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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.

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49 Responses to Elhauge hones his brief

  1. avatar
    gorefan March 24, 2016 at 5:34 pm #

    He does a little minding reading and arm waving à la Mario Apuzzo over the Hamilton draft,

    However, it seems likely that Hamilton shared his draft or views with others during the Convention, and Hamilton was himself on the Committee of Style that finalized the Constitutional text. It thus seems implausible that his linguistic suggestions were unknown and that he would not have suggesting cutting the word “natural” if what the Framers meant was “born a citizen.” In any event, Hamilton’s draft certainly establishes that people at the time of the Framing knew to say “born a citizen” if that is what they meant.

    The Committee of Style began its job on September 8th and was finished by the 12th. It doesn’t sound like they had a lot of discussion or made any significant changes.

  2. avatar
    Dave B. March 24, 2016 at 7:16 pm #

    More from the Originalism Blog, Ramsey vs. Elhauge:

    http://originalismblog.typepad.com/the-originalism-blog/2016/03/native-born.html

  3. avatar
    Dave B. March 24, 2016 at 7:19 pm #

    He’s still doing the “considered as” thing, like Congress was only kidding.

  4. avatar
    gorefan March 24, 2016 at 10:09 pm #

    Along with Professor Elhauge, Professor Mary Brigid McManamon has filed an amicus brief in the Elliot v. Cruz case in Pennsylvania.

  5. avatar
    Lupin March 25, 2016 at 3:32 am #

    I’m heartened to see that unlike Mario, he is not claiming to understand or even apply Vattel — wrongly in Mario’s case.

  6. avatar
    HistorianDude March 25, 2016 at 9:08 pm #

    The problem with the “considered as” dance is that the only effective difference between a “natural born citizen” and any other conceivable class of citizen is presidential eligibility. There is no other difference in terms of access to the rights, benefits and obligations of citizenship between natural born citizen and even naturalized citizens. So, if the First Congress intended the 1790 Naturalization Act to not grant the children of citizens born beyond the seas from Presidential eligibility, such children would not by definition not have been “considered as natural born citizens.” They would be considered as something else.

    Again… it is important to remember that by 1789 natural born citizenship/subjecthood already had (under inherited English law) BOTH a common law and a statutory component. The British Nationality Act 1772 (four years prior to Independence) was an Act of the Parliament of Great Britain which made general provision allowing natural-born allegiance (citizenship) to be assumed if the father alone were British. This was a liberalization of a much earlier law; the Status of Children Born Abroad Act of 1350 that granted children born abroad to two English parents natural born British subjecthood. This general understanding of natural born citizenship to include components from both sources of law cannot have been unknown to the Framers.

    Back again to the Naturalization Act of 1790, the First Congress which passed the act included eight of the eleven members of the Committee of Eleven that originally inserted the phrase into the Constitution. They were:

    Abraham Baldwin (GA) – House
    Pierce Butler (SC) – Senate
    Daniel Carrol (MD) – House
    Nicholas Gilman (NH) – House
    Rufus King (MA) – Senate
    James Madison (VA) ) – House
    Roger Sherman (CT) – House
    Hugh Williamson (NC) – House

    If anybody ever knew what was intended by the inclusion of the phrase “natural born citizen” into the Constitution, it included those eight men. And they apparently had no objection to the Congress creating natural born citizens by statute. In fact, the First Congress was even more broadly overwhelmingly composed of Framers of the Constitution, proving (as far as I am concerned) that the Framers as a rule believed that Congress had the power to create natural born citizens by statute.

    Because that is who they were, and that is what they did.

  7. avatar
    Dave B. March 25, 2016 at 10:37 pm #

    The big problem I see with the “considered as” argument is that the act used the same language for EVERYBODY it made citizens. Were they citizens or not?

    HistorianDude: The problem with the “considered as” dance is that the only effective difference between a “natural born citizen” and any other conceivable class of citizen is presidential eligibility.

  8. avatar
    Dr. Conspiracy March 26, 2016 at 8:08 am #

    My problem with the “considered by” argument is: “considered for what purpose?” There has only been one distinction at law between a citizen and a natural born citizen, and that is eligibility to be president.

    Dave B.: The big problem I see with the “considered as” argument is that the act used the same language for EVERYBODY it made citizens. Were they citizens or not?

  9. avatar
    DEVIOUS DUDE March 26, 2016 at 8:15 am #

    Devious OBOT dude. The 1790 NA was repealed by the 1795 NA which eliminated “Natural Born Citizens” and replaced that phrase with CITIZEN thereby eliminating the NBC contradiction to Article II , section 1, clause 5. which is a CITIZEN’S RIGHT and cannot be changed without passing an AMENDMENT ..ratified buy 3/4 of the USA states.

