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Monday, February 27, 2012

Brief in Support of Respondent’s Motion to Dismiss

In the Superior Court of Fulton County
State of Georgia






Civil Action File Number

2012 CV 211398

Brief in Support of Respondent’s Motion to Dismiss

            The appeal from the Secretary of State’s decision finding that President Obama is qualified to appear on the Presidential Preference Primary ballot is one in a long line of persistent challenges filed across the country since 2008. Not a single challenge has ever been upheld.[1]      
An effort to harass the President continues with qualification challenges filed across the country and in Georgia. Challengers ignore procedural and evidentiary requirements because their claims are without merit, based on fantasy, and offered in pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d 1363, 1364 (M.D. Ga. 2009), aff’d, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009)(“When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law.”)
President Obama was a United States citizen from the moment of his birth in Hawaii. Since he held citizenship from birth, all Constitutional qualifications have been met.  Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,  United States  v. Marguet-Pillado,  648 F.3d 1001, 1006 (9th Cir., 2011). There is no basis to question the President’s citizenship or qualifications to hold office.
            Specially appearing before this Court, respondent show that petitioner’s actions should be dismissed as they have been in numerous cases for lack of jurisdiction over the subject matter, failure of service of process, and failure to state a claim upon which relief can be granted. O.C.G.A. § 9-11-12(b)(1), (5), and (6).



The Democratic Party of Georgia, a political party as defined by O.C.G.A. § 21-2-2(25), participates in the Georgia Presidential Preference Primary “so that electors may express their preference for one person to be the candidate for nomination … for the office of President of the United States.” O.C.G.A. § 21-2-191. No one is elected to any office, nor is anyone nominated to run for any office, as a result of the Presidential Preference Primary. Nomination of a candidate for the office of President will occur at the national convention in Charlotte, NC during the week of September 3, 2012.
The Democratic Party of Georgia determines names to include on its Presidential Preference Primary ballot at its sole discretion. O.C.G.A. § 21-2-193. A state political party “enjoys a constitutionally protected freedom which includes the right to identify the people who constitute this association that was formed for the purpose of advancing shared beliefs and to limit the association to those people only.” See Democratic Party of U.S. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v. Cleland, 954 F.2d 1526, 1530-1 (11th Cir. 1992). First amendment associational rights of a political party are most often litigated in the context of a party refusing to allow a name to appear on a primary ballot (such as in Democratic Party of U.S. v. Wisconsin or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive right to dictate names on its primary ballot. The right to associate not only contemplates the ability to exclude but, necessarily, who to include. 
Apportionment of delegates as a result of preference primary results constitutes an internal party matter. The State of Georgia may not interfere with “the traditionally recognized autonomy of the political party's internal decision-making.” Belluso v. Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); Duke v. Cleland, 954 F.2d 1526 (11th Cir., 1992).


O.C.G.A. § 21-2-5 does not apply to the Presidential Preference Primary. The preference primary is not an election: by its terms, the preference primary is simply an opportunity for electors “to express their preference for one person to be a candidate for nomination.” O.C.G.A. § 21-2-191. The election code defines “election” as “any general or special election and shall not include a primary or special primary unless the context in which the term is used clearly requires clearly requires that a primary or special primary is included. “ O.C.G.A. § 21-2-2(5). Neither the preference statute nor the definition reference the Presidential Preference Primary. Nothing in the context of O.C.G.A. § 21-2-5 “clearly requires” applicability to the preference primary.”
O.C.G.A. § 21-2-5 applies when a candidate is “certified by the state executive committee of a political party or … files a notice of candidacy.” O.C.G.A. § 21-2-5(a). Neither occurred here. (Certification of candidates by a party executive committee refers to the qualification procedure in O.C.G.A. § 21-2-154(a) and the payment of qualifying fees, neither of which apply to preference primaries.) No fees may be charged for listing a name on the preference ballot. O.C.G.A. § 21-2-198. There is no qualifying nor does a political party file a certification of its qualified candidates, as it would in an election. See, O.C.G.A. § 21-2-154. The state executive committee simply lists names that it wishes to have on the preference primary ballot. O.C.G.A. § 21-2-193.


