In a letter published February 9 at The Steady Drip1, Georgia ballot challenger Carl Swensson says that his appeal of Georgia’s decision to include Barack Obama on the March primary ballot will be ready Monday. Swensson wrote:
I have committed to the process because I believe in what we are trying to accomplish. I believe there is no other choice but to fight with everything we have left, in the GA Courts. It’s a matter of focus.
Swensson says that he is concerned that Judge Malihi’s decision in Georgia would become a precedent for other ballot challenges across the country. Actually, the Ankeny v. Governor decision in Indiana is a more likely precedent in state courts, and US v. Wong the model for federal courts.
Swensson’s next step will be the Georgia Court of Appeals. I think Swensson is right to pursue the appeal; Swensson’s case (and that of Powell and Welden) is the single-best chance the Birthers have to date, to get the US Supreme Court to rule on their two-parent eligibility theory. It would have been a stunning disappointment if they had dropped the ball in Georgia, a disappointment to both sides of the question.
I will just say that Swensson had better hurry. If this drags on past the March 6 Primary, issues of mootness will become a consideration. The later in the election process it is, the less likely a court is going to step in to change something.
1The Steady Drip, the product of Sam Sewell, prolific writer at Pravda.ru, ranks lower than any of the other birther blogs mentioned in my last article.
The next three steps have to be taken up by March 6th. Not much time for the court system.
Does the appeals court have to take the appeal or can they refuse to hear it? Because it has to be expedited, is an appeal more likely to be heard only on the briefs without oral arguments?
I’m guessing the Supreme Courts, Georgia and United States will not take up the case. Unless by some miracle, Swensson wins.
I’m not certain what court that Carl is referring to when he writes that the next step is to the “Appeals court.” Under Georgia law the decision of the Secretary of State may be appealed by bringing a suit in the Superior Court of Fulton County, a trial court having original jurisdiction over the agency’s actions; it is not an appellate court.
In any event, the final decision by Mr. Kemp (based on the preliminary decision by ALJ Malihi — a decision termed “monstrous” by Carl, who was expecting a different outcome ) will not be overturned by any Georgia state court nor will the Supreme Court grant certiorari. Carl can dream, however.
Confederate Carl is probably still fantasizing about reinstating the Dred Scott decision.
The GOP is carrying a heavy stink of fanatical birtherism and blatant bigotry.
carl, i thought that was the whole point. you got your precedent.
how long have we been hearing birfers say they needed just one state to “get the ball rolling”?
HAHAHAHAHAHAHAHAH
Well, you would think that Mr. Hatfield would know that. It’s odd that Swensson didn’t mention his attorney in that letter. Could Hatfield be out of it?
Nice picture of Carl. You can almost feel the flying spittle.
He appears focused. I wish I had thought to take a photo of him in Atlanta. He was wearing an American flag for a tie.
He’s a meal, the box and the toy shy of a Happy Meal.
The South Will Rise Again Carl’s cesspool of a blog is teeming with accusations of corruption.
Of course, a semiliterate birther bigot couldn’t possibly be wrong. The GOP must be so proud.
There is zero chance the Supreme Court will hear any of these cases. They would only get involved where different states ruled differently or where different Circuits courts conflicted, something that isn’t going to happen wiith settled law like this.
Now, I understand that some would like them to hear a case on this subject to provide some form of closure. I disagree. Not because i think they will rule against Obama-they would not. But because there would be no closure since the birthers would have a hundred reasons not to accept the ruling.
More substantially, I don’t think the matter belongs in court at all. The choice of a President rests with the voters. I fully understand that the US is not a pure democracy where the will of the majority is always supreme, nor should it be. But that applies to matters where individuals have fundamental human rights. A majority cannot censor thought or impose religion. But an election is different-it about determining the will of the majority, and only about that. And, as such, it is best served by allowing candidates to run and have their qualifications judged by the voters and scrutinized by elected members of Congress, not by judges. Those, like Mr Swenson, who place themselves above their fellow citizens are to be condemned not placated.
Hear, hear (especially the majority will parts)!
Zero is such an absolute number.
If we were talking about John McCain, I think they would hear the case because it is not really settled. With Obama, I’ll concede that the chances are small. Still, the court is not entirely apolitical and 4 justices might want to make a point. I’m just speculating.
We’ll just have to wait and see.
I hate to dredge up that subject again, but I think it really is settled. There was really only one scholar who considered McCain ineligible and he was from U Arizona and I suspect there was some personal animus. We are all agreed there are only natural born and naturalized, The idea that those born to citizens overseas are naturalized at birth strikes me as silly (they don’t have naturalization documents nor go through a process), so that leaves natural born.
I understand that those born outside the US are citizens by statute, but I fail to see that as pfrecluding natural born status. While the statute could be changed subsequently, so that those born overseas no longer were citizens, no one really believes that would have a retroactive effect.