    Congress was even more broadly overwhelmingly composed of Framers of the Constitution, proving (as far as I am concerned) that the Framers as a rule believed that Congress had the>> power to create natural born citizens by statute.<<<

  10. avatar
    Reality Check March 26, 2016 at 8:49 am #

    Excellent point Doc.

    Dr. Conspiracy:
    My problem with the “considered by” argument is: “considered for what purpose?” There has only been one distinction at law between a citizen and a natural born citizen, and that is eligibility to be president.

  11. avatar
    make it right March 26, 2016 at 9:59 am #

    Historian Dude and Devious Dude arguments merely reflect that Historian Dude did not refer to the 1795 Naturalization Act that removed a statute “Natural Born Citizen” from the law.

  12. avatar
    Dr. Conspiracy March 26, 2016 at 10:43 am #

    Would you perhaps re-phrase that so that it makes sense?

    make it right:
    Historian Dude and Devious Dude arguments merely reflect that Historian Dude did not refer to the 1795 Naturalization Act that removed a statute “Natural Born Citizen” from the law.

  13. avatar
    gorefan March 26, 2016 at 10:51 am #

    make it right:
    Historian Dude and Devious Dude arguments merely reflect that Historian Dude did not refer to the 1795 Naturalization Act that removed a statute “Natural Born Citizen” from the law.

    Why would Historian Dude mention it? His argument is about the phrase “considered as” in the 1790 Act. Professor Elhauge argues that the phrase means similar to a natural born citizen but not a natural born citizen. HD merely points out that is a ridiculous argument given who was in Congress at the time.

    Why the 1795 Act had “natural born” term removed is a different argument entirely.
    BTW, the fact the 1795 Act removed the term “natural born” while still using the term “considered as” buttresses his original argument.

  14. avatar
    Dave B. March 26, 2016 at 2:35 pm #

    Interesting comment over here by one claiming “to have authored the first challenge to Presidential eligibility to be entertained by any court.”

    http://www.mcall.com/news/local/elections/mc-pa-ted-cruz-birther-lawsuit-20160325-story.html

  15. avatar
    bob March 26, 2016 at 4:14 pm #

    Dave B.:
    Interesting comment over here by one claiming “to have authored the first challenge to Presidential eligibility to be entertained by any court.”

    http://www.mcall.com/news/local/elections/mc-pa-ted-cruz-birther-lawsuit-20160325-story.html

    He is technically correct that the Commonwealth Court’s ruling was the first on-the-merits decision by a court regarding a 2016 candidate’s eligibility.

    A decision that the Supreme Court of Pennsylvania could vacate as improvidently made.

  16. avatar
    Joey March 26, 2016 at 11:13 pm #

    DEVIOUS DUDE:
    Devious OBOT dude. The 1790 NA was repealed by the 1795 NA which eliminated “Natural Born Citizens” and replaced that phrase with CITIZEN thereby eliminating the NBC contradiction to Article II , section 1, clause 5. which is a CITIZEN’S RIGHT and cannot be changed without passing an AMENDMENT ..ratified buy 3/4 of the USA states.

    Congress was even more broadly overwhelmingly composed of Framers of the Constitution, proving (as far as I am concerned) that the Framers as a rule believed that Congress had the>> power to create natural born citizens by statute.<<<

    “ORIGINAL intent” can be gleaned from the first Naturalization Act, not the seoond. The more of a strict originalist a conservative judge may be, the more likely that judge will be to rely on the 1790 Act.
    Perhaps that is why no conservative judge or justice has ever ruled in a birther’s favor.

  17. avatar
    Matt March 27, 2016 at 1:32 am #

    HistorianDude: Again… it is important to remember that by 1789 natural born citizenship/subjecthood already had (under inherited English law) BOTH a common law and a statutory component.

    (snip)

    This general understanding of natural born citizenship to include components from both sources of law cannot have been unknown to the Framers.

    Then why was it necessary for Congress to enact what it did in the 1790 act? If they understood the common law meaning of “natural born citizen” to include the statutes conferring citizenship at birth, then the children born abroad would be natural-born and the provision in the 1790 act served no purpose.

    If they understood the common law meaning to be only born within the United States (and subject to the jurisdiction thereof), they had to write the language into the 1790 act to naturalize foreign-born children at birth, otherwise they would not be citizens at all.

