The U.S. Supreme Court is being asked to decide whether the Constitution will trump Twitter on issues of national importance, including the eligibility of a president, which could determine the very future of the American form of government.
The request is being made in a petition for writ of certiori, or a request for the Supreme Court to review the decision of a lower appellate court, in a case brought on behalf of Col. Gregory S. Hollister, a retired Air Force officer.
He is among the many who have brought court challenges to Obama's tenure in the Oval Office based on doubts about whether Obama qualifies for the position under the U.S. Constitution's demand that presidents be a "natural born citizen," a qualification not imposed on many other federal officers.
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The pleadings submitted to the court, compiled by longtime attorney John D. Hemenway, cite the incredible importance of the claims that Obama, in fact, failed to qualify for the office.
"If proven true, those allegations mean that every command by the respondent Obama and indeed every appointment by respondent Obama, including the appointment of members [Elena Kagan and Sonia Sotomayor] of this and every other court, may be only de facto but not de jure [by right of law]," states the pleading.
"Further, his signature on every law passed while he occupies the Oval Office is not valid if he is not constitutionally eligible to occupy that office de jure," it continued.
"Thus, it is not hyperbole to state that the entire rule of law based on the Constitution is at issue. Moreover, it would indicate that the respondent Obama ran for the office of president knowing that his eligibility was at the very least in question," it continued.
The case made headlines at the district court level because of the ruling from District Judge James Robertson of Washington.
Judge James Robertson |
In refusing to hear evidence about whether Obama is eligible, Robertson wrote in his notice dismissing the case, "The issue of the president's citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America's vigilant citizenry during Mr. Obama's two-year-campaign for the presidency, but this plaintiff wants it resolved by a court."
Besides the sarcasm involved, the pleading states, the very evidence pertinent to the dispute at issues was ignored.
The pleading outlines that information, which challenges Obama's claim to eligibility and his campaign's citation of a computer-generated Certification of Live Birth from the state of Hawaii, a document also made available to those not necessarily born in the state, as proof of Obama's eligibility.
It suggests there are "sufficient allegations" that Obama was not born inside the United States, and outlines the law and regulations in force at the time of Obama's birth, in 1961.
"At the time of the birth of the respondent Obama in 1961 as alleged, Congress had … the Immigration and Naturalization Act of 1952. Under the applicable provision of that act … for the respondent Obama to have been a naturalized citizen of the United States at birth, were he born of one U.S. citizen parent and one alien parent, as he has alleged throughout his political career he was, his mother would have had to have been continuously resident in the United States for a period of 10 years preceding the date of his birth and, most importantly, she would have had to have resided continuously for five years preceding his birth in the United State after she had turned 14 years old. Since she was only 18 when Obama was born, this condition was clearly not fulfilled," the arguments said.
It also raised the suggestion that there are sound arguments to the effect that a "natural born citizen" is someone born to two citizen parents, and Obama himself has documented that his father never was a citizen of the U.S.
The fact that the evidence never was reviewed and the judge based a "biased" decision on "a completely extrajudicial factor" [twittering], prevented Hollister from having the constitutional rule of law applied, the petition states. .
"A further example of this bias based on extrajudicial factors by the district court was its observation that a lawyer associated with the initiation of petitioner Hollister's case, a prominent Democrat in Pennsylvania who backed Hillary Clinton in her successful primary there against respondent Obama, though never admitted in the case, was 'probably' the 'real plaintiff' in the case and that he and another lawyer who signed filings but was also never admitted … were 'agents provocateur' whose efforts to raise the issue of the respondent Obama's constitutional eligibility in lawsuits were a crusade in which the petitioner Hollister was a dupe," the petition says.
The questions suggested by the petition are weighty:
- "Did the district court examine the complaint, as required by the decisions of this and every other federal court, to see if it alleged facts to support its claims?"
- "By refusing to consider the issue of defendant Obama not being a 'natural born citizen' as set out in Article II, Section 1, Clause 5 of the Constitution, did the district court violate its obligations to consider the issues raised by the complaint?"
- "In … relying on extrajudicial criteria such as an assertion that 'the issue of the president's citizenship was raised, vetted, blogged, texted, twittered and otherwise massaged by America's vigilant citizenry during Mr. Obama's two-year-campaign for the presidency' combined with an attack on petitioner … did the district court not engage in such obvious political bias and upon extrajudicial factors as to render its opinion void?"
