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Middle District of Georgia Rejects Birther Lawsuit:

Decision in Rhodes v. MacDonald, dismissal for failure to state a claim. It seems to me to be a well-reasoned opinion.

ShelbyC:
Is it really failure to state a claim? It looks like some sort of "military abstension" or am I reading wrong?
9.16.2009 1:59pm
ERH:
I appreciate the fact that Judge Land made it clear he wouldn't be entertaining any more of this nonsense.
9.16.2009 2:06pm
xx:
ShelbyC: I agree, its not failure to state a claim (though the single strongest factor in favor of abstaining seems to be "plaintiff didn't state a claim anyhow")
9.16.2009 2:07pm
ChrisTS (mail):
Very forceful. I especially liked, Unlike in
Alice in Wonderland, simply saying something is so does not make it so.
9.16.2009 2:08pm
A Law Dawg:
But she does not want to go to Iraq (or to any other destination where she may be in harm's way, for that matter). Her "conscientious objections" to serving under the current Commander in Chief apparently can be accommodated as long as she is permitted to remain on American soil.


Ouch.
9.16.2009 2:11pm
ChrisTS (mail):

Plaintiff's claims are frivolous.....
mere allegations of a constitutional violation unsupported by a reasonable factual foundation are insufficient to warrant judicial review.
She has presented no credible evidence and has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture
the Court does find the Rule 12(b)(6) analysis helpful in confirming the Court's conclusion that Plaintiff's claim has no merit. To state a claim upon which relief may be granted, Plaintiff must allege sufficient facts to state a claim to relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)..The factual allegations must be sufficient "to raise a right to relief above the speculative level." Bell Atl.Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff's complaint is not plausible on its face. To the extent that it alleges any "facts," the Complaint does not connect those facts to any actual violation of Plaintiff's individual constitutional rights. Unlike in Alice in Wonderland, simply saying something is so does not make it so.....
dismissal of Plaintiff's complaint for failure to state a claim.5 ....
As explained previously, Plaintiff has demonstrated no likelihood of success on the merits. Her claims are based on sheer conjecture and speculation. She alleges no factual basis for her "hunch" or "feeling" or subjective belief that the President was not born in the United States....
A spurious claim questioning the President's constitutional legitimacy may be protected by the First Amendment, but a Court's placement of its imprimatur upon a claim that is so lacking in factual support that it is frivolous would undoubtedly disserve the public interest.


For not taking a stand on factaul merits, this takes a pretty strong stand. :-)
9.16.2009 2:18pm
ChrisTS (mail):
ach: factual.
9.16.2009 2:18pm
Malvolio:
The factual claims:

a. Obama and his family maintained, for decades, an elaborate charade about his place of birth despite no reason for doing so except in the billion-to-one event he would some day, as he has, been elected president and being born abroad to an American citizens casting some shadow on his eligibility.

b. Given (a), he is in fact not eligible (AFAIK, all US presidents in modern history were born on American soil, but McCain, for example, was born abroad, albeit to two American citizen, not just one).

c. Given (b), that the plaintiff is thereby not obliged to follow a lawful order.

Each of those is so ludicrously implausible, I thought the opinion was quite mild, but...

What if it were true? Suppose tomorrow it were found out that Barack Obama was the child of an Englishwoman, born in Kenya, then adopted by his putative mother. Clearly, he wouldn't be eligible to become president, but he has become president. What do we do?

The opinion suggested that he would impeached, but I don't think that's right. He hasn't committed "high crimes and misdemeanors" -- he hasn't done anything wrong. Would he resign? Could the Supreme Court simply expel him from office? Who would be president, McCain, Biden, Clinton? Bush?

Luckily, it obviously isn't an actual issue, just an intellectual question.
9.16.2009 2:27pm
Mark N. (www):
The first time I saw an interview with Orly Taitz, I assumed I was watching one of those fake-news comedy shows. It wouldn't have been that clever of a shtick, but "have a fake leader of the Obama-was-foreign-born movement who talks with a comically foreign accent" would have been good for a few chuckles. But then it actually was her. Is this some sort of performance art?
9.16.2009 2:31pm
zuch (mail) (www):
I see that the plaintiff was ordered to pay the respondent's costs. Keep filing, Orly! I can't think of a better use for your money (and you may luck out and get Rule 11 fines slapped on as well).

Cheers,
9.16.2009 2:31pm
ShelbyC:

The opinion suggested that he would impeached, but I don't think that's right. He hasn't committed "high crimes and misdemeanors" -- he hasn't done anything wrong.


Well, I imagine that a president could be impeached if he knowingly falsified his consitutional eligibility for office (not that I think there's any evidence that the current president did that)
9.16.2009 2:35pm
Assistant Village Idiot (mail) (www):
Malvolio - Oliver Stone will have to do the movie for us to know the answer to that question.
9.16.2009 2:36pm
Ex parte McCardle:
Mark N.: I thought exactly the same thing the first time I saw Orly Taitz--performance art. I thought it was like when Thomas Pynchon sent Prof. Irwin Corey to accept the National Book Award on his behalf.
9.16.2009 2:43pm
einhverfr (mail) (www):
Wow, threatening frivolous lawsuit sanctions against the lawyer!
9.16.2009 2:45pm
Some dude:

ERH:
I appreciate the fact that Judge Land made it clear he wouldn't be entertaining any more of this nonsense.



When was this "nonsense" ever entertained (in the courts I mean)? It would have had to have been entertained at one point in order for it to not be entertained any more. As far as I know, all birther court cases were dismissed.
9.16.2009 3:06pm
Laura(southernxyl) (mail) (www):

Well, I imagine that a president could be impeached if he knowingly falsified his consitutional eligibility for office (not that I think there's any evidence that the current president did that)


On a related note - if a presidential candidate were to falsify his constitutional eligibility, who would he be falisfying it to? Who's the eligibility-deciding body that examines documentation and passes on it? Or is it that we assume that presidential candidates are eligible? Suppose that a candidate seriously was not eligible - what's the mechanism for denying the candidacy? Does some Joe Citizen have to find a court that will accept a challenge to that person's eligibility - and then what?
9.16.2009 3:08pm
David M. Nieporent (www):
I see that the plaintiff was ordered to pay the respondent's costs. Keep filing, Orly! I can't think of a better use for your money (and you may luck out and get Rule 11 fines slapped on as well).
I won't have you talking about graduates of our nation's fine law/cosmetology schools that way.
9.16.2009 3:09pm
David M. Nieporent (www):
On a related note - if a presidential candidate were to falsify his constitutional eligibility, who would he be falisfying it to? Who's the eligibility-deciding body that examines documentation and passes on it? Or is it that we assume that presidential candidates are eligible? Suppose that a candidate seriously was not eligible - what's the mechanism for denying the candidacy? Does some Joe Citizen have to find a court that will accept a challenge to that person's eligibility - and then what?
The electors of the E.C. can vote against him; Congress can decline to certify the election. They can also impeach him (fraudulently claiming eligibility sounds like a crime to me; at a minimum, receiving his paychecks when he's ineligible would be.)
9.16.2009 3:11pm
Ben P:

Is it really failure to state a claim? It looks like some sort of "military abstension" or am I reading wrong?


As I read it, the court basically says "well, we're supposed to consider this in terms of Jurisdiction/Abstention, but we find a 12(b)(6) analysis useful anyway..."
9.16.2009 3:19pm
Laura(southernxyl) (mail) (www):

The electors of the E.C. can vote against him; Congress can decline to certify the election.


Suppose that Obama's documentation had in fact been extremely sketchy - no Hawaiian birth certificate at all, for instance - if he got past the primary process and won the nomination, with a Democrat House and Senate, I'm guessing that the probability that the EC or Congress would have put the skids on is slim to none. Is that all we've got?
9.16.2009 3:28pm
Commentor (mail):
What makes the "birther" movement so absurd is that Obama would be eligible to be president even if he was born abroad, just as someone pointed out about John McCain. Truly nutty.
9.16.2009 3:29pm
ruuffles (mail) (www):

Is that all we've got?

Oh I don't know, the Supremes might step up to the plate again.

if he got past the primary process and won the nomination, with a Democratic House and Senate

You don't do yourself any favors with that ridiculous bungling.
9.16.2009 3:31pm
Dave N (mail):
The judge's decision was well-reasoned. Were I a federal judge and assigned this case, I have a feeling I would be much, much more sarcastic.

The "birthers" and the "truthers" are two sides of the same malevolent coin. They should be called out and mocked whenever they rear their ugly heads.
9.16.2009 3:33pm
Laura(southernxyl) (mail) (www):
Democratic. What the heck ever. Geez. "Democratic House and Senate". What EVER.
9.16.2009 3:35pm
ChrisTS (mail):
poor Laura.:-)
9.16.2009 3:41pm
ChrisTS (mail):
I had to look this person up (it was the cosmetology line that got me). She is a dentist and got a law degree from an unaccredited online 'school'? Makes me wonder about the CA bar exam.

Yikes and more yikes.
9.16.2009 3:46pm
David Chesler (mail) (www):
Commentor, it's not clear that someone born on foreign soil in 1961 to a foreign father and a woman who had not spent 5 years past the age of 16 in the US (even if it's because she had not spent 5 years past the age of 16 on Earth) was a citizen from the time of and because of his status at his time of birth.

Malvolio -- (a) is plenty convincing for me. I can believe old man Kennedy groomed his sons to be President, but who would have thought the only thing that might keep this infant from becoming President was his birth.

But don't forget (b') He might be a native born citizen but that doesn't make him natural born citizen.
And (b") There is something in the penumbra that says you can't be President if you or your father is or was a citizen of someplace else at any time after 1789, and even then only if you were born on what would become US soil or you're Alexander Hamilton.
9.16.2009 3:48pm
Smallholder (mail) (www):
IANAL.

Can Tate be sanctioned for bringing frivolous claims?
9.16.2009 3:58pm
Per Son:
Bottom line regarding birfers. They are very funny. They invented a Constitutional requirement that a natural born citizen has two American citizen parents - not just one. This is the basis of their sputem. So, now we have a third type of citizen - natural born, naturalized, and I guess other.

Orly gets a boilerplate scheduling order, and the birfers celebrate and say that expedited discovery was ordered and a trial date was set.

What I find funny is that whoever disagrees with them is considered a shill for Obama (like Malkin and Coulter are shills for Obama).

Now all of the birfers are fighting: Orly, Berg, Kreep et al. are all writing diatribes against each other. Berg actually sued Orly.

I really need to stop lurking on Freeper.
9.16.2009 4:05pm
ShelbyC:

You don't do yourself any favors with that ridiculous bungling.


Easy ruf. Just cuz you think it's deragoraty doesn't mean everybody does. For somebody like Laura who's generally pretty cordial you can give her the benefit of the doubt.
9.16.2009 4:14pm
LN (mail):

who would have thought the only thing that might keep this infant from becoming President was his birth.


Exactly. As if a 18-year-old girl and a already-married-with-children Kenyan student in Hawaii in the early 1960s would think about "plotting" to raise a future American President. They got divorced before the Civil Rights Act passed for chrissakes.
9.16.2009 4:15pm
ShelbyC:

On a related note - if a presidential candidate were to falsify his constitutional eligibility, who would he be falisfying it to? Who's the eligibility-deciding body that examines documentation and passes on it? Or is it that we assume that presidential candidates are eligible? Suppose that a candidate seriously was not eligible - what's the mechanism for denying the candidacy?


Congress is supposed to determine that when they certify the election (I'm not sure that that's what it's called)
9.16.2009 4:17pm
Leroy Washington (mail):
The "birthers" and the "truthers" are two sides of the same malevolent coin. They should be called out and mocked whenever they rear their ugly heads.


Truthers believe stuff for which there is no evidence. Birthers don't believe stuff for which there is no evidence. Let us accept that this fine distinction is one haters like you are unable to comprehend.

What Birthers should be is roundly and resoundingly refuted with, oh I don't know, maybe . . . Mr. O's actual birth certificate? If there were one.

Now, hate away...
9.16.2009 4:23pm
Laura(southernxyl) (mail) (www):
So on Jan. 6 they'd pull the plug? Who actually looks at the documentation?
9.16.2009 4:28pm
J.R.L.:
Has Jonathan Lee Riches filed one of these suits yet?
9.16.2009 4:35pm
Some anti-birthers are incompetent ---- (mail) (www):
Two simple, yes or no questions for BHO opponents who scream "Birther!"

