at randall.hoven@gmail.com or via his website, kulak.worldbreak.com.

Monday, December 8, 2008

The Usurper’s New Clothes

The Usurper’s New Clothes
by Jayme Evans

Intro: Facts are so inconvenient to those brimming with intellectual dishonesty.

“I would remind you that extremism in the defense of liberty is no vice. Let me remind you also that moderation in the pursuit of justice is no virtue.” — Barry Goldwater

A favorite tactic of Communists, liberals, and others on the left is using peer-pressure-laced name-calling to try and marginalize those with whom they disagree. If they can successfully convince enough people that a particular viewpoint is held only by those on the fringes, as opposed to the mainstream, they believe they can successfully discredit that person as a crackpot.

They frequently brandish the labels Hitler, racist and extreme right-wing in their pathetic attempts to banish conservatives who believe in strict constitutional interpretations to the extremities of the political spectrum. But, no matter how many people in this country — or elsewhere — attack my efforts to protect and defend my Constitution, unless and until President-Elect Obama produces his original vault birth certificate for public scrutiny, he will be little more than a usurper; an illegitimate and impotent poseur. And no amount of name-calling, taunts, or questions of sanity, patriotism or intelligence will change that fact. Those tactics only work on the weak-minded and those without the courage of their convictions.

As Americans, we pledge our loyalty to our nation and its founding principles, not to the politicians who’ve destroyed it by abandoning those principles and certainly not to our bloated, collapsing behemoth of a bureaucracy. What I and thousands of other Americans are asking for is not irrational. It is not extreme. It is not a burden. It is a non-negotiable requirement of our Constitution and a prerequisite of any constitutionally elected president.

This is not some cuckoo effort that I am engaged in alone. There are over 150,000 petition signatures and over 60,000 individual letters addressed to the Supreme Court asking for Obama to disclose his vault birth certificate for examination, yet those who attack have done so while lacking complete factual honesty:

“Sorry, but you’re a sick person. It really bothers you that someone without your skin color could be president. Why didn’t you raise these same issues about John McCain, who was born in Panama? You really need to get control of yourself; get some professional help, quickly.”

# # #

“There may or may not be points worth considering in this article but either: a) they are so buried in extremist statements that you have to work really, really hard to dig them out, or b) this article is designed to appeal only to the “lunatic fringe.” In either case, it is a waste of time.”

# # #

“The person referenced should study history. I believe Canada is a fine country and would be very careful about being critical of its leaders. Evans sounds like he should be on FOX.”

# # #

The only context in which I have ever mentioned Obama’s skin color is in the context that he would be the nation’s first back president or to repeat those slurs uttered by other Democrats. The same issues have been raised about John McCain and he was declared by the US Senate to be a natural born US citizen. As for the last comment, although I am American and was criticizing an American politician, I’ll take it as a compliment.

Notwithstanding that one of the many cases against Obama was scheduled for conference on December 5th, mum’s the word in the mainstream media. Not one single syllable. Most who have covered any news of this controversy have given these lawsuits slim chances of succeeding, despite the simplicity of the legal remedy. And all have done so with an ounce of ridicule, such as in Slate Magazine’s “Change They Can Litigate.” In this patronizing attempt to discredit those suing, the author condescendingly refers to “proof of citizenship” (quotes his), lawsuits brought by a professional poker player (as if that matters), sit-ins (a right of all Americans championed by the left) and other attempts to marginalize the plaintiffs and their supporters by making them out as fringe kooks.

Joseph Farah’s WorldNetDaily is not a “fringe” site, but one of the fastest growing sites on the Internet with millions of viewers. One of the suits was brought by Phillip Berg, registered Democrat who also sued Bush over 9/11. Another was filed by Alan Keyes, a 2008 presidential candidate. Obama’s citizenship is only a tangential issue and no one is trying to overturn anything. All we want is proof he was born on US soil. Overturned elections are not a good thing for this country, but quite necessary in order to preserve the integrity of our constitution if Obama is indeed the usurper many believe he is.

Facts are so inconvenient to those brimming with intellectual dishonesty.

It’s rather amusing how those who believe in such drivel as alien abductions, anthropogenic global warming, the Second Gunman or 9/11 conspiracy nonsense involving Bush/Cheney and 4,000 Jews are so quick to condemn this effort as a few loonies with an ax to grind.

The story of Barack Obama’s quest for the presidency nicely parallels the Hans Christian Anderson classic The Emperor’s New Clothes. But in this modern-day version, the young boy who alerts the Emperor to his own nudity is permanently silenced by being dragged off and having his throat slit.

Never forget those who served, fought, and died during the battle of Pearl Harbor.


In the Shadow of Nemesis
by Dr. Edwin Vieira, Jr., Ph.D., J.D.