The return of service filed with the Court shows that service of the summons and complaint was made by mailing to respondent’s attorney.  Petitioner did not seek a waiver of personal service as authorized by O.C.G.A. § 9-11-4(d) nor did it attempt personal service using the methods specified by O.C.G.A. § 9-11-4(e) or 4(f). "Where there is no process and no waiver of process, no valid suit arises." State Hwy. Dept. v. Noble, 220 Ga. 410, 414, 139 S.E.2d 318 (1964).


The proper party respondent when challenging a qualification decision made by the Secretary of State is the Secretary of State.  In order to grant the relief sought by the petitioner the Secretary of State needs to be before the court. He is not. See, for example, Handel v. Powell, 284 Ga. 550 (2008), in which the only parties in the appeal were the Secretary of State and the challenger of the Secretary’s decision.
The relief sought by the petitioner is relief from a decision of the Secretary of State. In paragraphs 13 and 15 of the review petition petitioner seeks to stay the action of the Secretary of Stay. The petition does not seek any relief against the President, but only against the Secretary. In order to grant relief, the Civil Practice Act requires the issuance of a summons signed by the clerk of court in order for the court to exercise power granting relief. The issuance of process signed by the clerk is a necessary part of acquisition of jurisdiction. OCGA § 9-11-8 (a) (2) (A); Schafer v. Wachovia Bank of Georgia, 248 Ga.App. 466, 546 S.E.2d 846 (2001). No summons commands appearance by the Secretary of State in this matter. The lack of personal jurisdiction over the Secretary of State deprives this Court of jurisdiction to grant relief. Bonner v. Bonner, 272 Ga.App. 545, 533 S.E.2d 72 (2000); Wilkinson v. Udinsky, 242 Ga.App. 464, 530 S.E.2d 215 (2000); Guerrero v. Tellez, 242 Ga.App. 354, 529 S.E.2d 639 (2000). Jurisdiction over the Secretary of State must be established before the court can enter any ruling binding a party such as the Secretary of State or the ruling is declared null and void. See Estate of Marjorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313 S.E.2d 722 (1984). Knowledge that the suit exists does not substitute for compliance with service of process statute. Williamson v. Basenback, 298 Ga.App. 567, 680 S.E.2d 577 (2009).
The relief sought by the petition is directed against the Secretary of State, not the President. The complaint does not state a claim against the President.

Respondent specially appears in this Court to show that the petition for review should be dismissed.

Respectfully submitted,

This 27th day of February, 2012.

Georgia State Bar Number 385850

2221-D Peachtree Road NE
Atlanta, Georgia 30309

[1] See, Georgia cases: Rhodes v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), aff’d, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Cook v. Good et al, 4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008).

Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010); In re: American Grand Jury, 3:09mc00215(USDC Tenn., 2009); Keyes v. Obama, 8:09-cv-00082, 2009 WL 3861788, (U.S.D.C.D. Cal. Oct. 29, 2009), appeal pending, No. 10-55084 (9th Cir., 2011); Berg v. Obama et al, 574 F.Supp.2d 509 (E.D.Pa. 2008), aff’d, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v. Obama, 656 F. Supp.2d. 107 (D.D.C. Cir. 2009); Beverly v. Federal Elections Commission, 09-15562 (E.D. Cal., 2008), aff’d 09-15562 (9th Cir., 2009), cert. denied, 130 S. Ct. 1732 (2010); Bowhall v. Obama, 2:10cv00609, 2010 WL 4932747, (M.D. Ala. November 30, 2010); The Church of Jesus Christ Christian/Aryan Nations of Missouri et al v. Obama et al, 6:08cv03405, 2011 WL 4916569 (W.D. Mo. Oct. 17, 2011); Cohen v. Obama, 1:08cv02150, 2008 WL 5191864 (D.D.C.,  Dec. 11, 2008), aff’d, 2009 WL 2870668 (D.C. Cir. 2008); Cook v. Good et al, 4:2009cv00082, 2009 WL 2163535, (M.D. Ga. July 16, 2008); Cook v. Simtech,, 8:2009cv01382 (M.D. Fla., 2009); Craig v. U.S., 5:09-cv-00343 (W.D. Okla., 2009), cert. denied, 130 S. Ct. 141 (2009); Craig v. U.S., 5:09-cv-01345-c (W.D. Okla., 2010); Dawson v. Obama, 2:08cv02754, 2009 WL 532617 (E.D. Cal. March 2, 2009); Ealey v. Sarah Obama, 4:08-mc-00504 (S.D.Tex., 2008); Essek v. Obama, 08-379-GFVT (E.D. Ky., 2008); Hamblin v. Obama, 2:09cv00410, 2009 WL 2513986 (D. Ariz. Aug. 14, 2009); Hamrick v. Fukino, 1:08-cv-00544, 2009 WL 1404535 (Haw., May 20, 2009); Herbert v. Obama, 3:08-cv-01164-HES-TEM (M.D. Fla., 2008), cert. denied, 130 S. Ct. 562 (2009); Herbert v. US, 3:08-cv-00634-TJC-MCR (M.D.Fla., 2008); Herbert v. US, 3:08cv01201, 2009 WL 129585, (S.D.Cal., Jan. 15, 2009); Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008); Hollister v. Soetoro, 601 F. Supp.2d 179 (D.D.C. Cir. 2009), cert. denied, 131 S. Ct. 1017 (2011); Hunter v. U.S. Supreme Court, 2:08cv00232, 2009 WL 111683, (N.D.Tex., Jan. 16, 2009), appeal dismissed, No. 09-10246, No. 10-10009, No. 10-100064 (5th Cir., 2009);  Jones v. Obama, 2:10-cv-01075 (C.D. Cal., 2010); Judy v. McCain, 2:08cv01162 (USDC Nev., 2008); Kerchner  v. Obama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131 S. Ct. 663 (2010); Liberty Legal Foundation v. DNC, CH-11-1757 (D Ariz., 2011); Mackay v. Obama, 2:11-cv-05458-JP (E.D. Pa., 2011), voluntarily dismissed, No. 11-3862 (USDC Pa., 2011); McLanahan v. Obama, 2:11-cv-00374-EFS (D.Was., 2011); Morrow v. Barak Humane Obama, 1:08-cv-22345 (S.D. Fla., 2008); Neely v. Obama, 2:08-cv-15243 (E.D.MI., 2008); Patriot’s Heart Network v. Soetoro, 1:09-mc-00442-RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:08-cv-04083 (E.D. PA, 2008),aff’d 304 Fed. Appx 113, 2008 WL 5381436 (3rd Cir.,  2008), mandamus denied, No. 08-4443 (3d Cir.,  2008); Purpura v. Sebelius, 3:10-cv-04814, 2011 WL 1547768, (D.N.J. Apr. 21, 2011); Rhodes v. Gates, 5:09-cv-00703-XR (W.D.Tex., 2009); Rhodes v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), aff’d, 2010 WL 892848 ( 11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Robinson v. Bowen, 567 F.Supp.2d 1144 (N.D.Cal. 2008); Roy v. Fed. Election, 2:08cv01519, 2008 WL 4921263, (W.D. Wa. Nov. 14, 2008); Stamper v. US, 1:08 CV 2593, 2008 WL 4838073 (N.D.OH. 2008); Strunk v. Patterson, 