1. Did CNN's president spread false information about the easy-to-understand, cut-and-dried facts of this matter?

2. Did MMFA make a false statement (that I'm willing to call a lie) about the easy-to-understand, cut-and-dried facts of this matter?

As discussed at my name's link, those BHO opponents who scream "Birther!" aren't smart enough or don't have the integrity to understand how they're hurting their side at the same time as they're helping BHO and the MSM. They could help their side and hurt BHO and the MSM if they handled things in the right way, but they aren't capable of that.
9.16.2009 4:39pm
ChrisTS (mail):
Birthers don't believe stuff for which there is no evidence.

Huh? How about believing all the available evidence and not believing nonsense?
9.16.2009 4:45pm
Loren:
Truthers believe stuff for which there is no evidence. Birthers don't believe stuff for which there is no evidence.


Really? They have a tendency to believe that an 18-year-old college student in Honolulu flew fully halfway around the world, to a third-world country she never visited at any other point in her life and where she knew no one, then traveled 300 miles east to give birth in a city that was 500 miles away from her husband's relatives. And that after giving birth she immediately headed back to Nairobi where she hightailed it back to Honolulu, via the multi-leg flight plan that would've been necessary in 1961 to fly from Nairobi to Honolulu, to then lie to Hawaiian officials and claim that her son was born in Honolulu, for reasons that wouldn't have been a problem at all if she hadn't flown halfway around the world in the first place.

Birthers believe this, even though there is no evidence for it. No flight records, no passport records, no family stories, and not even sheer common sense. There aren't even any rumors that predate 2008. And yet the Birthers believe it anyway, usually because they read it on some site on the internet.

So yes, Birthers, like Truthers, are quite prone to believing things for which there is no evidence.
9.16.2009 4:50pm
Per Son:
Leroy:

The problem is that a birth certificate won't do anything for birfers since they convinced themselves that you need two citizen parents.
9.16.2009 4:50pm
24AheadDotCom (mail) (www):
Unfortunately, I need to point out that Loren is building a gigantic strawman. Not all those who are called "Birthers" believe all or part of that.

And, the dreaded JeromeCorsi - Enemy #1 of the BHO campaign and BHO's allies in the GOP establishment - has found convincing evidence that BHO's book's recounting of his early years is not correct.

P.S. Some might remember the AlQaaQaa issue from four years ago. At the time, I noticed BushBots engaging in what I called "EmilyLatella Syndrome": they would intentionally misunderstand, misstate, and so on. It's interesting that BHO fans use the same techniques as BushBots did, especially when it comes to this issue.
9.16.2009 4:58pm
AnthonyJ (mail):
Impeachment could possibly be for lying under oath, assuming there's some place you actually swear under oath that you're qualified to be president. The phrase High crimes and misdemeanors actually allows impeachment on pretty slim grounds, it's just that institutional tradition has mostly avoided really petty excuses.
9.16.2009 4:58pm
einhverfr (mail) (www):

What makes the "birther" movement so absurd is that Obama would be eligible to be president even if he was born abroad, just as someone pointed out about John McCain. Truly nutty.


Funny story... My eldest son was born in Jakarta, Indonesia. I remember looking at citizenship test sample questions a few years ago because I figured if my wife ever asked me about it, it would be useful to know something about.

And I found an error on one of the test prep sites.

The site asked "What are the requirements to become President." And one of the requirements listed was "born in the US." I thought "that doesn't sound right" and promptly looked up the text of the Constitution, where the words "natural-born citizen" were used. Oops... My son is a natural-born citizen (even by 1790 standards) but was not born in the US....
9.16.2009 5:00pm
Loren:
Unfortunately, I need to point out that Loren is building a gigantic strawman. Not all those who are called "Birthers" believe all or part of that.


The Birthers that do believe all, or even part, of it are, however, guilty of believing something for which there is no evidence. Just like the Truthers.

There are also Birthers who believe that the birth certificate Obama put online was forged. They believe that even though there's no evidence supporting that belief (apart from a couple of guys who lied and claimed to be forensic experts, when they weren't). They often want to see more documentation, like a second birth certificate, college records, and even baptism and kindergarten records. Y'know, stuff that's frequently requested of Presidential candidates regarding their childhood years.

Then there are Birthers who reject all of the 'born-in-Kenya' claims, who fully accept that Obama was born in Honolulu and aren't obsessed with seeing another birth certificate, but who think that for 200 years there's been a unstated "natural born citizen" and "native born citizen" Constitutional distinction that nobody ever paid attention to until Obama was running for President. And they believe that you can be naturally born a citizen in the United States, without being a "natural born citizen" of the United States. In other words, they think that they're better Constitutional scholars than all the Constitutional lawyers and judges and professors for the past two centuries.

And frankly, there's not a lot of evidence to support that either.

And, the dreaded JeromeCorsi - Enemy #1 of the BHO campaign and BHO's allies in the GOP establishment - has found convincing evidence that BHO's book's recounting of his early years is not correct.


Fun fact about Corsi: even though he wrote a whole 300+ page anti-Obama book that was released in July 2008, do you know how much space in that book he devoted to the issue of whether Obama was Constitutionally eligible on "natural born citizenship" grounds?

None. Zero. Not even a sentence. And that's because when he wrote the book, the Birther conspiracy theory hadn't even been formed yet.
9.16.2009 5:16pm
JeffDG:
Wow...love this line on page 8 (continued onto 9)

Any middle school civics student would readily recognize the irony of abandoning fundamental principles upon which our Country was founded in order to purportedly "protect and preserve" those very principles.
9.16.2009 5:23pm
Laura(southernxyl) (mail) (www):
I suggest that there wouldn't be a Birther conspiracy theory at all if there was some public vetting of each candidate's eligibility before November of election year.

I dislike having rules that are out there but not paid attention to. It's like having a hardhat rule at a chemical plant but nobody caring whether people have a hardhat on or not. Then if you try to have another rule, like no smoking around the methanol column, the entire structure of rules for safety and probably everything else has been damaged. Better to not have a rule at all if it's not going to be respected and enforced.
9.16.2009 5:24pm
Laura(southernxyl) (mail) (www):
By "public" I mean official, and made public. Maybe the Chief Justice of the SC ought to sign off on the candidates, or the CJ and the Speaker of the House, or something.
9.16.2009 5:26pm
J.R.L.:
I am satisfied as to Obama's place of birth. I have to admit, though, I sure am curious about what he's so embarrassed about on that full form birth certificate. I bet it's something completely silly like a parent's occupation that no one would even care about. But I sure can't wait to see it!
9.16.2009 5:26pm
Leroy Washington (mail):
Birthers believe this, even though there is no evidence for it....

So yes, Birthers, like Truthers, are quite prone to believing things for which there is no evidence.


I don't believe any of the stuff you mention. What I believe is, I've never seen Mr. O's birth certificate. I also believe if He weren't hiding something, He'd release his birth certificate.

I also believe you haven't seen His birth certificate either.

The difference between you and me is, having not seen the evidence I am unconvinced. And you -- you don't need no steenkin' evidence; in that way you're pretty much a Birth-Truther.
9.16.2009 5:29pm
luagha:
So, like, which hospital in Hawaii was Obama born at? So far, both of the likely possibilities have claimed that Obama was born there, then later had to backtrack on it.
9.16.2009 5:31pm
Per Son:
Some Freepage is coming to town.
9.16.2009 5:36pm
zuch (mail) (www):
And, the dreaded Jerome Corsi ...
Typo there. Should be "dreadful". Corsi's a lying RW slimebucket GOP tool.

Cheers,
9.16.2009 5:36pm
Loren:
I also believe you haven't seen His birth certificate either.


I've never seen any President's birth certificate. Yet I've seen more proof of Barack Obama's birthplace than I've seen of any modern Presidential candidate. I daresay that at this point there are more people who know the HOSPITAL that Barack Obama was born in than could name the STATE that George W. Bush was born in.

The difference between you and me is, having not seen the evidence I am unconvinced.


Are you convinced that Joe Biden was born in Pennsylvania? Neither of us has seen his birth certificate either. But curiously, no one seems to think we need to.
9.16.2009 5:37pm
dr:

The difference between you and me is, having not seen the evidence I am unconvinced.



I haven't seen Ronald Reagan's birth certificate, and I assume that's because he's hiding something.

Also: Tony Danza.
9.16.2009 5:39pm
Loren:
So far, both of the likely possibilities have claimed that Obama was born there, then later had to backtrack on it.


No hospital other than Kapiolani Medical Center has claimed to be Obama's birthplace. Obama has never claimed to be born at any hospital other than Kapiolani Medical Center. And he's never backtracked on that.

Check your sources.
9.16.2009 5:39pm
24AheadDotCom (mail) (www):
What Leroy Washington said. I carefully distinguish fact from speculation, but the anti-birthers don't. For instance, I spoke an editor at a Soros-funded paper about this issue, and it was like speaking to a cult member. She completely failed to understand the difference between not knowing something and knowing something one way or another. Unfortunately, I didn't get to ask whether her eMeter was pegging or not.

And, since this is a law site, here's another fairly simple yes-or-no question:

* Did Spencer Kornhaber get Hawaiian law wrong?

(Note that his statement made it into Wikipedia, while me pointing out that he probably got it wrong did not; he writes for a "reliable source" and - despite probably getting it right where he got it wrong - I'm just a solo operator.)

So far I've posted three questions without any response; anyone care to say yes or no to any of them?
9.16.2009 5:40pm
Loren:
I haven't seen Ronald Reagan's birth certificate, and I assume that's because he's hiding something.


Sarah Palin never released a birth certificate either. And her 'supposed' birthplace was awfully close to Canada. A whole lot closer than Honolulu is to...well, anywhere.
9.16.2009 5:41pm
zuch (mail) (www):
Laura(southernxyl):
I suggest that there wouldn't be a Birther conspiracy theory at all if there was some public vetting of each candidate's eligibility before November of election year.
Laura: I suggest that these people would just find some other cockamamie excuse to deny that he's their president (or otherwise to delegitimize him) had this not cropped up. It's the ends that are important; the mean(ie)s are just a way to get there.

Cheers,
9.16.2009 5:42pm
zuch (mail) (www):
J.R.L.:
... I sure am curious about what he's so embarrassed about on that full form birth certificate. I bet it's something completely silly like a parent's occupation that no one would even care about. But I sure can't wait to see it!
Were you just as curious to see Clinton's penis?

On a more serious note, could it be that what you see is what you get; that no such so-called "full form birth certificate" even exists?

Cheers,
9.16.2009 5:45pm
J.R.L.:
The opinion suggested that he would impeached, but I don't think that's right. He hasn't committed "high crimes and misdemeanors" -- he hasn't done anything wrong.


Well, I imagine that a president could be impeached if he knowingly falsified his consitutional eligibility for office (not that I think there's any evidence that the current president did that)


I don't think impeachment would be an option because the EC vote would be a nullity. He would never have been President, no matter when it was discovered.
9.16.2009 5:45pm
AnthonyJ (mail):
I am satisfied as to Obama's place of birth. I have to admit, though, I sure am curious about what he's so embarrassed about on that full form birth certificate.
Why assume he's embarrassed? Hawaii doesn't release any other birth cert, Obama couldn't release a 'long form' if he wanted to, unless his parents had saved a copy from when he was born.
9.16.2009 5:46pm
Per Son:
leroy:

Your 'belief' about Obama and a quarter will get you a really cheap cup of coffee.

I am personally upset about the major American injustice - Chester Arthur was an usurper as well. That makes everything he did fraudulent, and everything since then fraudulent.

Down with Arthur!
9.16.2009 5:46pm
Loren:
Laura: I suggest that these people would just find some other cockamamie excuse to deny that he's their president (or otherwise to delegitimize him) had this not cropped up.


They already have. When some people realized that the 'born-in-Kenya' scenario was just too stupid to be taken seriously, they began to argue that Obama had lost his citizenship during his time in Indonesia. Or that he had lost his citizenship when he traveled to Pakistan in college.

Or that American citizens' eligibility for President should be governed by foreign law, and that even though we've never applied that standard before the 2008 election, that was just an oversight and we should start doing so now.

