Donofrio's take on today's ruling (re: Carter court).
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Posted on 10/29/2009 5:25:46 PM PDT by rxsid
Judge Carter: “The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district.”
I was impressed with the integrity of Judge Carter’s ruling today. It gives me hope that the POTUS eligibility issue will eventually have its day in court on the merits.
POLITICAL QUESTION DOCTRINE.
Congress is the branch the Constitution empowers to remove a sitting President. The power to judicially enforce any review of POTUS eligibility is a pre-requisite to judicial involvement as the federal courts do not have the power to issue simple advisory opinions. A declaratory judgment is more than an advisory opinion. This is because a declaratory judgment must have the power of enforcement attached whereas an advisory opinion does not.
The declaratory judgment requests of plaintiffs in the Barnett case had to be dismissed because the court does not have subject matter jurisdiction to grant the requested relief. It’s really that simple. Judge Carter’s analysis of this issue was perfect.
QUO WARRANTO
Because a quo warranto is the only proper action to review the eligibility of a sitting President – and because such an action requires a trial of facts - Congress empowered the DC District Court to hold such a trial (by jury if requested by either party) when the eligibility of the President (or any US national office holder) is called into question.
There is no political question doctrine defense available to a sitting President for a quo warranto brought in the DC District Court. This is because Congress properly exercised its Constitutional authority to review a President’s eligibility via the quo warranto statute which also provides for the removal of an ineligible person from that office if necessary.
The US Attorney General and the US attorney have been empowered by Congress to institute a quo warranto on their own volition. Furthermore, any person may request that these officers do the same. If consent is not given by the DOJ, section 3503 of the quo warranto statute allows an “interested person” to petition the DC District Court on its own. The Barnett plaintiffs failed to avail themselves of this option.
Additionally, the Department of Justice has created a genuine conflict of interest as to 3502 requests by any “third person” (meaning any citizen). By defending the President in this eligibility litigation involving quo warranto, it isn’t possible for the Department of Justice to remain impartial.
Therefore, either a special prosecutor must be named for purposes of allowing the Congressional intent of the quo warranto statute to be realized, or the DC District Court may waive the requirement and examine any verified petition on its own consent.
The conflict will eventually be tested in the DC District Court.
Meanwhile, it’s important for me to point out that everything I have told readers of this blog about quo warranto was confirmed by Judge Carter today.
JUDGE CARTER DID NOT HOLD THAT QUO WARRANTO WAS IMPROPER TO CHALLENGE THE ELIGIBILITY OF A SITTING PRESIDENT.
This was the most extraordinary part of today’s ruling. It opens the door wide for a proper eligibility challenge in the DC District Court where the hurdle for standing is different from ordinary federal cases.
Please take note that the Department of Justice attorneys argued before Judge Carter that quo warranto – even if brought properly in the DC District Court – could not be used to challenge the eligibility of a sitting President. Judge Carter’s ruling did not support the Department of Justice position.
The ruling today affirms that the proper venue for challenging the eligibility of a sitting President is the DC District Court.
This is a very encouraging ruling for those contemplating a quo warranto challenge to President Obama’s eligibility in the DC District Court.
THE ONLY SIGNIFICANT ERROR
The only part of today’s ruling I take issue with is footnote 3 on page 22 where Judge Carter assumes that since Congress has the Constitutional authority to enact legislation regarding naturalization and citizenship by statute that they also have the power to define the meaning of “natural born citizen”.
But Congress has not defined “natural born citizen” while they have defined “naturalized citizen” and “citizen by statute”. Since neither the Congress nor the courts have defined “natural born citizen”, we are left without a legal working definition.
Faced with a sitting President who admits to having been a British citizen at birth, the need for a quo warranto to be instituted is of the utmost importance to the future of this nation.
Here is Judge Carter’s correct ruling on the quo warranto issue:
C. Quo Warranto Claims…The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district. The quo warranto provision codified in the District of Columbia Code provides, “A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military.” D.C. Code §§ 16-3501 – 16-3503. Should a person other than the Attorney General of the United States or the United States Attorney wish to bring a quo warranto claim, that person must receive leave of court to do so. Id. at § 16-3502. This leave of court must be granted, according to the text of the statute, by the District Court for the District of Columbia.
Nothing in this rule appears to question the power of the DC District Court to issue a writ of quo warranto to President Obama which would require him to prove his eligibility to hold the office of President. I must comment Judge Carter for his exercise of judicial restraint on this issue."
Donofrio's take on today's ruling (re: Carter court).