1:08cv04289 (E.D.N.Y., 2008), appeal dismissed No. 08-5422 (2d Cir. Nov. 14, 2008); Strunk v. U.S. Dept. of State, 693 F.Supp.2d 112 (D.D.C. Cir. 2010), mandamus denied, No. 09-5322 (D.D.C., 2009), appeal dismissed, No. 10-5092, (DC Cir., 2010); Super American Grand Jury, 1:09-mc-00346-RCL (D.D.C., 2009) ; Taitz v. Obama, 707 F.Supp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 11-5304 (DC Cir., Oct. 31, 2011); Taitz v. Astrue, 1:11-cv-00402, 2011 WL 3805741, (D.D.C. Aug. 30, 2011); Taitz v. Astrue, 1:11-mc-00158 (D.Haw., 2011); Taitz v. Ruemmier, 1:11-cv-01421 (D.D.C., 2011); Thomas v. Hosemann, 1:08mc00280 (D. Haw., 2008); Thomas v. Hosemann, 2:08-cv-00241-KS-MTP (SD Miss., 2008).
State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Aff’d, No. 49A02-0904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex. State Court); Broe v. Reed, 82473-8 (Was. State Supreme Court); Connerat v. Browning, 999 So. 2d 644 (Fla. Dist. Ct. App. 2008); Connerat v. Obama, No. 09003103SC (Fla. State Court); Connerat v. Obama, No. 09005522SC (Fla. State Court); Constitution Party v. Lingle, No. 29743, 2008 WL 5125984 (Haw. Dec. 5, 2008); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court, 2008); Craig v. Oklahoma, MA-109808 (Okla. Supreme Court); Donofrio v. Wells, No. AN-1053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v. Obama, no docket number (NC State Court); Greenberg v. Brunner, No. 2008cv1024 (Ohio State Court, 2008); In re John McCain’s Ineligibility to be on Presidential Primary Ballot in Pa, 944 A.2d 75 (Pa. 2008); Justice v. Fuddy, 253 P.3d 665 (Haw. 2011); Keyes v. Bowen, 189 Cal. App. 4th 647 (Cal. Ct. App. 2010) Cert. denied, 132 S. Ct. 99 (2011); US v. LTC Terrence L. Lakin, MCAT-JA-SC; Liberty Legal Foundation v. DNC, CH-11-1757 (Tenn. State Court); Lightfoot v. Bowen, No. 168690 (Cal. Supreme Court, 2008), Cert. denied, 555 U.S. 1151 (2009); Marquis v. Reed, No. 08-2-34955-1 (Was. State Court, 2008); Martin v. Lingle, No. 29414, 2008 WL 4684786, (Haw. Oct. 22, 2008); Martin v. Lingle, No. ICC08-1-002147, 2009 WL 1669050, (Haw. Jun. 9, 2009), Appeal Dismissed, 2009 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett, No. 1CC10-1-000969 (Haw. State Court); Meroni et al v. McHenry County Grand Jury Foreman et al, No. 09mr399 (Ill. State Court, 2009); Neal v. Brunner, No. 2008cv72726 (Ohio State Court, 2008); Patriot’s Heart Media Network v. Illinois Board of Elections, No. 10H000605 (Ill. State Court); Schneller v. Cortes, 199 MM 2008 (Pa. Supreme Court, 2009), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v. Riley, cv-2008-1906 (Ala. State Court, 2008); Spuck v. Sec. of State, 2008 cv1116 (Ohio State Court, 2008); Stumpo v. Granholm, No. 08-140-MM (Mich. Dist. Ct. (30th) Mar. 31, 2009), appeal dismissed, No. 291681, (Mich. App. Ct.,  Jun. 3, 2009); Stunk v. Patterson, 029641/2008 (N.Y. State Court, 2008); Strunk v. Patterson, 029642/2008 (N.Y. State Court, 2008); Sullivan v. Sec. of State, 08cv1076 (N.C. State Court, 2008); Sullivan v. Marshall, 08cvs-021393 (N.C. State Court, 2008); Taitz v. Fuddy, 1cc11-1-001731 (Haw. State Court); Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Wrotnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court, 2008).

