Claiming a specific injury because of an ineligible president, Christopher John Rudy is suing the government for $90, a fee he had to pay as the result of a law signed by Barack Obama, whom Rudy alleges is not really the president. Of course, this case was dismissed on jurisdictional grounds.
The original case (1:2013cv00278) was filed in the Virginia Eastern District Court in March of 2013. The order dismissing the case agreed with the Patent Office’s contention that the courts lacked jurisdiction to decide presidential eligibility because it was a political question. A political question is defined by guidelines set down by the Supreme Court in Baker v. Carr, 369 U.S. 186, 217 (1962), existing when any of the following holds:
- textually demonstrable constitutional commitment of the issue to a coordinate political department;
- a lack of judicially discoverable and manageable standards for resolving the issue;
- the impossibility of resolving the issue without an initial policy determination of a kind clearly for nonjudicial discretion;
- the impossibility of a court’s undertaking independent resolution of the issue without expressing a lack of respect due to the coordinate branches of government;
- an unusual need for unquestioning adherence to a political decision already made; or
- the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Defendants cited to three of the criteria (1, 5 and 6) and said: “numerous articles and amendments of the U. S. Constitution, when viewed together, make clear that the issue of the President’s qualifications and his removal from office are textually committed to the legislative branch and not the judicial branch.”
The decision was appealed to the 4th Circuit Court of Appeals (case number 14-1056), and the lower court ruling was affirmed without comment on April 11, 2014.
What makes this latter-day case a little more interesting is the submission of an amicus brief by the United States Justice Foundation (Gary Kreep’s old outfit). This time the USJF attorney is William J. Olson. The USJF is a non-profit, right-wing nut job public interest organization. The USJF brief claims that up until now, “no one has questioned the validity of a law signed by the president.” That is, of course, is factually wrong. Orly Taitz did that in Taitz v. Sebelius. Very sloppy work, Mr. Olson. Our old buddy Herb Titus makes an appearance on the docket also, I presume with the amicus brief.
The Supreme Court appeal was docketed July 10, and assigned case number 14-36. Here is the USJF brief, and it is quoted from in the WorldNetDaily article referenced below.
Update:
The Supreme Court denied a writ of certiorari on October 6, 2014.
Read more:
According to the amicus brief, Professor Titus is the Counsel of Record for the amicus brief.
http://www.scribd.com/doc/236848031/Rudy-v-Lee-USJF-Amicus-Brief-2
(from the open thread per Donna).
In the brief Titus writes:
“Congress was to have no authority to determine a person’s presidential eligibility. Rather, its role would be ministerial, facilitating the votes of the presidential electors of the several states.”
But Congress can overturn the electoral votes of any state and thereby overturn the election.
This is my favorite line in the brief which comes after his discussion of Minor v. Happersett and how 23 years later Wong Kim Ark settled the doubt about citizenship for children of aliens,
“It is not necessary at this point to decide whether President Obama is a natural born citizen. Nor is it necessary now to endorse Justice Gray’s views over those of dissenting Chief Justice Fuller, or vice versa.”
Minor v. Happersett doesn’t appear to be Professor Titus’ precedent.
“The USJF brief claims that up until now, “no one has questioned the validity of a law signed by the president.” That is, of course, is factually wrong. Orly Taitz did that in Taitz v. Sebelius.”
Technically true, but your really taking it out of context Doc:
“The brief also argues that until now, “no one has questioned the validity of a law signed by the president.”
“Rather, previous cases have sought the removal of President Obama from the presidential ballot or from office altogether. In this case, however, the complaining patent attorney is not seeking President Obama’s removal from office, but simply a refund of his $90 and a declaration that, unless he is a ‘natural born citizen,’ President Obama does not have the constitutional authority to sign a bill into law.”
If you read Orly’s petition in Orly Vs. Sebelius, you will see that Orly’s relief is ridiculous and ludrcious. Rudy’s relief seems to be much for reasonable. Orly’s Case really NOT CREDIBLE (I’m sure you will agree) to be considered of any merit worth mentioning.