In other words, there are already plenty of fallback arguments that no eligibility review would have ever considered or even taken seriously.
9.16.2009 5:48pm
Greg (www):
When you fill out a form to get a birth certificate from the State of Hawaii, what they send you is what Obama put on the website. A registrar from the state, Alvin Onaka, signed it, stating that it was a true and accurate copy or abstract of the information they had on file. He affixed a state seal to that document. On the bottom, it says that this form is prima facie evidence for the fact of birth.

Do any of you doubt that if this evidence were presented to a court of law that it would suffice to prove that Obama was born in Honolulu?

Who cares what hospital he was born at? Who cares what doctor delivered him? Neither will make him ineligible. And the long form, if it were available, which it isn't because the state doesn't provide it anymore, doesn't say he was born in Kenya or Indonesia or any of the fanciful things claimed, because then Alvin Onaka couldn't have signed that it was a true and accurate copy or abstract of the information the state has in its files!
9.16.2009 5:50pm
Steve:
I don't think impeachment would be an option because the EC vote would be a nullity. He would never have been President, no matter when it was discovered.

I don't think that's true. We don't declare Henry Clay's Senate career void ab initio.
9.16.2009 5:51pm
J.R.L.:
On a more serious note, could it be that what you see is what you get; that no such so-called "full form birth certificate" even exists?

The answer to that from all sides is "no".
9.16.2009 5:52pm
Dave N (mail):
I acknowledge that I have not seen Barack Obama's birth certificate. Heck, I haven't seen John McCain's, George W. Bush's, or Bill Clinton's, either

As that left-wing site Snopes.com notes, "In October 2008, and again in July 2009, Hawaiian officials reported that they had personally verified that Barack Obama's original birth certificate was in the Hawaii State Department's files."

So, yes, there is evidence--the affidavit from Dr. Chiyome Fukino who states that he did as Snopes described.

Snopes also notes that a woman in Hawaii being told about Obama's birth by the obstetrician who delivered him just a few days after his delivery. I realize that her story is hearsay, as is the birth announcement in the Honolulu newspapers. I would note in the pre-HIPAA era, doctors were more likely to name a patient by name and newspapers routinely called the hospitals to get birth information.

I know for the "birthers" none of this is good enough. Sigh.
9.16.2009 5:53pm
einhverfr (mail) (www):
Laura:

By "public" I mean official, and made public. Maybe the Chief Justice of the SC ought to sign off on the candidates, or the CJ and the Speaker of the House, or something.


And with that, the US moves one step closer to Iran in requiring candidates to be pre-approved by the judiciary!

Really, I think the better option is to allow lawsuits by opposing candidates, none of which were raised here.
9.16.2009 5:58pm
Ben P:

The answer to that from all sides is "no".


The answer to that from anyone who cares to be correct is yes.

There is no "long form" birth certificate in the sense that there is absolutely no "more authentic document" that can be produced by the Hawaiian government.


Hawaiian statutes are pretty clear on how the record system works. You go to the Department that holds vital records, as for a certificate and you get a certified copy of the information contained in the record. That certified copy is legally valid for all purposes in Hawaii. The statute is even clearly that it's unlawful for the state agency to release any documents other than those specifically provided for by the statute or in another rule.

I thoroughly explained this a week or two ago with statutory cites in the Chester Arthur post in response to another one of 24ahead's "challenges," and all I got in response was the insinuation that I'm stupid for suggesting that Hawaiian state officials aren't free to break Hawaiian law merely because someone asks them to.
9.16.2009 6:00pm
Per Son:
Each and every state and territory can enact legislation, I believe, for a heightened showing of eligibility.

Why the Birfers want his theses, grades, baptism records, et al. is beyond me.

The anti-Clinton attorneys on behalf of Jones were at least extremely competant. The birfer attorneys are crackheads - every last one.
9.16.2009 6:01pm
Andrew Hyman (mail) (www):
Seems like a reasonable decision by Judge Land. It's virtually certain that Obama was born in Hawaii. Nonetheless, President Obama should still release a copy of the birth certificate printed in 1961, to clear the air.
9.16.2009 6:02pm
Ben P:

I acknowledge that I have not seen Barack Obama's birth certificate. Heck, I haven't seen John McCain's, George W. Bush's, or Bill Clinton's, either

As that left-wing site Snopes.com notes, "In October 2008, and again in July 2009, Hawaiian officials reported that they had personally verified that Barack Obama's original birth certificate was in the Hawaii State Department's files."


I'm reasonably sure some of that is sarcasm, but if you click the link the snopes article you linked. a picture of a copy of Obama's Birth Certificate.

If you go and ask for your birth certificate in Hawaii, that is the document you will get, that document is valid for all legal purposes by Hawaiian statute, and you will never get a different document.
9.16.2009 6:04pm
Per Son:
Andrew:

As explained, why? It is bad precedent to start releasing your info simply because some wingnut crowd has a beef. This logic applies to all presidents equally.

Additionaly, it will not clear the air given that the birfer crowd claims that you need 2 citizen parents to be natural born.
9.16.2009 6:04pm
drunkdriver:
Taitz's idiocy should be stopped, but the federal judges understandably don't want to make her a martyr. Still, another suit or two and one of these judges will sanction her. None too soon in my opinion. This was a well written decision.

I almost want to see her having to litigate a case with a real lawyer on the other side . . . she'd get stomped.

p.s. I wonder if the Clintons would have subtly fed this sort of lunacy had it been circulating during her campaign- recall the he's-not-a-Muslim "as far as I know" shtick she pulled.
9.16.2009 6:11pm
Leo Marvin (mail):

Clearly, he wouldn't be eligible to become president, but he has become president. What do we do?

Outsource it to the Honduran Supreme Court.
9.16.2009 6:15pm
Andrew Hyman (mail) (www):
Per Son:

The main issue is the birth certificate. There aren't billboards around the country saying that one of his parents was not a U.S. citizen.

And it's a bad precedent to start hiding innocuous documents merely to inflame wingnuts.
9.16.2009 6:20pm
Dave N (mail):
Ben P,

While I acknowledge being a bit sarcastic in my post, I believe we are actually in full agreement. I didn't link to the "Certificate of Live Birth" because I thought the larger Snopes article was very good and anyone who wanted could follow its links.
9.16.2009 6:24pm
drunkdriver:
What if it were true? Suppose tomorrow it were found out that Barack Obama was the child of an Englishwoman, born in Kenya, then adopted by his putative mother. Clearly, he wouldn't be eligible to become president, but he has become president. What do we do?

The opinion suggested that he would impeached, but I don't think that's right. He hasn't committed "high crimes and misdemeanors" -- he hasn't done anything wrong. Would he resign? Could the Supreme Court simply expel him from office? Who would be president, McCain, Biden, Clinton? Bush?

Luckily, it obviously isn't an actual issue, just an intellectual question.


I don't want to make it seem like I give birthers any credence, but the question of when impeachment is possible interests me, separate and apart from the quackery of the birthers.

I'd assume that in such an impossibly fantastical case, the only remedy would be impeachment. Upon impeachment the VP becomes president. Would this be "HC&M?" As we've seen, only the congress defines this, it's a political judgment. Judge Posner posed an example- a president who decided to move to Saudi Arabia and have 3 wives, and run the country by phone and e-mail, would have to be impeached, even if his conduct were not illegal; congress and the public just couldn't stand someone so obviously out of step with the country. In the hypo you propose, congress would have the option of impeaching, though who knows if they even would (they might just decide to let it rest, since the people had spoken by making him president); how tempted they were to go that far, would probably depend on public opinion. And why would the people turn on the person they'd just made the winner?
9.16.2009 6:25pm
Per Son:
Andrew:

How is he hiding anything? The form is available for all to see.

I think that if he responded to them, and showed them anything more - they would further inflamed. They would claim victory of being able to pressure him.
9.16.2009 6:25pm
24AheadDotCom (mail) (www):
Regarding what I said above about BushBots, another thing they'd do is swarm: a whole bunch of them (or a small number using different names) would deluge a thread with cutesy jokes and the like in order to drown out any sort of reasonable discussion. The fact that they'd do that should be a slight clue; they aren't willing to discuss this issue in a grown-up fashion.

Regarding what Greg said, the picture shown on BHO's site has never been authenticated by a gov't agency.

Regarding the claim from BHO fans that HI only releases the short form, they think you're dumb enough to think that BHO couldn't get them to stand on their heads if he wanted.

And, Snopes is lying about what HI said on 10/31/08. Compare what HI said, to what Snopes tells you they said. They're two different things.

Now, back to the Emily Latella Show.
9.16.2009 6:25pm
Andrew Hyman (mail) (www):
Per Son:

The form that is available to see was laser-printed in 2007. I am not questioning its accuracy, but merely suggesting that President Obama should release a copy of the birth certificate printed in 1961, to clear the air.
9.16.2009 6:27pm
Greg (www):
Regarding what Greg said, the picture shown on BHO's site has never been authenticated by a gov't agency.

So, what exactly do you need? The state signed and sealed the document itself, then you want them to affirm that a copy of the document is accurately represented on the internet? Or do you want to handle the document yourself?

President Obama should release a copy of the birth certificate printed in 1961

Personally, I've lost my original birth certificate. I've lost copies that the state has sent me. If Obama has lost his original, and he requests a copy from the State of Hawaii, it will look like the one that has been released. And it will say that it was printed in 2009.
9.16.2009 6:38pm
Angus:
On the contrary, 24ahead, Alvin Onaka already authenticated it when he stamp-signed it in Hawaii and mailed it to Obama. Obama sending the certificate back for re-authorization would be entirely redundant and useless.

And did you ever think that the reason no one answers your questions is that you don't post info here but instead direct people to your blog?
9.16.2009 6:44pm
Leroy Washington (mail):
President Obama should release a copy of the birth certificate printed in 1961


Personally, I've lost my original birth certificate. I've lost copies that the state has sent me. If Obama has lost his original, and he requests a copy from the State of Hawaii, it will look like the one that has been released. And it will say that it was printed in 2009.


Just to be clear, you are a birth-Truther -- you believe stuff 'cause you want to, cause you have lots of convoluted reasons why it must be so. What you don't have is evidence.

If there really is a birth certificate, show it. If there's not, all you got is crazy birth-Truther speculation.
9.16.2009 7:18pm
dr:
For the record, I do not believe in the existence of Leroy Washington. I'm not saying he couldn't exist. I'm just saying I haven't seen evidence.
9.16.2009 7:22pm
Leroy Washington (mail):
leroy:
Your 'belief' about Obama and a quarter will get you a really cheap cup of coffee.

I am personally upset about the major American injustice - Chester Arthur was an usurper as well. That makes everything he did fraudulent, and everything since then fraudulent.

Down with Arthur!


You can't possibly imagine this fact-empty drivel is in any way persuasive. Hate only convinces other haters.

If there's a birth certificate show it.
9.16.2009 7:23pm
Catchy Name (mail):
You can't possibly imagine this fact-empty drivel is in any way persuasive.

Oh, the irony.
9.16.2009 7:26pm
Laura(southernxyl) (mail) (www):

einhverfr (mail) (www):
Laura:

...

And with that, the US moves one step closer to Iran in requiring candidates to be pre-approved by the judiciary!


I don't see why. We have specific rules as to eligibility. They are set forth in the Constitution. The same mechanism by which one gets a passport could be used to show citizenship. To say that for Chief Justice Roberts to go on TV, or sign a paper, or something, to say that he has viewed proof that the candidates for presidency are eligible, is equivalent to Iran's electoral system, is kind of silly IMO.

If we're going to get chief justices who are so corrupt and partisan that they would disallow eligible candidates for political reasons, we have got major, major problems.
9.16.2009 7:38pm
Laura(southernxyl) (mail) (www):
Also - you're suggesting lawsuits from opponents? You think that's less problematic than having some specified person review and sign off on documentation?
9.16.2009 7:40pm
Dilan Esper (mail) (www):
The real answer to the question of what happens in a case of ACTUAL presidential ineligiblity is that it is a classic political question.

We indeed have many safeguards within the political branches to prevent it:

1. The party primary process would have to select the nominee, and presumably his or her opponents would raise the fact that he or she was ineligible.

2. The party's convention would have to nominate the candidate, and the delegates would have an opportunity to rule on the eligibility question (as might a party's steering or central committee).

