Thursday, January 5, 2012

They're Baaaaack

Like a bad penny, they're back again.
The Birthers, that is.  Undaunted by the fact that nobody serious takes them seriously (unless you count Rick Perry and Donald Trump as serious people) and that court after court after court, world without end, no exceptions no way no how has ever found that their claims have merit (or that they have a right to bring them), they chip away and chip away.
And dammit.  If you put an infinite number of monkeys in front of an infinite number of typewriters, sooner or later one of them's gonna move to Georgia and file a lawsuit.
Which brings us to David Welden, who is not actually a monkey but is a citizen of the Peach Tree State, and to Georgia Code, § 21-2-5(a)-(c).  (Section 21-2-5 also has subsections (d) & (e), but they're not relevant here.)
§ 21-2-5. Qualifications of candidates for federal and state office; determination of qualifications
(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.
(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate's name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate's name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.
What all this means is that in Georgia pretty much anyone can challenge the right of pretty much anybody to be on a ballot.  All that's required is for the challenger to claim that the candidate doesn't satisfy the constitutional or statutory requirements of the office.  Which is where Mr. Welden came in. He filed a challenge with the Secretary of State claiming that Obama wasn't qualified to be President and, therefore, can't appear on the ballot for the Democratic primary.  (Yes, there are Democratic primaries this year, too; though only David Welden knows or cares.)
We need to give credit where it's due. Welden did not claim that his Barakness wasn't born in the USA.  He did not claim that the birth certificate is a hoax. He did not argue about Kenya or claim that Obama isn't a citizen or . . . . Actually, I have no idea what David Welden did or didn't claim.  Maybe he claimed all that stuff.  But eventually, and frankly it's kind of hard to pin down the chronology here, eventually, he got hold of Van Irion of the Liberty Legal Foundation in Knoxville, Tennessee.  Van didn't make any of those arguments which rely on, you know, evidence.
Instead, he made a strictly legal and absolutely logical argument.
  1. The Constitution requires that the President be a natural born citizen.
  2. A person can only be a natural born citizen if he or she had parents who were citizens.
  3. Obama's father wasn't a citizen.
  4. Therefore Obama isn't a natural born citizen and so does not satisfy the constitutional requirements to be President.
  5. Since Obama cannot be President, his name should be struck from the ballot.
Which is all well and good.  And totally wrong.
The problem, of course, is with step 2. That's the crux of the legal claim. Here's the argument as Irion lays it out in his opposition to Obama's motion to dismiss.
The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.” See Minor v. Happersett, 88 U.S. 162, 167 (1875). The Court in Happersett did go on to state that other sub-categories of people may or may not be within the broader term “citizen.” However, it did so only after specifically identifying the narrower category “natural-born citizens.” Id. The Happersett Court clearly understood and established that “citizen” is a much broader term than “natural-born citizens.” Its discussion of “citizen” does not negate or alter its earlier definition of the term “natural-born citizens.” See Id. at 167-168. This precedent has never been questioned by any subsequent Supreme Court. This precedent is binding.
Not exactly.
Oh, I'm not disagreeing that the words of SCOTUS can be binding precedent.  Interestingly, though, the Liberty Legal website explains that Van doesn't argue from precedent.
Unlike most attorneys, Van refuses to begin legal arguments with the presumption that all court precedent is correct. Van always starts his legal analysis with the Constitution. 
Which may explain why Van doesn't actually pay much attention to the details of how binding precedent is supposed to work - or of what case law he cites actually says.
Let's start with the idea of binding precedent. It works this way (and I'm going to simplify this to focus just on relevant stuff or we'll be here all day).
When SCOTUS rules on exactly what a constitutional provision (of any other federal law or rule) means, lower courts have to accept that unless something happens to overturn it. (The constitution or statute or rule is amended, the Court decides it was wrong.)  But not everything SCOTUS says counts.  Much of what gets into court opinions, from the Supremes and other courts, is what lawyers, breaking out their Latin, call dicta.  It's just the bullshit that courts say along the way.  It's suggestive maybe, but it ain't binding. The only part that's binding is the actual rule the Court cooks up (if it cooks one up) necessary to resolve the case.
The "definition" (it's in quotes for a reason, you'll see) of "natural born citizen" in Minor is a dictum.  Virginia Minor wanted to vote.  Missouri said that women were not entitled to vote.  Minor said that the Privileges and Immunities Clause of the Fourteenth Amendment guaranteed her all the rights of citizenship - including the right to vote.  She'd lost in the lower courts but persevered to the Supreme Court.  There, Chief Justice Morrison Waite, writing for a unanimous Court, said that voting was not one of the rights of federal citizenship.
Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.
Note that who is and who isn't a natural-born citizen is wholly irrelevant to the question.  Oh, Waite prattles on at some length about how people become citizens and what it means to be a citizen and why even though the Constitution doesn't actually define the term it's pretty clear who is and who isn't.  Ostensibly, he does that to explain why it is that women can be citizens just as men can.  But it doesn't matter to the conclusion.  It's just so much bullshit as far as the point of the case.  If it contained a definition of "natural born citizen," the definition might be instructive, might be interesting.  It wouldn't be binding.
So Van Irion is just wrong about that.
But, and this is important, he's wrong about the other part, too.  That is, he's wrong to say that
The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.”
Oh, Minor uses those words and thereby says (in a dictum) that children born in any country of parents who were its citizens are "natural-born citizens."  What it doesn't do is exclude children born in a country whose parents were not its citizens from that category. Here's the paragraph.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, 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. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
Waite recognizes that there are naturalized citizens and there are citizens who are natural-born because they were born here and their parents were citizens.  It may be, he says, that citizens who are born here but whose parents were not are also natural-born citizens. No need to decide, he says, and doesn't.
Not to decide, is to decide goes the old adage. Van takes that seriously.  Waite said it wasn't necessary to decide whether people like Obama were merely citizens or were citizens natural born.  The Court's refusal to answer the question was an explicit and binding answer.
No.  That's not right.  It's not even coherent. 
Obama's lawyer didn't make that argument in his motion to dismiss.  He argued that Georgia Code § 21-2-5 didn't apply to the Democratic primary, which was stupid. And he didn't say that Weldon's argument on the merits was the veriest bullshit.  He said that no court has ever entertained an argument on the merits of any birther claim and, anyway, lots of people voted for Obama.  Which are essentially irrelevant claims.
And so the Honorable Michael M. Malihi did what judges do when the defendant makes a bullshit motion to dismiss a wholly frivolous lawsuit.  He denied the motion.
Accordingly, this Court finds that Defendant is a candidate for federal office who has
been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.
II. Decision