- "Did the … bias engaged in lead to a decision which ignored the law as set out above and as a result place the respondent-defendant Obama above that law and the rule of law in this country generally and threaten the constitutional basis and very existence of our rule of law?"
- "Did the courts below not completely ignore the decisions of this court and the clear language of Rule 15 of the federal Rules of Civil Procedure concerning amendments so as to compound its biased elevation of the defendant Obama above the rule of constitutional law?"
While the district judge dismissed the case because it had been "twittered," the appeals court simply adopted his reasoning, but wouldn't even allow its opinion affirming the decision to be published, the petition explains.
Hollister's concern rests with the fact that as a retired Air Force officer in the Individual Ready Reserve, it is possible that he at some point could be subject to Obama's orders.
"If Congress called up the Air Force Individual Ready Reserve the respondent Obama would have to give the order … If, as it appears, those orders would not be lawful, Col. Hollister would be bound … to question them and look to the respondent [Vice President Joe] Biden as constitutionally next in succession for lawful orders," the pleading said.
This case doesn't have the "standing" dispute that has brought failure to so many other challenges to Obama's eligibility, the pleading explains, because Robertson "found that it had jurisdiction of the case, and therefore that petitioner Hollister had standing."
Courts in other case have ruled that the plaintiffs suffered no injury themselves that was not general to the population, so they weren't allowed to sue. However, because of Robertson's handling of the case, standing here has been established, the pleading states, allowing the appeal actually to argue the merits of the case, and note how Supreme Court precedents have been contradicted in the handling of the challenge to Obama.
Officials told WND that this case is an opportunity for the Supreme Court to re-establish that its precedents are binding.
The district judge also remarked "sarcastically" that there may be as many as a "couple of dozen" people concerned about the dispute. In fact, polls done by CNN and others indicate almost 6 in 10 in American don't believe Obama's birth narrative, which would give those doubting the president a total in the range of 180 million or more.
"In fact, reliable polls have shown the number of such people to be in the tens of millions and growing," the pleading explains.
"The combination of bias and ridicule of a person like the plaintiff wanting his concerns resolved by a court as being, essentially, an 'unthinkable' notion, is an expressed denial of a citizen's right to access to the courts," the case pleading continues.
The document also explains that both Robertson and Obama have "held management positions on boards of the Lawyers Committee for Civil Rights Under the Law, and thus are acquainted with each other. There is every appearance of bias here," it said.
John Eidsmoe, an expert on the U.S. Constitution now working with the Foundation on Moral Law, has told WND a demand for verification of Obama's eligibility appears to be legitimate.
Eidsmoe said it's clear that Obama has something in the documentation of his history, including his birth certificate, college records and other documents that "he does not want the public to know."
WND reported just days ago on another case, Kerchner v. Obama, that was before the Supreme Court with a request for review, on the same subject.
The case focuses on the "Vattel theory," which argues that the writers of the Constitution believed the term "natural-born citizen" to mean a person born in the United States to parents who were both American citizens.
"This case is unprecedented," said Mario Apuzzo, the attorney bringing the suit. "I believe we presented an ironclad case. We've shown standing, and we've shown the importance of the issue for the Supreme Court. There's nothing standing in their way to grant us a writ of certiorari."
WND has reported on dozens of legal and other challenges to Obama's eligibility. Some suggest he was not born in Hawaii has he claims; others say his birth location makes no difference because a "natural born citizen" was understand at the time to be a child of two citizen parents, and Obama's father was subject to the British crown when Barack Obama was born.
UPDATE:
BORN IN THE USA?
Supremes punt on Obama eligibility again
Lawyer: Decision 'doesn't mean that this issue goes away'
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Posted: November 29, 2010
9:51 pm Eastern
By Brian Fitzpatrick
© 2010 WorldNetDaily
WASHINGTON – The U.S. Supreme Court announced today it would not hear Kerchner v. Obama, a case challenging whether President Barack Obama is constitutionally eligible to serve in the Oval Office.
The case is the latest in a lengthy series of cases in which U.S courts have refused to hear any arguments about Mr. Obama's eligibility.
The court effectively killed the Kerchner case with one terse statement: "The motion of Western Center for Journalism for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied."
"I don't think the court helped heal the country," said Mario Apuzzo, the New Jersey attorney who argued the case on behalf of retired Navy CDR Charles Kerchner. "We still don't know Mr. Obama's status. … The court is supposed to take cases that are important, and I can't imagine a case more important than this one."