Rudy is a patent attorney in Port Huron, Michigan. According to Martindale Hubbel he received his his law degree from Trinity College in Sioux City, Iowa, a college which is defunct. He is admitted in Michigan and D.C.
http://www.martindale.com/Christopher-John-Rudy/730139-lawyer.htm
To paraphrase Jake and Elwood Blues,
Michigan birthers.
I hate Michigan birthers.
The court in the Rudy case said that while plaintiffs did not seek to remove Obama from Office (as Orly probably did), giving Rudy the relief he sought required the same determination of ineligibility that removing him from office would require. This gets the court tangled up with Congress in a political question. Since the case was obviously appealed before, the appeals court agreed.
The article has been updated to say:
“The decision was appealed to the 4th Circuit Court of Appeals (case number 14-1056), and the lower court ruling was affirmed without comment on April 11, 2014.”
Here is what Rudy asked for in his original complaint [link from Dave in Open Thread]:
10. Thus, Mr. Rudy seeks a declaration that constitutionally Mr. Obama was not and is not a natural born Citizen, and was not and is not eligible to be, and was not and is not, President.
[skip]
14. A natural born Citizen under the Constitution is a Person born in the United States of parents who were both citizens of the United states at the time of the birth of that Person.
15. The Founders were familiar with the meaning of natural born Citizen as stated above.
http://www.scribd.com/doc/130133324/Rudy-v-United-States-Patent-and-Trademark-Office-Et-Al
He should stick to patent law.
I did not know that Holy Bible, Deuteronomy 17:15 is a legal authority.
From Orly’s complaint:
29. Based on all of the above, Barack Obama, aka Barry Soetoro, aka Barack
Obama Soebarkah, was a foreign national who got into the position of the US
President and Commander in Chief based on forged and fraudulently
obtained identification papers and in violation of Article 2,
Section 1 of the US Constitution. As such Obama was never legitimate for the
US presidency and unlawfully signed the H. R. 3590 “Patient Protection and
Affordable Care Act” (PPACA) into law.
How is that out of context?
Because John wishes it to be so, and we all know that if enough Birthers believe hard enough, file their court cases they’ll find that one mystical judge that isn’t bought and clapping their hands will bring their grievances back to life!
Yet oddly enough, even after what 206 tries, the parrot she still dead, and going to remain so. Rudy is just the latest and quite frankly the least in a long line of nuts and pathetic time wasters, and quite frankly, if he is this dumb and this inept, I WOULDN’T want him for a patent attorney either, since I doubt he is even a mediocre one based on this performance. I’ve known two really good patent/trademark attorneys, this one ain’t one, or even close.
“Your Honor, I am a reasonable man, an attorney, a patriot. I am certainly not one of those silly people demanding that the President be removed from office. Heaven forfend! All I want is my measly ninety dollars back AND THAT IT BE DECLARED THROUGHOUT THE LAND THAT HUSSEIN OBAMA IS A USURPER WHO IS NOT REALLY PRESIDENT, NOT REALLY, AND ALSO MY NINETY DOLLARS PLUS COSTS AND MAYBE SOME DAMAGES WE CAN NEGOTIATE. See how reasonable? Don’t remove the usurper, no, not at all, JUST DECLARE HIM SO INELIGIBLE, SO VERY INELIGIBLE.”
Don’t get your hopes up. The U.S. Patent Office waived its right to respond and the cert petition was scheduled for a conference on 9/29/14 without a single SCOTUS justice calling for a response. This means that the petition will be formally denied a few days later.
If I understand the brief correctly, the authors want the case sent back for discovery.
What discovery do they need with respect to the two-citizen-parent theory?
I understand as to the “born elsewhere” theory they need discovery, but it’s a fishing expedition doomed to failure.
doesn’t mr rudy’s claim fall foul of the defacto officers doctrine?