  18. avatar
    Dr. Conspiracy March 27, 2016 at 2:37 pm #

    The Constitution does not say who the citizens of the United States are. When it was enacted, the states defined that. Under the common law, which was in force in all of the states, those born in the country were natural born citizens; however, the Framers certainly knew that in England, there were those who were also natural born subjects by statute. By the statute of 1790 Congress did the same thing that Parliament did, make the overseas-born children of citizens, themselves citizens at birth. In the debate over the Act it was basically said that we should do the same thing that the English did, As the English authority Dicey wrote:

    ““… ‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘…

    Dicey then explains that there are common law natural born subjects and statutory natural born subjects.

    “(A) ACQUISITION OF BRITISH NATIONALITY AT BIRTH (NATURAL-BORN BRITISH SUBJECTS).

    Rule 22. Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions, is a natural-born British subject. …

    Rule 23. – Subject to the exception hereinafter mentioned, any person

    (1) whose father is born within the British dominions, or

    (2) whose paternal grandfather is born within the British dominions,

    is (though not born within the British dominions) a natural-born British subject.

    Provided that no person is under this Rule a natural-born British subject whose father is not at the time of such person’s birth a natural-born British subject.”

    Matt: Then why was it necessary for Congress to enact what it did in the 1790 act? If they understood the common law meaning of “natural born citizen” to include the statutes conferring citizenship at birth, then the children born abroad would be natural-born and the provision in the 1790 act served no purpose.

  19. avatar
    ballantine March 28, 2016 at 3:59 pm #

    Professor Elhauge makes a few good points and, as pointed out above, some weak ones. The Hamilton thing is silly. Not sure Wong Kim Ark is really very relevant, other than to say a statute is necessary. The “considered as” argument is quite weak contextually, as pointed out here. I think his point he meant to make is that the English used similar language in pretty much all their naturalization statutes for persons no one intended to grant “natural born” status to, so perhaps they were here as well. The fact they used the “considered as” language throughout the statute obviously hurts such argument.

    A point he should have made was that the English jus sanguinis naturalization statutes everyone is discussing here not only said such persons were naturalized, they make clear that such persons were not natural born subjects for purposes of such statutes. 4 Geo. II c.21 naturalized children of natural born subjects so that they are adjudged to be natural born subjects for all intents and purposes. However, such children were not natural born subjects under such very statute as their children could not be naturalized under such statute. That is why 13 Geo. III c.21 was adopted. Such second statute naturalized the children of men naturalized under 4 Geo. II c.21. Thus, the first statute only applied if one’s father was a common law natural born subject and the second statute only applied if one’s paternal grandfather was a common law natural born subject and his son was naturalized under the first statute. Confused yet? Accordingly, the term “natural born subject” under these statutes meant solely a common law natural born subject and did not include persons adjudged to be natural born subjects for all intents and purposes, phraseology that was used for pretty much all naturalized subjects.

    The second point he should make is that natural born subjects did not mean a subject at birth under English law. The 1773 statute Frank refers to above,13 Geo. III c.21, provided for no rights unless the child returned to and resided in England and went through the naturalization process (taking an oath and sacrament in the Church of England like all naturalized subjects). Even then, the child did not have all the rights of a natural born subject. An earlier 17th century jus sanguinis statute mentioned by Blackstone also granted natural born status after birth. There is no contemporaneous legal authority in England or the United States that I am aware of that said “natural born” meant a citizen or subject at birth as that is not what the statutes said. Citing Dicey a century later is hardly persuasive authority to the contrary. One can speculate what Congress intended by the language in the 1790 Act, but the claim it meant that a “citizen at birth” meant “natural born” has no historical basis to back it up. One can speculate on numerous reasons why the language was included in 1790 and taken out in 1795, but speculation is speculation and not very convincing from a legal perspective.

    Elhauge should also have pointed out that while English authorities in the 19th century called these statutory subjects “natural born” rather than “naturalized,” such did not appear to be the case in the 18th century. First, the statutes themselves said they were naturalized. Blackstone said they were “natural-born subjects themselves, to all intents and purposes, without any exception” but also called them naturalized. Many, if not most, late 18th century legal dictionaries and treatises simply quoted Blackstone.

    Finally, when discussing the purpose of the clause, Elhauge should point out that the English recognized these statutory subjects owed their natural and permanent allegiance to a foreign prince. Blackstone makes this clear. As a matter of International Law, England never treated these statutory subjects the same as common law subjects as England’s claim to their allegiance was secondary to the nation of their birth. Accordingly, a statutory subject born in America would not be tried for treason by England for raising arms against England as under English law, his primary allegiance was to the United States, not England.

