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Lindsay oral arguments: peppered with “birther”

Orly Taitz has obtained an unofficial transcript of the oral arguments from the 9th Circuit Court of Appeals in the case of Peta Lindsay, et al v. Debra Bowen. Like 1968 Peace and Freedom Party presidential candidate Eldridge Cleaver1, Lindsay was too young to become President of the United States, and like Cleaver, she was refused a place on the California Ballot because of her age. The lower court dismissed Lindsay’s lawsuit.

Appellants argue that the US Constitution provides that under the 20th Amendment only Congress may decide presidential qualifications, the eligibility of a president-elect to become president. Under the political question doctrine, a court would decline to intervene when the Constitution explicitly assigns a role to another branch of government or to the democratic process. The State of California argues that Congress’ role in deciding eligibility is not exclusive and that case law gives states broad authority in the conduct of elections, including the power to prevent a ballot from being cluttered by frivolous candidates. Both parties cite Elections Code Section 6720, that says:

6720.  The Secretary of State shall place the name of a candidate upon the Peace and Freedom Party presidential preference ballot when the Secretary of State has determined that the candidate is generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Peace and Freedom Party or the national party with which the Peace and Freedom Party is affiliated.

Appellants say this requires the Secretary of State to place the Peace and Freedom Party candidate on the ballot. Bowen argues that an obviously ineligible candidate cannot be considered “generally advocated.”

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Winnowing the Grinols 2

Don’t ask me what the title means—I just thought it sounded snappy. The article is about Orly Taitz’ appeal in the case of Grinols v. Electoral College.

The case, involving several issues regarding the 2012 election, was dismissed April 22, 2013 by federal Judge Morris England after hearing oral arguments on the motion to dismiss. You can read more about the grounds for dismissal in my article, “Things heat up for Monday face-off in Grinols.” When a judge dismisses a case like this, it means that the case cannot proceed as a matter of law. Taitz’ only recourse in an appeal is to argue that the judge made an error in the application of the law and should she win the appeal, it would mean that the case would be sent back to the lower court for trial.

You can read her 63-page opening brief filed October 29 for yourself. So what is Taitz’ rationale for the appeal (besides her general tendency to refuse to take “no” for an answer)?

Taitz raises 13 issues in the appeal, which I will catalog here:

  1. The Court shouldn’t have allowed the US Attorney to file a response on behalf of Congress, because some Congressmen weren’t notified about the suit. Taitz says that the “U.S. attorneys defrauded the court.”
  2. The Court should have issued a default judgment against President Obama because he didn’t file a timely response. The issue here is whether he was properly served (and he wasn’t).
  3. The Court should not have said that it lacked jurisdiction (Taitz cites Peta Lindsey [sic] v. Bowen). Peta Lindsay v. Bowen did not involve the court ruling on the eligibility of a candidate. She also cites Cleaver v. Jordan and Fulani v. Hogsett. None of the cases are relevant.
  4. The Court shouldn’t have said the case was moot. Taitz cites Keyes v. Obama where a case was brought on Inauguration Day. The problem with relying on Keyes is that the court of appeals stated that after the election plaintiffs no longer had any standing as candidates, leaving Taitz with no plaintiffs with standing.
  5. The Court should have decided that all the plaintiffs had standing, not just Judd (who had been a candidate).
  6. The Count should have ruled on Taitz’ claim that over one million votes in California were from defective registrations. No explanation is given why the Court should have done this.
  7. Continuation of 6.
  8. The Court should not have followed what other courts did, and not rule on Taitz’ social-security number claims.
  9. The Court should not have found that December 12 is before December 17 (she thinks they did, but …).
  10. The Court should have let Taitz file more stuff
  11. The Court should have recognized that Barack Obama does not legally exist. (There is some guy named Soetoro, Soebarkah.)
  12. See 13.
  13. The Court should have decided Obama can’t be President because his Selective Service application doesn’t have a visible year “19” on it.

In my analysis of the case, there is very little legal substance to it. The most important point is the first one where Taitz claims that the Court failed to follow precedent when it decided that it lacked jurisdiction to rule on a presidential candidate’s eligibility. Taitz is wrong that her citations are on point. The Cleaver case was not in federal court and none of the cases involved the court ruling on eligibility. Gary Kreep, in the appeal of Keyes v. Bowen, did a better job than Taitz, arguing rather that there is no precedent for not deciding the issue in court, and that no statute specifically grants to Congress the right to decide eligibility.

Taitz repeatedly claims that the court “ignored the evidence,” but of course evidence really isn’t at issue when ruling on a motion to dismiss.

The appellees have asked for more time to respond, and their responses are due by December 30, 2013.

Commentary

The only interesting thing about the case is one judicial question that I do not think has ever been answered definitively, namely does any court have jurisdiction to decide on the eligibility of a presidential candidate? Taitz bollixed her citations in favor of the proposition that courts can decide who is eligible and who is not, and keep them off the ballot. The precedent of Robinson v. Bowen from the Northern District of California seems on point for the other side. Judge Alsup wrote:

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. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.