Saturday, December 10, 2011

Obama's name challenged on Georgia's ballot

             PRESS  RELEASE       PRESS RELEASE            PRESS RELEASE

Date: November 23, 2011

The office of the Secretary of State of Georgia has accepted a filed complaint challenging the placement of Barack Obama's name on the state's primary ballot of March 6, 2011, as the Democratic Party of Georgia's presidential nominee. Secretary of State, Brian P. Kemp assigned the case to the Administrative Court for a hearing in December.

David Farrar, a resident of Cedartown, Georgia, has challenged the accuracy of Obama's two birth certificates, as well as his Article ll "natural born" Citizenship status.

Pre-hearing pleadings are due into the office of Administrative Court Judge, Michael M. Malihi, no later than Dec. 1, 2011.

Dr. Orly Taitz Esq. has signed onto the case as lead counsel.

Contact David Farrar, Cedartown, Georgia
Cedartown, Georgia

Birther Fact Sheet

Written By Stephen Tonchen.
Click here for Mr. Tonchen's complete work:

Obama Presidential Eligibility - An Introductory Primer

MR. TONCHEN:    Americans need to know 14 facts about Barack Obama’s presidential eligibility:

1: The US Constitution requires the President to be a “natural born citizen”

The US Constitution was adopted on September 17, 1787. Presidential candidates who became US citizens before that date were exempt from the “natural born citizen” requirement. Some early Presidents – John Adams, Thomas Jefferson, etc. – were not natural born citizens. They could serve as President because they were citizens when the Constitution was adopted. However, if you were born after Sept. 17, 1787, you must be a “natural born citizen” in order to be eligible to serve as President.

2: The purpose of the “natural born citizen” requirement was to exclude “foreigners” (specifically, persons born with foreign nationality) from the presidency

In Alexander Hamilton’s first draft of the US Constitution, a person must be “born a citizen” of the United States in order to be eligible to serve as President (Works of Alexander Hamilton, p.407).

Someone who is “born a citizen” might acquire foreign nationality at birth. For example, in 1787, if a British couple gave birth on US soil, their child was both “born a citizen” of the US and a British subject.

In August 1787, the Constitutional Convention changed the presidential eligibility requirement from “born a citizen” to “natural born citizen”. The sole purpose of this wording change was to exclude “foreigners” from the presidency (see John Jay’s Letter to George Washington dated 25 July 1787, and Joseph Story’s Commentaries on the Constitution, Section 1473).

Since the terms “born a citizen” and “natural born citizen” pertain only to one’s status at the time of one’s birth, the “natural born citizen” provision cannot exclude persons who became “foreigners” in later life. The provision can, at most, only exclude persons who were “foreigners” when born. The change from “born a citizen” to “natural born citizen” does not provide any additional protection against foreign influence in the presidency – it does not exclude anyone not already excluded by the “born a citizen” requirement – unless “natural born citizen” means the absence of foreign nationality at birth.

3: Barack Obama was born with foreign nationality.

Regardless of where he was born, President Obama acquired British/Kenyan citizenship at birth by descent from his father:

"As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. ... In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC."  ( Obama's Kenyan Citizenship)

4: Foreign nationality at birth is unprecedented among US Presidents who were born after 1787.

With only two exception, every US President who was born after 1787 (a) was born in the United States, of parents who were both US citizens, and (b) was a citizen of the United States exclusively at the time of his birth. The two exceptions are Chester Arthur and Barack Obama. In 1880, Chester Arthur hid his British nationality from the public (Historical Breakthrough: Chester Arthur). The year 2008 was the first time in history that the United States knowingly elected a post-1787-born President who (a) was born of a non-citizen parent, and (b) was, at birth, a citizen of a foreign country (Natural Born Presidency).

5: The 1797 English translation of Law of Nations defines “natural born citizen” in a manner that precludes foreign nationality at birth.

The 1797 English translation of Vattel’s Law of Nations defines “natural born citizens” as individuals born in a country, of parents who are citizens of that country. Such individuals, when born, are citizens of their native country exclusively; they do not acquire any foreign nationality at birth:

The natives, or natural born citizens, are those born in the country, of parents who are citizens (Law of Nations, Book I, Section 212)

Since his father was not a US citizen, President Obama is not a US “natural born citizen” according to the 1797 English-language version of Law of Nations.

6: In 1874, the Supreme Court understood “natural born citizen” as US-born of US-citizen parents.