    At the end of the day, we really don’t know what the founders thought about this subject as they left us with so little authority. However, I am surprised that so many legal scholar say this is a simple issue when clearly it is not, at least from an academic point of view.

  20. avatar
    Dr. Conspiracy March 29, 2016 at 7:47 am #

    While we’re at it, here is the Mary Brigid McManamon brief in PA, courtesy of a friend of the blog:

    http://www.obamaconspiracy.org/wp-content/uploads/2016/03/PA-Amicus-Brief.pdf

  21. avatar
    Lupin March 29, 2016 at 8:49 am #

    ballantine: Accordingly, a statutory subject born in America would not be tried for treason by England for raising arms against England as under English law, his primary allegiance was to the United States, not England.

    Please allow for my considerable ignorance of the matter in advance, but doesn’t the US claim the right to convict dual US/XXX citizens of treason (e.g.: Kawakita, Herbert Hans Haupt) even if said persons clearly demonstrated that their allegiance was to the other country? (Japan, Germany)

  22. avatar
    Dave B. March 29, 2016 at 11:58 am #

    The United States claims the right to convict persons who aren’t even US citizens at all of treason.

    Lupin: Please allow for my considerable ignorance of the matter in advance, but doesn’t the US claim the right to convict dual US/XXX citizens of treason (e.g.: Kawakita, Herbert Hans Haupt) even if said persons clearly demonstrated that their allegiance was to the other country? (Japan, Germany)

  23. avatar
    Joey March 29, 2016 at 12:15 pm #

    Dave B.:
    The United States claims the right to convict persons who aren’t even US citizens at all of treason.

    Are you aware of any particular cases where that has actually happened?

  24. avatar
    Dave B. March 29, 2016 at 12:45 pm #

    Off the top of my head, no. But the principle is outlined in Carlisle v. United States, 83 US 147 (1872):

    “The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.

    This obligation of temporary allegiance by an alien resident in a friendly country is everywhere recognized by publicists and statesmen. In the case of Thrasher, a citizen of the United States resident in Cuba, who complained of injuries suffered from the government of that island, Mr. Webster, then Secretary of state, made, in 1851, a report to the President in answer to a resolution of the House of Representatives in which he said:

    “Every foreigner born residing in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty upon him by the mere fact of his residence and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.”

    And again:

    “Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government and may be punished for treason or other crimes as a native-born subject might be unless his case is varied by some treaty stipulation.”

    The same doctrine is stated in Hale’s Pleas of the Crown, East’s Crown Law, and Foster’s Discourse upon High Treason, all of which are treatises of approved merit.
    Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25, 1868. That proclamation, in its comprehensive terms, includes them and all others in like situation. It grants

    “unconditionally, and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof,” 83 US at 154-156.

    Joey: Are you aware of any particular cases where that has actually happened?

  25. avatar
    Ballantine March 29, 2016 at 12:57 pm #

    Lupin: Please allow for my considerable ignorance of the matter in advance, but doesn’t the US claim the right to convict dual US/XXX citizens of treason (e.g.: Kawakita, Herbert Hans Haupt) even if said persons clearly demonstrated that their allegiance was to the other country? (Japan, Germany)

    I am speaking solely of British practice 2 centuries ago which was a matter of their choice and view of allegiance. They charged dual citizens born in England with treason but not dual citizens born in th United States unless they went to England. Under public law, they could have, but no one would take their claim to the natural, perpetual allegiance of its native born if they didn’t recognize other nations to make the same claims for their native born.

  26. avatar
    ballantine March 29, 2016 at 2:13 pm #

    The general rule back then was a citizen can be charged with treason for action taken anywhere in the world since their allegiance was permanent. Aliens could be charged with treason while in the country and violating his or her temporary allegiance.

  27. avatar
    Joey March 29, 2016 at 2:39 pm #

    Dave B.:
    Off the top of my head, no.But the principle is outlined in Carlisle v. United States, 83 US 147 (1872):

    “The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.

    This obligation of temporary allegiance by an alien resident in a friendly country is everywhere recognized by publicists and statesmen. In the case of Thrasher, a citizen of the United States resident in Cuba, who complained of injuries suffered from the government of that island, Mr. Webster, then Secretary of state, made, in 1851, a report to the President in answer to a resolution of the House of Representatives in which he said:

    “Every foreigner born residing in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty upon him by the mere fact of his residence and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.”

    And again:

    “Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government and may be punished for treason or other crimes as a native-born subject might be unless his case is varied by some treaty stipulation.”