Robinson was not appealed. The Ninth Circuit dodged the political question argument in its decision in Keyes | Barnett v. Obama, affirming the dismissal, but on other grounds.

Lawrence Sellin, PhD, spreads disinformation about presidential eligibility

The Sonoran News, a right-wing news site in Arizona, has published a guest editorial by Lawrence Sellin, PhD (in physiology), in which he says that we should discount what the politicians and the journalists say about presidential eligibility, and listen to him instead. I might add that one would also have to ignore no less than 10 court decisions (plus appeals) over the past 7 years and a truck load of Civics books and legal commentary as well. Listening to him would be a big mistake, because Sellin is a crank when it comes to the topic.

Sellin is a Vattelist, saying:

The term "natural born citizen" was well-known during the time of the writing of the Constitution from Vattel’s "Law of Nations" (1758), which stated "natural-born citizens are those born in a country of citizen parents" (Volume 1, Chapter 19, Section 212).

Of course no Framer of the US Constitution ever said that the phrase was based on Vattel. In fact the edition of Vattel available to the Framers, didn’t even contain the words “natural born citizen” – that came a decade later. Vattel was never mentioned in the context of citizenship or eligibility for office in the debates of the constitutional convention, or the debates over ratification in the state legislatures. The Supreme Court says (US v. Wong) that the term comes from English Common Law. Sellin is just making stuff up.

Sellin then plays the second birther card, Minor v. Happersett, a voting rights case from the 19th century. He claims that this case defines “natural born citizen” when in fact it states unequivocally that it was only considering the status of persons born in the US to citizen parents, and not others. Judges (see Allen v. Obama) and law professors (e.g. Associate Professor Joseph Hylton of Marquette University Law School1) are both on record that the Minor decision does not define the term for all classes of persons.

So why does Sellin’s view get so little traction with the courts, the Congress, the news media, Law Professors and historians? Sellin offers a conspiracist explanation:

Why is there a controversy? Because, I repeat, politicians and journalists are driven by political expediency in order to protect and enhance their own financial interests.

You might attribute this motive to some politicians and journalists, but all of them? I think not. And what about the judges, historians and law professors? What about ones writing 100 years ago?

The conspiracy started, according to Sellin, with a disinformation campaign that started in February of 2008 with a “fake” controversy about John McCain started by Obama supporters. The controversy was hardly fake as it had arisen decades before when George Romney (born in Mexico) was considered a candidate for President. The Hollander v. McCain lawsuit was filed in March. 2008, but Fred Hollander stated that he was a McCain supporter just trying to settle the issue. Other McCain lawsuits (e.g. Robinson v. Bowen) were from third-party supporters who didn’t like McCain or Obama, and sued both. Sellin also repeats the false rumor that McCain was born in a Panamanian hospital, rather than his true place of birth on the Coco Solo Naval Base in the Canal Zone.

Sellin thinks that S. Res. 511, declaring John McCain eligible, was some sort of back-door deal where Democrats got a tacit waiver for Obama. Here Sellin breaks with birther tradition that says (falsely) that S. Res. 511 declares Obama ineligible (making the same mistake confusing sufficient with necessary conditions that they make with Minor). What Sellin doesn’t appreciate is that the question of McCain’s eligibility is not completely settled, while Obamas’ is. Cruz is in a weaker position than McCain because the Panama Canal Zone, while not an incorporated US Territory, was under some sort of US jurisdiction.

Sellin continues the disinformation campaign theme by saying:

Complicit with the Democrats in violating the Constitution, the Republicans joined them in a deliberate campaign of disinformation to hide the truth about Obama and the natural born requirement; an effort that continues to this day.

That disinformation campaign actually started at least as early as 1776. Historian George Bancroft writing in the 19th century about the period between the Articles of Confederation and the adoption of the US Constitution said:

Every one who first saw the light on American soil was a natural-born American citizen.

And it continued with the first major work of exposition of the Constitution by jurist, historian and confidant of Franklin and Washington, William Rawle, who wrote in his A View of the Constitution of the United States (2nd Ed. 1829):

…he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States Therefore every person born within the United States its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity.

Mr. Sellin is the disinformation campaigner. What are his motives? He claims that racism is behind his imaginary disinformation campaign for Obama; perhaps that’s what is behind the real disinformation campaign against Obama. Or maybe he’s just repeating something he heard in a chain email.


1Hylton wrote:

To cite Minor v. Happersett as the definitive statement of the meaning of the phrase “natural born citizen” is to exhibit an unfortunate lack of understanding of the Supreme Court’s 1874 decision in that case.

Yeah, Cruz is eligible

While I do not think that Congress can change the definition of “natural born citizen,” I do believe that they can change the status of individuals so that they meet the definition. I don’t see any qualitative difference between legislation adding a new state to the union (and thereby making new US citizens at birth) and Congress making citizens at birth through legislation under their naturalization powers. No one would argue that only people born in the 13 original states can be President, so why should they argue that only people born under the English Common Law provisions governing citizenship in 1789 can be President?

