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Judge rules against Obama; Taitz can’t find case

Orly Taitz has an article up titled “I need help in finding this Pennsylvania case of Juarez Escobar (sic), where fed, judge stated that Obama’s amnesty is unconstitutional. Do not see anything in PACER under Juarez Escobar in PA recently.” I like to think of my self as a good person and a helpful one. Taitz, as far as I can tell, auto-deletes my comments, so my attempt to give her the case number and a link to the decision didn’t work. (Awwww.)

This brings me to a point about looking up federal lawsuits online. There is a web site, Justia.com, where one can lookup federal lawsuits, and this web site is a very useful free public resource for finding cases, one that I use frequently; however, it is not the actual federal court system, PACER, and it does not always have everything in the PACER system. I couldn’t find this case at Justia either, even when putting in the hyphen that Orly dropped (actual name is Elionardo Juarez-Escobar). However, the real PACER Case Locator has the case (2:14-cr-00180-AJS). Use of the PACER Case Locator requires a PACER account. I actually went to PACER first in this instance because I knew Taitz was having trouble.

The case itself is interesting and District Judge Arthur J. Schwab said in his order that President Obama’s Executive Action (not Executive Order) was beyond the Administration’s power of prosecutorial discretion, and therefore unconstitutional. His reasoning, as I read it, was based on the principle that prosecutorial discretion is something applied on a case-by-base basis, and not to classes of people as Obama outlined.

Taitz writes:

He will be deciding on the aspects of Obama’s immigration dictates being unconstitutional, in the actual case brought by Orly Taitz. Judge Hanen is the SAME ..

Actually, the Taitz case involves transportation of undocumented children and is based on her claim of getting sick through treating one of them. That morphed into a case about Ebola, and that transmogrified into a generalized opposition to Obama’s Executive Action, something that happened after she filed her case.

One might want to tell Taitz to shut up, as she is not the representative of the American people and has no individual standing to bring such a lawsuit. Taitz claims “taxpayer standing,” something I have read many time did not apply to Obama eligibility cases. Taitz, however, cites to a case:

Further, Obama claims that Taitz lacks standing as a tax-payer, however this is patently false, as the Supreme Court in Flast v Cohen, via decision penned by the Chief Justice Earl Warren found that US tax payers have standing to challenge actions by the government, as long as those actions relate to spending allocated by the Congress based on it’s spending and taxing power and those actions  are illegal.

The Court’s decision in Flast v. Cohen does not grant general standing to all taxpayers. The Court set up this test for taxpayer standing:

To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements. Pp. 392 U. S. 102-103.

(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. P. 392 U. S. 102.

(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp. 1 392 U. S. 02-103.

Obama’s immigration initiative is no way a “spending program” or a "statute," and Taitz has no individual stake in it (not being herself liable for deportation). In order to sue, the legislation challenged must exceed Constitutional limitations, not simply go beyond delegated powers. She fails both tests. The Flast case had to do with state spending to support religious schools in violation of the Constitution’s Establishment Clause.

Read more:

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Arpaio v. Obama, and other legal stuff

Sheriff Joe Arpaio has not been lucky with attorneys lately.

The Maricopa County Sheriff’s office has been operating under a court-appointed monitor after it was determined that they were guilty of racial profiling. Judge Snow appointed Robert Warshaw as the monitor. According to the Greenfield Reporter,

Snow says he will have Robert Warshaw, who is monitoring the agency on the judge’s behalf, investigate any allegations that he feels the sheriff’s office isn’t examining in good faith.

Warshaw has said his team has never seen more unprofessional interviews than those conducted by Arpaio’s employees who are running the investigation.

Ouch! Judge Snow said in court yesterday (November 21) that Sheriff Joe could be held in contempt of court! Arpaio is appealing the decision by Snow, but he’s run into another snag: the attorney representing him wants out, citing ethics concerns, says the Associated Press:

A lawyer representing Maricopa County Sheriff Joe Arpaio in a racial profiling case says legal ethics compel his firm to step aside.

As one might expect, no details of what the ethics concern is about were made public, although it was detailed in court filing earlier in the week.

The embattled sheriff is trying to take the offensive, by suing the President over his announced new immigration policy, reports Reuters:

Maricopa County Sheriff Joe Arpaio, whose force used racial profiling during a crackdown on illegal migrants last year according to a judge, said Obama has overstepped his powers by bypassing Congress and bringing in the changes himself.

