Posted on 09/07/2009 6:09:15 AM PDT by Free America52
The Justice Department is urging a federal court to toss out a lawsuit in which prominent birthers' attorney Orly Taitz is challenging President Barack Obama's Constitutional qualifications to be president.
In a motion filed Friday in U.S. District Court in Santa Ana, Calif., government lawyers did not directly rebut the conspiracy theory Taitz propounds that Obama was not born in Hawaii as he claims and as asserted by Hawaiian officials as well as contemporary newspaper birth notices. Instead, the federal attorneys argued that the suit is inherently flawed because such disputes can't be resolved in court and because the dozens of plaintiffs can't show they are directly injured by Obama's presence in office.
"It is clear, from the text of the Constitution, and the relevant statutory law implementing the Constitution’s textual commitments, that challenges to the qualifications of a candidate for President can, in the first instance, be presented to the voting public before the election, and, once the election is over, can be raised as objections as the electoral votes are counted in the Congress," Assistant United States Attorneys Roger West and David DeJute wrote. "Therefore, challenges such as those purportedly raised in this case are committed, under the Constitution, to the electors, and to the Legislative branch."
The birthers' suit claims that Obama is a citizen of Indonesia and "possibly still citizen of Kenya, usurping the position of the President of the United States of America and the Commander-in-Chief.”
Lieutenant Jason Freese and some other plaintiffs in the case claim they have a real injury because they are serving in the military commander by Obama, the alleged usurper. However, West and DeJute say that argument is too speculative.
"The injuries alleged by Plaintiff Freese and the other military Plaintiffs herein, are not particularized as to them, but, rather, would be shared by all members of the military and is an inadequate basis on which to establish standing," the government lawyers wrote.
Another plaintiff in the suit, Alan Keyes, is a three-time, longshot presidential candidate who ran most recently in 2008. Yet another is Gail Lightfoot, an ultra-longshot vice presidential candidate in 2008. The DOJ argues that they were not directly aggrieved by Obama's election because they never had a mathematical chance of winning.
"The [lawsuit] does not allege, nor could it allege, that any of these Plaintiffs were even on the ballot in enough states in the year 2008 to gain the requisite 270 electoral votes to win the Presidential election," the motion states.
The Justice Department brief takes a few shots at the wackiness of the birthers, accusing them of trafficking in "innuendo" and advancing "a variety of vaguely-defined claims purportedly related to a hodgepodge of constitutional provisions, civil and criminal statutes, and the Freedom of Information Act."
Those arguments notwithstanding, the DOJ lawyers were pretty kind to the birthers and to Taitz, since the filings in the case are replete with spelling errors, among others. Taitz submitted another purported foreign birth certificate for Obama last week in a filing labeled, "Kenian Hospital Birth Certificate for Barack Obama."
The case is set for a hearing Tuesday morning before Judge David Carter. There's a strong chance the session will devolve into something of a sideshow since a couple of plaintiffs in the case are now in a dispute with Taitz and have sought to bring in a different attorney to represent them in the case.
So enjoy Florida and who knows? It may actually vote Republican again some day.
The question of whether a quo warranto writ should issue in this case clearly involves nonjusticiable political questions, as discussed above. In addition, Plaintiffs’ attempt to invoke the writ suffers from numerous serious flaws that preclude this Court’s jurisdiction.
The authorizing statute for the District of
Columbia sets forth a number of requirements, including a
requirement that any quo warranto action be heard by the United States District Court for the District of Columbia. See D.C. Code Sections 16-3501 through 16-3503. Indeed, Plaintiffs acknowledge this requirement in their pleading, but seek to have this Court ignore it because of their apparent dissatisfaction with the precedents in the District of Columbia. See FAC at 35-36.4
Accordingly, for all of the reasons set forth above, this
Court lacks subject matter jurisdiction in re Plaintiffs’ claims and causes of action purporting to sound in Quo Warranto.
My Seizethecarp analysis:
DOJ concurs with Leo Donofrio that the US District Court for DC is the only court where a quo warranto action can be heard.
DOJ attempts to derail any quo warranto filing in DC by asserting that “…whether a quo warranto writ should issue in this case clearly involves nonjusticiable political questions…”
DOJ is attempting to define any legal proceedings regarding whether or not Obama was eligible or is now ineligible based on new evidence, or may have hid his ineligibility as litigation of a nonjusticiable political question.
Nonjudiciable political questions are questions that can only be resolved by impeachment in the House and trial in the Senate and cannot be brought as a quo warranto action, according to DOJ.