As this commentary is being written, the latest runaround in the judicial flimflam of “who lacks ‘standing’ to demand production of Barack Obama’s original Hawaiian birth certificate (if one actually exists)” has just taken place. According to a newspaper report, Hawaiian Judge Bert Ayabe has dismissed a suit filed by one Andy Martin, on the ground that Martin “does not have a direct and tangible interest in the vital statistic records being sought, namely the birth certificate of President Obama.”

Perhaps one may gauge the circumspection and even-handedness with which Ayabe approached the case by recalling that Barack Obama is not yet “the President of the United States,” only the ostensible “President elect” once removed (because he has been purportedly “elected” only by the voters, but not yet by the Electoral College as certified by the President of the Senate under the Twelfth Amendment). And the underlying issue in Martin’s suit is whether Obama is even constitutionally eligible to hold the Office of President. So Ayabe’s decision exhibits a rather strong undercurrent of question-begging and special pleading.

In a like vein, Ayabe ruled that Martin was not among the set of individuals to whom Hawaiian law grants a right to inspect birth certificates. Of course, the more important inquiry is whether the restraints Hawaiian law imposes generally on public inspection of the State’s records must yield to an implied cause of action under the Constitution of the United States for any American citizen to establish whether or not Barack Obama in particular is even “eligible to the Office of President” now that his status as a “natural born Citizen” has been (and is being repeatedly) challenged. [See Article II, Section 1, Clause 4 and Article VI, Clause 2]

Worse yet, Ayabe scored Martin for failing to prove that “irreparable harm will occur if the records are not provided.” Perhaps neither Martin nor Ayabe has read my previous article, “Obama Must Stand Up Now or Step Down,” which outlines only some of the more obvious “irreparable harm” that must ensue if an usurper seizes control of the Presidency. But one would hope that a “judge” might have some independent familiarity with the Constitution sufficient to lead him on his own to the correct conclusion. For, as that article shows, substantial “irreparable harm” from such usurpation can be established beyond peradventure simply by reading the Constitution.

Not satisfied with this blunder, Ayabe ruled that Martin had provided “insufficient evidence to indicate that the public interest supports” disclosure of the supposed birth certificate. “There is a reasonable belief that the public would rather preserve confidentiality of vital health records,” Ayabe held. Although that “belief” might be arguably “reasonable” in the general case (yet not very persuasive even there), it is patently, even childishly, ridiculous in this particular case, where only the complete disclosure of the record (if such record exists) can answer the question of Obama’s eligibility, on which America’s future political stability may rise or fall. Can there be any public interest whatsoever in the “confidentiality of [a single] vital health record” relating to a single individual when such continued “confidentiality” plausibly threatens this whole country’s well being?!

So much for Martin’s lawsuit. It would be laughable if its result did not hammer another twisted judicial nail into America’s coffin. Martin’s suit, moreover, is not the last of its type that will be dismissed on purported “standing” grounds, because the judge-contrived rules of “standing” applicable to this situation are sufficiently illogical, non-scientific, and even anti-intellectual — that is, contrived from question-begging and ultimately undefinable, unverifiable, and unfalsifiable legalistic mumbo jumbo — that they can rationalize whatever result judges desire to reach, howsoever illogical, perverse, and even dangerous to the national interest it may be. And, particularly in this situation, judges will desperately desire to escape having to take upon themselves the responsibility for the political consequences — let alone the odium whipped up by Obama’s touts in the big media — that will flow from the courts’ declaring Obama ineligible for the Office of President. Which responsibility and vilification wily judges can craftily evade by denying that voters, electors, candidates, and various other would-be litigants have “standing” to challenge his eligibility. For then the judges can claim both that, on the one hand, they have no authority to declare Obama ineligible because no litigant has “standing” to demand such relief, and that, on the other hand, by dismissing the cases solely on “standing” grounds they have not declared him eligible, either. Perhaps when each judge publishes these rulings, the statue of Justice holding the sword and scales should be replaced in his courtroom with one of Pontius Pilate washing his hands.

Although this poltroonish judicial strategy has succeeded in some areas in the past, it will prove bootless, as well as myopic, in this case. The next steps in the process of selecting a President are: (i) for the Electoral College to vote, and then (ii) for Congress to count those votes. The Twelfth Amendment provides (in pertinent part) as follows:

The electors shall meet in their respective states and vote by ballot for President * * * ; they shall name in their ballots the person voted for as President * * * and they shall make distinct lists of all persons voted for as President, * * * and of the number of votes for each, which lists they shall sign and certify, and transmit sealed * * * to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. * * *

The Amendment specifies no grounds, procedure, or standards on or by which any elector’s vote may be challenged for any cause, by either the Electors or Members of Congress. But Congress has enacted a statute that partially addresses this matter:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States * * * ; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted * * *, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every 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 to any vote or paper from a State 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; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified * * * from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. * * * [Title 3, United States Code, Section 15 (emphasis added)]