I wonder who’s paying the legal bill, and who Arpaio could get to represent him in the case? The second question is easily answered from court filings: Larry E. Klayman. What is a little difficult for me as a layman to determine is whether Arpaio is suing as a private citizen, or as Sheriff of Maricopa County. Arpaio is described in the complaint caption as  “Elected SHERIFF of Maricopa County,” but the complaint does not use the phrase “in his official capacity,” nor does it suggest that the County is a party to the suit. It looks like Arpaio is suing as a private citizen, and that immediately raises the question of standing. In addressing the issue of standing, the complaint states:

27. Plaintiff Joe Arpaio is adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties, but the failure of the executive branch to enforce existing immigration laws, but has been severely affected by increases in the influx of illegal aliens motivated by Defendant Obama’s policies of offering amnesty….

The other defendants are Jeh Johnson, Secretary of the Department of Homeland Security, Leon Rodriquez, Director of Citizenship and Immigration Services and Eric Holder, Jr. Attorney General.

Read more:

KPHO Story on Klayman and the suit

Amnesty conspiracy

There was a time when on any slow news day I could go to Orly Taitz’ web site and find some crazy birther thing to write about. Those days are over. Nowadays Taitz is more likely to be talking about Ebola, Muslims, conservative candidates, impeachment or gays—and more than those: immigrants. Taitz wants illegals out of the country, and free trade agreements canceled.

The latest from her in immigration is the claim that next week, Obama is going to issue an executive order implementing some kind of amnesty. Here’s her headline:

Obama to announce theft of some 5 million jobs from American cities, aiding and abetting invasion, committing treason. Call every member of Congress, demand immediate impeachment and removal from office of Indo-Kenyan usurper Obama

Where does she get such crazy ideas?

image

President Obama is planning to unveil a 10-part plan for overhauling U.S. immigration policy via executive action — including suspending deportations for millions — as early as next Friday, a source close to the White House told Fox News.

The president’s plans were contained in a draft proposal from a U.S. government agency. The source said the plan could be announced as early as Nov. 21, though the date might slip a few days pending final White House approval.

Fox News 13 November 2014 (citing anonymous sources)

Taitz didn’t accurately characterize the Fox story that she cited, and the plan (assuming Fox is right) is for deferred deportation, not amnesty.

Whatever your take on immigration policy, the fact is that a dysfunctional Congress puts more power in the hands of the President.

Jedi Pauly tricks UK government into admitting Obama ineligibility–or so he says

imageWhenever I travel abroad I like to make up facetious blog article titles about me fleeing the country, or going to investigate the birthers. It’s all in good fun, but a birther apparently has done it in all seriousness.

Paul (“Jedi Pauly”) Guthrie, birther litigant and blogger, has gone to the United Kingdom, as part of a ploy to force the UK courts to rule President Obama ineligible, so says George Miller in an email published at Gerbil Report™.1

imageGuthrie went to the UK and tried to gain political asylum. They accepted his application, processed it, and rejected his claim. He’s in detention pending removal. Guthrie argues that by accepting his application for review, the UK admitted and officially determined that Obama was an illegal president. That’s just a sample of how Guthrie, who now describes himself as a “political prisoner,” spins defeat into victory in his convoluted description3 of his situation–incarcerated and running out of money.

I haven’t figured out why, if Guthrie had a valid U. S. passport, that he is being detained at the Colnbrook Immigration Removal Center unless they just think they already have enough nutty birthers already (what with Michael Shrimpton, and Lord Monckton). More seriously, I think it’s probably because his stated purpose for entering the country, to get UK courts to examine Obama’s eligibility, is not one of those purposes for which a visa is not required (e.g., attending a conference or training, attending a sporting event, an entertainer, a prospective entrepreneur or tourist). Guthrie argues that the UK cannot deport him so long as a possibility exists that the US could be led by an ineligible president—leading to what he describes as a “life sentence” or requiring the UK courts to adjudicate the definition of the term “natural born citizen” in the US Constitution. I think the UK is perfectly capable of getting rid of him without doing that.

In his press release2, Guthrie describes his incarceration as:

  • a war crime
  • a human rights violation

So to help out Guthrie in the way George Miller requests, I am doing what I can to make this issue public and take it viral on the Internet.

Jedi Pauly web sites:


1One interesting feature of this Birther Report article is it’s introduction of a new term for birther that I hadn’t seen before: Obama ineligibility activist. Personally, I think that sounds even more nutty than birther.

2In the press release, Guthrie is described as a professor of political science, but his LinkedIn profile shows only a BS in applied physics and mathematics from Purdue.

3To give another example of creating meaning from thin air by Guthrie, check out this statement from 2011:

The U.S. Constitution is an agreement between the original thirteen sovereign states of the union of states and their creation, the federal government.  The use of the capitalization of the word “citizen,” as in “natural born Citizen” or “Citizen of the United States,” is meant to convey in the Constitution the exclusion of federal citizen “subjects” such as citizens from the federal territories or possessions.

