Thomas Breaks Tradition: Forces Supreme Court to Look at Obama Citizenship Case

U.S. Associate Supreme Court Justice Clarence Thomas

By James Wright
AFRO Staff Writer

(December 3, 2008) - In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obama’s status as a United States citizen.

Thomas’s action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.

The court has scheduled a Dec. 5 conference on the writ -- just 10 days before the Electoral College meets.

The high court’s only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Donofrio is a retired lawyer who identifies himself as a “citizen’s advocate.” The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obama’s citizenship.

Calls made to Donofrio’s residence were not returned to the AFRO by press time.

Donofrio is questioning Obama’s citizenship because the former Illinois senator, whose mom was from Kansas, was born in Hawaii and his father was a Kenyan national. Therefore, Donofrio argues, Obama’s dual citizenship does not make Obama “a natural born citizen” as required by Article II, Section I of the U.S. Constitution, which states:

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President…”

...to prevent the meeting of the Electoral College on Dec. 15, which
will certify Obama as the 44th president of the United States...

Donofrio had initially tried to remove the names not only of Obama, but also the names of Republican Party presidential nominee John McCain and Socialist Workers’ Party Roger Calero from appearing on the Nov. 4 general election ballot in his home state of New Jersey.

McCain was born in the Panama Canal Zone when it was a U.S. possession. Calero would be ineligible to be president because he was born in Nicaragua.
After his efforts were unsuccessful in the New Jersey court system, he decided to take his case to a higher level.

On Nov. 6, Souter denied the stay. Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.

Donofrio’s choice was Thomas. He submitted the emergency stay to Thomas’s office on Nov. 14. Thomas accepted the application on Nov. 19 and on that day, submitted it for consideration by his eight colleagues - known as a conference - and scheduled it for Dec. 5.

On Nov. 26, a supplemental brief was filed by Donofrio to the clerk’s office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerk’s office.

Thomas’s actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.

Morrison said that Thomas’s actions are once in a decade. “When that does happen, the case has to be of an extraordinary nature and this does not fit that circumstance,” he said. “My guess would be that Thomas accepted the case so it would go before the conference where it will likely be denied. If Thomas denied the petition, then Donofrio would be free to go to the other justices for their consideration.

“This way, I would guess, the matter would be done with. Petitions of Donofrio’s types are hardly ever granted.”

Traditionally, justices do not respond to media queries, according to a spokesman from the Supreme Court Public Information Office.

Thomas was appointed to the Supreme Court by President George H.W. Bush in 1991 and has been one of its most conservative members.

Before his ascension to the court, he was appointed by Bush to the U.S. Circuit Court of Appeals for the District of Columbia. Earlier, he served as chairman of the Equal Employment Opportunity Commission - appointed by President Reagan - and worked various jobs under former Republican Sen. John Danforth.

It would take a simple majority of five justices to put Donofrio’s emergency stay on the oral argument docket. Because it is an emergency by design, the argument would take place within days.

Donofrio wants the court to order the Electoral College to postpone its Dec. 15 proceedings until it rules on the Obama citizenship. He is using the 2000 case Bush vs. Gore case as precedent, arguing that it is of such compelling national interest that it should be given priority over other cases on the court’s docket.

“The same conditions apply here,” Donofrio said in his letter to the court, “as the clock is ticking down to Dec. 15, the day for the Electoral College to meet.”

Audrey Singer, a senior fellow at Washington’s Brookings Institution, who is an expert on immigration, said that the Donofrio matter is “going nowhere.”

“There is no way that anyone can argue about whether Barack Obama is a citizen,” Singer said. “In this country, we have a system known as jus soli or birthright by citizenship. You are a citizen by being born on American soil and he (Obama) was born in Hawaii.”

Singer said that Donofrio’s argument that Obama’s father was a Kenyan national does not matter because citizenship is not based on parentage, but on where someone was born.

“This is the issue that some people have with illegal aliens in our country,” she said. “Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.”

No, not ALL people born in the United States are NATURAL BORN citizens.

Please read the following carefully:

NO 14th Amendment citizen can be President. Regardless of HOW they achieve their citizenship. 14th Amendment citizenship is given under MULTIPLE circumstances.

People BORN in the United States to one US citizen are ‘citizens of the United States’ as defined in the 14th Amendment. Barack Obama has said he’s a 14th Amendment citizen. This is because he was BORN in the United States to ONE US citizen and ONE UK citizen.

People NATURALIZED in the United States are ‘citizens of the United States’ as defined in the 14th Amendment.

It is the SAME ‘level’ of citizenship given under different circumstances.

Please read the 14th Amendment. It grants the same level of ‘citizenship’ to those BORN OR NATURALIZED in the United States, AND subject to the jurisdiction thereof.

One must be either:

Born in the United States and subject to the jurisdiction thereof (Barack)

Naturalized in the United States and subject to the jurisdiction thereof (Arnold).

They are BOTH recognized as Citizens of the United States under the 14th Amendment.

NEITHER can be President.

Just like an anchor baby couldn’t be President. They get their 14th Amendment citizenship from merely being BORN in the United States. Well, provided they aren’t any of the following:

(1) Children born to foreign diplomats
(2) Children born to enemy forces engaged in hostile occupation of the country’s territory
(3) Indians

The three listed about do not achieve US citizenship by merely being born in the United States because they are not ‘subject to the jurisdiction thereof’.