I should point out that the Constitution does not define “natural born citizen.” One has to look elsewhere for the definition. For a definition, I look to the first Congress, who in 1790 by legislation made certain persons natural born citizens who were not natural born citizens before. Those Congressmen, one of whom, James Madison, is recognized as the principal author of the Constitution, decided that they could by legislation create natural born citizens, and the former President of the Constitutional Convention George Washington signed that bill into law. I do not think that the actions of the First Congress and President Washington are easily dismissed, nor are arguments of carelessness on their part credible.

The clear implication of the 1790 Act (and the Oxford English Dictionary) is that to our founders “natural born citizen” meant “citizen at birth.” So the question that remains is whether the Constitution’s naturalization provision gives Congress the power to create citizens at birth (in contrast to the usual understanding of naturalization–making someone a citizen after birth). The Congress has and does create citizens at birth (even in some cases retroactively) and I don’t know of any challenge to them doing that. (Judge Alsup in Robinson v. Bowen even opined that a retroactive act of Congress made John McCain a natural born citizen.) I see no objection to Congress changing membership in the pool of natural born citizens, through its naturalization powers.

If one were to invoke the English Common Law as both defining the term “natural born subject” and limiting which persons meet the definition, then I would point them to the various British acts that create natural born subjects, as argument against that position. That is, in 1789 Americans had a contemporary example of British legislation that expanded the pool of natural born subjects. Or put another way, I think that saying that English Common Law defines membership in the class of natural born subjects is the same mistake as saying that Minor v. Happersett defines membership in the class of natural born citizens–confusing necessary with sufficient conditions.)

Since according to U. S. Law, Canadian-born Ted Cruz was a U. S. citizen at birth, then yeah, he’s eligible to run for President.

Dicta on natural born citizenship

The previous article, “Cranking natural born citizenship” exceeded the limit of 500 comments, and this is primarily an article to hold the overflow.

I did want to make one comment in general about the topic. To my knowledge few cases have ever been heard in court about the presidential eligibility of a person born US citizens outside of the United States. The closest we have is the complicated case of John McCain, in which Judge Alsup said in his decision that he thought McCain likely to be eligible.

In the case of US. v. Wong, the court used reasoning that concluded that Mr. Wong was born a citizen under the principles of the common law of England, and pretty much all legal authorities consider the question of persons born US citizens in the US settled as to people like Wong (they are eligible).

The problem with Supreme Court case citations and authorities with regard to the foreign born, is that no case to my knowledge ever needed to distinguish between “born citizen” and “natural born citizen” in order to reach a decision. This is because the only distinction at law in the United States is in regard to eligibility of the President. So when, for example, a court says that there are only two sources of citizenship, birth and naturalization, they are not necessarily analyzing that formula for potential US Presidents. It may well be that someone is, as one commenter here put it, both natural born and naturalized.

Dicta is generally considered less authoritative than the argument that leads to the decision, and the decision itself. These side remarks and observations are not, so it is thought, so carefully reasoned or precisely crafted as the essential parts of the decision. In any discussion of the subject, one should consider how carefully the authority cited might have been speaking in the context in which we cite them.

Political theater

Funny how the same thing comes up multiple times. The first is my own comment on Voeltz v. Obama, where I said:

While I don’t see any real legal significance to the Voeltz lawsuit, it makes for good theater.

Shortly afterwards I saw a citation from the ObamaBallotChallenge web site in a comment on my site:

If you think the system is rigged and we can’t win, think again.This case has a better chance than most. If we lose the ruling, it’s very appealable. Even if we lose, we win, because political theater is one of our objectives. Obama and the rotten official power structure are being exposed more and more for all to see. This clown won’t be able to get elected dogcatcher when we’re through with him. But, we also want to lay the groundwork for possible future nullification of everything he ever signed.

And today we see that very same reference cited in a memorandum filed on behalf of Barack Obama in the Voeltz case referencing the previous, prefaced by:

Statements on a website seeking funds to support Plaintiff’s litigation suggest that Mr. Voeltz’ lawsuit is "political theater" and filed for an improper purpose

I can’t help but be reminded of the title of Sam Sewell’s blog: “The Steady Drip.” The opposition hopes to wear down Barack Obama’s public image by incremental smears, none of them actually true, but they hope that the sheer number of them will create doubt.

In the “Memorandum,” President Obama echoes the Florida Secretary of State’s contention that the election cannot be contested until the results are certified, and that President Obama hasn’t been nominated or elected to anything yet. He further argues that the decisions of eligibility lie with the electoral college and Congress, that “judicial review, if any, should occur only after the electoral and Congressional processes provided for in the Constitution have run their course” (citing Judge Alsup in dismissing Robinson v. Bowen).

The “Memorandum” goes on to specifically address the spurious legal theories presented by Mr. Klayman attempting to redefine “natural born citizen.” I won’t summarize, except to note that the President’s position on the meaning of “natural born citizen” is the same conclusions that I have also reached:

The very essence of a natural born citizen is that he or she becomes “at once” upon birth, and not at some time later.

The full text follows:

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