Even if this legislation is itself a constitutional implementation of the Twelfth Amendment under the Necessary and Proper Clause (Article I, Section 8, Clause 18), it does not purport to provide for, let alone guarantee, a correct result:

First, without an objection “signed by at least one Senator and one Member of the House of Representatives” no inquiry at all can go forward. Yet the mere absence of an objection — particularly without any explanation — cannot preclude the possibility that an Elector’s vote ought to be the subject of an objection and may prove on examination to be objectionable. Indeed, in these times, the very absence of an objection may indicate only that “the good old boys” in Congress — Democrats certainly, and Republicans most likely, too — have “cut a deal” among themselves behind the scenes in order to suppress an investigation the inevitable and unavoidable results of which would demonstrate the utter bankruptcy, if not criminality, of the present electoral process — in that an individual possibly not “eligible to the Office of President” and his handlers may have managed to bamboozle, bribe, blackmail, or otherwise subvert, suborn, or silence both of the “two” major political parties, the big media, the pundits, and every public official with civil or criminal jurisdiction over elections throughout both the General Government and the States.

Second, although a correct result requires a complete inquiry into an objection, with appropriate findings of fact and law supported by competent evidence, the statute merely requires “a decision” each from the Senate and the House of Representatives. On what basis and with what formality and content these “decision[s]” are to be made the statute does not specify. For instance, are the Senate and the House to hold hearings, to and at which witnesses will be subpoenaed and documents will be required to be produced for inspection and analysis? What rules of evidence will apply at these hearings? Who will have the ultimate burden of proof? What will be the standard of proof — a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt? The queries are legion, the answers unknown.

Yet the Constitution demands that, if such an inquiry is held, it should arrive at the correct conclusion with sufficient evidence in support. After all, the question of Obama’s eligibility vel non is not within the discretion of Congress to skirt or to decide as its Members may deem politically or personally expedient. Even by unanimous vote, Congress cannot constitutionally dispense with the requirement that Obama must be “a natural born Citizen,” by simply assuming that he is such, or by accepting something other than what lawyers call “the best evidence” (in this case, his supposed original Hawaiian birth certificate, as opposed to some purported “certification of live birth” computer-generated only decades later).

Therefore, if no objection at all is made to any Elector’s vote for Obama — or if no objection to an Elector’s vote on the specific basis that Obama is not a “natural born Citizen” (and therefore the Elector cannot constitutionally vote for him) is allowed — or if such an objection is allowed, but no searching and complete inquiry, or no inquiry at all, is had — or if partisan Senators and Representatives jury rig “decision[s]” that whitewash Obama on the facts or the law — or some other gross irregularities appear in the process — then thereafter the matter cannot be said to have been settled to a constitutional sufficiency. Congress simply cannot “waive,” or simply flub, the Constitution’s eligibility requirement “to the Office of President” by inaction, or incompetent action, or collusive action

In sum, if the statute does not guarantee (within human competence) that a correct answer to the question be had, then it cannot be deemed to be the exclusive remedy in the premises if (as will be discussed below) a better remedy is available. Moreover, even if the statute is employed to hear and decide challenges to Obama’s eligibility, the resulting “decision[s]” must provide assurances to a moral certainty that the correct answer has indeed been obtained in both fact and law — otherwise, further inquiry needs to be had in other fora. For the consequences of an incorrect answer on the ultimate issue, later exposed as such, are far too serious to allow for any lesser degree of surety. Never were the stakes from a game of “truth or consequences” higher than they are now.

Assume, however, that no inquiry, or only a perfunctory inquiry, or only an obviously tainted inquiry takes place at the stage of counting the Electors’ votes. Is the issue then forever foreclosed? Not at all. For a extensive class of litigants who absolutely do have “standing” to challenge Obama’s eligibility will come into existence, and demand relief as a matter of undeniable constitutional right and practical necessity, as soon as Obama’s Department of Justice attempts to enforce through criminal prosecutions some of the controversial legislation that the new Congress will enact and Obama will sign — such as statutes aimed at stripping common Americans of the firearms to which (in Obama’s derisive terminology) they “cling.”