Yes, like all birther lawsuits, it has multiple fatal problems. Give Rudy credit, he managed to establish standing, so he had one fewer fatal problem than the rest.
Good grief. I’ll give the man his $90 if he would just shut up and go away and stop wasting the public’s time and money on useless birther lawsuits.
Somehow, I don’t think it’s about the $90, though.
I read Herb Titus’s brief. It is pretty bad for a guy who is supposed to be a real attorney with knowledge of the Constitution. He states that Minor didn’t rule on who was an NBC because it was not an issue in the case. He also correctly states that WKA directly addressed the issue and that Wong Kim Ark could only be a citizen by being a NBC. However, he then he goes off the rails and talks about CJ Fuller’s dissent in WKA and fails to mention that the majority ruling in WKA completely sinks his case.
It doesn’t matter though. SCOTUS will not take this case.
Are you suggesting that Birferstan is not attracting the great legal minds of our age??
Excuse me whilst I stagger toward my fainting couch.
Well, they have the esteemed Mario Apuzzo, ESQ. in their fold. What more could you want? LOL
Let’s see…
Lock Taitz, Apuzzo, Lincoln, Titus, Moore, Kreep and Klayman in a room.
Tell them to draft one grand complaint, that is legally sound, internally consistent and agreeable to all.
Deny them access to posting on the internet until they’re done.
Problem solved.
I am not willing to concede that he established standing. I’ll check further.
I thought he issued all of his YouTube rants from the seated position. All the ones I’ve seen anyway.
To pick a nit: The Federal Circuit (not the 4th) summarily affirmed.
It seems he’s effectively asking SCOTUS to revisit and reverse the WKA ruling. Well, it’s happened before, so hope springs eternal…
It strikes me as odd that after 6+ years, is this really the first time somebody’s tried the “I’m directly affected by a law signed by the usurper” line? This “strategy” to establish standing has been discussed among birthers for years. There must be at least one case among the 226+ lost birther cases that has tried (and failed with) this approach before.
Now that’s a terrible “amicus” brief if ever there was one.
1. Quotes a source naming “native-born citizen” as synonymous with “natural born citizen”.
2. Refers to the WKA decision pointing out that SCOTUS ruled Wong was an NBC.
3. Points out that if you’re a citizen and not naturalized, you’re natural born.
Those parts read like an anti-birther explaining things to a birther. The birfer community would not like this if they were able to understand it.
If I had to paraphrase his amicus brief, it would be: “This court has the authority to rule on the eligibility of the President and it should rule he is eligible.”
I don’t know if this was what Titus (who seemed birther-friendly before) intended, but that’s how I clearly read it.
Bad in another way is how he quotes Vattel as “*the* international law of nations” as if Vattel was somehow the Lord High Justice of International Law.
Pandora’s legal dichotomy must now be addressed by the courts. Either do as I say or do as I do must now be ruled on which side the sword of Damocles falls! Maybe now the judges will realize that with great fortune and power also comes great peril and anxiety.
While the original claim by Rudy alleges both the two-citizen parent requirement and the foreign born arguments, Titus, in the past, has taken a different route. He says that the US is a Christian nation and the Bible somewhere says “you shall not have a foreigner as ruler of your people” (quotation from memory from Titus).
I think the brief is at least on point, correctly repeating the reasons the Rudy case was lost in the first place, and focusing on whether it is a “political question” or not.
The interesting issue, one resulting in dicta in a number of eligibility cases, is whether indeed the Constitution textually assigns to Congress the question of presidential eligibility. Titus says it does not, rather assigned to the state legislatures and to the electoral college, neither of which is the judiciary.
Titus makes what seems to me an odd argument, relying on what the Constitution said BEFORE the various amendments to it were made. The Constitution is what it is, amendments included–not what it was. He then deals with the 12th and 20th Amendments, but leaves a “gaping hole” by citing, but not dealing with the “fails to qualify” language. What he does here is what we called “hand waving” in college, making a distraction to hide an incomplete argument.
