I am reminded of Leo Donofrio’s memorable comment: “you can’t save the Constitution by destroying it,” when reading Orly Taitz’ latest lawsuit in California that attempts to get a court to meddle with Congress certifying the 2012 election, something that the Constitution mandates that they do. Taitz calls Congress a “government agency” and names it as a defendant in her Grinols et al. v. Electoral College et al. lawsuit.
As I said in a comment on another thread: “I suppose in the history of whack-job lawsuits, someone has tried to sue Congress before” and it turns out that I was correct that Taitz is not the only lawyer that thinks outside the box, way outside the box. Another is Mario Apuzzo who filed a lawsuit against Congress on behalf of Charles Kerchner in 2009, Kerchner v. Obama. Indeed, not only did Kerchner sue the House, the Senate and the Vice President (then Dick Cheney) he even sued The United States itself! That lawsuit was ultimately dismissed but I wondered if anything in that process would shed light on the instant case suing Congress.
In the Kerchner case, the United States Attorney replied on behalf of Defendants. In its motion to dismiss, the Government argued that the Congressional Defendants had immunity. The government argued sovereign immunity (you can read the Wikipedia article for more on that). In addition, the Government argued “absolute immunity” for the Vice President under U.S. Const. art. I, § 6, cl. 1, noting that the courts have broadly interpreted the debate immunity to preclude the courts from interfering with the function of Congress. In dismissing Kerchner, Judge Simandle did not reach the immunity argument, dismissing rather for lack of standing; however, he did cite one other reason that the suit could not be brought—the “political question doctrine”—writing:
…it appears that Plaintiffs have raised claims that are likewise barred under the “political question doctrine” as a question demonstrably committed to a coordinate political department. See Baker v. Carr, 369 U.S. 186, 216 (1962). The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.
So this brief nostalgic look back at another lawsuit from 2009 informs us that the Grinols case is:
A most curious article title [Link to Taitz site] appeared on the Orly Taitz blog a few days back. It said: “Update: I talked to attorney Mario Apuzzo, he stated, he will assist as much as he can.” I could hardly let that pass without comment.
I must admit that the first thought that came to mind was “poor Mario.” Partnerships with Taitz tend to go badly because she exhibits no respect for the other party and has no concept of confidentiality (like posting on the Internet that she had talked to Apuzzo). Taitz and Berg are involved in a messy lawsuit, former client Connie Rhodes said she was going to file a bar complaint against Taitz because Taitz filed actions on behalf of Rhodes without authorization, a major feud erupted between her and her co-counsel Gary Kreep, and now Taitz is petitioning the court to issue sanctions against her co-plaintiff Leah Lax in Mississippi. Apuzzo, on the other hand, seems arrogant and dismissive of others. There would seem to me to be a distinct personality conflict.
Apuzzo, for his part, has largely ignored Taitz on his blog except to note once that an article on her site is something that he actually wrote. On the other hand Taitz did mention Apuzzo in a substantive way, criticizing him [Link to Taitz web site] for that silly article saying that Obama was really Bari Shabazz and the son of Malcolm X.
Usually in a collaboration, one plays upon the strengths of the other. In this case we have one attorney whose evidence (copied from the Internet) has been rejected by multiple courts and another whose legal theories have been labeled as “without merit” by others. I don’t see that as a combination for success. Any bets as to how long it will take Taitz to add Apuzzo to her RICO complaint?
It was over three years ago. Mario Apuzzo had commented on several threads on this blog and on one of them, he left this message:
It is not my intent to overturn Wong Kim Ark and I do not know from where you got that notion. Your comment leads me to believe that you do not understand my “natural born Citizen” argument.
On another thread, I commented on my ongoing discussion with Mr. Apuzzo:
I keep telling Apuzzo that he has to overturn Wong.