For example, in a criminal prosecution under a new statute that reinstates the Clinton “assault-weapons ban” (or some equally obnoxious affront to Article I, Section 8, Clauses 15 and 16 and the Second Amendment), the defendant will undeniably have “standing” to challenge the indictment on the grounds that no statute imposing such a ban even exists, because the original “Bill which * * * passed the House of Representatives and the Senate” was never “presented to the President of the United States”, and therefore could never “become a Law,” inasmuch as the supposed “President,” Barack Obama, being constitutionally ineligible for that office, was then and remains thereafter nothing but an usurper. [See Article I, Section 7, Clause 2 and Article II, Section 1, 4]

Plainly, a criminal trial arising under a supposed law of the United States is a “Case” to which “the judicial Power [of the United States] shall extend”; and the defense as well will raise a specific issue “arising under th[e] Constitution, [and] the Laws of the United States.” [Article III, Section 2, Clause 1] The defendant will be suffering serious “injury in fact:” namely, a criminal indictment and a compulsory trial, with the possibility of a conviction, imprisonment, and, if the infraction is called a “felony,” the forfeiture of many civil rights even after his release from incarceration. The prosecutor on one side and the defendant on the other will be adversaries espousing diametrically opposed and irreconcilable positions — so the “Case” cannot be deemed in any way collusive. The purported statute’s invalidity by virtue of its legal nonexistence will be “ripe” for decision, because the statute is the basis for the indictment, and its invalidity the foundation of the defense to the charge. And, unless and until the prosecutor importunes the court to dismiss the indictment with prejudice, the issue of the putative statute’s legal nonexistence and inapplicability to the defendant will be anything but moot.

In addition, the entire matter certainly does not raise a nonjusticiable “political question.” As Chief Justice John Marshall explained, “[t]he province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.” [Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)] That definition excludes the hypothetical criminal case under consideration here:

First, “the rights of individuals” will most assuredly and palpably be involved: namely, the right not to be deprived of liberty without due process of law. [Amendment V]

Second, the question at issue will not be “political,” in the sense that it asks “how the executive, or executive officers perform duties in which they have a discretion.” Rather, the question will be whether Obama is or even could be “the executive” at all. Self-evidently, Barack Obama (or anyone else, for that matter) can enjoy no “discretion” to pretend to be the President if he is not even eligible for that office in the first place.

Third, the question at issue will not have been “by the constitution and laws, submitted to the executive.” It is not for Obama (or anyone else in his position) unilaterally to determine that he is eligible for the Office of President, with everyone else in the country required to take his unsubstantiated word for it. “[T]he constitution and laws” do not extend to an usurper a license to perpetuate his usurpation simply by denying — indeed, falsely denying — that he is such. And if Obama honestly believes that he can prove his eligibility to We the People’s reasonable satisfaction, the Constitution actually requires him to do so when challenged: For the President must “take Care that the Laws be faithfully executed.” [Article II, Section 3] “Th[e] Constitution * * * shall be the supreme Law of the Land.” [Article VI, Clause 2] The Constitution declares that “[n]o Person except a natural born Citizen * * * shall be eligible to the Office of President.” [Article II, Section 1, Clause 4] And if the latter provision is to “be faithfully executed” by Obama as “President,” and the objective evidence necessary for that execution is in Obama’s own hands or subject to his control, then Obama, as the “President” whom he claims to be, must bring forth that evidence sine die in order to fulfill the very duty that he has taken an “Oath or Affirmation” to “faithfully execute.” [Article II, Section 1, Clause 7]

Fourth, (as explained above) the Twelfth Amendment and the relevant Congressional statute purporting to implement it do not render the question closed (and therefore arguably “political”) — unless Congress has actually performed a constitutionally sufficient inquiry, based upon all of the available evidence, that is at least as searching, thorough, and politically neutral as might be conducted in a proper court of law by actual adversaries.

Fifth, notwithstanding whatever may have happened when the Electors’ votes were counted, thereafter the political branches of the General Government have affirmatively committed this issue to the final determination of the courts. The hypothetical “assault-weapons” statute was enacted by Congress and signed by Obama, with the intention that it be enforced through criminal prosecutions. The statute’s enforcement is actually before the court, at the insistence of the Legislative and Executive Branches. The statute’s constitutionality is being challenged by an individual directly injured through its application to him. “It is emphatically the province and duty of the judicial department to say what the law is.” [Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)] And if there is no true “President”, because Obama is not “eligible to the Office of President”, then the statute is not simply “unconstitutional” but even is nonexistent, and the indictment an absolute nullity.

Sixth, the question of whether Obama is “eligible to the Office of President” is eminently within the jurisdiction, competence, experience, and workaday procedures of the judiciary to answer. Courts are thoroughly familiar with how to subpoena witnesses, compel the production of documents, establish the authenticity of documents through objective forensic analyses and the testimony of disinterested experts, and otherwise ascertain facts through application of the rules of evidence in adversarial litigation. Conversely, this is not what ordinary voters or Electors do, or are competent to do. And if it may be what the Constitution authorizes Congress to do in some circumstances, as hypothesized in this situation Congress has not done and will not do so to a constitutionally sufficient degree.