3. The voters would have to vote for the candidate, and his or her opponent would raise he issue of ineligibility.

4. The electoral college would have to elect the candidate, and could rule on the issue of ineligibility.

5. The Congress would have to certify the electoral count, and could rule on the issue of ineligibility.

6. The Congress could impeach the President, and that decision, if made, would be nonreviewable by the courts.

Now, what happens if all these checks fail and the American public chose an ineligible candidate and he or she assumed office anyway? Well, you might as well ask what happens when pigs fly.

But in that situation, no, you don't want the unelected courts coming in and overruling the judgment of all those different bodies. It's the sort of thing that could lead to a revolution or a constitutional crisis.

There's a deep fact about the Constitution that people don't admit enough, which is that it's only enforceable because we decide to enforce it. If enough people decide to ignore it, there isn't some way of ensuring that it continues to be enforced. If enough people want a non-native born President, and the political branches defer to that judgment, that's going to come to pass. (Of course, it won't, but that's precisely why we don't need courts to pass on candidates' eligibility.)
9.16.2009 7:41pm
einhverfr (mail) (www):
Laura:


I don't see why. We have specific rules as to eligibility. They are set forth in the Constitution. The same mechanism by which one gets a passport could be used to show citizenship. To say that for Chief Justice Roberts to go on TV, or sign a paper, or something, to say that he has viewed proof that the candidates for presidency are eligible, is equivalent to Iran's electoral system, is kind of silly IMO.



Iran has specific rules for eligibility too and one of the criticisms of the Iranian system is that the Council of Guardians interprets these fairly strictly disqualifying any who arguably don't qualify.

But there are some other questions too. Certainly some individuals might think that "natural-born citizen" means one thing distinct from "granted citizenship by birth." Outside of an adversarial system how do you address whether a Consular Record of Birth Abroad establishes natural-born citizenship? (I think it clearly does but I have run into people with other ideas.)
9.16.2009 7:48pm
Edward A. Hoffman (mail):
Let me see if I've got this straight.

I was born in New York more than 35 years ago. I'm pretty sure I have a copy of my original birth certificate somewhere, but if I can't find it and I ever need to present one I would have to order a new copy from the state.

I don't know what New York does when someone orders a copy of an old birth certificate. Maybe the state would still give me a copy of the original, paper certificate. On the other hand, maybe it would give me a new one generated from computer records like the one President Obama has shown.

Are some of you saying I could become president under the first scenario but not the second?
9.16.2009 7:49pm
einhverfr (mail) (www):
Also lawsuits are preferred because the court gets to examine all of the relevant issues of fact and law based on a record of evidence and set of legal arguments and amicus briefs rather than making it up beforehand.
9.16.2009 7:50pm
AnthonyJ (mail):
Outside of an adversarial system how do you address whether a Consular Record of Birth Abroad establishes natural-born citizenship? (I think it clearly does but I have run into people with other ideas.)
You get Congress to make a declaration. While the Constitution specifies certain classes of people who are citizens, it doesn't specify who aren't, so the legislature is free to create additional classes of citizens.
9.16.2009 8:03pm
PersonFromPorlock:
ChrisTS:

Unlike in Alice in Wonderland, simply saying something is so does not make it so.

Larger issues aside, there's a certain amount of irony in a judge saying that.
9.16.2009 8:04pm
Dilan Esper (mail) (www):
Also lawsuits are preferred because the court gets to examine all of the relevant issues of fact and law based on a record of evidence and set of legal arguments and amicus briefs rather than making it up beforehand.

Lawsuits are NOT preferred. In any plausible scenario where an ineligible candidate is ACTUALLY elected and certified, that person would have so much democratic legitimacy that there would be no way for an unelected court to interfere with it that would not result in, at the very least, a serious constitutional crisis.

Again, this is a constitutional provision that we the people, along with our elected representatives, have the responsibility of enforcing. And it really can't be any other way.
9.16.2009 8:08pm
Laura(southernxyl) (mail) (www):

But there are some other questions too. Certainly some individuals might think that "natural-born citizen" means one thing distinct from "granted citizenship by birth." Outside of an adversarial system how do you address whether a Consular Record of Birth Abroad establishes natural-born citizenship?


I suspect that somewhere there is a legal definition of exactly what "natural-born citizen" is. If there is not one, then either we need to get one, or we need to drop the requirement. To have a requirement that no one agrees upon the meaning of, and for which there's no mechanism for enforcement, is beyond stupid.
9.16.2009 8:11pm
24AheadDotCom (mail) (www):
How surprising! No one has yet tried to answer even just one of my questions, despite how clear-cut they are. Note also that at least three people can't tell the difference between a picture of a thing on a website and the thing itself. Without the picture being authenticated, it's just a picture.

For you lurkers: the fact that no one is willing to answer even one of my questions is a big clue.
9.16.2009 8:34pm
Dave N (mail):
Regarding what I said above about BushBots, another thing they'd do is swarm: a whole bunch of them (or a small number using different names) would deluge a thread with cutesy jokes and the like in order to drown out any sort of reasonable discussion.
Am I the only VC regular who noted the irony that the "truthers" who showed up today are generlly strangers to the VC?
9.16.2009 8:39pm
Ben P:

How surprising! No one has yet tried to answer even just one of my questions, despite how clear-cut they are. Note also that at least three people can't tell the difference between a picture of a thing on a website and the thing itself. Without the picture being authenticated, it's just a picture.

For you lurkers: the fact that no one is willing to answer even one of my questions is a big clue.


You never answered the question I asked you.

Where's your legal authority for demanding that Hawaiian state officials break Hawaiian law?
9.16.2009 8:45pm
Edward A. Hoffman (mail):
24AheadDotCom wrote:
How surprising! No one has yet tried to answer even just one of my questions, despite how clear-cut they are. Note also that at least three people can't tell the difference between a picture of a thing on a website and the thing itself. Without the picture being authenticated, it's just a picture.
What do you expect your computer screen to show you besides a picture? It can't bring you the actual document.

The certificate has been certified by the Director of Hawaii's Department of Health. You can see the certification here: http://24ahead.com/images/fukino-statement.jpg. Of course, since what you will see on your computer screen is just a picture of the certification, I imagine it will not satisfy you either.
9.16.2009 8:56pm
Edward A. Hoffman (mail):
My last comment may be confusing because I used the terms "certificate", "certify" and "certification" to describe two different things. I should have called said authenticate and authentication instead. Here is the clarified text:

-----------------------------------

24AheadDotCom wrote:
How surprising! No one has yet tried to answer even just one of my questions, despite how clear-cut they are. Note also that at least three people can't tell the difference between a picture of a thing on a website and the thing itself. Without the picture being authenticated, it's just a picture.
What do you expect your computer screen to show you besides a picture? It can't bring you the actual document.

The certificate has been authenticated by the Director of Hawaii's Department of Health. You can see the authentication here: http://24ahead.com/images/fukino-statement.jpg. Of course, since what you will see on your computer screen is just a picture of the authentication, I imagine it will not satisfy you either.
9.16.2009 9:02pm
J.R.L.:
The answer to that from anyone who cares to be correct is yes.

There is no "long form" birth certificate in the sense that there is absolutely no "more authentic document" that can be produced by the Hawaiian government.


Hawaiian statutes are pretty clear on how the record system works. You go to the Department that holds vital records, as for a certificate and you get a certified copy of the information contained in the record. That certified copy is legally valid for all purposes in Hawaii. The statute is even clearly that it's unlawful for the state agency to release any documents other than those specifically provided for by the statute or in another rule.

I thoroughly explained this a week or two ago with statutory cites in the Chester Arthur post in response to another one of 24ahead's "challenges," and all I got in response was the insinuation that I'm stupid for suggesting that Hawaiian state officials aren't free to break Hawaiian law merely because someone asks them to.


Straw man = fail. I didn't say a thing that contradicts with any of that.
9.16.2009 9:15pm
byomtov (mail):
Andrew Hyman,

President Obama should release a copy of the birth certificate printed in 1961, to clear the air.

There is absolutely nothing that would "clear the air," as you put it. That's because the birthers are nuts, and nothing will satisfy them. There's always going to be another document, an earlier version, etc. Obama should do what he is doing, which is to ignore these people.
9.16.2009 9:36pm
zuch (mail) (www):
J.R.L.:
[zuch]: On a more serious note, could it be that what you see is what you get; that no such so-called "full form birth certificate" even exists?
The answer to that from all sides is "no".
You mean that no such long form exists (as I posited) or that I'm wrong in asserting this as a possibility? If the latter, you're simply wrong. See elsewhere on this thread amongst other places.

Cheers,
9.16.2009 9:38pm
David M. Nieporent (www):
What makes the "birther" movement so absurd is that Obama would be eligible to be president even if he was born abroad, just as someone pointed out about John McCain. Truly nutty.
Your statement is incorrect. Under the law as it existed in 1961, Obama would not have been a citizen if he had been born in Kenya. He wouldn't have gotten citizenship by place of birth or through his father, obviously, and couldn't have gotten it through his mother.
9.16.2009 9:40pm
Dilan Esper (mail) (www):
<i>To have a requirement that no one agrees upon the meaning of, and for which there's no mechanism for enforcement, is beyond stupid.</i>

The Constitution is full of things without a judicial mechanism for enforcement. How do you prevent the President from going to war without congressional authorization? How do you ensure that states guarantee their citizens a republican form of government? How do you ensure that federal spending actually promotes the general welfare?

(By the way, it is not true that there is NO mechanism to enforce the natural born citizen clause. It can be enforced by the parties, the electorate, the electoral college, or Congress.)
9.16.2009 9:41pm
zuch (mail) (www):
Laura(southernxyl):
By "public" I mean official, and made public. Maybe the Chief Justice of the SC ought to sign off on the candidates, or the CJ and the Speaker of the House, or something.
This is a solution in search of a problem. Once Obama serves his two terms, you won't hear the "birthers" raising a stink about the obvious and/or fanciful -- until the next Obama is nominated by the Democrats ... but not the Republicans (see, e.g., "McCain").

Cheers,
9.16.2009 9:44pm
geokstr (mail):

zuch:
I suggest that these people would just find some other cockamamie excuse to deny that he's their president (or otherwise to delegitimize him)

Oh, you mean like your side did for the previous 8 years?
9.16.2009 9:52pm
einhverfr (mail) (www):
Dilan:

Actually I think it could be enforced by courts. But only political candidates running against him would have standing. McCain doesn't want to sue either because he knows it would be frivolous or bad for the country. Now that he is president, McCain could be calling for impeachment but isn't.
9.16.2009 10:07pm
24AheadDotCom (mail) (www):
1. I've been commenting here for years.
2. Ben P. is "arguing against interest". For instance, FactCheck's argument (up until it was OBE'ed in late July 2009) in effect accused HIan officials of breaking the law.
3. The picture at my site linked above contains a press release in which the HI official does not certify the picture on BHO's site; she just says he was born there. (Obamabots have trouble reading)
4. As linked in one of my comments above ("president"), BHO's full file presumably still exists in HI's records since they say they don't as a rule throw out old documents, they just archive them.
5. Could this site disclose "interesting" IP address, such as those out of DC or Chicago? That'd be great.
9.16.2009 10:10pm
Leo Marvin (mail):
More Birther threads!
9.16.2009 10:18pm
Dave N (mail):
Damn,

Now I'm an Obamabot. Funny the things people learn about themselves on the internet.
9.16.2009 10:28pm
yankee (mail):
There is absolutely nothing that would "clear the air," as you put it. That's because the birthers are nuts, and nothing will satisfy them. There's always going to be another document, an earlier version, etc. Obama should do what he is doing, which is to ignore these people.

It's not just that, releasing the "long form" birth certificate (if such a thing exists) would give the birthers credibility they don't deserve.
9.16.2009 10:28pm
Leo Marvin (mail):
zuch:

This is a solution in search of a problem. Once Obama serves his two terms, you won't hear the "birthers" raising a stink about the obvious and/or fanciful

God willing. Maybe then we could turn our attention back to who killed Vince Foster.
9.16.2009 10:35pm
ArthurKirkland:
Silver lining: Every synaptic impulse devoted to the Obama birth certificate challenge is one less thought about bombing Iran, assassinating Castro, invading Venezuela, or amending the Constitution to include the Ten Commandments.
9.16.2009 11:22pm
Edward A. Hoffman (mail):
24AheadDotCom wrote:
The picture at my site linked above contains a press release in which the HI official does not certify the picture on BHO's site; she just says he was born there. (Obamabots have trouble reading)
Amazing. Although I didn't realize it at the time, my link to the document authenticating the President's birth certificate was to 24AheadDotCom's own website! (I just searched for a copy via Google, and his was the one I found.) Even more amazing, though, is that he still refuses to acknowledge that document's significance.