"You need justice to resolve conflicts between people, and when justice is denied people continue to go after each other in a savage way. We did not get justice, " Apuzzo told WND. "For the court to deny our justice sets the country back terribly.
"This decision did not help Mr. Obama," Apuzzo added. "It did not bring legitimacy to his office. Mr. Obama does not have legitimacy of office by the court or by the consensus of the nation, because many people question whether he is a natural born citizen. How does our nation go forward with this kind of result?"
"This matter should have been addressed by the media and political parties early in the spring of 2008 during the primaries. It wasn't," wrote Kerchner Monday morning. "Congress should have addressed this when asked and when constitutionally it was required to. It didn't. The courts should have addressed the merits of the questions when appealed to early on. They didn't. Everyone in our system of government chose appeasement over confrontation and punted the ball to someone else."
"Now it is far worse," Kerchner continued. "The Supreme Court has chosen appeasement and inaction over action and dealing with the issue and questions openly in a court of law under the rules of evidence and law. Our constitutional republic and legal system is now compromised and broken."
Kerchner v. Obama argued that Mr. Obama is not a "natural born citizen," which article II, section 1 of the constitution requires any U.S. president to be. According to Swiss political theorist Emer de Vattel, whose writings heavily influenced the founding fathers, an American "natural born citizen" must be the child of two parents who were both American citizens. Mr. Obama's father was a British subject, a Kenyan student living temporarily in the United States.
"A person gains allegiance and loyalty and therefore attachment for a nation from either being born on the soil of the community defining that nation or from being born to parents who were also born on that same soil or who naturalized as though they were born on that soil," Apuzzo explained to CNN. "It is only by combining at birth in the child both means to inherit these two sources of citizenship that the child by nature and therefore also by law is born with only one allegiance and loyalty to and consequently attachment for only the United States."
"If they wanted to they could have taken this up," Apuzzo told WND. He surmised the court decided, "I don't want to rock the boat too much because that will make it worse, let me be nice and things will go away."
"None of this is moot. If he runs again in 2012, people will want to know" [whether Mr. Obama is a legitimate president], said Apuzzo. "The issue is not going away. … You're going to have a lot of states that are going to be on this, they will want to see that birth certificate."
Like previous cases challenging Obama's eligibility, Kerchner v. Obama foundered in lower courts on the question of "standing." Mr. Obama's attorneys have avoided addressing the merits of an eligibility case. Instead, they have repeatedly succeeded in persuading courts to dismiss cases because the plaintiffs lacked standing to sue because they could not prove they were directly harmed by Mr. Obama's occupation of the Oval Office.
Another case currently before the Ninth Circuit Court of Appeals, however, Barnett v. Obama, may not be stopped by the standing problem, according to United States Justice Foundation Executive Director Gary Kreep. Kreep, author of the Western Center for Journalism amicus curiae brief cited above by the Supreme Court, represents two plaintiffs in the Barnett case.
Kreep explained that one of the plaintiffs in Barnett v. Obama, former U.S. Ambassador to the United Nations Alan Keyes, was a presidential candidate in 2008.
"According to case law, candidates have standing to challenge the eligibility of other candidates," Kreep told WND. "The Department of Justice, which is handling Obama's defense, is not even addressing standing. They're saying it's a political question," and therefore shouldn't be decided by the courts."
Apuzzo and Kreep both suggested that Supreme Court Justices Elena Kagan and Sonia Sotomayor should have recused themselves from the Kerchner case.
"We've seen Justice Kagan recuse herself in various cases, and here's a case where she did not recuse herself, and also Justice Sotomayor, which struck me as really odd because they were appointed by President Obama," said Apuzzo.
"If he's not eligible to be president, he never was, and it could jeopardize their appointments," said Kreep. "An argument could have been made that they should have recused themselves."
"If either of them had anything to do with any of the eligibility decisions, they should have recused themselves," Kreep added. Kagan, as President Obama's Solicitor General, was "probably" involved in planning his legal strategy in earlier eligibility cases.
Apuzzo suggested Kagan's and Sotomayor's participation might have changed the outcome of the court's deliberations.
"We don't know what the vote was," Apuzzo pointed out. "If it was a dog of a case, you don't need Kagan's or Sotomayor's votes. Why did they leave this ethical cloud hanging in history? For what? For a dog of a case?"