Moreover, Congress cannot perform a simulacrum of this procedure by “remov[ing Obama] from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” [Article II, Section IV] For, if he is not “eligible to the Office of President” at all, then Obama is not “the President,” and therefore cannot be removed from an office that he does not, and cannot, even occupy — and has never occupied. In addition, even if “Impeachment” of a plain usurper were constitutionally possible, Congress could not “waive” its duty in that regard, do nothing, and collude with the pretender in order to enable him to continue his imposture indefinitely.

Seventh, the defendant in this hypothetical criminal prosecution can invoke the Sixth Amendment: namely, “In all criminal prosecutions the accused shall enjoy the right * * * to have compulsory process for obtaining Witnesses in his favor * * *.” Presumably, a properly represented defendant would subpoena Obama himself as the indispensable witness, requiring him to bring into court whatever records were in his possession or subject to his control that in any way evidenced, related to, or referred to the time, place, and circumstances of his birth, or to his citizenship, application for citizenship, renunciation of citizenship, or oath of allegiance in or to any country. This would include the original of his supposed Hawaiian birth certificate; every subsequent Hawaiian “certification of live birth” or like document created by public authorities; every other “birth certificate” or equivalent document whenever, wherever, and by whomever generated in the name of “Barack Obama” or any of his several other names; every document submitted to an educational institution that contained information or representations concerning his place of birth or citizenship; and so on. In the interest of expediting the process, the custodians of records in Hawaii would also be subpoenaed to testify and to produce all relevant documents subject to their control. To be sure, Obama himself might invoke a privilege against self-incrimination under the Fifth Amendment as the grounds for refusing to testify or to disgorge inculpatory papers. But custodians of public records in Hawaii or elsewhere throughout the United States have no such privilege. And no Hawaiian or other law of the States or the General Government purporting to make those records “confidential” can frustrate the Sixth Amendment.

So much for the legalities of the situation. Personally, I find this whole controversy — although it is of great constitutional significance — to be a monumental distraction from what is desperately needed for this country’s security. The problems now confronting America cannot be solved simply by ensconcing in the President’s chair one charismatic “Leader” as opposed to another — be he Barack Obama or the Archangel Michael (neither of whom, absent a proper birth certificate, is “eligible to the Office of President”). For the Leader Principle at the very top demands the Follower Principle all the way down to the bottom. And both are anathema and inimical to the Constitution of the United States — especially the latter, because a nation of self-governing individuals cannot be a nation of blind, bleating followers.

Intoxication with the Leader Principle over many decades has led America, staggering and slipping on her own political vomit, to this sorry pass. Even more than the drinkers, though, the purveyors of the political liquor are now going to pay the price with an industrial-strength hangover. They have, as it were, “bet the farm” on Obama — either oblivious to the problem that he may not be “eligible to the Office of President” at all, or confident that they are so powerful (and the American people such dopes, dupes, and cowards) that nothing will be done even if the truth should come out. But no one is that powerful. So, however this case turns out, the Establishment will suffer a reverse from which it likely can never recover.

If the courts finally do their duty, and Obama is exposed as an usurper, the legitimacy of the rest of the political system will be eviscerated (and the legitimacy of even the courts will be in doubt, because their intervention was so reluctant and tardy). Whereas, if the courts cover up the matter in case after case on spurious grounds, incarcerating one after another American on the trumped-up charges of an usurper — and they will have to keep up the pretense in case after case if the whole house of cards is not to collapse — the legitimacy of the entire political system will utterly evaporate. (To be sure, Obama’s Department of Justice could refrain from prosecuting anyone under new statutes; but then all of that legislation would become unenforceable.) In any case, the only institutions of government that will escape condemnation will be “the Militia of the several States”, because they will still not be in existence (unless Americans show a great deal more enthusiasm for the idea of revitalizing the Militia than they have to date) and therefore cannot be discredited.

What will be the necessary consequence of the exposure of America’s political system as illegitimate in its entirety? Power will replace law. As Mao Tse-tung opined, political power grows out of the barrel of a gun. And, with an usurper posing as “President,” someday soon someone will prove that aphorism true here.

One scenario will suffice: On some Monday not so far in the future, “President” Obama meets with the Joint Chiefs of Staff to announce that “Operation Sandblaster,” for a massive nuclear attack on Iran’s supposed “weapons of mass destruction," will be launched on the coming Friday. The Joint Chiefs remonstrate, pointing out that such aggression will trigger retaliation by Russia and China, almost surely plunging the whole world into a thermonuclear World War III. “President” Obama, however, is adamant, and instructs the Joint Chiefs to have the necessary orders for “Sandblaster” — or their resignations — on his desk by Wednesday morning. Knowing that, if they resign, “President” Obama will simply appoint some unprincipled uniformed “yes men” to carry out his plan, the Joint Chiefs immediately order covert break-ins around the country to obtain his original birth certificate and other material evidence relating to his ineligibility for the Office of President. With these documents in hand, on Wednesday morning, accompanied by a contingent of heavily armed Marines, the Joint Chiefs confront “President” Obama with the evidence, arrest him as an usurper and all the Members of Congress as his co-conspirators, and appoint themselves a Military Commission to function as a “caretaker government” during the ensuing “national emergency.”

