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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.

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I demand that birthers stop filing lawsuits (writ of mandumbass)

One ticks off failed birther lawsuits, but as the losses mount (including just recently Orly Taitz’ appeal in the Colvin case), new ones fill in the void.

A writ of mandamus is an  order issued by a court that a public official must do something that they are legally required to do. It is an extraordinary action, and not at all common. In this instance a birther named Richard David Hayes has filed what he calls a “Criminal Complaint and a Writ of Mandamus” with a parish court in New Iberia, Louisiana.

The lawsuit names state officials, including Governor Jindal, as well as Louisiana’s Congressional delegation. Of course state officials have no jurisdiction to take any action regarding Obama’s eligibility, and the members of Congress have no obligation to take any action (impeachment being the obvious one). A court is certainly not going to order a member of Congress to impeach anyone—it would be an egregious violation of the separation of powers.

As for the criminal complaint, that’s not possible from a private citizen.

The suit has been reported by Gerbil Report ™ with some details of the complaint, which I think is based on Cold Case Posse stuff and Lord Monckton stuff from  2012.

The suit will be thrown out sooner or later, having no basis in law. The only interest for me is what birthers think is important in proving their theory.

 

Richard David Hayes added to Birthers from A to Z.

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Strunk something

Christopher Earl Strunk had a court appearance on the 24th of November. An email from him appears at Gerbil Report™ and it provides a narrative of what happened. The problem with this report (and others of its kind) is that it comes from someone who reads things differently than I do, and as a result what he thinks happened or what it means might be different from what I would have understood or reported.

It appears that Judge David Schmidt told Strunk to file default motion if defendants (and there are many) fail to respond in a time adequate for a March 26, 2015 hearing date. Nothing was reported as to what that date might be. The comments about someone admitting something seem to be some sort weird interpretation rather than anything actually said.

The convolutions of multiple cases and judges seems not worth the trouble to try to keep track of. What intrigued me was the statement:

The BHO falsified instrument was presented for the purpose of getting ballot access to the 2012 General Election here in New York as an act of treason against the Constitution for the United States.

What Strunk is saying here is that Obama released his birth certificate to the press in April of 2011 for the purpose of getting ballot access to the 2012 General Election in New York; however, I am not aware of any New York official watching TV or accessing the White House web site in order to make a determination of whether Obama should be on the ballot in 2012 or not.

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

Hanen to Taitz: Show me case law

I’ve said it before and I’ll say it again. I greatly appreciate it when local newspapers cover local birther events. This time it is the Brownsville Valley Morning Star’s coverage of the Taitz v. Johnson hearing yesterday by reporter Emma Perez-Treveño.

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The reporter’s posts on Facebook yesterday provided some information on how the hearing progressed. The longer version (paid) of the article provides a little more information including the following (via The Fogbow):

Regarding her request for a travel ban, Hanen said that everyone needs to keep in mind what is within the province of the court, and what is within the province of the United States Congress and the Executive Branch. Noting that while he might or not agree with a ban, she might have to show him where he would have authority to issue one, and referred to the well-known saying that, “judges are appointed, but they are not anointed.”

“If you want to go there, you are going to have to show me,” Hanen told Taitz. Taitz told Hanen that he has the right to issue a writ of mandamus to force Burwell to issue an order of quarantine. But Hanen pointed out that the law authorizes, but does not mandate that Burwell issue such orders.

“Why are we here if you find there is nothing you can do?” Taitz asked Hanen amid his observations. “We are here because you filed a lawsuit,” Hanen told her. “I’ll let you question the witness Dr. Taitz, not me,” he added.

Taitz told Hanen that he was refusing to consider the threat of injury to her. “Show me case law,” Hanen told her. “Does the case law provide that? What is the likelihood that it can happen? There is no certainty with Ebola or that you would be affected by it,” he continued. It was noted that the threat must be actual or imminent, not conjecture or hypothetical. “You’re going to have to show me that it’s not hypothetical,” Hanen told her.

Taitz herself did not testify at the hearing, but her “expert witness” Vera Dolan did. The government stated that “a cough is a symptom, not a diagnosis” and Taitz doesn’t know what caused it, and even if she did catch a respiratory infection from one of the immigrant children, that child could have caught it in the United States.

Taitz should go to law school and learn about this stuff.

I personally think that Judge Hanen is out of line holding this hearing at all, until after the question of standing has been settled. Without standing, he has no jurisdiction. But then, I haven’t gone to law school.

Birther ballot case goes to California Supreme Court

But is the California Supreme Court Constitutional?

That’s what was reported by Gerbil Report™ from a press release of the “American Resistance Party.”1 The article, “Are Part Alien Judges Constitutional?” focuses on one newly-appointed associate justice of the California Supreme Court who was born in Mexico. Mariano-Florentino Cuéllar was recently nominated by Governor Jerry Brown to the Court, and confirmed unanimously by the California Commission on Judicial Appointments. Cuéllar has some impressive credentials that can be read in his Wikipedia article, or at the LA Times.

Because they were unable to find anything showing that Cuéllar was a US Citizen, the ARP assumed that he wasn’t. Curiously, the California Judicial Branch Fact Sheet that describes qualifications for judges does not mention any citizenship requirement, nor is it a requirement for admission to the California Bar. Nevertheless, Cuéllar is, according to his Constitution Project biography, a US Citizen. But even if Cuéllar is a naturalized citizen he is not, argues the ARP, constitutionally qualified to be a judge on the California Supreme Court because of some tortured reading of the US Constitution, specifically the 11th Amendment that precludes foreign persons from suing a state.

They assert:

Mr. Cuéllar has failed to prove in any written statement or eligibility statement in the past to prove beyond a shadow of a doubt that he has refuted (sic) his Mexican citizenship. It is his responsibility to do so, if and when, he attains an office that is under the purview of the U.S. Constitution and California Constitution.

The ARP probably is unaware of the oath that naturalized citizens take:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; …

So while not applicable in this particular instance, the ARP do argue that dual citizens (not 100% citizens) cannot serve in any capacity under the California or US Constructions. Their argument seems nonsense. Where were they when Michele Bachmann (Swiss) and Ted Cruz (Canadian) served in the House and Senate (respectively)?

The case in question is Noonan v. Bowen, a long dismissed ballot challenge, being appealed from the Third Appellate District. Edward Noonan and co-appellant Pamela Barnett are being represented by Nathaniel J. Oleson of the US Justice Foundation. The case number is S221700.

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Update:

The case was denied review.


1Edward Noonan is founder and National Committee Chair of the American Resistance Party.