In Minor v. Happersett (1874), the Supreme Court described two groups of people. One group consists of persons who were born in the United States, of parents who are US citizens. The other group consists of persons who were born on US soil, but whose parents were not necessarily US citizens. The Supreme Court applied the term “natural born citizen” only to members of the first group, not the second.

"…it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."  (Minor v. Happersett, 1874)

Since his father was not a US citizen, President Obama does not conform to the Minor v. Happersett understanding of “natural born citizen” (Obama Cannot Be A "Natural Born Citizen" Under Minor v. Happersett ; see also Minor v. Happersett is Binding Precedent).

7: The 14th Amendment does NOT say that everyone born on US soil is a “natural born citizen”.

The widely-held notion – that the 14th Amendment confers “natural born citizen” status to all persons born on US soil – is factually incorrect. The 14th Amendment citizenship clause mentions citizens; it does not mention natural born citizens. The term “natural born citizen” does not appear anywhere in the 14th Amendment.

The 14th Amendment citizenship clause declares:
"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."
The citizenship clause defines a particular group of people. You are a member of this group if:

· You were born or naturalized in the United States, and
· You were subject to US jurisdiction at the time of your birth or naturalization.

If you belong to this group, the 14th Amendment guarantees your US citizenship. If you do not belong to this group, you might receive citizenship from laws enacted by Congress, but you do not receive citizen­ship from the 14th Amendment.

During the 1866 Congressional debates, the framers of the 14th Amendment explained that the word “jurisdiction”, as used in the 14th Amendment, means sole and complete jurisdiction, i.e., not subject to any foreign power (What 'Subject to the Jurisdiction Thereof' Really Means).

Emancipated slaves were subject to sole and complete US jurisdiction; consequently, their US-born children were US citizens according to the 14th Amendment.

Native Americans belonged to tribes which the US government recognized as sovereign nations. Their children, even if born on US soil, were subject to tribal jurisdiction; they were not subject to sole and complete US jurisdiction and consequently were not 14th Amendment citizens.

Since his citizenship status at birth was “governed” by the laws of a foreign country, President Obama was not subject to sole and complete US jurisdiction at birth. He may have acquired US citizenship from laws enacted by Congress, but he did not receive US citizenship from the 14th Amendment.

8: In U.S. vs. Wong Kim Ark, the Supreme Court did NOT rule that all US-born children are “natural born citizens”.

In United States v. Wong Kim Ark (1898), the Supreme Court ignored (deemed “not admissible”) the 1866 Congressional records explaining the intended meaning of “jurisdiction” in the 14th Amendment (Was U.S. vs. Wong Kim Ark Wrongly Decided?). In the Court’s opinion, the United States has “jurisdiction” over US-born children of alien parents if said parents “have a permanent domicil and residence in the United States”. The Court ruled that such children were US citizens. The Court did NOT rule that such children were natural born citizens.

Even under the Court’s liberalized definition of “jurisdiction”, President Obama still does not qualify for 14th Amendment citizenship. President Obama may have received US citizenship by US law; but since his father was never permanently domiciled in the US, the President did not receive US citizenship from the Wong Kim Ark ruling.

9: There is no Federal statute which defines “natural born citizen”.

In 1790, Congress passed the Naturalization Act of 1790, in which foreign-born children of American parents were “considered as” natural born citizens. In 1795, Congress replaced the 1790 Act with the Naturalization Act of 1795, in which the words “natural born” were deleted, leaving just citizens.

After 1790, Congress never again passed any law containing the term “natural born citizen”. (In 2008, the US Senate passed Resolution 511 declaring John McCain to be a “natural born citizen”, but the resolution was non-binding and had no legal effect). Today, US law confers citizenship to persons who meet certain criteria, but the term “natural born citizen” does not appear in any existing federal statute. (See Critique of Wall Street Journal article).

10: No court has ruled on whether Barack Obama is a “natural born citizen”.

Except a handful of cases which are still in progress, all lawsuits challenging Obama’s eligibility have been dismissed on technicalities or have been denied without comment. Although some jurists have expressed dicta, no court has ruled on whether President Obama is, or is not, a natural born citizen.

