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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.

The birther contribution to American jurisprudence

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

Where's the Birth Certificate? billboardWhile one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

gavelIn common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

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Wharton’s “Conflict of Laws”

The Appellants who argued that Wong Kim Ark was not a citizen of the United States because Congress made a law excluding the Chinese, and Ark was born in the United States, a child of Chinese subjects, cited Francis Wharton’s Conflict of Laws in their Appellants’ Brief to the US Supreme Court.

By the fourteenth amendment to the Constitution of the United States it is provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” If a child is born in the United States of French parents temporarily resident but not domiciled in the place of birth, is such a child a citizen of the United States by force of the amendment just stated? This depends on the question of whether the child at its birth is “subject to the jurisdiction of the United States.”

In one sense it undoubtedly is. All foreigners are bound to a local allegiance to the State in which the sojourn. Yet the term “subject to the jurisdiction,” as above used, must be construed in the sense in which the term is used in international law as accepted in the United States as well as in Europe. And by this law the children born abroad of American citizens are regarded as citizens of the United States, with the right on reaching full age to elect one allegiance and repudiate the other, such election being final. The same conditions apply to children born of foreigners in the United States.

The Appellants lost the case. In 1905 George H. Parmele published the third edition of  Conflict of Laws (1905) and in the preface, wrote about the purpose of the edition:

The controlling purpose in the preparation of the present edition of this work has been to present the American and English decisions upon specific questions relating to conflict of laws, or involving the application of principles of private international law, and to formulate from these decisions the concrete principles and rules applicable to such questions, rather than to trace general principles and theories though unrelated subjects. The great number of decisions rendered since the publication of the second edition has made this mode of treatment practicable.

In particular, the Wong Appellants’ citation has been updated with the following new information, based on the decision in Wong itself:

Upon the other hand it is now settled by a decision of the United States Supreme Court [footnote references United States v. Wong Kim Ark] that the amendment, interpreted in the light of the common law, extends citizenship to a person born in the United States of foreign parents who have not been, or cannot be, naturalized in the United States, but who have a permanent domicil or residence therein; and that it is beyond the power of Congress to deny citizenship to such a person. It was said in this connection: The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, and in the allegiance and under the protection of the country, including all children born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

pp. 49-50.

Coincidental comments

I found a couple of seemingly unrelated comments on the site this morning. The first was:

This has been a long enduring disagreement. For those that have not read it. The Dissent on the Wong Kim Ark case.

and the second:

President Chester A. Arthur in 1880 had a similar problem with questions of his citizenship, …

As many of you recall, Wong Kim Ark was born in the United States to Chinese parents at a time when the law precluded the Chinese from becoming citizens. Wong left the US and when he returned he was refused admission because of provisions in the Chinese Exclusion Act. Wong argued that the Act did not apply to him because he was a US Citizen. The Supreme Court agreed on a 6-2 vote, creating an enduring precedent of citizenship for the children born in the United States to alien parents.

The trivial connection between the two comments is the fact it that it was none other than President Chester A. Arthur who signed the Chinese Exclusion Act in 1882. But I want to take a longer road relating the Dissent in Wong Kim Ark to questions about Arthur’s citizenship.

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A shout out to Wong Kim Ark

imageToday is the 114th anniversary of the United States Supreme Court decision in United States v. Wong Kim Ark, the definitive case on citizenship for persons born in the United States to alien parents. The 100th anniversary was celebrated as Wong Kim Ark Day in San Francisco. Wong is considered an American hero because he stood up for his rights as an American citizen.

Wong holds a special place with the birther-debunking community because this case is cited by the courts that decide that Barack Obama is eligible to be President of the United States, no matter what the status of his parents.

Read more:

Welden v. Obama: Isn’t this a little late?

Georgia Supreme Court SealIf memory serves me right, Super Tuesday was March 6, and that was the day of the Georgia Presidential Preference Primary. Nevertheless, David P. Welden, represented by his Tennessee attorney Van R. Irion, filed an appeal with the Georgia Supreme Court appealing Welden’s loss challenging Obama’s place on that ballot, and filed it on March 7.

Welden’s case was dismissed by Fulton County Superior Court judge Cynthia D. Wright, provoking some strong accusations of judicial misconduct by Irion. (See my article: “Tennessee attorney attacks Georgia courts”.) Those accusations are absent in this appeal, which claims “reversible error” in the Superior Court decision.

Two of the errors alleged by Irion involve whether under Georgia law anyone can challenge a presidential candidate’s eligibility, one is a question of proper service and one is of wider interest:

The Secretary of State erred in finding that the term “natural born citizen,” as used in Article II of the U.S. Constitution, includes all person’s born on U.S. soil without regard to the citizenship of the parents of the person born on U.S.soil.

Irion homes in on the fact that the Administrative Judge concluded that he could hear the complaint, while the Superior Court said otherwise. Irion urges the Georgia Supreme Court to affirm the Administrative Judge’s view, and that in any case a precedent would be a good thing to have (and so the GA Supreme Court should take the case). Irion appeals to the common law sense definition of “natural born” citizen.

Irion then invokes Marbury v. Madison (anytime I see the case of Marbury v. Madison cited, I get worried that some serious crankery is coming)  to support a principle of Constitutional construction that argues that the 14th Amendment could not have affected the natural born citizen clause in Article II of the Constitution (failing to recognize that those born in the United States –  except slaves and Indians – were always our natural born citizens, without regard to the citizenship of their parents and not relying on the 14th Amendment). Irion then goes on to claim that the Superior Court relied on dicta from US v. Wong, and that Minor v. Happersett actually defines natural born citizen as a necessary part of its decision – neither of which is accurate.

What is not clear is what Mr. Irion expects the GA Supreme Court to do, or what effect reversing the Superior Court would have now that the election is over.

Here is the text of the appeal:

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