Based on the foregoing, the motion to dismiss is DENIED.
Apparently a hearing on the merits is scheduled for January 26 at 9 a.m.
I'm not planning to attend.


  1. I'm not a "birther", but I don't think your appraisal of the lawsuit as "frivolous" is fair.

    It isn't necessary for the Plaintiff to demonstrate that the SCOTUS has formally determined what a "natural born citizen" is in a binding ruling. The lawsuit wouldn't be "frivolous" even if the question were open, which I'm gathering it is.

    Accepting that the SCOTUS hasn't ruled one way or the other, what was said in Minor is consistent with the understanding of what "natural born citizen" means, or meant at the time the constitution was adopted.

    You can't be a "natural born" citizen unless your parents were citizens, although you can be a citizen. And actually, I think it might be a significant question whether one parent is enough.

    Interesting that Minor was post 14A. You might argue that the 14A repealed "natural born" by implication, I suppose, because of the P&I clause, but repeals by implication are "not favored", I'm sure you know.

    I hasten to add I'm not an expert on the meaning of "natural born citizen" either, just that I inquired about that long ago, before there was ever any controversy about a president Obama, and that's the answer that came up. The idea was that the president, who would lead the armed forces, should not be a newcomer. Easy enough for some foreign power (think England) to plant someone who could become a citizen after some number of years and potentially fund them all the way to the presidency in a grandiose fifth column type action. Harder to do that after a generation.

    That was the idea.

    Just my impression, cause I haven't read everything, but it seems to me the judge should make a ruling without fear or favor. If Obama's not a natural born citizen he's not constitutionally qualified. Certainly a court in Georgia could rule that way, if that's the way they see the law.

    We push things under the rug for perceived pragmatic political reasons all the time, of course, but that doesn't make it right.

  2. I didn't exactly say the lawsuit was frivolous. I said the motion to dismiss was denied as judges often deny bullshit motions to dismiss frivolous cases. Perhaps I could have been more clear.

    What is frivolous is the claim that Minor unambiguously, and as binding precedent, declared that only a person both of whose parents were citizens is a "natural-born citizen." Perhaps even then "frivolous" isn't the right word. The claim is flat-out false.

    I don't know how it is that you concluded otherwise. Minor says (albeit in dicta) that it's an open question. I'm not aware of it having been answered since, nor does it seem, is anyone else.

    As for Georgia, its courts can do what they want, of course, unless and until they get slapped down. It seems pretty clear to me based on US Term Limits v. Thornton that the only definition of the term that will matter (if it ever actually gets to the point of having to resolve the term) will be what SCOTUS says the Constitution meant.

    Again, maybe there's a principled argument for why a person must be a child of 2 citizens before being eligible to become president. But it's absolutely not the argument made in the memo in opposition.

  3. Maybe I get a little touchy about the word "frivolous".

    I agree that Minor doesn't decide the question. I agree that it's false to maintain otherwise, but that strikes me as overstating a case, not being frivolous. It's all right to cite dicta as some support, especially if there isn't any dicta to the contrary.

    And just to be clear, I don't much care what the answer is, beyond the idea that it does seem to me that under the traditional understanding of "natural born citizen", Obama isn't one, and it certainly wouldn't be wrong for the Georgia court to hold as much. It might not stick, but that's probably because of reasons other than what the constitution says about it all.