‘Subject to the jurisdiction thereof’ means COMPLETE jurisdiction of the United States.

The US has complete jurisdiction over Barack upon birth because he was none of the three things listed above.

The US has complete jurisdiction over an anchor baby that is none of the three things listed above.

The US has complete jurisdiction over Arnold because he is naturalized.

All three were born OR naturalized in the United States AND all three were ‘subject to the jurisdiction thereof’ but NONE can be President.

They are ALL Citizens of the United States as recognized by the 14th Amendment.

Same level of citizenship for them all, regardless of how they got it.

No, I am not reading into it too much. You aren’t reading it properly.

The 14th Amendment deems ‘citizenship’ to those who are either:

BORN in the United States AND subject to the jurisdiction thereof

NATURALIZED in the United States AND subject to the jurisdiction thereof.

Barack Obama would fall into the first category and so would an ‘anchor baby’. Both by being BORN on US soil AND being subject to the jurisdiction thereof. They are citizens of the United States as defined in the 14th Amendment.

Arnold would fall into the second because he was NATURALIZED in the United States AND was subject to the jurisdiction thereof.

The 14h Amendment grants the same ‘level’ of citizenship to all three people. If Arnold can’t serve because he is ‘only’ a citizen of the United States, then neither can Barack Obama or Wong Kim Ark because they are ‘only’ citizens of the United States as well.

There are two types of citizens:

(1)Natural born citizens of the United States (can be President)

(2)Citizens of the United States (cannot be President)

Barack is a citizen of the United States (BORN in US to one foreign citizen)

Arnold is a citizen of the United States (NATURALIZED)

Wong Kim Ark was a citizen of the United States (BORN in the US to two foreign citizen)

A natural born citizen requires no STATUTE to achieve their natural born citizenship.

Obama, Arnold, and Anchor Baby all receive their citizenship via the SAME Statute (14th Amendment).

I agree with you on the ambiguity, and in fact, this is my main reason for hoping/insisting if I really could that the SC weigh in, we need ALL of this clarified. In my example, if tourists on a visit happen to birth a child, he is considered a natural-born citizen according to the presidential requirement, what then stops an enemy-country from sending a female here, she has her baby, but takes him back to her country for indoctrination/America hating, etc., only to have him come back here in time to meet the residency requirement and then run for president? Carrying that kind of mindset?? No way, I say this simply cannot be tolerated.

I don't want 0bama forced to show his vault copy birth certificate to defeat him, shove him out, *overturn the will of the people* -- I want him to show his vault copy to indeed prove he does meet the simple Constitutional requirement. For if he does not, if he truly does not satisfy, even for a mere *technicality* but is allowed to hold the office, ignoring that part of the Constitution, than ANY citizen may ignore ANY part of the Constitution as well, bad precedent. Or any other person who misses the requirement for another mere *technicality* must also be allowed the office, another bad precedent.

It is way beyond time we stop allowing people to run for federal office on the "say so" method, either the states, legislatures or the political parties set up a system whereby they verify that any person who wishes to run for office meets the citizenship/residency requirements, for the president, the natural-born status. No more of this idea that we have to prove they don't, that is silly on its face -- one cannot prove a negative.

Thanks for the reply.

You are incorrect. I am not trying to create a third type of citizen. Our Constitution recognizes TWO types of citizens:

(1) Natural born citizens of the United States (can be President)

(2) Citizens of the United States (cannot be President)

We don’t need the 14th Amendment to define natural born citizen (#1).

The 14th Amendment defines citizens of the United States (#2).

The 14th Amendment defines how one achieves the title ‘citizen of the United States’. As stated, there is more than ONE WAY to become a citizen of the United States.

One can be BORN in the US AND subject to the jurisdiction thereof (Obama or Wong Kim Ark)

One can be NATURALIZED in the US AND subject to the jurisdiction thereof.

Under the 14th Amendment they are given the SAME type of citizenship.

Wong Kim Ark = citizen of the United States
Barack Obama = citizen of the United States
Arnold Schwarzenegger = citizen of the United States

Because all of them were either, in accordance with the 14th Amendment:

(1)BORN in the United States AND subject to the jurisdiction thereof

(2)NATURALIZED in the United States AND subject to the jurisdiction thereof.

Again, there are TWO types of citizens:

Natural born citizens of the United States (achieved ONE way)

Citizens of the United States (achieved various ways)

Again, Obama’s campaign has ADMITTED he is a 14th Amendment citizen.

14th Amendment citizens are citizens of the United States. They are not natural born citizens of the United States.

Where are you getting that definition from? Subject to jurisdiction simply means being subject to the laws of that nation. Other than diplomats and a few other unusual exceptions, everyone in the US is subject to this country's laws.

Why do I have to show you this???

Secretary of State Bayard ruled under Section 1992 of U.S. Revised Statutes in 1885 that although Richard Greisser was born in the United States, his father at the time of his birth was a subject of Germany, and thus, Richard Greisser could not be a citizen of the United States. Furthermore, it was held his father was not subject to the jurisdiction of the United States under the Fourteenth Amendment.

The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. … The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

Additionally, Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.”

What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child the return in later life to reside in this country bringing with him foreign influences and intrigues.

Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.

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