Here is the pertinent language:
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.

"No state official, including Governor Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawai'i."
True, the letter does not specifically referred to the image that appeared on the Obama campaign's website. That doesn't matter.

The certificate of live birth produced by the Obama campaign was issued by the State of Hawaii and bears the official seal and signature of the appropriate Hawaiian officers. This means that it contains the same information found in the state's own records. That, in turn, means that accurate pictures of the certificate also contain the same information found in the state's own records.

And anyone who thinks that the picture itself may have been tampered with should look at this page from FactCheck.org. For those of you who don't already know this, FactCheck.org is a nonpartisan program of the Annenberg Public Policy Center at the University of Pennsylvania. Its own staffers physically handled the document and verified its authenticity.

Since an authentic Hawaii certificate of live birth would contain the same information as the state's official records, and since those records have been authenticated and since the news release on 24AheadDotCom's own website verifies that the information is accurate and has been handled the same way as any other Hawaiian's records, it is hard to imagine what more 24AheadDotCom would want to see before he accepts that the President was indeed born when and where the certificate says he was.

But I'm sure he'll come up with something.
9.16.2009 11:33pm
EH (mail):
If David Bernstein could see his way through writing something about Orly and opening up comments, we may be able to open a wormhole.
9.16.2009 11:35pm
24AheadDotCom (mail) (www):
Edward Hoffman: you have absolutely no clue whatsoever.

Here are my posts about Fact Check. As you can see, I've caught them in various lies, including grossly misleading (directly or indirectly) millions of people. They took what you quoted above and claimed that meant she was confirming that he was born there. However, if you actually read it, you'll see she said no such thing. The same person only said he was born there at the end of July of this year; she implicitly admitted that her earlier statement was ambiguous. It wasn't ambiguous to FactCheck: they jumped to take BHO's side.

And, returning to the specific topic of this post, the judge clearly showed pro-Obama bias: he gave BHO the benefit of the doubt that he didn't extend to Taitz. (The fact that that probably won't bother anyone else is pretty disturbing).
9.16.2009 11:52pm
Edward A. Hoffman (mail):
24AheadDotCom:

The burden of proof is on the plaintiff, not the defendant. The defendant is supposed to get the benefit of the doubt. The plaintiff isn't.

President Obama was the defendant, so he was entitled by law to the benefit of the doubt. That the judge did as the law required does not "clearly show[] pro-Obama bias".

Ms. Taitz represented the plaintiff, so the court was required not to give her the benefit of the doubt. Here again, the judge was simply following the law.

I don't know why you find it "pretty disturbing" that the rest of us won't be bothered by a judge who actually understands the law applies it correctly.

And yet somehow you think I'm the one who has "absolutely no clue whatsoever." That's fine. I always enjoy a good dose of irony at the end of the day.
9.17.2009 12:05am
AccountingProf:
Now that everyone has left this post for more productive matters, I have a question for speculation. Assume that someone (a judge, the FEC, congress) did need to make a decision on a candidate's eligibility for the Presidency (maybe because of citizenship issues, or perhaps because of age). What would be the standard of proof? That it is more likely than not that the candidate is a natural born citizen/sufficiently old? Preponderance of the evidence? That it is beyond a reasonable doubt that it is so? That it is beyond a reasonable doubt that it is NOT so? Etc.?
9.17.2009 12:08am
Loren:
And, returning to the specific topic of this post, the judge clearly showed pro-Obama bias


Yes, obviously the Georgia judge who was appointed to the bench by Republican George W. Bush, on the recommendation of Republican Senator Saxby Chambliss, and who had previously served as a Republican State Senator in the Georgia legislature, is tainted by his bias in favor of the Democratic office-holder.
9.17.2009 12:43am
ChrisTS (mail):
Dave N:

It is your own fault for being all rational-like. A pox upon your fact-based reality!
9.17.2009 12:50am
24AheadDotCom (mail) (www):
1. Edward Hoffman is wrong again: Obama wasn't AFAIK involved in the suit, and the bias I'm referring to doesn't appear to be related to the core part of the suit.

2. Loren fails to understand that something far more powerful than Dems or the GOP is the establishment. Taitz is challenging the establishment, and the establishment is striking back. (See, for instance, BHO continuing various GWB programs and the like).
9.17.2009 12:54am
J.R.L.:
zuch
You mean that no such long form exists (as I posited) or that I'm wrong in asserting this as a possibility? If the latter, you're simply wrong. See elsewhere on this thread amongst other places.


There can be no doubt that such long form exists. Any reasonably informed person understands such. There can further be no doubt that all the information contained on the short form is the same as is contained on the long form (e.g. that Obama was born in Hawaii).

The only question is what is on the long form that he or his camp believe to not be politically expedient? Whatever it is, it can't be as damaging to Obama as he/they think it is. That's why it's so silly to withhold it.
9.17.2009 1:07am
name:
Obama was a defendant in the case.
9.17.2009 1:16am
David Chesler (mail) (www):
24Ahead - it's late, I've got a few minutes. I followed your links. And whenever I saw a link that was going to show me Snopes or CNN lying, all I got was another page on your site making the claim. (It looks like the "lie" was that the statement was by Dr. Fukino rather than by Gov. Lingle. If that's the case it was sloppy but not material to the question at hand.)

If there is something embarassing on the long form, that is completely a political question, and it's too late for political questions. We (all of us collectively, including the large minority that voted against him) hired him for four years, and we can't fire him before then, even if we wouldn't have hired him knowing what we know now.

Did people used to have fewer pieces of paper? I think I could put my hands on my father's original birth certificate, including the envelope in which it arrived, which gave him a clue about when his parents moved to a particular address, more easily than my own. I never got "original" versions of my children's birth certificates, instead the first time I needed one, for my oldest, I paid appropriate town clerk for all of them. I don't think I've needed my birth certificate in 25 years or more, since I've had a driver's license and passport. When I did need it I got a then-current copy (at that time it was a negative photostat I think) from the city's bureau of records.
9.17.2009 2:02am
NickM (mail) (www):
J.R.L. - if Obama no longer has a copy of the long form (I'm sure his parents got at least one, but that doesn't mean they survived unscathed all these years), Hawaii won't give him a replacement copy. The state still has the original though.

einhverfr - in one of the cases, Alan Keyes was a plaintiff, and he had standing, because he was a candidate for President on at least one state ballot (American Independence Party in CA).

Taitz will hopefully be disbarred soon for the unethical stunt she pulled when 2 of her CA plaintiffs (Mark Robinson and Wiley Drake, both leaders in the CA AIP) sought to change counsel - she refused to substitute out as their counsel and instead tried to remove them as plaintiffs.

[Full disclosure: I'm casual friends with both Robinson and Kreep, though I haven't seen or communicated with either in years. I don't think I've ever met or communicated with Drake.]

Nick
9.17.2009 2:19am
Dilan Esper (mail) (www):
Actually I think it could be enforced by courts.

You have any authority for this proposition? Because this would seem to be textually delegated to the political branches (i.e., the electoral college and the congressional certification of the count) and thus a political question under current doctrine.
9.17.2009 2:39am
Laura(southernxyl) (mail) (www):
The Constitution is full of things without a judicial mechanism for enforcement. How do you prevent the President from going to war without congressional authorization?

Case in point - the President can just call it a "police action" and do as he pleases. Do we have a definition of "going to war" that everyone agrees on? Are we happy that this state of affairs exists?

How do you ensure that states guarantee their citizens a republican form of government?

Do states routinely examine and rewrite their constitutions every four years? If there is a problem, is there an extremely short window of time wherein it can be fixed, as there is between the emergence of front-runners and November elections?

How do you ensure that federal spending actually promotes the general welfare?

Are you taking that phrase from the first sentence of the Preamble, which is like the "Purpose" blurb on one of my quality documents, and equating it with the section of the Constitution that sets forth requirements for public office? If so, once again, wouldn't we be a hell of a lot better off with a carefully drawn definition of "general welfare"?
9.17.2009 9:36am
Angus:
Taitz will hopefully be disbarred soon
I wonder if she could be disbarred for entering that forged Kenya birth certificate as evidence in one of her cases?
9.17.2009 10:32am
Per Son:
She should not be disbarred. Birfers are my current source of entertainment.
9.17.2009 10:45am
Dave N (mail):
Loren fails to understand that something far more powerful than Dems or the GOP is the establishment. Taitz is challenging the establishment, and the establishment is striking back. (See, for instance, BHO continuing various GWB programs and the like).
Here is the crux, then, of his argument. Absolutely NOTHING will convince "birthers." Nothing at all. ANY evidence of any kind will be something that "the establishment" has forged, doctored, or paid off people to attest.

Thus, rational discussion of any kind is pointless.
9.17.2009 11:07am
Dilan Esper (mail) (www):
Laura:

FYI, the spending clause of the Constitution says that Congress can spend money to promote the general welfare. My point was that there's no real way of enforcing this requirement / limitation on spending. That doesn't mean that it doesn't exist though. Just like the guarantee clause, the declare war clause, and many other parts of the Constitution.
9.17.2009 12:20pm
24AheadDotCom (mail) (www):
David Chesler is just another dumb Obamabot who can't figure things out. I think he's referring to the case where CNN implied that HI's governor had verified that BHO was born there, despite the fact that she never did. She referenced BHO being from HI on the campaign trail in order to downgrade his ties to her state, but she never confirmed in her official capacity that he was born there.

The FAX here lays it all out in one easy-to-understand page with a link to the original claim and examples of her campaign trail statements. David Chesler can't figure something that I think most grade schoolers could understand.

CNN saying things like that isn't sloppy, it's highly deceptive. Some BHO fans would fit right in in Venezuela.
9.17.2009 12:44pm
einhverfr (mail) (www):
Oren:

You have any authority for this proposition? Because this would seem to be textually delegated to the political branches (i.e., the electoral college and the congressional certification of the count) and thus a political question under current doctrine.


Given that every current lawsuit has been dismissed for lack of standing or failure to state a claim, I don't think we can do more than speculate.

However, courts HAVE allowed election law questions to come before them. The court COULD have applied the same logic in Bush v. Gore (i.e. this is a matter for Congress to determine as they look at certifying the vote).

I personally thing that once standing would be met, the courts would be obligated to address important legal questions such as a definition for natural-born citizen.
9.17.2009 12:52pm
zuch (mail) (www):
24AheadDotCom:
The same person only said he was born there at the end of July of this year;...
Then obviously he's not old enough to be president. <*PLONK*>

Cheers,
9.17.2009 12:53pm
Jam:
And how ewxactly is dealing with the POTUS' qualifications is dealing with "internal military affairs?"

And why not produce the certified, long form, birth certificate?

Did any of the several Secretaries of State request and acquire an official birth certificate as part of their due diligence in vetting a candidate [for POTUS] to be placed on a State's ballot?
9.17.2009 12:55pm
einhverfr (mail) (www):
Dilan:

FYI, the spending clause of the Constitution says that Congress can spend money to promote the general welfare. My point was that there's no real way of enforcing this requirement / limitation on spending. That doesn't mean that it doesn't exist though. Just like the guarantee clause, the declare war clause, and many other parts of the Constitution.


Well, let's consider the issues here. What is "general welfare" is not a question of law but rather of fact.

I think that there ARE cases where the declare war clause could be enforced by the courts but these involve direct conflicts between the executive and legislative branches, not citizen-enforced actions.
9.17.2009 12:56pm
einhverfr (mail) (www):
For the Birthers:

Anyone seen John McCain's long-form birth certificate? I would be tone doesn't exist and that instead one would have a consular record of birth abroad.
9.17.2009 12:58pm
zuch (mail) (www):
J.R.L.:
[zuch]: You mean that no such long form exists (as I posited) or that I'm wrong in asserting this as a possibility? If the latter, you're simply wrong. See elsewhere on this thread amongst other places.
There can be no doubt that such long form exists.
OK, I'll bite. How do you know this? Have you seen it?

