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Apuzzo submits SCOTUS appeal in Paige case

A document has surfaced on the Internet which appears to be a petition for writ of certiorari to the US Supreme Court in the case of H. Brooke Paige v. James Condos, Vermont Secretary of State. In this case Paige, with some assistance from Mr. Apuzzo, argued that US Presidents must have US citizen parents. The lower court rejected that view, saying:

While the court has no doubt at this point that Emmerich de Vattel’s treatise The Law of Nations was a work of significant value to the founding fathers, the court does not conclude that his phrase–”The natives, or natural born citizens, are those born in the country, of parents who are citizens.”–has constitutional significance or that his use of “parents” in the plural has particular significance. This far, no judicial decision has adopted such logic in connection with this or any related issues. In fact, the most comprehensive decision on the topic, Ankeny v. Governor of Indiana, examines the historical basis of the use of the phrase, including the English common law in effect at the time of independence, and concludes that the expression “natural born Citizen” is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.

I wrote why the Supreme Court is unlikely to grant cert in my article: “Why the US Supreme Court will not hear the Paige case,” so I won’t repeat that discussion here.

At this point, a search of the Supreme Court docket does not show the case, nor is there a case number on the petition document uploaded 7 hours ago. Nothing at Apuzzo’s blog yet. Paige writes on his Constitutional Reset blog that the petition was filed yesterday (March 6).

Read more:

Why the US Supreme Court will not hear the Paige case

The reason is quite simple, and it comes from the Hon. John A. Gibney, Jr.  United States District Judge for the Eastern District for Virginia, writing in his decision in Tisdale v. Obama:

It is well settled that those born in the United States are considered natural born citizens.

I like to cite a long list of court decisions on the issue of Obama’s eligibility to refute the crank claims that US Presidents must always have citizen parents. I use the list because it’s impressive, but there’s something more important than its length, and that is its uniformity. Judge Gibney says that the question is well settled, and that list of cases demonstrates that it is settled. All the courts that have ruled on the merits in all the states where Obama’s eligibility has been challenged on the basis of his father’s status have gone the same way.

The Supreme Court gets involved when there are differences between the circuits, or between state supreme courts or between federal and state courts. There are no differences on this issue; it’s settled. The US Supreme Court will not review it. That was a rough summary of Supreme Court Rule 10. Considerations Governing Review on Writ of Certiorari. There is one additional situation where the Supreme Court might review a decision:

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

I suppose this where the birthers must hang their hopes; however, the essential issues were already decided by SCOTUS in 1898 in the case of US v. Wong and nothing in the more recent decisions conflicts with that. Birthers will say, of course, that the state decisions and the one federal decision are contrary to the Supreme Court’s decision in Minor v. Happersett, but that’s just because they don’t understand that case.

One might argue that the Supreme Court can hear any case it wants to. That’s true, but there have been several birther cases already that it could have heard if it wanted to weigh in on the issue. It didn’t.

Vermont Supreme Court rules birther appeal moot

H. Brooke Paige was one of many birthers who unsuccessfully sought in court to remove Barack Obama from the 2012 ballot. His argument was that Barack Obama was not a natural born citizen because his father was not a US Citizen. The lower court dismissed Paige v. Condos, saying in 2012:

While the court has no doubt at this point that Emmerich de Vattel’s treatise The Law of Nations was a work of significant value to the founding fathers, the court does not conclude that his phrase–”The natives, or natural born citizens, are those born in the country, of parents who are citizens.”–has constitutional significance or that his use of “parents” in the plural has particular significance. This far, no judicial decision has adopted such logic in connection with this or any related issues. In fact, the most comprehensive decision on the topic, Ankeny v. Governor of Indiana, examines the historical basis of the use of the phrase, including the English common law in effect at the time of independence, and concludes that the expression “natural born Citizen” is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.

The Vermont Supreme Court, noting that the election is over, has rejected an appeal from Page to the decision and declared the question moot—Obama cannot run for President again. The Court noted that Paige lacked standing to bring a suit in the first place, because he showed no particular and individual injury, and also that the Court has no power to grant the relief demanded by Paige, writing:

…a declaration by this Court with regards to plaintiff’s “natural born Citizen” argument would have no impact on the qualification-related laws and orders to which plaintiff refers, since a ruling by this Court would bind no other state or federal presidential election authority.  Whatever the merit of his argument, plaintiff’s cure in the form of declaratory relief is futile and so beyond this Court’s constitutional jurisdiction.

In the court of original jurisdiction, defendants argued:

… the Secretary of State does not have the authority to determine a presidential candidate’s eligibility

That is very close to the question before the Alabama Supreme Court of whether the Secretary of State has a duty to determine a presidential candidate’s eligibility. In the Alabama case (McInnish v. Chapman), the question is of a more general nature, and the Court may well not consider it moot. However, contrary to birther expectations, there will be no trial of Obama’s eligibility before any Alabama court.

Read more:

Paige tries to lay down the Law to the Vermont Supreme Court

It was a good day for Justice in Vermont!
– H. Brooke Paige

Photo of a stack of Copies of the Law of Nations from Press photoH. Brooke Paige tried to impress the Vermont Supreme Court yesterday with a thick pile of books1 that he at one point attempted to approach and hand to them, violating their personal judicial space, and according to the Burlington Free Press, raising some alarm.

Paige wanted to make it clear to the justices that he was not one of those crazy birthers, saying:

Don’t pay any attention to them. The birther argument is just a sheer flight of fancy.2

Paige is one of those crazy Vattelians. Like other cranks, Paige focuses just on what supports his theories, interpreting the evidence as if the theory were fact, and excluding everything against it, and so cannot objectively evaluate evidence. The judges were more interested in the law. Reportedly birther attorney Mario Apuzzo, who has argued classic birther conspiracy theories on behalf of Charles Kerchner, helped Paige with his arguments.

The Vermont Superior Court previously rejected Paige’s definition of “natural born citizen,” repeating the conclusions of many other courts on this question.


1Vattel’s The Law of Nations

2Quote of the Day for sure

I told you so

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.

Paige denied injunction

H. Brooke Paige filed a lawsuit to keep Barack Obama off the November ballot in Vermont. Judge Robert Bent of the Vermont Superior Court was having none of it, reports the Burlington Free Press, refusing a request for a preliminary injunction barring Obama from the ballot, saying:

The court has been presented with a radically insufficient basis on which to issue a temporary or even a preliminary injunction

The judge cited, among other reasons, that the Plaintiff hadn’t even served President Obama with the complaint. While not ruling on the substantive argument of Paige’s complaint (the twofer theory that Obama’s non-citizen father makes him ineligible), the judge didn’t seem very sympathetic to the idea, saying:

The myriad versions of the claim that President Obama is ineligible for office because he is not a ‘natural born citizen’ have been litigated throughout the country exhaustively. They have never succeeded, usually on standing or jurisdictional bases.

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