Monday, January 30, 2012


Frankly, this isn't the post I wanted to write.  There's a whole bunch of criminal law stuff and capital stuff.  Maybe too much.
But then they held a birther hearing in Georgia.
You'll recall that earlier this month, administrative law judge (as opposed to a regular trial judge) Michael M. Malihi refused to dismiss a challenge to putting President Obama's name on the ballot for the Georgia Democratic primary.
The birthers' immediate claim was that Obama wasn't that Obama wasn't born here.  They passed on that for this round (or at least the early parts of it).  Rather, they said that since his father wasn't a citizen, Obama couldn't be a "natural born citizen."  The claim isn't frivolous on its face, but the further claim, that clear and binding Supreme Court precedent (Minor v. Happersett) says that is, simply falseMinor says no such thing.  And what it does say that's marginally relevant isn't binding precedent. Obama's lawyers responded with a motion to dismiss that both ignored the substance of the birthers' argument and provided no even vaguely credible reason to dismiss the case. 
So there was a hearing last week.
Obama was subpoenaed.  The birthers were giddy.
Now he'll have to come and be questioned under oath and he'll have to admit that he's a fraud and a Kenyan muslim terrorist or something.
Really, they thought that. Especially when the judge refused to quash the subpoena.
Except Obama didn't show.  Neither did his lawyers.
Mark Niesse, for the Fulton County Daily Report.
On Thursday, nearly 100 people, many of them "birthers" who doubt Obama's legitimacy, crowded the courtroom for the 90-minute trial-like hearing. Seats reserved for Obama's defense team remained empty.
Birther leader Orly Taitz, a California attorney representing a Georgia voter challenging Obama's qualifications for the office he holds, questioned witnesses about document forgery and told Malihi she didn't believe Obama's birth certificate or Social Security number were legitimate."This man is just making a joke out of this country. He's showing tremendous disrespect to the whole nation," Taitz said after the hearing. "Mr. Obama had an opportunity to appear here and show valid documents, certified docs, with embossed seals. … He chose to present nothing, which shows that he has nothing. He does not have any valid documents."
Of course, the argument wasn't supposed to be about the documents.  And the President's failure to appear doesn't mean that he couldn't have presented compelling evidence had he been so inclined. Then again, logical argument has never been key to the birther movement which rests largely on the conviction that whatever isn't proved to their satisfaction is ineluctably false.  And by god, they believe Obama wasn't born here and any evidence to the contrary is, necessarily, fabricated.
The open question, of course, is whether it was wise for Obama's lawyers to boycott the hearing.
Sure, it would be a circus if they showed up.  (Not Obama, there was no way he'd attend, but his lawyers.)  And boycotting is kind of like refusing to negotiate with terrorists.  To negotiate appear is to seem weak, and to dignify the proceedings.
But not showing up creates its own sort of circus.  And perhaps concedes the chance actually to rebut the claims with relevant argument and evidence that could lead to a judicial determination that Obama is actually qualified to be President - something that all those courts saying the question hasn't been (and maybe can't be) properly raised haven't provided.
On the other hand, they could show up and still lose.  Which would really be a mess.
When I tell people that the answer to every legal question is "It depends," that's true of every tactical decision, too.
No decision yet from Judge Malihi whose opinion is only advisory, anyway.  The actual ruling on ballot access will be made by the Georgia Secretary of State, Brian Kemp.
Kemp, by the way, could have shut the hearing down.  Obama's people asked him to.  In a letter to Michael Jablonski, Obama's lawyer, Kemp declined.  Then he issued a warning.
[I]f you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.
You pays your money and you takes your chances.


  1. Obama was NOT subpoenaed. The court is AN ADMINISTRATIVE LAW COURT, which in Georgia cannot issue subpoenas. It can apply to a superior court to issue a subpoena, but that did not happen in this case. Further proof of this is that when Obama and other "subponeaed" witnesses did not show up in court, the judge did not say a word. You would expect that if there really was a subpoena, he would have said something.

    Obama's lawyer has until Feb. 5 to file briefs.

    I imagine a REALLY brief brief ought to do the job. It would say: The only issues are whether or not Obama was born in the USA, and if he was whether or not the foreign citizenship of Obama's father can take away Natural Born status.

    Obama was born in the USA, as has been proven overwhelmingly. However, if you are not convinced, I would be glad to supply the official physical copy of the Hawaii short form birth certificate or long form birth certificate or both.

    The Wong Kim Ark case has established the definition of Natural Born as including every child born in the USA (except for the children of foreign diplomats). Obama was born in the USA and neither of his parents were foreign diplomats.

    1. Hey, don't fight with me. I didn't say he doesn't qualify to be President.

      Evidence won't convince those who insist on believing it false, no matter how much of it you present. Taitz, after all, found an alleged expert who claimed that the long form certificate you're prepared to produce is a forgery. And, by the way, since you haven't identified yourself, it could be tricky for them to get hold of you.

      And for what it's worth, Wong Kim Ark no more defines "natural born citizen" than does Minor. Minor specifically declines to determine whether a person born in the US of non-citizen parents can be a natural born citizen. Wong Kim Ark simply says that being born here makes you a citizen. The relevant argument is whether there are three classes of citizens (birthright, "natural born," and naturalized) or just two (birthright and naturalized). The birthers in Georgia argue that there are three and wrongly insist that Minor answers the question their way and is absolutely binding on the subject. Wong Kim Ark assures the category of birthright but says nothing about whether there's a special class of citizens who are "natural born."