Yes, but there have been quite a few who thought there was some legitimate doubt, including Prof. Gordon at the time of George Romney.
If both Obama and McCain are “settled” then why did the Senate pass a resolution for McCain and not for Obama? It would appear to me that the case of Obama was “more settled” than that of McCain.
Look at this from the Michigan Law review by Daniel P. Tokaji:
Also Jill Pryor wrote in the Yale Law Review in 1988:
Again from the Michigan Law Review, Lawrence Solum wrote:
I could go on.
It is not settled because:
1. A2S1C5 is for Presidential eligibility, and the 14 amendment is for citizens in general, the 14th does not expand/change A2S1 in direct terms
2. State court judges consider that WKA does not decide on natural born citizen for presidential eligibility purposes
3. Congress has always decided on the status of children born out of seas to american parents therefore their nbc constitutional status is not clear
Examples?
Doc C. has already called you out on your made up stories on point #2.
You are also incorrect and full of nonsense about the 14th Amendment and its impact in point #1 as well.
…Footnote 6 of the Malihi decision?
on point 2. i responded to Dr already, on point 1, why is it flawed? and on point 3. do you have anything to say?
Updated and now top hit.
http://thesteadydrip.blogspot.com/2012/02/plaintiff-in-georgia-case-carl-swensson.html
Well then, let me answer each of your three points in further detail:
Re #1:
The 14th Amendment does not grant citizenship, it merely clarifies the Constitution. There are only two types of US Citizens – Born and Naturalized. Therefore, if you can’t figure out that Born = NBC, you are simply in denial.
Several lawyers here and other places have provided long lists of documented evidence in the Congressional record that shows those folks knew clearly what they were doing in terms of how the issue impacted NBC and how terms like Born, Natural Born and Native Born were interchangeably used to mean the same thing.
Here is just one example from Ballentine that is chock full of such proof:
http://nativeborncitizen.wordpress.com/2012/02/03/natural-born-native-born/#more-22009
Re #2:
You seem to be only paying attention to the first half of his statement, while completely ignoring the more important second half…not to mention the full context of his response in Section 2. Sorry, but you FAIL in your point by selectively ignoring the rest of that statement and its context.
The full context shows that the judge found the argument in WKA (via its analysis in the Ankeny case) to be persuasive and solid enough to declare Born on US soil as NBC and therefore declare Obama as such:
Re #3:
The only points of contention I have on this issue is your beginning part, where you state, “Congress has always decided on the status”… In your awkward “overly definitive” word choice, it is hard to ascertain what you are actually implying.
If one was to take you literally, well then you are again just spounting nonsense, as Congress obviously doesn’t waste its time paying attention or ruling on the individual birth status of all the millions of children regularly born under such circumstances. Therefore, I doubt you were really being that obtuse, despite your particular phraseology.
So, I’ll leave it to you to clarify and explain yourself on what you actually mean with that. In regards to the second half of that statement, “status of children born out of seas to american parents therefore their nbc constitutional status is not clear ” , my only quibble would be to clarify that it is not 100% clear in all such scenarios.
There is some small bit of gray area here, but not overall. In general, it is an accepted rule in the US that being born oversees of US Citizen parents still grants the child automatic US citizenship rights. As this is still US citizenship by birth and not via a naturalization process, it still falls under the Born Citizen (i.e. NBC) category. There is some legitmate debate about whether such scenarios constitute as “citizenship via statute” or not, but it is still NOT Naturalization and therefore, is a Born Citizen.
Yutube’s lame excuse for his “point #2”:
Yutube’s orginal fallacious claims:
In the example to which you refer, Malihi said that although WKA “was not deciding the meaning of ‘natural born citizen’ for the purposes of presidential quaifications; . . . this Court finds the Indiana Court’s analysis and reliance on these cases to be persuasive.”
His statement does not support your claim that “State court judges consider that WKA does not decide on natural born citizen for presidential eligibility purposes.” It is stretching the truth to say “State court judges” because Malihi was writing as an individual Administrative Law Judge. You would need multiple examples of acting state Court Judges repeating Malihi’s contention in order to give your assertion any weight. Second, Malihi’s ultimate point was that he was convinced by the Indiana Court’s understanding of WKA. You’re trying to put a measure of doubt into Malihi’s decision when it’s obvious that, in the final analysis, he had none.
You write, I think, that Congress decides the citizenship status of children born over-seas to American parents. They do? I’m aware of the Senate resolution that supported McCain’s status as a natural-born citizen, but you make it sound as if the House (and perhaps the Senate) are directly involved in deciding the citizenship of every child born abroad to American citizens. That’s hogwash.
Personally, I appreciate your notification to us here of your updated post. I have read it completely.