    The same doctrine is stated in Hale’s Pleas of the Crown, East’s Crown Law, and Foster’s Discourse upon High Treason, all of which are treatises of approved merit.
    Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25, 1868. That proclamation, in its comprehensive terms, includes them and all others in like situation. It grants

    “unconditionally, and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof,” 83 US at 154-156.

    Very interesting, thanks. Some of the wording above is similar to wording in U.S. v Wong Kim Ark: An alien parent’s] “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’”

  28. avatar
    ballantine March 29, 2016 at 2:53 pm #

    Joey: Very interesting, thanks. Some of the wording above is similar to wording in U.S. v Wong Kim Ark:An alien parent’s] “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’”

    Also, perhaps because the quote by Webster is actually quoted in Wong Kim Ark.

  29. avatar
    Dr. Conspiracy March 29, 2016 at 5:35 pm #

    “PENNSYLVANIA SUPREME COURT EXPEDITES HEARING ON SPURIOUS CRUZ ELIGIBILITY CLAIM” article at the “Excess of Democracy” blog.

    http://excessofdemocracy.com/blog/2016/03/pennsylvania-supreme-court-expedites-hearing-on-spurious-cruz-eligibility-claim

  30. avatar
    CRJ April 2, 2016 at 10:28 am #

    With a few exceptions, I really enjoyed reading that Amicus Brief. Thanks for sharing it.

  31. avatar
    CRJ April 4, 2016 at 12:21 am #

    What’s your story with the good Professor Doc? You guys Barbecue Buds?

    [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.]

    Seems he worked on Obama’s Campaign in 2008 as an advisor the same year you started this Blog and he’s one heck of a well-placed friend. Quite an honor to you if say to have a pen pal like him. Wow!

    I think he is absolutely brilliant! His collection of printed published works is really phenomenal!

    The fact he teaches at Harvard where 7 of the current U.S. Supreme Court Justices, 8 if you counted Scalia come from is a sweet job. I wonder if his work as Counselor for the Campaign was voluntary? Or Paid?

    Now, that’s quite a Club. I imagine Harvard is so proud of that. Puts the red in all the other Law Schools doesn’t it?

    I was thinking you know that Professor Elhauge, he ought to be the one running for President. He makes Obama look like a pre-schooler what with the zero works coming out of Obama’s hand. ✋

    Truly seems Obama’s gift rest in the color of law as he was the President of the Harvard Law Review without publishing a single paper.

    I imagine Professor Elhauge was so obliged to work for Obama’s election campaign. It’s a good thing intelligent people are willing to help and assist in their expertise.

    He’s one guy I sure would love having on my Team in the White House.. No doubt about it.

  32. avatar
    Daniel April 4, 2016 at 1:18 am #

    CRJ: He’s one guy I sure would love having on my Team in the White House..

    You mean with, or instead of Rumpelstiltskin, and the Easter Bunny?

  33. avatar
    CRJ April 4, 2016 at 9:53 am #

    Daniel: You mean with, or instead of Rumpelstiltskin, and the Easter Bunny?

    Oh I don’t know. Rumplestiltskin could spin gold, and the Easter Rabbit was a good judge of children’s good and bad deeds giving rewards for good behavior.

    Professor Elhauge indeed cared enough about the Constitution to recognize Cruz was not eligible , something I shared in common with him. You know, just that one judgement is worth Cruz’s entire Campaign Value far more than just the 75 Million in Contributions of cash and the deception of Lie’n Ted.

    Maybe, Ted’s the one making bad decisions, spinning his tale into gold. He kind of looks like Rumplestiltskin.

    The Easter Rabbit.. Hummm.. Guess the #SCOTUS could be the Court that in Spring decides enough is enough, and a decision could STOP the racket of ineligible Candidates bilking contributors out of millions with tall tales?

    You must be German Daniel?

  34. avatar
    Rickey April 4, 2016 at 12:12 pm #

    CRJ: Guess the #SCOTUS could be the Court that in Spring decides enough is enough, and a decision could STOP the racket of ineligible Candidates bilking contributors out of millions with tall tales?

    Even if Ted Cruz happened to be ineligible, there is nothing in the Constitution which prevents an ineligible person from running for president. The Constitution only prohibits an ineligible person from serving as president.

    That said, the people who are contributing to Cruz are well aware of the fact that he was born in Canada, so none of them are being bilked. And since there are no eligibility cases currently before the Supreme Court, the chances of seeing a ruling on his eligibility are about as good as the chances that Judy v. Obama will be reopened.

  35. avatar
    bob April 4, 2016 at 12:37 pm #

    CRJ:
    Truly seems Obama’s gift rest in the color of law as he was the President of the Harvard Law Review without publishing a single paper.