My interpretation of the “fails to qualify” phrase in the Twentieth amendment is that it refers to the case where the a presidential election is thrown into the House for resolution and the House is unable to break the deadlock by January 20th. I don’t think it has anything to do with eligibility per se.
The Twentieth Amendment besides shortening the lame duck period for both Congress and the President plugged loopholes in the election process. In 1876 the Tilden-Hayes election drug on until almost the Inauguration Day, which was then in March. It was unclear who would have been president had not Hayes been selected only days before. The Twentieth Amendment provides that the VP Elect would serve temporarily in such a case and if for some reason he could not Congress could appoint someone.
I suppose one could create a hypothetical case where there is an objection filed against a slate of state selected electors based on the presumed ineligibility of a candidate.This would be resolved in the House just as would any other objection. In that case if the objection were rejected the president would be sworn in and could only be removed using the process of impeachment and trial in the Senate.
The courts have consistently ruled they have no part of the process of selecting or removing a president other than being final authority in the enforcement of election laws. Once the election process has ended they have no role.
BR has a post about a new Supreme Court filing by Strunk in esse’s old buddy William van Allen, who wants to join his case to Rudy’s. BR says “Haven’t yet read the whole filing…” but he has the filing posted and I, too, have encountered extreme difficulty reading it.
What is van Allen’s case about? I have seriously spent too much time trying to puzzle it out. The one coherent part is a letter written by his DDS, which says that van Allen had surgery while in the Navy in 1975, and that surgery caused further medical problems which the DDS attempted to correct with surgery in 2013, and more surgery will be required. To get further we have to attempt to decipher van Allen’s illegible and incoherent writing, but my best guess is that he’s got huge medical bills and the VA has refused to pay them.
This is a terrible situation to be in. But van Allen has chosen a very poor strategy for dealing with it: the VA’s refusal to pay his medical bills is invalid because Obama is not eligible to be President.
Deuteronomy 17:15
Thou shalt in any wise set him king over thee, whom the Lord thy God shall choose: one from among thy brethren shalt thou set king over thee: thou mayest not set a stranger over thee, which is not thy brother. (KJV)
The sword of Damocles did not fall. It hung overhead by a single hair from a horse’s tail.
Yes. By paying the $90 fee he waived future objections to having to pay the $90 fee.
I sense that this poster is trying to communicate some idea or another, but I am utterly unable to discern the message.
Blind Squirrel Finds Nut.
Film at eleven.
As I read it, when he was in the Navy in the 70s, he had dental surgery that caused him to have sleep apnea. For which he was given a medical discharge. In 2013 he had surgery to repair it (Columbia University Medical Center letter). He filed a claim with the Department of the Navy and Veterans Administration which was denied. He now is claiming that because President Obama was not eligible, his appointments of various Secretaries (Navy, Veterans Administration, Defense) were not legal and their decisions are void.
“Whatever… even a blind squirrel is right twice a day.”, Tank Dempsey
Do you mean which side of the fence Schrödinger’s cat falls farthest from?
Occam’s Razor always falls butter-side down. That’s just science.
That was the heart of Lakin’s defense, which was disallowed. Ditto for Rhodes’ and Cook’s refusal to deploy.
I wonder if he noticed that, if he got what he’s asking for, all he would get would be a do-over at the VA with no reason to suppose he’ll get a different answer.
This case makes me sad, because unlike Rudy, who fabricated a non-problem so he could sue, van Allen has a real problem, which his lawsuit is going to do nothing to solve. Why is his family letting him do this?
By Corrollary, wouldn’t that mean if They HAD agreed to pay…. that decision would also be void?
Seems to be a variation on the eternal birfer/wingnut idea that filings raising certain question MUST be addressed by some court or another. Regardless of merit. Regardless of precedent. As if the entire judiciary is brought to a screeching by a magic piece of paper.
See related magical concepts: Power, Words of; Invocation; Magic Scroll
According to the SCOTUS docket, Van Allen hasn’t even filed his cert petition yet. All he has filed is an application to file a late cert petition, which has been granted. He has to file the cert petition by 9/14/14.