And I did say that quite a bit back in those days. Now Vermont Superior Court Judge Robert R. Bent says the same:
Mr. Paige has tendered a scholarly article authored by Attorney Mario Apuzzo of New Jersey…. While Mr. Apuzzo mightily attempts to distinguish the conclusion of the United States Supreme Court in Wing Kim Ark, that English common law was adopted as to which model of citizenship was intended by the original framers, this court concludes that his arguments are, in the face of such a decision, academic only.
What the judge is saying is that the Wong decision does apply as binding precedent on his court and whatever Apuzzo thinks about the founders’ intent is academic. To prevail in court Apuzzo has to overturn Wong.
I told you so.
Birthers all wet
I commented that I expected a flurry of ballot challenges just in time to get ahead of reports of a flurry of ballot challenges. The election is just weeks away, so the courts and state elections commissions are having to expedite the process. Several prior cases were dismissed because they were premature, Obama not having been officially names as the Democratic Nominee yet.
First we noted Joe Montgomery’s later withdrawn objection in Kansas, plus Orly Taitz on the scene. Next it was three challenges in Illinois, all overruled by the Illinois State Elections Board today. Now another comes to light (filed Sept. 3) in Vermont by by H. Brooke Paige. Paige is was a Republican candidate for the US Senate from Vermont who lost in the primary. Most disturbing to me is that Mr. Paige is a fellow Lutheran.
Paige v. Condos
Paige says on his campaign web site:
I suppose Paige (photo right) is expressing his dislike for “radical Socialists” by trying to keep Barack Obama off the ballot in Vermont. Paige is representing himself in his lawsuit because he was “unable to secure competent Vermont counsel.” According to rather interesting narrative in supporting documents, no Vermont attorney will willing to represent Paige.
The 24-page complaint (embedded at the end of this article) indicates Paige is a follower of the Prussian/Swiss jurist Emerich de Vattel. It is unusual in a birther lawsuit citing Vattel to explicitly state the edition from which they take their text, but in this case Paige says that it is from 1797, 10 years after the Constitution was drafted. He doesn’t mention, however, that the phrase “natural born citizen” did not appear in the earlier English translations available to the framers.
Paige tells us that he had previously consulted with birther attorney Mario Apuzzo at length. The present complaint shows a rather clear derivation from Apuzzo’s arguments. (I didn’t check whether it is just copy and paste.) That’s a bad sign because the courts have already told Apuzzo that his legal theory is without merit.
Paige cites the following as authority for bringing suit:
- § 4711. Declaratory judgment
- Vermont Rules of Civil Procedure 57 (declaratory judgments — under Rules of Civil Procedure VII. Judgment)
- Vermont Rules of Civil Procedure 65 (injunctions – under Rules of Civil Procedure VIII. Provisional and Final Remedies and Special Proceedings)
[Doc scratches his head]
One of the problems that birthers have with these lawsuits is showing that the defendant, in this case Secretary of State James Condos, has a duty determine a candidates eligibility and to keep ineligible candidates off the ballot. Paige writes (Paragraph 104):
The Secretary of State has the power and authority to refuse to qualify a presidential candidate who has filed documentation with the State of Vermont seeking to be placed on the primary and general election ballot to be voted upon by Vermont voters when the constitutional eligibility of that candidate is objected to by a Vermont citizen…
However, he makes no citation of law at this point.
The second hurdle, of course, is that Paige’s theory is a collage of losers and misrepresented sources consistently rejected by every court to date that has looked at it. To someone who approaches this document trusting, it looks pretty impressive, but it’s all bunk under the microscope. I can see how someone like Paige could get misled, particularly someone disposed to see socialists running the government.
See for yourself:
The Secretary of State of New Hampshire has official forms that must be filed by all candidates for President, forms that require that the candidate state, under oath, that he or she is constitutionally qualified for the office of President of the United States. Attorneys for the Democratic Party of Mississippi have said that political parties can run whomever they wish for President. (Running an ineligible candidate, who could not actually assume office, would of course be a silly thing for a major party to do.)