    Judy’s patented word salad, racism, or both?

    CRJ: Rumplestiltskin could spin gold, and the Easter Rabbit was a good judge of children’s good and bad deeds giving rewards for good behavior.

    And both are works of fiction, just like Judy’s candidacy. Where’s that evidence of Judy appearing on the ballot or receiving any votes in 2008 and 2012?

    Professor Elhauge indeed cared enough about the Constitution to recognize Cruz was not eligible

    The professor’s “recognition,” however, failed to persuade the courts in New York and Pennsylvania. Because the law is not based on misplaced passion.

    And if Judy has actually read Elhauge’s writings, Judy would know that Elhauge doesn’t believe in the birthers’ mythical two-citizen-parent “rule.”

  36. avatar
    CRJ April 4, 2016 at 1:33 pm #

    bob: And if Judy has actually read Elhauge’s writings, Judy would know that Elhauge doesn’t believe in the birthers’ mythical two-citizen-parent “rule.”

    Actually if you read the Brief that point is debatable as it clearly rehearsed because of (McCain’s two U.S. Citizen Parents he was eligible.)

    The two factors of Place & Parents were major facets in declaring who was eligible while simply refusing to delve into the “Legal/Illegal aspects which may or may not be involved with Obama’s case in leaning on a disagreement of the place of Obama’s birth. He simply wanted to avoid that abyss but that didn’t stop deliberation of Place and Parent and the delirium or absurdity of naturalizing [natural born Citizen] boldly confirmed in 1790 v. 1795.

    Rickey: Even if Ted Cruz happened to be ineligible, there is nothing in the Constitution which prevents an ineligible person from running for president. The Constitution only prohibits an ineligible person from serving as president.

    True. However, there are Same-Sex marriages being performed in every State of the Union now because of a SCOTUS decision.

    The affect of restraining where the Constitution states restraints should be made is one very important aspect of Checks and Balances.

    Saving people.. Millions of donors being bilked might be seen as a good thing. Being free to do something doesn’t mean it’s moral. Defending those who agree because of a lack of restraint, doesn’t make silence right.

    Failing to qualify for the Office your running for must be upheld in Justice.

  37. avatar
    Dr. Conspiracy April 4, 2016 at 3:37 pm #

    Obama actually did publish a paper in the Review. Ah well, we can’t all be Dr. Conspiracy.

    http://www.politico.com/story/2008/08/exclusive-obamas-lost-law-review-article-012705

    CRJ: Truly seems Obama’s gift rest in the color of law as he was the President of the Harvard Law Review without publishing a single paper.

  38. avatar
    bob April 4, 2016 at 3:52 pm #

    CRJ: Actually if you read the Brief that point is debatable as it clearly rehearsed because of (McCain’s two U.S. Citizen Parents he was eligible.)

    Judy again shows his inability to read, as Elhauge wrote (on page 12):

    Nor does this case have anything to do with far-fetched legal claims that even Presidents or Presidential candidates who were born in the United States, such as President Obama, Charles Evan Hughes, and Marco Rubio, are not natural born citizens because their father was not a U.S. citizen when they were born. The argument here is instead that the U.S. Constitution’s reference to “natural born” incorporates the common law meaning of that term, which (as detailed below) makes persons “natural born” only if they were either (1) born in a U.S. territory to a parent who was not serving a foreign nation as ambassador or soldier or (2) born abroad to parent who was serving the U.S. abroad as an ambassador or soldier. This common law meaning clearly makes Obama, Hughes and Rubio natural born citizens because they were all born in the United States to parents who were not serving a foreign nation.

    Elhaughe couldn’t be more clear that he thinks birthers like Judy are nuts.

    Failing to qualify for the Office your running for must be upheld in Justice.

    Good thing that President Obama and Cruz have on-the-merits court decisions ruling they are natural-born citizens.

  39. avatar
    Rickey April 4, 2016 at 6:28 pm #

    Dr. Conspiracy:
    Obama actually did publish a paper in the Review. Ah well, we can’t all be Dr. Conspiracy.

    http://www.politico.com/story/2008/08/exclusive-obamas-lost-law-review-article-012705

    The reality is that members of the Harvard Law Review rarely write papers for it. What they do is review and consider for publication submissions from legal scholars, and they edit the submissions which are selected for publication.