No. 13A1183
Title:
H. William Van Allen, Applicant
v.
Eric K. Shinseki, Secretary of Veterans Affairs
Docketed: May 29, 2014
Lower Ct: United States Court of Appeals for the Federal Circuit
Case Nos.: (14-7058)
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 27 2014 Application (13A1183) to extend the time to file a petition for a writ of certiorari from August 11, 2014 to September 14, 2014, submitted to The Chief Justice.
May 29 2014 Application (13A1183) granted by The Chief Justice extending the time to file until September 14, 2014.
If he wants to file his cert petition and than piggy-back it onto a petition which has already been dead filed, he should have at it.
There is a cert petition included in what BR posted, along with the motion to join the cases and a motion to file in forma pauperis. I don’t know if the stuff has been filed at the Court. What BR has posted looks like a very rough draft. I know the Supreme Court accepts handwritten stuff, but this is illegible, incomplete sentences, marginal notes, and edits that you can’t tell where they’re supposed to be inserted. And this is before we get to issues like the questions section of the cert petition does not contain an identifiable question.
.
As a jurisprudentially challenged individual, I sometimes have to look up terms that I see in comments here. In case there are others who don’t know the difference between a Writ of Certiorari and a sack of rocks, I’ll save you the trouble of looking it up. Here are some definitions I found on the Interwebs (techlawjournal.com):
Petition for Writ of Certiorari: . (informally called “Cert Petition.”) A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court.
Writ of Certiorari: A decision by the Supreme Court to hear an appeal from a lower court.
Cert. Denied: The abbreviation used in legal citations to indicate the final stage in the life cycle of a birfer lawsuit.
OK, I may have edited that last one a little. But I also learned that the SCOTUS receives thousands of Cert Petitions each year, and they only accept about a hundred of them. Good luck, birthers!!! [mwahahahahahaaaa!!!!]
Where birthers are concerned, the main difference is that one of the two has a chance of moving forward under it’s own power….. the other is a legal term.
To add to Crustacean’s glossary, here’s a link to an article on what kinds of appeals the Supreme Court appears to be interested in hearing:
Link (PDF)
Most people don’t understand that the Supreme Court is not just another do-over — for non-capital cases, their main thing is settling questions of law.
You only think that because its in the Constitution, which has a liberal bias.
Thank you, Dave! That was an interesting and edifying read.
I just hope that document doesn’t fall into birfer hands. Imagine what they could do with the information that their chances of success increase for petitions decided in October, November, or January. Nothing could stop them!!
On the other hand: “the Court prefers to grant review in cases where the litigants are represented by experienced counsel who can brief and argue the issues presented in a sophisticated manner.” [sad trombone for birthers]
SCOTUS is pretty good about keeping the docket up to date. so it’s safe to say that no petition has been filed as of today.
IANAL, but it seems to me that SCOTUS won’t even look as his request to join his case to Rudy’s until and unless he actually files his cert petition. Of course, why he would want to join his case to a case which has been dead filed is a mystery, but it is possible that Van Allen still hasn’t figure out how SCOTUS works.
Van Allen his a history of filing requests for extensions of time and never following up by filing actual petitions with SCOTUS. It has happened three times since 2010.
They do like to miss other parts that say something completely different, such as 1 Peter 2:13-17
I suspect they also dislike the part right after this where he talks about enduring suffering for doing what is right.
A lively, but wholly predictable discussion of what natural born citizen means has developed under this article.
http://www.wnd.com/2014/08/obama-eligibility-case-lives
Yeoman’s work Doc. I see you’ve run out of puff. Don’t blame you; I won’t post over there, and can’t anyway.
I’m not sure what the guy who posted the link to Hamdi v Rumsfield was trying to get across, but his link only went to the appeal petition. It didn’t cover the arguments or the finding. If the inmates there think that that is the finding of the court, they would be sadly mistaken (I suspect that the word ‘if’ in that sentence is superfluous).