So, at that point, because the courts did not act, and Congress did not act, and We the People did not act, the Praetorians will see fit to act. And even if the Military Commission eventually returns power to civilians, the precedent will be set in steel for “the Latin American solution” — government by junta. That, surely, would be “change we can believe in” — with a capital “C.”

Not likely? If not, why not? If one man can get away with usurping the Presidency of the United States, even as the rest of the General Government, the States, and the people look the other way while mouthing legalistic mumbo jumbo to rationalize their inaction, why cannot a few men — backed up by the Armed Forces — imagine themselves justified in overthrowing and supplanting him in order to forefend a national calamity? Why cannot the bitter weeds of the fall of the Roman Republic be transplanted from the banks of the Tiber to the shores of the Potomac when the conditions conducive to their growth appear? No patriot — no reasonable American of any political persuasion — may want this to happen. But if wishes were horses, beggars would ride.

So, what now? The simple solution, if Barack Obama believes that he truly is “eligible to the Office of President,” is for him to repair to Hawaii in a burst of publicity and make his original birth certificate available for examination by each and every unbiased forensic document analyst who cares to scrutinize it. And if, on the other hand, he already knows that he is ineligible, he should step aside gracefully. Now, before it is too late.

He has no other choice, because events will give him none. When one walks in the cold shadow of Nemesis, hubris is not enough of a cloak.

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
© 2008 Edwin Vieira, Jr. — All Rights Reserve

Obama birth challenge refuted by SCOTUS

Obama birth challenge refuted by SCOTUS
by Thomas Lifson

Let me get this straight. We are about to swear in a new President without checking his actual birth certificate — something many jobs require. Whatever you think about what the media call the “whispering campaign” about Barack Obama’s alleged failure to meet the Constitution’s “natural born citizen” requirement for the presidency, isn’t it a bit odd not to even check to see that the requirement has been met.

The Supreme Court just decided not to touch the issue in the Donofrio case: “The application for stay . . . is denied” and that is that. And virtually everyone is much relieved about it.

This issue has been successfully kookified, labeled as unworthy of attention. This started out normally, with the mainstream media ignoring the issue, or treating it as tinfoil hat material. Then it got eerie as even conservative talk radio ignored it. Finally, new-media, solid conservatives like Michelle Malkin and David Horowitz dismissed the issue and joined the MSM in treating doubters as tin-foilers (Michelle even ran a picture of a man in such a hat with her article on the matter).

Needless to say, the questioners will not be persuaded by the court and media, and will continue to press their case. It will be difficult row to hoe. They will be ignored, or at best mocked when they are noticed by the media. If there is any truth to their claims, proof will have to be developed without the powers of subpoena or massive public pressure.

So we are left with the following irrefutable facts:

  1. When Barack Obama’s eligibility was challenged in court, rather than simply produce proof in the form of documentation subject to the rules of evidence, the campaign spent significant amounts of money to fight on procedural grounds. Perfectly legal, but not responsive to the question of his eligibility under the NBC clause.

  2. No other mechanism than court challenges seems to exist to test eligibility under the NBC clause.

That would seem to suggest that the natural born citizen clause is not a constitutional test, but really more of a suggestion.

For the moment, and probably in the end, that may be the most significant consequence of the entire case.

Hat tip: Randall Hoven

Friday, December 5, 2008

Impostor in the White House?

Impostor in the White House?
by Wesley Pruden

President-elect Barack Obama was born under the jurisdiction of a foreign power, Britain, and is therefore ineligible to serve as president of the United States, according to a lawsuit that has reached the Supreme Court.

The Supreme Court will get a first look Friday at a little bomb with the potential to make a big noise. The operative word is “potential.” Almost nobody thinks the justices, who can read election returns as well as the law, will light the fuse.

But it’s an interesting story, nevertheless, since we have not yet actually elected a president. This may come as news to millions who voted for Barack Obama and John McCain and thought Nov. 4 was the end of it. But Nov. 4 was merely the day we elected the men and women who will meet in 50 state capitals Dec. 15 to actually elect the president.

The lawsuit, Donofrio v. Wells, challenges the qualifications of Barack Obama to serve as president of the United States based on whether he is a “natural born citizen” as defined in the Constitution. The court will first decide whether to hear the merits, if any, of the question.

The particulars are complicated, as the particulars always are when the lawyers throw law books at each other.