Suffice to say, I completely agree with John Woodman’s analysis (and all the court rulings to date) and feel that you, Carl, Mario and Leo are simply lost in your denialist mentality and therefore, unable to come to grips with the truth.
That being said, you have your legal right to these appeals and I don’t have a problem with you pursuing them as you are. That you folks would be appealing this ruling is simply to be expected. That you plan to appeal it all the way to the USSC is to be expected too.
However, don’t be surprised when every one of those levels predictably rules against you, for all the very same reasons that us “anti-Birthers” have been telling you all along. You will simply lose for the very simple reason that your “interpretations” of these laws have been both wrong and wrongheaded all along.
Until you become Chief Justice, and can convince the other eight Justices that you’re correct, your assertion is not only a gross misrepresentation of the Constitution, it is pure baloney.
Re1. Me in denial, no why?
None of those soup of quotes have any substance and there is no link between the 14th and A2S1. The framers would have used the phrase NBC in the 14th to make it clear that the born citizens would mean natural born, NATURAL must be given a meaning and that word is not in the 14th.. No compilation of 1000 quotes will change what is written in the 14th.
Re2. “This Court recognizes that the Wong Kim Ark case was not deciding the meaning of “natural born citizen” for the purposes of determining presidential qualifications; ”
what can I say here, it’s in plain English. wKa not deciding on NBC..however, the judge finds Ankeny persuasive but why? because Wong Ark case decided on the meaning of NBC or because something else?
Re3. when it comes children born out of seas, the first naturalization act of 1790 took on the issue and congress has done so ever since in order to “establish uniform rules of naturalization”, hence it raises the question if those children born abroad to citizen parents are natural born or naturalized in the language of the Constitution and if they are naturalized at birth, it is obvious they are not natural born.
Of course you put your finger on exactly the bone of contention. I have exactly the opposite view to you about the technicality of McCain’s, but I absolutely agree that the end result is the correct one, and that it is actually now settled.
In other words, I find that McCain was technically not NBC, however, it is an utterly ridiculous idea to believe that that is the result that the Framers would have wanted. That they specifically allowed for naturalized citizens from the patriotic founding generation indicates, to me at least, that they would be just as willing to allow the children of Soldiers standing on duty in foreign lands. That they could not imagine, and probably would not endorse, a permanent standing army, let alone one stationed overseas, explains why they would have never given it a thought.
I believe that the McCain controversy is settled, because the unanimous resolution of the House and Senate to declare him a NBC, while not binding, law, or Constitutional does set a precedent that can be referred to for any similar case in the future as an example of the fairness of the will of the people. It will be very hard to argue the point against a future candidate in the same position.
Agreed. In a similar way, the very Presidential races by legitmate contenders who both could have won (McCain, George Romney, etc.) and those who did serve in that capacity (Obama, Chester Arthur) also serve as binding precedent.
It is simply hard to conceive of a future ruling that would curtail and restrict US citizenship (in general and NBC status in particular) in any way that would preclude those who’ve already held or legitimately could have held such office. Further, the march of history in the US is generally towards improving rights and freedoms, not restricting them.
Oh yeah, I forgot. It is the guys up the road at Tempe Normal School that view scholarship and honors through a political kaleidoscope. While Southern Arizona is decidedly more ‘liberal’ than Maricopa County, McCain is actually viewed as the ‘good’, or at least, not ‘bad’ Senator from Arizona even in the south.
It is extremely unlikely, and even possibly defamatory, that a UA academic would write such a paper out of ‘personal Animus’, especially when the UA is constantly fighting a Board of Regents that are preoccupied with looking for excuses to underfund the UA at the expense of ASU, and the ABOR is pretty much dominated by McCain’s buddy former Senator Dennis DeConcini (who is a Democrat, no less).
Gee, you didn’t approve my comments (or maybe the form is broken) 🙁
Apuzzo (replying at the Steady Drip) has a nice way of unbalancing the evidence. He dismisses Lynch v Clarke by saying it was so bad the New York Legislature overturned it, but fails to disclose that it was so good that the Supreme Court cited it in Wong. This is how Apuzzo fools the masses, by only telling part of the story.
But I want to go into the “overturned” part. The Legislature didn’t overturn Lynch, but the decided they didn’t like the law the way it was and they changed it, passing a law defining citizenship in the State (that did not, by the way, designate a special class of born citizens who were not natural born). What the New York legislature did was to exclude what it described as “transient aliens.” Here’s the section:
In fact, New York was so outraged at the Lynch ruling that they only delayed a mere 15 years for the ink to dry before they changed the law! However, a later New York legislature thought better when it ratified the 14th Amendment to the Constitution of the United States. 😉
Thanks. I didn’t focus on the qualification “for presidential eligibility purposes.”.