    Each issue contains one long article which is regarded as a legal paper. And as the Law Review’s website says:

    Most student writing takes the form of Notes, Recent Cases, and Recent Legislation. Notes are approximately 22 pages and are usually written by third-year students. Recent Cases and Recent Legislation are normally 8 pages and are written mainly by second-year students. Recent Cases are comments on recent decisions by courts other than the U.S. Supreme Court, such as state supreme courts, federal circuit courts, federal district courts, and foreign courts. Recent Legislation look at new statutes at either the state or federal level.

    In the March 2016 the paper is by Douglas NeJamie, a law professor at UCLA. There also is an essay called “Horizontal Shareholding” by Professor Elhauge.

    In February the paper is by David Pozen, a law professor at Columbia.

    The January paper is by Samuel Rascoff, a law professor at NYU.

    In December the author was Jennifer Nou, University of Chicago Law School.

    And so on.

    Obama’s article fell within the “Recent Cases and Recent Legislation” category.

  40. avatar
    CRJ April 5, 2016 at 11:33 am #

    bob: Good thing that President Obama and Cruz have on-the-merits court decisions ruling they are natural-born citizens.

    Only a fruitcake would think that things like ‘lack of standing’, and ‘filing a Ballot Challenge 3 weeks late’ would be considered 📢on-the-merits. 😂

    One thing that Professor Elhauge made clear was you can’t “naturalize” [natural born Citizen] which any attempt in excusing by statute or amendment of such circumstance as McCain, Obama, Rubio falls under as @Bob cited.

    #SCOTUS 2 #Harvard Prof @elhauge and Lawrence Tribe affirms Place & Parents in #NBCtzn

    https://t.co/XLlkC7VnBP /

    https://t.co/BiTDmYrqav

    I say kudos to both Harvard Professors Tribe and Elhauge who have agreed whole heartedly on this point, both being reasonably sound minded.

    https://m.youtube.com/watch?v=tLe9Apcho7Q

  41. avatar
    bob April 5, 2016 at 3:41 pm #

    CRJ: Only a fruitcake would think that things like ‘lack of standing’, and ‘filing a Ballot Challenge 3 weeks late’ would be considered on-the-merits.

    Those aren’t on-the-merit decisions; Judy appears to be unaware of the other, on-the-merits rulings that have said Cruz and President Obama are natural-born citizens. Like the one that just occurred in Pennsylvania.

    One thing that Professor Elhauge made clear was you can’t “naturalize” [natural born Citizen] which any attempt in excusing by statute or amendment of such circumstance as McCain, Obama, Rubio falls under as @Bob cited

    Judy continues to display his inability to read, as Elhauge clearly doesn’t think that President Obama, McCain, or Rubio were ever naturalized citizens. Elhauge expressly states that they are natural-born citizens.

    I say kudos to both Harvard Professors Tribe and Elhauge who have agreed whole heartedly on this point, both being reasonably sound minded.

    Judy misreads the professors’ works, as both believe President Obama, McCain, and Rubio natural-born citizens; they disagree only about Cruz, and Elhauge’s argument has failed in court.

  42. avatar
    Notorial Dissent April 5, 2016 at 9:53 pm #

    CRJ just ignores the cases that have REPEATEDLY been pointed out to him where there was a definitive judgment that goes against his claims, again, nothing new. CRJ’s memory is nothing if not both convenient and selective, and ALWAYS WRONG.

    Actually, I doubt if the court(s) even read Einhauge’s maunderings. If they did they certainly weren’t persuasive, so basically irrelevant.

  43. avatar
    Lupin April 6, 2016 at 8:51 am #

    CRJ: One thing that Professor Elhauge made clear was you can’t “naturalize” [natural born Citizen] which any attempt in excusing by statute or amendment of such circumstance as McCain, Obama, Rubio falls under as @Bob cited.

    Not surprisingly, you totally missed the money quote — Elhauge wrote: This common law meaning clearly makes Obama, Hughes and Rubio natural born citizens (p. 12)

  44. avatar
    CRJ April 7, 2016 at 10:42 am #

    Elhauge’s Brief makes for Great Discussion. Some Favorite nuggets..

    [This Court could, for example, rule that Cruz was ineligible but stay that judgment
    until the U.S. Supreme Court decided the issue in a way that assured uniformity.
    With such a stay in place, the Cruz votes could be counted if the U.S. Supreme Court
    ultimately decided he was eligible, but excluded if the U.S. Supreme Court decided
    he was ineligible. Further, such court precedent would provide a uniform resolution
    for future elections, which is important because this issue is likely to recur. ]12

    FINALLY! A brilliant argument for hearing Judy v. Obama 14-9396 emerges from what you may call the pro-Obama camp. What in the world are ya so scared about? Hear it.. Those people for Obama should be really clamoring for the Court to hear it. , instead of hiding behind rocks and stupid arbitrary denials of forma pauperis.. Right?