  2. I agree completely that no one is bound by any case law interpretation of "natural born citizen". That said, if there were to be any case law, anything other than the meaning normally accorded it - that is, both parents have to be citizens - would probably be a disingenuous stretch.

    Yet I also agree with you, Jeff, that this is a silly case and a silly argument.

    You could probably find no one who more subscribes to "fiat justitia ruat caelum" than me. But even for me there are limits. Assume, for purposes of discussion, that Obama is not a natural born citizen.

    At best, this is a technical point grounded in a clause of the constitution that was very era-specific, for reasons that have long since evaporated. To subject the country to the upheaval that would result from applying this provision of the constitution as if it was from God and came from the burning bush is not an act of fidelity to the constitution; it is a political "gotcha" with no deeper meaning whatever. To be heedless of the cost of that gotcha is not courageously adhering to principle; it is frivolous gamesmanship at tremendous potential expense.

    Maybe we should get around to amending that clause out, but it's too late for the Obama arguments. So what. He was also properly elected under the constitution. He's a citizen. Does the archaic "natural born citizen" clause trump that? Should a court in Georgia decide that question?

    I think Obama, while likeable, is basically a Zelig like character and probably a commie. I really don't have a dog in the fight, politically. But maybe I have the same problem that you do: I care a lot more about an innocent person on death row than about whether the president is a natural born citizen. I really don't give a shit about that.

    Fiat justitia is about weighty issues, not political gotchas.

    1. As I think I said the last time you claimed it, I'm not in the least convinced that your understanding (which in this case is also Orly Taitz's understanding - a fact which alone should make you reconsider) of "the meaning normally accorded" the term "natural born citizen" is accurate. Personally, I always understood it to mean something like "a person whose citizenship arose at birth." But more broadly, I don't imagine it ever really had a "normally accorded" meaning because almost nobody gave it any particular meaning at all. It was in the Constitution. If people even noticed it, they either had no idea what it meant or thought it meant whatever - mostly without discussion or even serious reflection.

  3. Re: "Wong Kim Ark simply says that being born here makes you a citizen. The relevant argument is whether there are three classes of citizens (birthright, "natural born," and naturalized) or just two (birthright and naturalized). The birthers in Georgia argue that there are three and wrongly insist that Minor answers the question their way and is absolutely binding on the subject. Wong Kim Ark assures the category of birthright but says nothing about whether there's a special class of citizens who are "natural born."

    I agree with you that their interpretation of Minor is absolutely wrong and that the Minor decision is what is known as "dicta" (not a ruling.)

    And of course I agree that there are only two categories, naturalized and natural born. In fact, as late as WWI that was WIDELY understood. Men who were signed up for the draft were asked whether they were citizens, and then--if they were--whether they were naturalized citizens or natural born citizens. As we all agree, there are only two categories, and this shows how widely that was known.

    However, I disagree that the Wong Kim Ark decision does not define what is a Natural Born Citizen. It spends a great deal of time showing the meaning of Natural Born, showing that it came from the common law (not Vattel), and that its meaning in the common law included everyone born in the country except the children of foreign diplomats.

    So, it defined Natural Born, and it also ruled on whether a person born in the USA is a citizen, and she or he is. So, what is a Natural Born Citizen? It is someone who is both a citizen and Natural Born, and Natural Born is defined by the court to include everyone other than the children of foreign diplomats who was born in the USA.

    Is a US citizen at birth who was born of US parent but was born outside of the USA also a Natural Born Citizen? Maybe, maybe not. Wong Kim Ark certainly did not say. But it did say that all who were born in the USA are Natural Born and citizens. Hence they are Natural Born Citizens.

    Ironically, this was understood decades before the Wong Kim Ark decision as well.

    "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)

    But the Wong Kim Ark decision made that interpretation obvious to courts and virtually all lawyers (not birthers of course).

    “Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural born-born subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [ ] natural-born citizens.”--- Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), (Ind.Supreme Court, Apr. 5, 2010)

  4. I think the better view is that there are two, not three, classes of citizen. And I agree, that Wong Kim Ark does lend support to the birthright view of "natural-born." But, sorry, it doesn't resolve the question. It's a legal quibble, perhaps, but legal quibbles are what allow this sort of eccentric litigation.

    And, of course, even if it were the case that Minor or Wong Kim Ark or some other case formally and precisely provided an interpretation of the term, it would be open to reconsideration and reinterpretation by the Supremes. Sigh.

  5. Re:

    "And, of course, even if it were the case that Minor or Wong Kim Ark or some other case formally and precisely provided an interpretation of the term, it would be open to reconsideration and reinterpretation by the Supremes. Sigh."

    That is obvious. However, it is EXTREMELY unlikely that the US Supreme Court would overturn Wong Kim Ark.

    First because the Wong Kim Ark decision is correct. That really was the meaning of Natural Born under the common law.

    Second because under strict construction rules, even if there were some doubt as to that being the correct ruling, the court would not rule that a Natural Born Citizen required two citizen parents unless there was legislation or at least an article by the founders that said that that was the meaning (and neither exists).

    And, third, because to believe that two US citizen parents are required forces you to believe that the writers of the US Constitution regarded the US-born children of foreigners to be of lower quality, less worthy, more risky, than the US-born children of US citizens.

    It is, of course, possible that the writers of the US Constitution believed that, but since there is no evidence that they did, it would be a radical assumption on our part to believe it--absent any evidence. And, you know, I find it doubtful that justices with names like Alito and Scalia and a chief justice whose mother's maiden name was Podrasky would believe any such thing (and the four liberals and one swing vote on the court wouldn't either, of course).