Every noun in the U. S. Constitution is capitalized.

Order to show cause in Taitz v. Johnson

US District Judge Andrew S. Hanen issued an order on August 1 to the Department of Homeland Security (Health and Human Services, Barack Obama and the Brownsville Station of the Border Patrol) to show cause why emergency relief requested by plaintiff Orly Taitz should not be granted. Taitz decided to intervene on behalf of people who are afraid of disease from Guatemalan children who arrived in the US without documentation and turned themselves in at the border. Taitz wants quarantine and other emergency measures as detailed in her complaint.

Certain conservative web sites (for example, Conservative Patriot) are very excited about the progress of this case, Taitz v. Johnson, taking the order to show cause as a strong sign that the judge is on the verge of ruling in Taitz’ favor. The government has until August 11 to respond.

And the winner is for best reason for dismissing a lawsuit (opening sealed envelope): lack of standing.

I returned from Mexico myself last week, and so I know that the time when I had to show my passport to American Immigration officials was after I was already physically in the United States. I understand that these kids are not sneaking across the border, but entering the country and turning themselves in.

Update:

The Government responds

The birther fear of death

When I say “death” I don’t mean physical death, but death of a way of life. Birthers are mostly old white people who are saying: “Obama is destroying the country.” Ignore the “Obama” part for a minute, and listen to the fear that they live in the midst of some kind of destruction. Some of them think that the world is about to end in the Biblical Apocalypse, but even if the world isn’t ending, it is passing them by.1 Change comes at what appears an accelerated pace (and even if the pace were not accelerated, it would seem that way to older people whose sense of time is different). Change scares them witless because it could mean the death of their way of life. And out of this fear, they seem to be grasping at straws: that Obama is ineligible and every law he signed can be made to go away, that the Tea Party can set the clock back to 1950, that all the immigrants can be expelled2.

“Immigration and people of color” is a big deal for the status quo because in the future the United States is going to populated and controlled more by non-white people, and that can be a source of anxiety for white people. The Southern slaveholder’s greatest fear was of a slave uprising in which they would be murdered in their beds, and revenge would be exacted on them for the cruelty they had inflicted on their slaves.3 The people of the United States have exploited immigrants from the beginning, whether it be the unwilling Africans, the Irish, the Chinese or the Latinos today who work for less than the minimum wage and in some cases in slave-like conditions. Those classes will share in the leadership in American. Even racial distinctions are becoming blurred by mixed-race families. What’s even scarier to some is that other countries like Russia, India and China (among others) are growing at tremendous rates and America must share world leadership to a growing extent. (I was just in Russia and was impressed by their potential in land area, natural resources and a well-educated population if they can stay at peace and maintain internal stability for a while.)

I’m 63 years old now and I am reconciled to the reality that each generation makes its own rules and has to solve its own problems (except that the next generation will have to solve its own problems plus the ones my generation left them). While I love my Country, I also believe in the equal value of all human life. If someone not like me does well, that’s a good thing too. My view is not that white people are in decline, nor that America is in decline, but rather that we are seeing the “rise of the rest,” to use a phrase borrowed from an immigrant with a funny name, Fareed Zakaria.4

It is a brave new world, but it’s not necessarily a bad one.

I’m really not sure what to say to the birthers. “Chill out” seems trite. My former pastor strongly recommended prescription drugs for anxiety. To the extent that you can, find constructive activities, delete those gloom and doom chain emails, and spend time with your family.


1Jesus said:

Truly, truly, I say to you, when you were young, you used to dress yourself and walk wherever you wanted, but when you are old, you will stretch out your hands, and another will dress you and carry you where you do not want to go. John 21:18

2Note this headline from an article on Orly’s site:

How to fight Soros pro amnesty thugs? We need bikers and truckers there, advising them that they are under citizens arrest and we need to call immigration and police immediately, demand deportation and have the call to immigration on loud speaker and on video. We need congressmen there talking to immigration on loud speakers. Maybe George Soros should be arrested for misprision of felonies, for inciting violence and violation of immigration laws? Is Soros a U.S. citizen, did he get his U.S. citizenship under false pretenses?

3The book The United States of Paranoia: A Conspiracy Theory talks about paranoia over real and imagined slave revolt plots.

4I had a really hard time writing this article, and making it say something worth reading, instead of being a collection of platitudes. A great deal was written and deleted. I don’t think I succeeded beyond offering the idea to the reader that part of birtherism can be attributed to old white people’s fears of losing their way of life.