    [Moreover, not only has the issue
    never been committed to the political branches, but the issue involves a provision
    that is supposed to operate as a constraint on the political branches.]

    Wow! Amen to that.

    [Having the courts decide
    the issue can also provide a timely uniform resolution for this and future elections.
    In contrast, leaving the issue to unreviewable political judgments by state election
    officials, Presidential Electors, or Congress is a recipe for turmoil and conflict in this
    or future elections.]

    Brillant.. Imagine the Common Sense?

    [This common law meaning even more clearly makes John McCain a natural
    born citizen because he was both (a) born in a U.S. territory (the Panama Canal Zone)]
    and (b) born to [parents] who were both U.S. soldiers serving their nation. ]

    Humm.. Born in the U.S. to Citizen Parents. {?} Makes sense

    [Accordingly, the issue before
    the Court is whether the Constitution adopts the common law meaning of “natural
    born citizen” (which would exclude Cruz), or instead adopts Cruz’s interpretation
    that anyone who is a born a citizen is a “natural” born citizen even though they are
    only born a citizen because of a “naturalization” statute.]

    Like Obama Born in the U.S. to a Alien Father Title 8 §1401 (a) and (g).

    [First, the language “natural born citizen” fairly clearly indicates it could not
    mean anyone born a citizen or else the text would have just simply stated “born
    citizen.” The word “natural” is a limiting qualifier that indicates only some persons
    who are born citizens qualify. Cruz’s interpretation simply reads the word “natural”
    out of the constitutional text.]

    Yes.. Brillant

    Natural considers natural conditions of a child’s Birth including the Place and Parents.

    Does Obama have a dual natural condition in his citizenship? Yes. . he could well be accepted in Kenya as a citizen. CRJ could not .. Naturally considering Parents or Place.

  45. avatar
    CRJ April 7, 2016 at 10:57 am #

    You know one of the most idiot notions of pro Obama supporters is still denying any responsibility for the rise of Trump. Can you imagine Trump without the Birthers?

    Can you say.. Jeb Bush?

    http://www.politico.com/story/2016/03/obama-not-responsible-trump-220572#ixzz459W6sOIL

    Obama let loose on Republicans. He said accused them of creating the mess that led to the rise of Trump and fiercely disputed the notion that his policies were the catalyst.

    Hahaha 😂😂😂 pathetic denial.. Referred to as ‘fierce’ 😂😂😂🔊hahaha

    “But what I’m not going to do is validate some notion that the Republican crackup that’s been taking place is a consequence of actions that I’ve taken,” Obama said.

    Obama suggested that “thoughtful conservatives who are troubled by” Trump’s success and the direction of their party should look in the mirror.

    Mirror Obama.. Please.. Go get a Mirror.

  46. avatar
    bob April 7, 2016 at 12:21 pm #

    CRJ:
    Can you imagine Trump without the Birthers?

    Since Trump was an ignorant blowhard before Obama’s presidency, yes, it is easy to imagine Trump without birthers. That most birthers support Trump, however, is not surprising.

    CRJ:
    What in the world are ya so scared about?

    No one is scared of Judy’s frivolous, long-dead joke of a lawsuit.

    instead of hiding behind rocks and stupidarbitrary denials of forma pauperis.

    The denial of Judy’s IFP application was neither stupid nor arbitrary: Judy failed to correctly complete the simple form, and Judy (as is his wont) now blames others for his own incompetence.

    Humm.. Born in the U.S. to Citizen Parents. {?} Makes sense

    Elhauge clearly rejects the birthers’ two-citizen-parent “rule”: Elhauge clearly states that President Obama, McCain, and Rubio are all natural-born citizens and therefore eligible.

    Like Obama Born in the U.S. to a Alien Father Title 8 §1401 (a) and (g).

    Elhauge makes clear that President Obama is a natural-born citizen because he was born in the United States. As President Obama was born in the United States, 8 U.S.C. §1401(g) does not apply to him.

    Natural considers natural conditions of a child’s Birth including the Place and Parents.

    Elhauge makes clear that both are not required.

    With Judy, it is difficult to know where the stupidity ends and the lies begin.

  47. avatar
    Notorial Dissent April 7, 2016 at 2:48 pm #

    Trump always was, and always will be, an ignorant blow hard, so the birfers don’t even get the credit there, the fact that he took up with them just emphasizes the ignorance.

    CRJ the lying convicted felon, just continues to prove that he cannot read a simple sentence, let alone a complex one.