However, a the blanket statement you made isn’t quite true as it seems to imply state court judges in general rather than one state court judge (singular) in particular. For example the state appeals court in Indiana thought Wong did apply, and of course Malihi found the Indiana decision persuasive. I think that all Malihi meant in his footnote was that the Wong decision wasn’t an eligibility case.
Hasty words, G.
I didn’t call YuTube out; I just asked for more information.
I don’t. I can cite a handful of law review articles that agree.
Sure. See the Naturalization Act of 1790, 1795 et al. If not for acts of Congress the status of the children of US Citizens born overseas would be dicey (one could try a common law argument). In fact, the Supreme Court ruled that these citizens (because they were not born in the United States and not naturalized in the United States) are not citizens under the 14th Amendment.
It was understood that the 14th Amendment was merely declarative of what had always been the law, except for the aberration of the Supreme Court in Dred Scott. So, you’re correct that the 14th Amendment didn’t create new natural born citizens. However, it didn’t destroy any. As I have argued elsewhere, Obama is a natural born citizen, with or without the 14th Amendment by the common law definition of natural born citizen that was in effect at the time of the ratification of the US Constitution.
True. Most members of Congress thought it unnecessary since they thought it already the law. However, some thought Dred Scott needed to be addressed. No one thought they were changing the law other than a few that thought the states should have the rights to define citizenship. Many tied the Civil Rights Act or the 14th Amendent to the NBC clause and Presidential eligilibity.
One also needs to think of where the “subject to the jurisdiction” language came from. “Jurisdiction” of course means “legal authority.” Compare such language to the description of English law prior to the Amendment. Kent’s description of English law would be born in subjection of the government and its laws. The same definition would appear in the report of the Royal Commission on Naturalization and Allegiance in 1869. Binney’s definition of natural born was born within the limits and under the jurisdiction of the crown. The House judiciary chair said natural born subjects were those born within the jurisdiction of the crown. there are many other exmples. “Subject to the jurisdiction” is just another way of phrasing the English definition of natural born .
I think this technique is taught in birther 101, as they are quite adept. As seen through their eyes:
The exact same method appears thus:
Maybe we can call it the Apuzzo/Leo Technique:
The Apuzzo Technique is truncating a quote to make it seem the opposite of what it actually says. The Leo Technique is making things up to see if people fall for it.
My apologies. I certainly didn’t intend to mischaracterize your position. I appreciate your clarification.
Sure seems that way.
Sounds like a good way to characterize it. It should be noted that MichaelN was quite egregious in intentionally doing this as well…
That would be the FPA or Fiescitra Patof Ahit technique.
And maybe, I should give a minor hint (no pun intended) to my odd technique name. For If Enemies..
Who can forget, “for if enemies should come into the realm, and possess a town or fort, and have issue there”?
In the government’s SCOTUS brief in U.S. v. Wong Kim Ark, it conceded that if Wong Kim Ark was a citizen it meant that he was qualified to be President. You should try reading it.
I have had some conversations with Carl on a number of occasions. He is a very strange guy, but please don’t judge him until you know the final outcome. It takes a strange personality type to be willing to be hated by your friends and admired by those who hate everything you stand for. Just remember that has gotten a couple of radical birthers put in jail. And he is able to get in close to some really dangerous soverign citizen types that otherwise would be completely off the radar.
The situation in Georgia could have gone very badly the other week. We came within a hair of having a default judgement against us. But just in time, two very good things “happened”. The default judgement was turned down. And a stipulation was entered into the record to the birthplace and to the validity of the certificate. Remember these facts before you go judging Carl on insufficient information.
A point of clarification that bears repeating:
This was a hearing, not a trial. All that could result was a recommendation to the SoS, who would have to take that recommendation into account, along with whatever other material and knowledge on these matters the SoS had at his disposal.
Therefore, the use of “judgement” is incorrect in this case. Please read the judge’s own write-up AND the GA rules on this type of situation. He had the option to give a “default order“, not “default judgement”.
Yes, I agree that it is a confusing “gray area” in what the heck a “default order” actually is or could mean. While it certainly sounds “bad” or that it could open a technicality for recommending someone to be removed from the ballot, there is no clear certainty that even *that* situation would have ended with that type of recommendation or even that type of result.
So yes, the situation could have become technically more “dicey” under whatever a “default order” scenario meant in this type of recommendation report…
..But beyond that, we simply can’t say that *even that* scenario would lead to Obama being removed from the ballot by the SoS.
I’m uncertain of what you’re claiming. Are you saying, for example, that it was Swensson’s intent to get Walt Fitzpatrick and that dildo-toting militia man from Georgia behind bars?
And clarify that as well, please! Carl hates being admired by birthers? Sooo … he is pursuing his challenges reluctantly?