[nathanbedford]

I would be grateful for your reaction to this reply I posted yesterday:

The situation as I see it in a nutshell is that there is no affirmative proof of birth anywhere except Hawaii. That is, there is affirmative proof of birth in Hawaii. Please note, I did not say there is conclusive proof of birth in Hawaii merely that there is evidence thereof. So whoever gets to decide this issue would have to say that the mere anomalous nature of Obama’s refusal to authorize disclosure of the birth certificate is somehow evidence that he was born elsewhere than in Hawaii merely because his refusal to release his birth certificate is strange and runs counter to human experience and suggests that the man has something to hide. I know of no forum that admits to substituting motive for evidence. I know of no forum which says that in the absence of any evidence we will overrule contrary evidence because of motive, in this case the presumed motive to hide ineligibility if he is in fact ineligible.

I use the expression “forum” because it is not at all clear to me that it is the federal courts alone who have jurisdiction to decide this issue. It might be that the matter is conclusively decided by the secretaries of every state certifying elections, or by the legislatures, or by the House of Representatives, where the president of the Senate, all of whom play some role in the election of United States presidents. It is the House and the Senate which have jurisdiction over impeachments (although the Chief Justice presides) and not the Supreme Court. This is no doubt partly because it was contemplated by the founders that the removal of the president for high crimes and misdemeanors was partially a political proceeding and not a justiciable one.

So we see that the nature of impeachment is somehow different from a proceeding based on in eligibility of a sitting president-or maybe not.

The Constitution does not provide explicitly for a body to adjudicate eligibility after the president was sworn in. Please see the 20th amendment quoted in part:

3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Once the failure of the President-elect to qualify is determined, the Constitution creates a responsibility and power in the Congress to sort it out. One can draw intriguing inferences from this about the intent of the framers of this amendment in 1933, but nothing is clear or sure and it does not necessarily mean that one can extrapolate from this to an argument over eligibility after the president is sworn in and say that the Congress shall act as it sees fit. Furthermore, the amendment merely assumes the existence of a failure to qualify and not the test or the forum.

So when we ask the question, “what if,” about what we might find in the Hawaii vault and the implications of the existence or nonexistence of certain documents like a longform birth certificate, we have to think, are we asking a political question, a legal question, constitutional question? And if were asking any of these questions we must next ask, who is decide it, a judge, the electors, the House of Representatives, the Supreme Court, or the court of public opinion?

Once we determine all of these things, somebody can weigh the evidence or the absence of evidence and apply presumptions of law and decide whether motive should overcome proof.

[butterdezillion]

I’ll respond more later since I’m headed out the door right now, but I would say that we have evidence that both the HDOH and Abercrombie are contradicting themselves, breaking laws, and deceiving the public. That is positive evidence that something is wrong.

And Hawaii has NEVER said they have LEGALLY VALID records for Obama. They HAVE said indirectly in official communications that they DON’T. So if we go just by what the HDOH has actually said, we would conclude that Obama has an amended BC that is not legally valid. Nothing Fukino has said contradicts that, although she IMPLIED that they have legally valid vital record for him, and everybody considered that conclusive because she never DIRECTLY said the records were non-valid. She did say it indirectly though.

At this point it is too late to get Obama out before 2012. The process of appeals would take too long. What we can do now is keep him from getting in again by states requiring disclosure of birth and citizenship documents and the transaction logs which would reveal any forgery or tampering. If Obama runs again and submits forged documents there would already be a built-in court case to discover and rule on that.

So passing these state eligibility bills is what we can do, giving the courts jurisdiction to decide what has to be decided judicially and creating a situation where Obama cannot get on a ballot unless he files suit in court and thus forces the courts to address the issue.

Oops. I typed too long. I’m off...

[butterdezillion]

Okay. Responding further...

The 20th Amendment doesn’t explicitly say who is supposed to determine whether or not the President elect has “failed to qualify” by Jan 20th.

Article III, however, says that the judiciary is to decide “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ..... to Controversies to which the United States shall be a Party...”

Congress does not have the authority to determine Presidential eligibility because they have no authority to decide cases and controversies arising from the Constitution - either in Law (as in defining “natural born citizen” or in fact (as in deciding whether Obama meets the definition of “natural born citizen”). Even if there were objections to a state’s electoral votes on the basis of eligibility, Congress could not decide eligibility; they would have to refer it to the judiciary.

Congress WAS explicitly given authority to decide eligibility for their OWN MEMBERS - which would have been the ideal time for the framers to give them authority to decide eligibility for POTUS also, if that was the intent. But I strongly doubt that was their intent because it would violate the whole purpose for having a judiciary that interprets and applies the Constitution. The separation of powers was very important to the framers.

Congress can declare the electoral winner, but they can’t rule whether or not a President elect has “failed to qualify”. They can’t rule that he/she qualified or failed to qualify. Only the judiciary can do that. If there is no case or controversy brought forward the court has nothing they can decide so the presumption is that there is no problem.

But there WERE cases pending for the judiciary to decide this issue, and they were not decided by the time that Jan 20th got here. Including the question of whether Obama had ever actually lawfully been declared the electoral winner, since Cheney failed to ask for objections to the electoral votes as required by law. The court had a case suing Cheney and Congress for breaking the law, and the resulting question is whether the electoral vote was ever lawfully certified since the requirement of the law had not been completed.If it had been a Miranda warning he had “just forgotten” a whole case could be thrown out.

So as of Jan 20, 2009 there was an official legal/judicial question of whether Obama had qualified, meaning on that date there was neither a “yes” or a “no” answer to whether he had qualified. IOW, he had not specifically qualified.

The 20th Amendment has required Joe Biden to “act as President” since then - if, indeed, the electoral vote was lawfully certified. But that could not be known because that was an issue that SCOTUS still had to decide.

This is confusing stuff. This is all IMHO, which is all I can really go by, because the court has refused to decide the cases. What I get from it all is that if SCOTUS refuses to do its duty and decide critical cases like these, they put this nation’s security at grave risk.

It’s like a hockey game with no rules and nobody to officiate. Bedlam.

I don’t see the 20th Amendment mentioning the oath of office at all. The oath of office seems irrelevant to me, for 20th Amendment purposes. The term begins at noon on Jan 20th regardless of the oath of office, and the requirement that the VP elect “act as President” is independent of any mention of oath of office.

The Chief Justice cannot determine eligibility outside of a case. Administering the oath of office is not a ruling that the President elect is eligible. That could only be done by the COURT, not by one individual acting outside the authority of the court. So I don’t understand what difference the oath of office would make.

Sadly, I think it is too late for SCOTUS to undo the damage they’ve done for the 2008-2012 presidential term. They have abdicated their responsibilities and I don’t see them ever doing anything to correct that, unless Congress will impeach Sotomayor and Kagan for the ethics violation of refusing to recuse themselves from cases where they have a glaring personal and financial conflict of interest. Sad, sad thing. We have no Constitution at all, when SCOTUS refuses to interpret it.

So all the questions about this are sort of academic right now.

What we CAN do is make sure that it never comes to this again. The country cannot afford this. We need at least one state to enact an eligibility bill which would create such a clear-cut situation of both standing and justiciability that the courts CANNOT refuse to hear the case on its merits. The bill that I think can do that is at http://butterdezillion.files.wordpress.com/2011/01/final-short-form-eligibility-bill1.pdf .

That’s what needs to be the focus of every person who cares about the Constitution, the rule of law, and the distrust and non-credibiilty that this whole fiasco has spawned.