But FWIW, your original claim wasn't as to the truth of this assertion, it was that everyone agreed as to the truth of this:
[J.R.L.]: "The answer to that from all sides is 'no'."
Cheers,
9.17.2009 1:00pm
Dilan Esper (mail) (www):
However, courts HAVE allowed election law questions to come before them. The court COULD have applied the same logic in Bush v. Gore (i.e. this is a matter for Congress to determine as they look at certifying the vote).

Much as I hate Bush v. Gore, it is quite a bit different, as the Constitution says nothing about the way that state election results for electors in the electoral college will be certified. In contrast, the Constitution specifically assigns Congress and the electoral college the responsibility of choosing certifying the selection of the President.

Powell v. McCormick is actually pretty clear on this. Congress did not have the right to impose extra-constitutional qualifications on seating a congressman. However, with respect to the qualifications IN the constitution (including age and residency), Congress IS the final arbiter and the courts would have no jurisdiction.
9.17.2009 1:19pm
Dilan Esper (mail) (www):
I think that there ARE cases where the declare war clause could be enforced by the courts but these involve direct conflicts between the executive and legislative branches, not citizen-enforced actions.

Your problem is that you aren't examining WHY courts don't declare wars unconstitutional. If you think about that question, you might get the answer as to why the President's citizenship status is nonjusticiable.
9.17.2009 1:22pm
Laura(southernxyl) (mail) (www):

My point was that there's no real way of enforcing this requirement / limitation on spending. That doesn't mean that it doesn't exist though.


Sure it does. I can write down a requirement that people who enter my lab have to wear eye protection. I can even get my boss to sign it. But if people I don't supervise come into my lab, I tell them they have to wear eye protection, they ignore me, I tell my boss and he does nothing, then I have no real way of enforcing my policy and we don't have an eye protection requirement. We have words on a piece of paper and that's it.
9.17.2009 1:42pm
einhverfr (mail) (www):
Dilan Esper:

Your problem is that you aren't examining WHY courts don't declare wars unconstitutional. If you think about that question, you might get the answer as to why the President's citizenship status is nonjusticiable.


Do you think Schlesinger v. Holtzman has no precedential value?

It seems there the line was drawn at "decisive opposition by Congress." On other words, if the President goes to war over the decisive opposition of Congress, there might be room for the courts to get involved.
9.17.2009 2:44pm
Greg G:
"Do any of you doubt that if this evidence were presented to a court of law that it would suffice to prove that Obama was born in Honolulu?"

I am not a birther but my curiosity was piqued long ago by the failure to simply post the long form documents.

My wife passed away several years ago, while our son was in elementary school. She'd paid heavy SS taxes during her working life and we were eligible for substantial Social Security survivor's benefits. My son and I arrived at the SS interview with certified long form document copies dating from our birth years. The bureaucrat looked over the documents and said this would be easy, explaining that the more recent the document, the more they're required to dig before approving. Showing up with old copies of the long documents meant all she needed to do was make her own copies; had we shown up with fresh certified printouts they'd have to go get the originals themselves.

I think it reasonable that, for the office of the Presidency, or for election to the Congress, the candidate produce the documentation I had to produce to get a check.
9.17.2009 2:51pm
einhverfr (mail) (www):
Dilan:

Re-read Powell v. McCormick again CAREFULLY and reference the Constitutional text involved.

First the text involved is limited to each house in determining the qualifications of their own members. It does NOT extend to the President's qualifications.

Secondly, the court concluded there was subject matter jurisdiction despite the political question doctrine.
9.17.2009 2:58pm
Dilan Esper (mail) (www):
Sure it does. I can write down a requirement that people who enter my lab have to wear eye protection. I can even get my boss to sign it. But if people I don't supervise come into my lab, I tell them they have to wear eye protection, they ignore me, I tell my boss and he does nothing, then I have no real way of enforcing my policy and we don't have an eye protection requirement. We have words on a piece of paper and that's it.

It's amazing how many people pop off about jurisprudence without really being aware of the fact that these arguments have been bouncing back and forth for awhile.

Yes, you still have a rule. Some people will obey the rule because it exists. If you changed the rule, some of those people will no longer obey the rule.

Prohibition, for instance, stopped some people from drinking, even if others ignored it.

In addition, a rule has an advisory quality to it. It warns people of the dangers of something. They may take the risk anyway, but it gives them some counsel. For instance, a President may decide that he or she does not want to take the step of starting an undeclared war unless he or she concludes that it is quite important and congressional authorization is impossible. And that may deter some number of unauthorized wars.

Similarly, it is difficult to conceive of a scenario where we the people would elect a non-natural-born citizen, as the arguments of ineligibility would surely be made and would deter some people from voting for the person. The rule would thus deter us. It wouldn't have perfect enforcement, as we could decide to just violate the rule, but we would probably have to face some very dire situation to want to do that.

The point is, you seem to think the only purpose of a rule is to have airtight enforcement. But rules have other purposes as well, and even unenforced and/or unenforceable and/or self-enforced rules can serve those purposes.
9.17.2009 3:10pm
Dilan Esper (mail) (www):
Do you think Schlesinger v. Holtzman has no precedential value?

Correct.

First the text involved is limited to each house in determining the qualifications of their own members. It does NOT extend to the President's qualifications. Secondly, the court concluded there was subject matter jurisdiction despite the political question doctrine.

The courts may well have jurisdiction over a claim brought by someone with standing, but it's still nonjusticiable. The clause that textually devotes it to the electoral college and Congress is, indeed, a different clause than the one in Powell, but it is in the Constitution just the same. And just as the House determines the qualifications of its memebers, the electoral college and Congress certify the eligibility of presidential candidates. Not the courts.
9.17.2009 3:13pm
einhverfr (mail) (www):
Put another way:

Do you think that Schlesinger v. Holtzman has no precedential value where Congress has made opposition to a war clear but isn't willing to impeach over it? Or is there any remedy short of impeachment?

I.e. in that case, we see basically a Youngstown Steel type analysis which allows the courts to provide orders where the presidential power is at its ebb (i.e. where the President is acting in defiance of Congress). It doesn't allow the courts to get involved UNLESS that exists. I cant think of any case that overrules this one.


And just as the House determines the qualifications of its memebers, the electoral college and Congress certify the eligibility of presidential candidates. Not the courts.


Once the vote is in, I agree with you. I would also argue that if such information was known before the election and suits not filed then, that the party would be estopped from pursuing this after the election anyway.

In short, once the vote is in, the electoral college votes. Congress certifies. The only way out is impeachment. However, if someone is known not to satisfy Constitutional requirements before the election, this might be justiciable by the court and outside of the political question doctrine.

Once again, I don't see the textual commitment to adjudicating age requirements, how to read the incredibly awkward use of commas in Art 2, sec. 1 (i.e. the one that would suggest that a requirement to be alive at the time the Constitution was adopted), etc. in the Constitution as vested in Congress or the Electoral College prior to the election. Instead, everything in Powell suggests the courts might well find justiciable the question of whether a naturalized citizen would be allowed to run for the office. Standing would be requirement of course which creates a high bar.
9.17.2009 3:28pm
Laura(southernxyl) (mail) (www):
Dilan, it looks to me like what you call "rules" I would call "guidelines". Or possibly "recommendations".


No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.


This does not appear to me to be a list of suggestions that we should just put aside if we really, really like a candidate.

Further, if somebody got hurt in my lab under the conditions I describe, my boss and I both would be liable as hell. The fact that I have a written policy mandating eye protection would be absolutely meaningless because my boss and I didn't enforce it.

But excuse me, I'll stop popping off now.
9.17.2009 3:29pm
einhverfr (mail) (www):
Laura:

I love the awkward use of commas here:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.


If we read this so no comma is extraneous, then we would conclude that nobody alive today would be eligible to serve as POTUS, because nobody alive today is:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution....


It would be a lot clearer if the second comma was removed :-)
9.17.2009 3:31pm
einhverfr (mail) (www):
In fact that whole requirements clause is confusing.

It could also be read so as to exclude anyone who had been a resident in this country for at least 14 years.....
9.17.2009 3:33pm
J.R.L.:
"OK, I'll bite. How do you know this? Have you seen it?

But FWIW, your original claim wasn't as to the truth of this assertion, it was that everyone agreed as to the truth of this:"


Yes, the interwebs are full of examples of Hawaii long form birth certificates from the year of Obamas birth? Are you suggesting that everyone got one but Obama? That's absurd. Or perhaps it's like that Saturday Night Live sketch, the unlucky Andersons, where their son got drafted because the army needed one more person?

As for everyone knowing this, you're right I should have qualified that earlier (as I eventually did) that only those who don't have their heads in the sand are awares.
9.17.2009 3:41pm
Laura(southernxyl) (mail) (www):
Yes, let me fix it.


No person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and who has not been at least fourteen Years a Resident within the United States.


I'm just thrilled that it says "person" and not "man". Very forward-thinking of our founding fathers, esp. considering that they probably never would have anticipated female candidates.
9.17.2009 3:44pm
Laura(southernxyl) (mail) (www):
Or, wait, that's still iffy.


No person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office without having attained to the Age of thirty-five Years and being at least fourteen Years a Resident within the United States.
9.17.2009 3:54pm
einhverfr (mail) (www):
Laura:

Yes, let me fix it.


How very originalist of you ;-).
9.17.2009 3:55pm
Laura(southernxyl) (mail) (www):
Circumstances and my own nature force me to value Pragmatism over Constitutional Fundamentalism.
9.17.2009 4:03pm
David Chesler (mail) (www):
David Chesler is just another dumb Obamabot who can't figure things out. ...

The FAX here lays it all out in one easy-to-understand page with a link to the original claim and examples of her campaign trail statements. David Chesler can't figure something that I think most grade schoolers could understand.

CNN saying things like that isn't sloppy, it's highly deceptive. Some BHO fans would fit right in in Venezuela.


Do you have any evidence of this? (That I'm an Obamabot. That I'm dumb is self-evident from my taking part in this exchange.) Hint: I voted for Bob Barr, as I've voted that party in every election for 20 years, and between the two other candidates, I was cheering for Palin's running mate.

I'll completely concede that Lingle never said BHO was born in HI, and most likely as you suggest CNN erred in reading the letterhead on Fukino's statement. But it's not deceptive. I'd say your statement "Lingle tells Brokaw: no one in Hawaii knew Obama" is more false and misleading: false because what she says (referring to your own page which you apparently once sent by fax) "not too many people in Hawaii had heard of Barack Obama until he ran for president. Because as you know, as he was born there, he spent a very few years in school but they are very partial to people who were born in our home state." and misleading or deceptive because it would be virtually impossible for someone to have lived somewhere and absolutely nobody know him. By the way, read that second sentence quoted, the second clause "he was born there".

That sure sounds to me like Hawaii Governor Linda Lingle is saying BHO was born in Hawaii.

Besides, despite all the self-referential links and tags on that page, I don't see a source for the claim that CNN. The fax had a link to a Lou Dobbs transcript but I don't see the claim there.
9.17.2009 4:03pm
Jam:
Just for the sake of the argument, Obama is not a natural born citizen.

The only way to remove him as POTUS is by impeachemnt and removal? And why would a uS citizen, or more specifically a bonafide natural born uS citizen, not have standing to to sue an usurper?

Eons ago (metaphorically speaking), I think it had to do with me getting amarriage license in 1984 in Miss, I had to get a certfied, official, birth certificate. It is embossed and the paper has intricate patterns/relief (like a stock or a currency bill). It is not a large document but it is definitely not just a printout.

What's so darn difficult for Mr. Obama to present his official certificate?

Am I a birther for thinking that, by and large, the person seeking a particular office has the onus to prove his qualifications?

As to McCain. It is somewhat of a moot point. McCain lost the Electoral College vote.

McCain 1
McCain 2


I guess Puerto Ricans, born in the island and who have always resided in the island, are natural born citizens and qualify to become POTUS.
9.17.2009 4:19pm
einhverfr (mail) (www):
Jam:

The only way to remove him as POTUS is by impeachemnt and removal? And why would a uS citizen, or more specifically a bonafide natural born uS citizen, not have standing to to sue an usurper?


Since such would be a civil lawsuit, standing is important because of two words:

res judicata.