Donofrio v. Wells began when a New Jersey man, Leo Donofrio, sued Nina Mitchell Wells, the secretary of state of New Jersey, seeking to stay the election until the courts sort out the facts of the birth 46 years ago of Barack Hussein Obama. Many legal scholars say the lawsuit has scant chance of success, and the mere fact that the Supreme Court has agreed to consider whether to take up the case doesn’t necessarily mean very much.

Donofrio v. Wells is only one of several legal challenges to Mr. Obama’s version of where he was born, six lawsuits in Hawaii and one each in New Jersey, Ohio, California, Kentucky, and Pennsylvania.

Alan Keyes, who lost a race for the U.S. Senate to Mr. Obama in 2004, is perhaps the best known plaintiff. One angry plaintiff sued “the Peoples Association of Humans, Animals Conceived God’s Religions, John McCain (and) USA Govt.”; the same person earlier had sued Wikipedia, the Web encyclopedia, and “All News Media.” All were dismissed for lack of standing. Tilting at windmills is as American as filing a lawsuit.

One of those earlier suits was filed by Philip J. Berg, a former deputy state attorney general of Pennsylvania. The judge in Philadelphia threw out the suit as “frivolous and not worthy of discussion,” and wrote a 34-page memorandum and opinion discussing why it was not worthy of discussion. Mr. Berg’s claims were “too vague and too attenuated” to confer standing. This suit was filed just as the Democrats were gathering for their national convention in Denver, and set off considerable buzz in the press tents. But the story died quickly in the mainstream media, Mr. Obama’s Praetorian Guard.

But not on the blogs and obscure websites of the Internet, and the buzz returned in full throat this week. Even Pravda, once the mouthpiece of the Soviet Communist Party, has taken notice with a highly flavored account, accusing Mr. Obama of admitting he was not a legal citizen, which he has not.

The gist of the accusations is that Mr. Obama was born in Kenya and his Hawaiian birth certificate is fraudulent, that it was filed through a loophole in Hawaii law that allows a birth to U.S. citizens in a foreign country to be registered as a live birth in Hawaii. The Obama campaign released a copy of the birth certificate, but not the original, and Hawaii officials, citing privacy concerns, said no one could see the original unless Mr. Obama authorized access, which he has not done.

This has led to furious speculation on the Internet that Mr. Obama’s parents returned to Hawaii with him shortly after his birth and simply registered his Kenyan birth certificate, certified by the doctor who delivered him and by the hospital where he was born, with the Hawaii Department of Health. Why, these skeptics ask, won’t the president-elect authorize release of the original Hawaii certificate and squelch speculation once and for all?

It’s a good question, though lack of his asking doesn’t prove anything.

The Constitution stipulates that only “natural born” citizens are eligible to be president, and this has been interpreted to mean “born in the U.S.A.” Similar questions were raised about the eligibility of George Romney — father of Mitt — when he briefly ran for president in 1968. He was born abroad to Mormon missionary parents, both American citizens.

Questions were raised this year about John McCain, born to Navy parents in the old U.S. Canal Zone. But that was American territory, like Guam and Puerto Rico, and the U.S. Senate adopted a resolution saying a birth in the Canal Zone, which has since reverted to Panama, was OK.

One way or another, the Supreme Court is likely to say Mr. Obama’s birth was OK, too.
Wesley Pruden is editor emeritus of The Washington Times.

Monday, December 1, 2008

Obama Fomenting a Constitutional Crisis: Constitutional Lawyer Discusses Ramifications of Controversy

Obama Fomenting a Constitutional Crisis: Constitutional Lawyer Discusses Ramifications of Controversy
by John P. Connolly

Controversy continues to surround President-elect Barack Obama’s eligibility to serve as president, and a case involving his birth certificate waits for its day before the U.S. Supreme Court. A constitutional lawyer said were it to be discovered that Mr. Obama is not a natural-born U.S. citizen, it would have grave consequences for the nation.

According to the Constitution, a president must be a natural born citizen of the U.S. Mr. Obama’s critics have failed to force him legally to produce his original birth certificate, and Mr. Obama has resisted any attempt to make him do so. Currently, only Hawaii Department of Health officials have access to Mr. Obama’s original records.

Some of Mr. Obama’s critics have said he was born in Kenya and have claimed he is a citizen of Kenya, Indonesia, or even a British subject.

Edwin Vieira, a constitutional lawyer who has practiced for 30 years and holds four degrees from Harvard, said if it were to be discovered Mr. Obama were not eligible for the presidency, it would cause many problems. They would be compounded if his ineligibility were discovered after he had been in office for a period of time.

“Let’s assume he wasn’t born in the U.S.,” Mr. Vieira told The Bulletin. “What’s the consequence? He will not be eligible. That means he cannot be elected validly. The people and the Electoral College cannot overcome this and the House of Representatives can’t make him president. So what’s the next step? He takes the oath of office, and assuming he’s aware he’s not a citizen, then it’s a perjured oath.”