11: No branch or agency of the federal government has vetted Obama’s eligibility.

Neither Congress nor any Federal agency has considered whether Obama is, or is not, a natural born citizen. According to a Congressional Research Service memo, “there is no specific federal agency or office that ‘vets’ candidates for federal office as to qualifications or eligibility prior to election.”

12: In 18th-century England, only those persons born on English soil, of parents owing actual allegiance to the king, were “natural-born” in fact; all others were deemed “natural-born” by law.

All 18th-century English subjects – regardless of whether they acquired subjecthood by birth, statute or naturalization – were called natural-born subjects. (Persons made subjects by letters patent issued by the king were the exception). Natural-born subjects by birth were persons who were born on English soil, to parents who were under the actual obedience (allegiance) of the English king:
"All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions." (Timothy Cunningham, A New and Complete Law Dictionary, 1771, p.95; also, Matthew Bacon, A New Abridgement of the Law – Vol. 1, 1736, p.77)

In 1604, Parliament granted “denizen” status to children born in England, of alien parents (House of Commons, April 1604). Such children were naturalized at birth and were deemed to be natural-born by law, but they were not natural-born in any actual or literal sense. As Judge Yelverton explained in 1608, Parliament does not have the power to turn anyone into a real natural-born subject. Parliament may deem someone to be natural-born, but cannot cause anyone to be a natural-born subject in fact:

"A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede." (Yelverton, as quoted by Bruce Galloway, The Union of England and Scotland, 2003, p.157)

Naturalization – whether by private act of Parliament or by statute enacted by Parliament – is a “fiction of law” which has no effect except in countries consenting to that fiction (Timothy Cunningham, A New and Complete Law Dictionary, 1771, “Naturalization”).

All persons born on English soil (except children of foreign ambassadors and alien enemies) were called natural-born subjects, regardless of whether their parents were subjects or aliens. English-born children of alien parents were “denizens”; such children were natural-born subjects by law. Only those persons born in the country to which their parents owed actual allegiance were natural-born in fact.

13: It is possible to directly challenge Obama’s eligibility and indirectly challenge his executive actions.

The Department of Justice, Presidential candidates, and possibly others, could file a “direct” challenge to Obama’s eligibility in the DC District Court. A direct challenge, if successful, would immediately remove Obama from office (Quo Warranto Legal Brief). A person, company or state which has suffered a particularized harm or injury as a result of a law or executive order signed by Obama could file an “indirect” or “collateral” challenge against that specific law or action. For example, persons convicted of breaking a law enacted during Obama’s presidency could ask a court to overturn their convictions on the basis that the law was signed by an ineligible president (Standing to Challenge). A collateral challenge, if success­ful, would not remove the President from office (it would merely invalidate a law or order that Obama had signed) but would nevertheless make it difficult for Obama to remain in office.

14: President Obama bears the burden of proof concerning his eligibility to hold office.

All candidates for federal office bear the burden of proof concerning their eligibility to hold office. They have an obligation to conclusively establish their eligibility before taking office (see third paragraph in Dr. Edwin Vieira: Obama Must Stand Up Now or Step Down).

Presidential candidates that were born in the United States, to US-citizen parents, are definitely, without doubt, natural born citizens. The eligibility of all other presidential candidates is in doubt. These “in-doubt” candidates have an obligation to ask the Supreme Court for a declaratory judgment resolving the doubts concerning their “natural born citizen” status. If “in-doubt” candidates refuse to do so, each state has a right (if not a duty) to exclude them from the state ballot.
"Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office." (Congressional Research Service memo)

For a more thorough and detailed examination of the above facts, see Eligibility Primer.

Copyright © 2011 Stephen Tonchen

Friday, December 2, 2011

Judge Napolitano "What's all true? Well, mostly all true anyway?

Time: 3:40

Q.    What if the government could strip you of your citizenship rights because of where your mother was when you were born?

A.     Citizenship isn't a right. It's a privilege. But moreover, the government can't strip you of a privilege you never had in the first place.

ex animo