It’s an amicus brief, for goodness sake. Not only that, it is a brief arguing Hamdi should not even be considered a citizen, and the Court actually just blows right past that argument, ruling that Hamdi, as a citizen, had due process rights. From what I can tell, every single justice, including the dissenting justices, even Thomas, accepted the basic starting point that Hamdi was a citizen, thus not even giving this brief the slightest nod.
Ah, I missed that altogether. I thought it was the petition itself. Now I can’t find the link. Oh well.
From the description of the particulars, I knew that the Court would consider him a citizen even before I looked up the finding. I only vaguely remember hearing about the case at the time.
But I still don’t know what the guy was trying to accomplish by posting the link to that. Trying to prove that he was fooled by the misinformation in the AC? That everybody should be equally fooled? Heh.
Sunshine49 provided this link to the amicus brief:
http://findlawimages.com/efile/supreme/briefs/03-6696/03-6696.mer.ami.claremont.pdf
I suspect Sunshine49 provided the wrong link, and meant to provide a link to an essay by Edward J. Erler called “From Subjects to Citizens: The Social Compact Origins of American Citizenship” collected in at least one book of essays titled The American Founding and the Social Compact, edited by Ronald J. Pestritto, Thomas G. West.
I base that suspicion on the text of Sunshine49’s post which included the link to the amicus brief:
“If so, you are going to love reading this: From Subjects to Citizens — Erler”
and
“I also found another good one I think you would enjoy reading. Actually it’s parts from three different books. The American Founding and the Social Compact”
Plus, Sunshine49 mentions Erler elsewhere.
That said, the amicus brief does refer to this very same essay by Erler, so Sunshine49 also may have been just sloppy in presenting the link.
In terms of the brief, it is about limiting birthright citizenship, so whether or not Sunshine49 intended to provide the link to this particular amicus brief right then and there, it is a brief representing views similar in part to Sunshine49’s views, in that Meese and Eastman contend birthright citizenship should not be extended to the children of parents temporarily visiting the U.S. They argued that Hamdi v. Rumsfeld gave the court an opportunity to correct what they call a mistake in how birthright citizenship is recognized in the U.S.
Importantly, in that case, every single justice, even the dissenting justices, accepted Hamdi’s citizenship as the basis for their opinions in stating that though Hamdi could be detained as an enemy combatant, as a citizen he needed to be given due process. Thus, this amicus brief didn’t make the slightest dent.
Sunshine49 may take solace that there are others arguing his views, but those views aren’t getting adopted.
When it comes to Erler, if that is the link Sunshine49 actually intended to provide instead, Sunshine49 would seem to want to use it to support the view that the Fourteenth Amendment does not extend birthright citizenship to everyone born here. Erler says that “jurisdiction” in the Fourteenth Amendment means owing allegiance exclusively to the United States.
Erler states that no one can become a citizen without their own consent and without the consent of the government, that allegiance is not about geography, that allegiance is stablished by reciprocal compact. Children born to “illegal alien parents” he says are not born citizens because their parents are only subject to the jurisdiction of laws and courts, and “are not within the jurisdiction of the United States in terms of allegiance.”
Again, however, this view as expressed in the amicus brief made no dent in the opinions expressed in that case by any justice, not even Scalia and Thomas. Whatever their opinions, they all proceeded from the accepted starting premise that Hamdi was a citizen.
The attempt to claim that “subject to jurisdiction” equals “owing full and exclusive allegiance” has been made by birthers long before, but I think the wording of the law already belies that notion. The US has had several laws referring to “allegiance” and even “exclusive allegiance” before, so if the lawmakers had meant “exclusive allegiance”, they would’ve used that and not reworded it to “subject to the jurisdiction”.
To me, this is just another attempt at twisting the clear meaning of words until they mean almost the opposite (and that the lawmakers somehow used “secret alternative meanings”, just like with “natural born citizen”), in other words, everyday birtherism.