Of course, this DOJ theory of presidential immunity to quo warranto has never been tested. This will be their defense if an action is brought in DC District Court.
From Orly’s Facebook page: Someone posted that the hearing was delayed in starting until 11:00 Pacific and has now ended. Updates should come soon.
Sep 8, 2009 - 12:54PM QuoteReply Re: Orly’s Hearing Delayed for a Short Time
I now know the hearing began at 11:00 Pacific and is over but no further report yet...should be soon I hope. :)
1. Service of process... was accepted (as predicted)
2. Judge ordered Orly and Kreep to work together, over their objections
3. is the motion to recuse Judge Nakazato, and no report on decision on that yet.
Those are the 3 issues that were before the court today, so only one left to report on.
Hearing began at 11:00 Pacific. Was delayed. Now over. See #604.
I saw that after I posted. Thanks!
Growing up in Ohio, we used to fly down to hunt and fish on a family friends land in east central Florida. We loved the annual treks but even in December, mosquitoes could be brutal.
http://www.freerepublic.com/focus/bloggers/2334836/posts
Justice Carter recessed the court at 12.30 pst 9/8/09
His rulings
10/5/09 Defense Motion to Dismiss to be heard. Carter indicted only a very strong compelling reason would move him to dismiss at this point. He will review the defense’s 9/4/09 MTD. He wants to hear the case on it’s merits. Discovery to be ordered 10/5/09 if MTD is thrown out.
1/11/10 Pre Trial Set- procedural for other motions, depositions, scheduling, etc
1/26/10 Trial Date Set- Earliest available date for Justice Carter.
So then SCOTUS in 1923 violated its own Precedents and the Precedents of American Jurisprudence that served the people of the U.S. well from 1789 to 1923 in order to establish its own self-serving Precedent that now only serves itself.
***
Not exactly - it serves well in general practice, but many judges hide behind it when they are confronted with an action that they do not wish to decide ...
But, you are right - in 1923 the Supreme Court created a doctrine out of nothing ...
DOJ concurs with Leo Donofrio that the US District Court for DC is the only court where a quo warranto action can be heard.
DOJ attempts to derail any quo warranto filing in DC by asserting that “…whether a quo warranto writ should issue in this case clearly involves nonjusticiable political questions…”
DOJ is attempting to define any legal proceedings regarding whether or not Obama was eligible or is now ineligible based on new evidence, or may have hid his ineligibility as litigation of a nonjusticiable political question.
Nonjudiciable political questions are questions that can only be resolved by impeachment in the House and trial in the Senate and cannot be brought as a quo warranto action, according to DOJ.
Of course, this DOJ theory of presidential immunity to quo warranto has never been tested. This will be their defense if an action is brought in DC District Court.
***
Except, of curse, this is not a political question - it is clearly a constitutional question ...
I think DOJ is grasping at straws ...
The text on that link assumes that Congress has the power to define who is a "natural born citizen". But of course Congress has only been delegated the power to defined uniform rules of naturalization.
In some cases that might be possible. For instance if the serial numbers were never issued, or were duplicative of those known to be elsehwere.
The same could happen with the posted COLB. It's file number could be duplicative of another birth certificate. There is something funny about the file number you know. Just what that "funnyness" means is not yet determined.
Which reminds me, in addition to asking for Obama's birth records, Orly et. al. should supponae a redacted copy of the Certificate for file number 151 61 - 010641. Just the middle name and birth date could be left unredacted.
I would not be surprised if the birthdate is August 5th or 6th, and the middle name is *not* Hussein.
bttt
Not in Obama's defense. It's related to his eligibility, not his duties. He was not being sued in the capacity of President. Since that is what is at issue, how could he be? His wife is also a defendant.
The DOJ does have the obligation to act for those executive branch officers, SecState, SecDef, VP & President of the Senate, who were named in their official capacities.
Much the same way that we know 0bama's selective service registration card is fraudulent. He simply couldn't have signed and dated it two years before that revision of the form even existed...
Eventually, but intitially it was a civil suit for sexual harrasment. In that suit he was not defended by the DOJ, nor investigated by them. He was represented by Robert S. Bennett
What about class action lawsuits then?
Yes, I’m aware of that. Clinton wasn’t entitled to DOJ attorneys in the civil suit because the sexual harassment of which he was accused took place when he was Governor of Arkansas not while he was a sitting POTUS.
If you read further in this thread, you’ll find that I’ve explained why Clinton was not entitled to DOJ representation in any of the three instances about which MestaMachine asked me.
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