Absent standing and ensuring that the plaintiff has a particularized interest in the case, nothing prohibits a sweetheart lawsuit to establish facts which cannot later be relitigated.

Also, changing circumstances don't matter because it is HIGHLY unlikely that the president's status as a natural-born citizen would have represented changing circumstances subject to relitigation.

However, beyond this, I think that a sitting President may be enjoined from specific Unconstitutional acts, but the court is forbidden from judging the wisdom or necessity of those acts. I think removing a sitting President is clearly a power solely delegated to the impeachment process.
9.17.2009 4:30pm
einhverfr (mail) (www):
Jam:

I guess Puerto Ricans, born in the island and who have always resided in the island, are natural born citizens and qualify to become POTUS.


That is correct.
9.17.2009 4:31pm
Catchy Name (mail):
And why would a uS citizen, or more specifically a bonafide natural born uS citizen, not have standing to to sue an usurper?

As many courts have explained, lack of a particularized injury.


What's so darn difficult for Mr. Obama to present his official certificate?

Because he's already the president and has much more important things to do, he's not legally obligated to, doing so would legtimize these anklebiters, and doing so would in way begin to answer all these "hard questions."

And do you realize your second McCain birth certificate is a fake?
9.17.2009 4:33pm
David Chesler (mail) (www):
My error, 24. About 80% down the transcript is "The Republican governor of Hawaii, Linda Lingle, on record, she says Obama was indeed born in her state" -- and indeed she did, to Tom Brokaw. (My browser got hung up in the frames.)

Non-justiciable -- does that mean the judiciary is not the judge of every dispute, such as the one being called non-justiciable?
9.17.2009 4:50pm
ChrisTS (mail):
Per Son:
She should not be disbarred. Birfers are my current source of entertainment.

Gee. Not enough Darwin Awards winners for you?
9.17.2009 4:55pm
einhverfr (mail) (www):
David Chesler:

Non-justiciable -- does that mean the judiciary is not the judge of every dispute, such as the one being called non-justiciable?


Well, the judiciary might say "the only mechanism in the Constitution to remove a sitting president is impeachment. Therefore we won't step into Congress's role in order to address this question."

Think of the political question doctrine as a matter of separation of powers. However to reach that result, the court has to show that the Constitution delegates that decision to an elected branch, as it does with removing a sitting president.

Preventing someone who is not qualified from RUNNING on the other hand seems to my mind to be squarely in the judiciary's role if standing could be shown.
9.17.2009 5:05pm
AnthonyJ (mail):
What's so darn difficult for Mr. Obama to present his official certificate?
Nothing. He's already done so, just people don't believe him. The Certificate of Live Birth is the official certificate.
9.17.2009 5:20pm
Dilan Esper (mail) (www):
Do you think that Schlesinger v. Holtzman has no precedential value where Congress has made opposition to a war clear but isn't willing to impeach over it? Or is there any remedy short of impeachment?

Congress can impeach. It can also cut off funding. The President's opponents can also run on the issue and get enough people in Congress to cut off funding or replace the President with a war opponent.

Look, I wish there was some magical way to stop a President from waging war without congressional authorization, but there isn't. The politics are very hard, and the way the Vietnam War actually ended was not through lawsuits, but through election results and shifts in public opinion.

I.e. in that case, we see basically a Youngstown Steel type analysis which allows the courts to provide orders where the presidential power is at its ebb (i.e. where the President is acting in defiance of Congress).

If Youngstown had turned on the legality of the Korean War (rather than the legality of the steel seizure), it would have come out the other way.
9.17.2009 5:24pm
Dilan Esper (mail) (www):
This does not appear to me to be a list of suggestions that we should just put aside if we really, really like a candidate.

Neither do the other constitutional provisions I cited. And yet, none of them are enforceable in court.

Obviously, there's a form of "rule" that you aren't familiar with, but that doesn't mean it doesn't exist.
9.17.2009 5:25pm
einhverfr (mail) (www):
Dilan Esper:

Look, I wish there was some magical way to stop a President from waging war without congressional authorization, but there isn't.


I think we are arguing over different lines. The line drawn in Schlesinger was not "without Congressional authorization" but rather a question of whether such actions could be done in DEFIANCE of Congressional funding conditions. It is in these cases where a President is acting not merely without authorization but in open defiance of Congressional conditions regarding funding, etc. that I think the court could act. But there, it is dependant on Congress to act first.

In short what I am saying is that if Congress sends a clear message to the President in the form legislation or a resolution which is passed, and if the President ignores this and acts in open defiance of that legislation or resolution, I think the Courts would be obligated to side with Congress. But I don't think the Courts could side with a citizen against the President in that case.

In short I don't think that political question doctrine entirely insulates issues from separation of powers claims when one branch of government sues another. In short it isn't a question of whether a clause is enforcible (as Powell showed) but under what conditions, and which parties may be allowed to make such a case before the court.

This isn't a "magic way" to make the President act only with Congressional authorization. It is a proper way to prevent the President from acting in open defiance of Congress.

In Schlessinger, the court allowed the lawsuit to continue but denied injunctive relief on the grounds that an injunction would represent a political question involved in the necessity or harm of the bombings, but whether the President's orders violated the law was not precluded by the political question doctrine. In Powell, the court concluded that the questions at hand were not political questions and that Powell could not be EXCLUDED from Congress unless the process against him was a formal expulsion. The court there held that interpreting the Constitution in that case did not pose a political question and that Powell was ultimately allowed to be seated. I don't see why these rule would have been overturned and I certainly can't find a case showing that it has. Perhaps you could provide an authority?
9.17.2009 5:52pm
Dilan Esper (mail) (www):
In short I don't think that political question doctrine entirely insulates issues from separation of powers claims when one branch of government sues another.

Nobody said it does. But that's a far cry from permitting adjudication of the sorts of issues you are talking about.

In Schlessinger, the court allowed the lawsuit to continue but denied injunctive relief on the grounds that an injunction would represent a political question involved in the necessity or harm of the bombings, but whether the President's orders violated the law was not precluded by the political question doctrine. In Powell, the court concluded that the questions at hand were not political questions and that Powell could not be EXCLUDED from Congress unless the process against him was a formal expulsion. The court there held that interpreting the Constitution in that case did not pose a political question and that Powell was ultimately allowed to be seated. I don't see why these rule would have been overturned and I certainly can't find a case showing that it has. Perhaps you could provide an authority?

If the issue in Powell had been that Adam Clayton Powell was found by the House to not meet the residence requirement, do you have any doubt that the Court would have adjudicated this to be a political question?

As for Schlesigner, it is simply not a case of any importance. There is no way that the Supreme Court would ever adjudicate the constitutionality of a war, or whether it violated a statute. The remedy is impeachment.
9.17.2009 5:59pm
Leo Marvin (mail):
Laura:

Dilan, it looks to me like what you call "rules" I would call "guidelines".

Welcome aboard the Black Pearl!
9.17.2009 6:01pm
einhverfr (mail) (www):
Dilan:

If the issue in Powell had been that Adam Clayton Powell was found by the House to not meet the residence requirement, do you have any doubt that the Court would have adjudicated this to be a political question?


Given the crystal clear language in article 1, no. That would have been a political question. No parallel language that I can find precludes the court from interpreting the Article 2, Section 1 requirements clause in a case where someone could very likely become president without meeting those requirements.

For a SITTING president, though, the remedy is impeachment. However, I am not sure this expands beyond that to CANDIDATES, or where the states are sued by the parties over listing unqualified candidates. In short, I am saying that what constitutes qualification is not a political question the way deposing a sitting president is.
9.17.2009 6:23pm
jukeboxgrad (mail):
What's so darn difficult for Mr. Obama to present his official certificate?


WSJ is obviously part of The Great Establishment Conspiracy to Subvert the Constitution and Keep the Usurping Brother in the White House:

Obama has already provided a legal birth certificate demonstrating that he was born in Hawaii.
9.17.2009 6:43pm
Mikeyes (mail):
Apparently an appeal has been filed which, among other things, states:

"Plaintiff avers that there is increasing evidence that the United States District Courts in the 11th Circuit are subject to political pressure, external control, and, mostly likely, subservience to the same illegitimate chain of command which Plaintiff has previously protested in this case, except that the de facto President is not even nominally the Commander-in-Chief of the Article III Judiciary."

And:

" This Court has threatened the undersigned counsel with sanctions for advocating that a legally conscious, procedurally sophisticated, and constitutionally aware army officers corps is the best protection against the encroachment of anti-democratic, authoritarian, neo-Fascistic or Palaeo-Communistic dictatorship in this country….

Plaintiff submits that to advocate a breach of constitutional oaths to uphold the Constitution against all enemies, foreign and domestic, is in fact a very practical form of "adhering" to those enemies, foreign and domestic, and thus is tantamount to treason, as Defined in Article III, Section 3, even when pronounced in Court."

I a not a lawyer but it seems to me that calling the judge a traitor and a tool of the executive may not be the best way to proceed.
9.17.2009 6:56pm
Edward A. Hoffman (mail):
Mikeyes wrote:
Apparently an appeal has been filed . . .
It's not an appeal, but that's beside the point. That's just about the clearest contempt of court I have ever seen, at least from an attorney.
9.17.2009 7:06pm
einhverfr (mail) (www):
Mikeyes:

Apparently an appeal has been filed which, among other things, states:


Well, not quite an appeal. This is a motion to stay pending rehearing.

However, this suggests rule 11 sanctions are on their way....
9.17.2009 7:22pm
Leo Marvin (mail):
24AheadDotCom, open a tip jar exclusively for pursuing these attacks and keeping them in the news, and I promise to contribute.
9.17.2009 7:28pm
Edward A. Hoffman (mail):
24AheadDotCom wrote:
1. Edward Hoffman is wrong again: Obama wasn't AFAIK involved in the suit, and the bias I'm referring to doesn't appear to be related to the core part of the suit.
No, I was right again. President Obama is a named defendant in the suit. There are four named defendants, and he is listed fourth. Some documents may list only the first defendant followed by "et al.", so perhaps 24AheadDotCom hasn't seen Obama's name on the documents he's reviewed.

Since I don't see any evidence of bias in the ruling, I still don't know what evidence he sees. It also isn't clear what he means by "the core part of the suit".
9.17.2009 7:31pm
einhverfr (mail) (www):
Dilan:

What do you make of the following quote from Holtzman v. Schlesinger:

It should be noted, moreover, that, since the stay below was granted in respondents' favor, the issue here is not whether there is some possibility that applicants will prevail on the merits, but rather whether there is some possibility that respondents will so prevail. In light of the uncharted and complex nature of the problem, I am unwilling to say that that possibility is nonexistent.


In that case, the only political issue was the issue of a stay of the preliminary injunction. The problem here is that issuing such a stay would have required getting into the question of harms posed by our commander in chief actively operating in defiance of Congress.

I would submit that the substantive portion of the suit was eventually dismissed on mootness grounds because the bombing stopped. However, suggesting that this represents a decision to stay out of the judicial interpretation relating to appropriations measures and joint resolutions doesn't seem sound to me. The court in fact drew a fine line around what political questions were outside its jurisdiction and the Constitutionality of the bombing was not inside that line.

A lot of this seems like playing "if" history. "If" the substantive case had gotten before the Supreme Court, you think they would have ruled a certain way. However, I think a lot of that might depend on the evidence record developed by the lower court. I dont think that separation of powers issues are ever beyond the court's jurisdiction and the political question doctrine seems to be applied simply as a part of that larger commitment to separation of powers.

In short, what I am saying is that under the right situations, and with the right plaintiffs, I think interpreting the requirements clause would be part of a justiciable case. Obviously deposing a sitting president however would not.
9.17.2009 8:21pm
Dilan Esper (mail) (www):
ein:

There was a fair amount of judicial activism in the period you are talking about. There were a lot of people proffering theories that various aspects of the Vietnam War were illegal. And yet, no relief was ever successfully obtained.

Where the rubber meets the road, these sorts of suits cannot succeed. Because the courts, in the end, can't override the political branches on that sort of issue.

Well, in the case of a challenge to a candidate's eligibility, you would have the courts overriding the political branches, the parties, and the voters. That would be triply difficult.
9.17.2009 8:26pm
einhverfr (mail) (www):
Dilan:

Well, in the case of a challenge to a candidate's eligibility, you would have the courts overriding the political branches, the parties, and the voters. That would be triply difficult.