In an appeal of Purpura v. Obama before the Supreme Court of New Jersey, attorney Mario Apuzzo argues1 that such laws and regulations are constitutional, citing a decision this year by the New Hampshire District Court in the case of Hassan v. New Hampshire. Mr. Hassan, a naturalized US Citizen born in Guyana, argues that the natural born citizenship requirement for the office of President was implicitly repealed by the equal protection guarantees of the 5th and 14th Amendments. The District Court disagreed and said, as cited by Apuzzo in his appeal:
Accordingly, because the Natural Born Citizen Clause has not been implicitly repealed, New Hampshire state laws requiring all presidential candidates to affirm that they are natural born citizens are constitutional.
While that citation is superficially on point, it is clear from the entire decision that the Court never approached the question generally, but only on the issue of whether the 5th and 14th Amendments repealed the natural born citizenship requirement. The court did not say that such laws are constitutional under any objection. (Hassan v. New Hampshire is currently on appeal before the First Circuit Court of Appeals.)
There have been other cases where ineligible candidates for President were barred from the ballot by states (for example, Eldridge Cleaver by Hawaii, California and New York because of age), but to my knowledge none of the resulting lawsuits that upheld exclusions ever reached the Federal Circuit Court level.
Apuzzo’s appeal argues that if the states don’t check eligibility, no one will. This is a position that I disagreed with in my article: “How we insure our presidents are eligible.” My view is the vetting of a President occurs at many levels and ultimately the responsibility falls on Congress. Judge Alsup wrote in his decision of the California case of Robinson v. Bowen:
Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.
Mr. Hassan, of course, never argued that an ineligible candidate could appear on the ballot, but rather that he himself is eligible. He also requested an advisory opinion from the Federal Elections Commission as to whether he could raise money as a candidate for President. The FEC had previously argued in the case of Berg v. Obama that: “[the FEC] has no oversight over the Constitution’s Presidential Qualifications Clause.” Nevertheless, in its unanimous opinion, the FEC said the Federal Election Campaign Act of 1971 did not preclude Mr. Hassan from becoming a candidate for president, nor from soliciting funds for his campaign2,; however, the FEC did assert that it would deny matching funds to Hassan under The Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-42 using its discretion under the Act even though a constitutionally ineligible candidate met the formal compliance criteria. Whether intentional or not, there is nothing in the Matching Payment Act requiring that candidates for President must be eligible to office in order to receive matching funds.
I have doubts that the courts would affirm an FEC decision to withhold matching funds in the unlikely event that Hassan would otherwise qualify for them. The FEC tried to use its discretion before in denying funds to Lyndon LaRouche, Jr., and that was overturned by the Court of Appeals for the District of Columbia Circuit in 1993. While eligibility to office was not an issue in the LaRouche case, it seems to me that the Matching Payment Act does not give the Commission any authority to withhold funds based on candidate eligibility to office, any more than it gave the Commission authority to withhold funds on other grounds not explicit in the Act.
The way I read the Constitution, there is nothing whatever therein regarding who may run for President, or who the Electoral College may vote for. Congress did not see fit to include an eligibility requirement to receive matching election funds. On the other hand, the States have long-recognized authority to regulate elections, so long as they do not offend the Constitution.
Today we have 50 states with different laws, and a large number of lawsuits rising from those laws challenging the eligibility of a candidate for President. It’s a messy process. It would certainly be beneficial if there were an authoritative ruling governing the general question of whether the States have any role in deciding presidential eligibility.
1Mr. Apuzzo’s problem is that there is no state regulation in New Jersey requiring any affirmative action by a candidate for President to appear on the ballot.
2It is interesting to note that under the Federal Campaign Act of 1971, the various birther plaintiffs who claim standing as candidates do not meet (so far as I know) the definition of “candidate”, since they have not received the requisite $5,000 in contributions or made that amount in expenditures.