Any appointments made by an ineligible president would have to be recalled, and their decisions would be invalidated.

“He may have nominated people to different positions; he may have nominated people to the judicial branch, who may have been confirmed, they may have gone out on executive duty and done various things,” said Mr. Vieira. “The people that he’s put into the judicial branch may have decided cases, and all of that needs to be unzipped.”

Mr. Vieira said Obama supporters should be the ones concerned about the case, because Mr. Obama’s platform would be discredited it he were forced to step down from the presidency later due to his ineligibility, were it to be discovered.

“Let’s say we go a year into this process, and it all turns out to be a flimflam,” said Mr. Vieira. “What’s the nation’s reaction to that? What’s going to be the reaction in the next U.S. election? God knows. It has almost revolutionary consequences, if you think about it.”

Mr. Vieira said Mr. Obama’s continued silence and avoidance in the release of his birth certificate is an ethical issue because of the dire consequences that could be caused by a possible constitutional crisis.

“If he were my client and this question came up in civil litigation, if there was some reason that his birth status was relevant and the other side wanted him to produce the thing and he said ‘no,’ I would tell him, ‘you have about 15 minutes to produce it or sign the papers necessary to produce the document, or I’m resigning as your attorney,” said Mr. Vieira. “I don’t think any ethical attorney would go ahead on the basis that his client could produce an objective document in civil litigation [and refused to do so].”

Further, Mr. Vieira cited a fraud ruling in a 1977 case called U.S. v. Prudden, which he feels applies in this case.

“Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading,” the ruling reads. “We cannot condone this shocking conduct. . . If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.”

Mr. Vieira said such an ethical question of representing a client who refused to produce such a basic document is important, even in a small civil case. The current question is concerning the man who potentially could have his finger next to the nuclear button.

“[The birth certificate], in theory, should be there,” said Mr. Vieira. “What if it isn’t? Who knows, aside from Mr. Obama? Does Russian intelligence know it isn’t there? Does Chinese intelligence know it isn’t there? Does the CIA know that it isn’t there? Who is in a position to blackmail this fellow?”

Mr. Vieira explained all laws have to be submitted to the president. In the event that there is no valid president, then no laws passed by Congress in that administration would be legally null and void. Because of that, this case will probably not go away, even after Mr. Obama takes the oath of office.

“If you don’t produce it, you think it’s going to go away,” he said. “There are all these cases challenging Mr. Obama, and some challenging secretaries of state, and they run into this doctrine called standing.”

Mr. Vieira explained although legal standing is difficult to get around in Federal courts, the document could be produced in any criminal cases stemming from legislation passed in the Obama administration.

“Let’s assume that an Obama administration passes some of these controversial pieces of legislation he has been promising to go for, like the FOCA (Freedom of Choice) Act,” said Mr. Vieira. “I would assume that some of those surely will have some severe civil or criminal penalties attached to them for violation. You are now the criminal defendant under this statute, which was passed by an Obama Congress and signed by President Obama. Your defense is that is not a statute because Mr. Obama is not the president. You now have a right and I have never heard this challenged, to subpoena in a criminal case, anyone who has relevant evidence relating to your defenses. And you can subpoena them duces tecum, meaning ‘you shall bring with you the documents.’”

Such a criminal defense would enable the defendant to subpoena any person to testify in court and any person to bring evidence in their possession to the court.

Further, records could be subpoenaed directly, in the case of a birth certificate. Once the record could be subpoenaed, the birth certificate could be examined by forensic experts, who would then be able to testify to the document’s veracity as expert witnesses. Any movement by the judges to make a special exception to the president in a criminal case would hurt the legitimacy of that presidential administration.

“I can’t believe I’m the only lawyer who would think of this,” said Mr. Vieira. “I think any criminal lawyer defending against one of these politically charged statutes is going to come up with this. That means it will never go away until that document is laid down on the table and people say, ‘yes, there it is.’ And therefore they’re caught. If people keep challenging this and the judges out of fear keep saying ‘no, go to jail, go to jail, go to jail’ then that’s the end of the Obama administration’s legitimacy. On the other hand if they open the file and it’s not there, then that’s really the end of the administration’s legitimacy.”

Several court cases in the birth certificate controversy are waiting admission to the Supreme Court.

A gathering of judges will meet on Dec. 5 to decide whether or not to hear a case from New Jersey, and a decision is still pending on a case from a lawyer in Pennsylvania. Should four of the judges vote to hear the case in the Dec. 5 meeting, then it will be scheduled for hearings. Court cases from Connecticut and New York have also applied for hearings at the U.S. Supreme Court.

John P. Connolly can be reached at jconnolly@thebulletin.us.