Yet isn't that what happens every time a controversial law is struck down as Unconstitutional.
9.17.2009 9:37pm
Dilan Esper (mail) (www):
Nope, it really isn't. Elections are quite a bit different, and you got a taste of that in Bush v. Gore. Imagine a Bush v. Gore scenario where instead of what was essentially a tie, a clear electoral victory was overturned by the courts. Then you are getting close to the maelstrom that would be created by judicial involvement in this area.
9.17.2009 10:15pm
einhverfr (mail) (www):
Dilan:

I am thinking that the courts could only answer the questions in fairly narrow circumstances. I can see a couple of possibilities:

Suppose in 2012, we have a hot GOP primary between a certain immigrant governor from California who has decided to run despite being ineligible, and all the usual suspects.

Now suppose, prior to the primary, Mitt Romney sues a state for listing Schwarzenegger on the candidate. This he gets a preliminary injunction, the and the appellate court rules that injunctions are inappropriate here under the political question doctrine. The case is appealled to the Supreme Court. Does the Supreme Court try to interpret this section? Or do they say "not our job?" I would think the former. Remember in this case, the vote has not been cast.

My point is that even if removing a sitting president is clearly a political question whether someone is qualified by itself is not. There may be cases which fall outside the political question domain where these questions may have to be answered. Hence "there is NO judicial remedy for this clause" may not be strictly accurate. In fact the issue is that the circumstances where a judicial remedy might be available might be very narrow and dependant on timing, phase of election, the who the plaintiff is relative to the party, etc. But just because there might only be narrow cases where judicial remedy might be available doesn't mean that there is no remedy available.
9.18.2009 1:42am
einhverfr (mail) (www):
Or let's take this another step....

Suppose some of the states had refused to list Obama on the ballots due to questions of eligibility. If the states were sued by the parties, would the court throw up its hands and say "political question!" or would they seek to answer the question?
9.18.2009 1:46am
Dilan Esper (mail) (www):
Now suppose, prior to the primary, Mitt Romney sues a state for listing Schwarzenegger on the candidate. This he gets a preliminary injunction, the and the appellate court rules that injunctions are inappropriate here under the political question doctrine. The case is appealled to the Supreme Court. Does the Supreme Court try to interpret this section? Or do they say "not our job?"

They say "not our job". Because if there is a strong enough popular mandate for Schwarzenegger, they will only be doing great harm to their own standing if they try to kick him off the ballot.
9.18.2009 2:31pm
einhverfr (mail) (www):
Dilan Esper:

They say "not our job". Because if there is a strong enough popular mandate for Schwarzenegger, they will only be doing great harm to their own standing if they try to kick him off the ballot.


What line would they draw to justify that?

Also on further review of Powell, I am not entirely sure that if Congress alleged patently untrue grounds for excluding him (i.e. that he wasn't old enough when he undoubtably was) that the court would have held exactly what it did which was that expulsion was the proper option, not exclusion.
9.18.2009 3:53pm
Catchy Name (mail):
9.18.2009 4:55pm
einhverfr (mail) (www):
Catchy Name

Rhodes' motion for stay pending motion for reconsideration denied; and OSC re: $10,000 sanctions against Taitz issued.


That's an amusing order.

One nitpick though. The sanctions haven't been issued yet. The court has notified Taitz that sanctions may be issued and ordered her to respond as to why they shouldn't be.
9.18.2009 5:54pm
Catchy Name (mail):
The sanctions haven't been issued yet.

The OSC (order to show cause) has been issued.
9.18.2009 6:20pm
Dilan Esper (mail) (www):
Also on further review of Powell, I am not entirely sure that if Congress alleged patently untrue grounds for excluding him (i.e. that he wasn't old enough when he undoubtably was) that the court would have held exactly what it did which was that expulsion was the proper option, not exclusion.

They'd have to overturn Powell (and Nixon v. United States) to do that.
9.18.2009 6:59pm
einhverfr (mail) (www):
Dilan:

They'd have to overturn Powell (and Nixon v. United States) to do that.


Not at all. Powell turned on the question of whether exclusion was a type of expulsion. The court concluded that it was not. Certainly if the court had EXPELLED Powell for any reason (they didn't like his hair style, or whatever), the court would not have had a justiciable case before it. So I think there would have still been some room for questions as to whether the power for the REMEDY was granted.

To say the Powell court would have had to overrule Nixon to reach a result on remedial powers is silly in the extreme given the time difference between these cases and the fact that Nixon came considerably later.

Nixon is a different case too. In Nixon the question was whether the full senate was obliged to hear impeachment proceedings. In Nixon, the court concluded after a lengthy discussion of word definitions ("sole" and "try" in particular) that the Senate could try the impeachment by whatever procedures they wanted to adopt PROVIDED that the impeachment was passed by 2/3 of the Senate.

The second issue involved in Nixon which strengthened the analysis was that there was no judicially discoverable methodology for determining whether the Senate properly tried an impeachment. Once again this reaches to process, not remedy (which was not in dispute in dispute in Nixon but was in Powell). Finally the conflict of interest in the courts reviewing their own impeachment proceedings was not overlooked.

Look, you evidently see the political question doctrine the way Rehnquist did in Goldwater v. Carter (i.e. that the court should never hear disputes between Congress and the President because these are always political in nature). However, I think that the lines that Brennan and Powell drew in their concurrence (no opinion of the court in Goldwater) are closer in fact to what the courts have otherwise held (which is that courts should not hear these disputes until the parties are at a Constitutional impasse, and that Congress must act on these matters before the Court looks at the matter).
9.18.2009 7:31pm
Dilan Esper (mail) (www):
Look, you evidently see the political question doctrine the way Rehnquist did in Goldwater v. Carter (i.e. that the court should never hear disputes between Congress and the President because these are always political in nature).

Not at all.

However, I think that the lines that Brennan and Powell drew in their concurrence (no opinion of the court in Goldwater) are closer in fact to what the courts have otherwise held (which is that courts should not hear these disputes until the parties are at a Constitutional impasse, and that Congress must act on these matters before the Court looks at the matter).

This isn't the law either, and in fact, has never commanded a majority in the Supreme Court over more than 200 years.

The law is there are a bunch of factors set out in Baker v. Carr, of which the most important one by far is the constitutional text (a point stressed by Powell), such that it is inconceivable that the Court would intervene in a major, politically charged dispute WHERE THE TEXT OF THE CONSTITUTION DELEGATES A DECISION TO ANOTHER BRANCH OF GOVERNMENT. That's the thread that connects Baker, Powell, Goldwater, Nixon, and Bush v. Gore.
9.18.2009 7:39pm
einhverfr (mail) (www):
I would note that this distinction is a fine one. In 99% of all cases, it makes absolutely no difference. However the question is whether "political question doctrine" is a formal or a pragmatic issue-- is it a procedural barrier? Or is it a pragmatic one? I hold with the procedural camp. I.e. a question that might be pragmatically political may admit of some cases where procedurally it meets proper criteria and can be heard by the court.

There are portions of the Constitution which are inherently nonjusticeable even in the absence of Coleman. For example, who possibly could have standing to challenge the validity of the 27th Amendment? And of course the requirement that spending be done to promote general welfare would involve procedural problems which could not be overcome.

However, in separation of power decisions (Presidents waging war in open defiance of Congress despite clear resolutions from the latter) there are plenty of decisions which which might allow the court to hear a case.

Similarly, just because birther lawsuits against a sitting president are inherently nonjusticiable, that doesn't mean that under a different set of facts, courts might not be able to address whether a given candidate is eligible to serve as president if elected.
9.18.2009 7:40pm
einhverfr (mail) (www):
Dilan:

Perhaps you can point me to where it says in the Constitution that Congress shall have the sole power to review qualifications for individuals elected to serve for president? Having been over Articles 1 and 2, I don't see this at all.

I dont think Impeachment is quite the same thing,
9.18.2009 7:42pm
Jam:
Maybe I am dense but, if bills become law because of the POTUS' signature, which affects all citizens (and aliens of all stripes, citizens natural or otherwise) how can anyone say that a citizen does not have standing to sue against an usurper?
9.18.2009 10:09pm
Catchy Name (mail):
Maybe I am dense but, if bills become law because of the POTUS' signature, which affects all citizens (and aliens of all stripes, citizens natural or otherwise) how can anyone say that a citizen does not have standing to sue against an usurper?

Lack of a particularized injury -- you are alleging an "injury" that is no different than any other citizen's.

Without this rule, the courts would become the superlegislature.
9.18.2009 10:14pm
Jam:
And since when, violations of the "Supreme Law of the Land" are a "political question?"

Maybe Nixon should have thought of that angle.
9.18.2009 10:24pm
einhverfr (mail) (www):
Catchy Name:

Lack of a particularized injury -- you are alleging an "injury" that is no different than any other citizen's.

Without this rule, the courts would become the superlegislature.


It's actually worse than that. Imagine that standing wasn't a rule which wasn't very restrictive and someone who didn't qualify wanted to be president. So the individual has one of his supporters sue him to keep him from running. Produces some documentation. The other side doesn't litigate very hard, and the candidate then wins.

Now in order to determine this, the court first has to rule on the necessary FACTS. Each of the qualifications represents a matter of fact, whether this is by a jury or by a judge on a bench trial.

The problem though is that res judicata would kick in after the first lawsuit. This would mean that facts which were decided as a necessary part of the the first suit (i.e. whether or not he was qualified) would not be subject to relitigation in subsequent suits.

This would open up problems beyond superlegislature ones and allow sweetheart suits to establish legal facts which would be insulated from future litigation over the same subjects. It is REALLY important that this sort of problem be avoided.
9.18.2009 10:28pm
Dilan Esper (mail) (www):
Perhaps you can point me to where it says in the Constitution that Congress shall have the sole power to review qualifications for individuals elected to serve for president? Having been over Articles 1 and 2, I don't see this at all.

The electoral college provision, and the certification of the count by the Congress.

Bush v. Gore was justiciable because it did not involve either of those two organs-- but candidate eligibility, unlike Florida vote counting rules, does fall clearly within the responsibilities of those two bodies.
9.19.2009 2:44am
Jam:
In another blog with losts of random stuff, there was this link: here

Whoever the poster is claims that the divorce papers in Hawaii are public records which he requested. And, of whatever significance, claims that page 11 of 15 pages is missing.

Have fun: here
9.19.2009 7:48am
jukeboxgrad (mail):
In another blog with losts of random stuff


Let us know if you need help finding the blog which proves that man walked with dinosaurs. You realize there's an Establishment conspiracy to bury that Truth, right?

page 11 of 15 pages is missing


If you're fascinated with the concept of missing records, you should sink your teeth into the large amount of National Guard material that Bush was mysteriously unable to produce (link, link). But surely that material is less relevant than the divorce of Obama's parents, right?

And let us know if you can figure out why Bush has still not presented his birth certificate. Surely you realize that CT to Canada is a much shorter trip than Hawaii to Kenya, right?

Have fun


Our fun is greatly enhanced if people like you keep birtherism alive, so please don't let us down.
9.19.2009 10:29am
einhverfr (mail) (www):
Dilan:

Bush v. Gore was justiciable because it did not involve either of those two organs-- but candidate eligibility, unlike Florida vote counting rules, does fall clearly within the responsibilities of those two bodies.


I am not entirely sure about that. Also, even if it were the case, suppose the States of New York, Ohio, and Florida announced that they would refuse to put Swartzenegger on the ballot. Would that make the question of whether he was qualified to run justiciable as a declaratory judgement?
9.19.2009 11:36am
Dilan Esper (mail) (www):
Also, even if it were the case, suppose the States of New York, Ohio, and Florida announced that they would refuse to put Swartzenegger on the ballot. Would that make the question of whether he was qualified to run justiciable as a declaratory judgement?

Well, not really. What would be justiciable, though, is the issue of whether those states had any authority to do that.
9.19.2009 4:14pm
Jam:
Juke: Heve you read any history of the OSS and MI?

I recommend A Man Called Intrepid.

There is such thing as planting forgeries to dicredit factual statements. Is that what happened with the NG story? I do not know. I do not dicount that possibility. I also do not discount that the NG story was totally fabricated.
9.19.2009 9:17pm
Jam:
I guess I can be called a birther. It is of no negative connotation to me. >:P
9.19.2009 9:27pm

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