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Archive | March, 2016

Birther offers himself as Trump’s vice president

California pastor, presidential candidate and Obama eligibility litigant Wiley Drake has offered himself as a vice presidential option for Donald Trump. Drake says that Trump needs “spiritual guidance” and that he could help Trump get closer to God.

Drake received minor notoriety for his 2009 prayer that President Obama would die in office (later retracted).

Read more:


Political ad cites Trump dalliance with Obama’s birth certificate

“In a new campaign ad Rep. Tammy Duckworth aims to tie Sen. Mark Kirk to Republican presidential frontrunner Donald Trump,” reports 5 NBC in Chicago.

Kirk is supporting Trump. The ad highlights some of the nutty and offensive aspects of the Trump campaign, including (ding, ding, ding) Obama’s birth certificate. Read about it on the 5 NBC web site.


Sibley threatens to release ‘DC Madam’ files

Dr. Conspiracy confesses

I confess that I have developed a certain bias against birthers. I tend not to believe what they say, and to disbelieve what they insinuate. Some of the material that follows in this article is summarized from the Wikipedia.

Prominent birther and former attorney Montgomery Blair Sibley, gained notoriety as the civil attorney representing Deborah Jeane Palfrey, convicted in 2008 of racketeering, using the mail for illegal purposes and money laundering in connection with an escort service she operated in the nation’s capitol.

In May of 2007, Palfrey released phone records  listing the numbers of her 10,000 – 15,000 clients to ABC News, and subsequently made allegedly all of them available on the Internet. Her attorney, Sibley, sent 54 CD-ROMs containing TIFF images of the phone logs to researchers, activists and journalists. ABC News reported that none of the records were sufficiently “newsworthy” to bother mentioning.

Sibley is in the news now because he claims that there is something in those phone logs that would have a significant impact on the current US presidential election, but that he cannot release the information because he is under a court order not to disclose the contents of the logs, so he says. Sibley is in a tight spot because he has made such a nuisance of himself that courts have barred him from filing.

What rather deflates the whole story is the that “DC Madam” phone records are online today for anyone who wants to look at them (number, not names).


Pennsylvania prediction poll

What’s going to happen when the Pennsylvania Supreme Court reviews the Elliott v. Cruz decision? Judge Pellegrini ruled that the question of Cruz’ eligibility was justiciable and that Cruz was a natural born citizen. The decision has been appealed to the Pennsylvania Supreme Court.

I think that the Pennsylvania Supreme Court will:

  • Affirm the lower court's decision. (52%, 34 Votes)
  • Rule that the case is not justiciable. (35%, 23 Votes)
  • Bar Cruz from the ballot due to ineligibility (9%, 6 Votes)
  • Allow Cruz on the ballot because his eligibility is uncertain. (5%, 3 Votes)

Total Voters: 66

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And the winner is (both in voting here and at the Pennsylvania Supreme Court):

Affirm the lower court’s decision

In a per curiam decision (a decision in the name of the court), the lower court’s decision was affirmed. This means that the lower court had jurisdiction, and that Ted Cruz is a natural born citizen.



Elhauge hones his brief

Harvard professor Einer Elhauge has filed an amicus brief in the Carmon Elliott appeal in Pennsylvania and he was kind enough to send me a copy. He says that it is improved over the one submitted in New York.

Due to personal commitments, I don’t have time to read it at the moment, so I am posting it now for a wider audience without comment.


Subsequent to this article I have had some email exchanges with Einer Elhauge and he sent me a link to his paper: “Why Ted Cruz Is Not a Natural Born Citizen Eligible to Be President and Why the Issue Is Not a Political Question” updated May 4, 2016.


Was John McCain a citizen at birth?

It depends upon what the meaning of the word “is” is.

Bill Clinton is forever associated with legal nitpicking as the result of his famous quote: “It depends upon what the meaning of the word ‘is’ is.” I think his point is substantive, not nitpicking. Clinton had said before a grand jury about Monica Lewinsky: “there’s nothing going on between us.” He used the contracted form of “is” for the present tense, which he took not to mean that there never had been anything going on. The essay that follows discusses the same tense distinction for the word “is” and how that relates to the question of whether John McCain is eligible to become president.

Citizen McCain

Gabriel Chin laid out the argument that McCain was not a citizen at birth in his paper, “Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship” in the Michigan Law Review’s First Impressions. The point at interest is not so much what Chin argued as what Federal District Judge William Alsup said in his decision on a motion in Robinson v. Bowen regarding McCain’s eligibility. After dealing with the substantive argument over the state of the law when McCain was born in 1936, Judge Alsup added:

In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already.  This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.

This gives the paradoxical possibility that McCain was not a US Citizen at the time of his birth, but a citizen at birth today.

Schrödinger’s cat

Schrödinger’s cat is a thought experiment regarding the uncertainty principle in quantum mechanics. The Wikipedia states it this way:

Schrödinger’s cat: a cat, a flask of poison, and a radioactive source are placed in a sealed box. If an internal monitor detects radioactivity (i.e., a single atom decaying), the flask is shattered, releasing the poison that kills the cat. The Copenhagen interpretation of quantum mechanics implies that after a while, the cat is simultaneously alive and dead. Yet, when one looks in the box, one sees the cat either alive or dead, not both alive and dead. This poses the question of when exactly quantum superposition ends and reality collapses into one possibility or the other.

If John McCain must rely on the 1937 statute for his citizenship, then at birth he was, in the quantum mechanical analogy, both a citizen and not a citizen because it could not be observed at his birth whether or not Congress would pass a future statute making him a citizen at birth. (There are other arguments that McCain was a citizen that do not rely on the 1937 statute.)

The Naturalization Act of 1790

Happily for historical hypothetical foreign-born aspirants to the presidency, the Congress passed a law in 1790 making the children of citizens born overseas “natural born citizens” subject to the proviso that their fathers must have been at one time residents of the United States. Because the proviso applies to events that occur before birth, one can observe the citizenship status of the child at birth by the 1790 Act (which sadly was repealed in 1795).

The Framer’s Intent

Little is known about the Framer’s intent when they added the words “natural born citizen” to the requirements for the American president. One said “not a foreigner” another said to “insure attachment to the country.” A tantalizing account comes from George Bancroft’s History of the Formation of the Constitution  of the United States (1884) based either on his interview with James Madison, or some source unknown to us. He wrote:

One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president;

I don’t think that the Framers intended retroactive citizenship at birth, but on the other hand, I also think that John McCain should be considered to have always been an American.

Ted Cruz

Cruz presents a case not so much different from that of John McCain because his citizenship relies on a statute as well; however, the statute was firmly in place when Cruz was born and so according to US Law, he is a citizen at birth. That fact could have been observed from the start.