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Leo mentioned on his site before this that he would not be posting to his blog but taking legal action. Leo has a lot of heart and is fighting the fight along with Miss Trickly and others.
Meanwhile, it’s important for me to point out that everything I have told readers of this blog about quo warranto was confirmed by Judge Carter today.JUDGE CARTER DID NOT HOLD THAT QUO WARRANTO WAS IMPROPER TO CHALLENGE THE ELIGIBILITY OF A SITTING PRESIDENT.
This was the most extraordinary part of today’s ruling. It opens the door wide for a proper eligibility challenge in the DC District Court where the hurdle for standing is different from ordinary federal cases.
Please take note that the Department of Justice attorneys argued before Judge Carter that quo warranto – even if brought properly in the DC District Court – could not be used to challenge the eligibility of a sitting President. Judge Carter’s ruling did not support the Department of Justice position.
The ruling today affirms that the proper venue for challenging the eligibility of a sitting President is the DC District Court.
This is a very encouraging ruling for those contemplating a quo warranto challenge to President Obama’s eligibility in the DC District Court.
~~PING!
Is Leo pursuing this avenue of action?
Other than being a world-class poker player, Donofrio is one smart legal beagle. I think they’re intimately related vocations.
The question in my mind is, will he get the thing in the proper court with the proper argument. Too many jurists are running scared from this issue.
Carter, too, is a smart jurist.
If the Republicans take control of the House in 2010 I wonder if they will have the balls to look into the issue?
His latest posting may be a kind of "I told you so" (that the case before judge Carter wouldn't go forward), but with his reiteration that the QW in the DC courts is really the only way forward.
Let’s play a hypothetical. Play along with me on this one.
A President and Vice President are killed. In haste, the Chief Justice of the United States Supreme Court swears in the Speaker of the House as President.
After the swearing in, it is learned that the Chief Justice didn’t ask the age of the Speaker of the House, and just assumed that they were old enough per the Constitution. He just assumed and didn’t know that the new President was NOT qualified due to age.
Now the newly sworn in President CLAIMS that they are old enough, but refuses to release their birth certificate to the public.
Just who has legal authority for review after the Speaker of the House has been sworn in as President? According to this ruling, it isn’t the judicial branch. Because no crime has been committed, the President can’t be impeached, so it isn’t the legislative branch (and because the Speaker of the House is from the majority party, that party controls the House as well). The President is chief executive over the executive branch so they wouldn’t out themselves.
So I ask again, who would have legal authority?
I certainly don’t get it.
Is Leo pursuing this avenue of action?
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Good question. My assumption (based on some of his posts) is that he's either actively working on another (eligibility) lawsuit(s) or is researching the viability of some potential ones.
For me, in part, it will all depend on if enough true conservatives (& not more RINO's) get elected.
The only problem I have with this is that the District of Columbia may be the most corrupt and the most leftist jurisdiction of any in the country. So what are the odds?
I say more power to all of them, for pursuing this in any way possible. This strikes me as being a hard fight to win. But the more we can keep it alive, the better.
Rush does a lot of “I told you so’s” too. The only good news was he mentioned that the judge said that is the right place and hopefully Leo is working on a case with some people.
He has been coming out with some of the best research with Miss Trickly and some research volunteers Leo appears to be working with.
Let’s hope that the law is followed and justice is done.
Ping
For him to have a case heard he has to get a prosecutor to agree to take the case and then a judge to decide to hear the case. What do you really think the chances of that are?
We have yet to see Leo actually do anything except talk after his supreme court appeal was turned down. Much of his talk involved taking pot shots at all the lawyers actually working to get the case before a judge over the past 9 months rather than him moving forward with his own case.
I’ll be so thankful if he is actually successful in his selected course of action, but I am not holding my breath on this one. I will be thankful if he even takes action in an attempt to have his case heard. That will be progress of his slam book blogging and inactive pontificating.
I don't get it either. They all seem to be pointing at the other "guy" saying, it's not my job...it's theirs!
I've posted this elsewhere, but it bears repeating, IMO:
From Judge Carter's ORDER:
"The Court must establish that it has jurisdiction before it may reach the question of interpreting the natural born citizen clause of the Constitution."This statement is found in the SCOTUS brief overview:
"Jurisdiction. According to the Constitution (Art. III, §2): “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution"http://www.supremecourtus.gov/about/briefoverview.pdf
Apparently, "we" are all supposed to believe the party line that a question specific to Article II, Section 1 Clause 5 in the CONSTITUTION itself (& not some election law, or state law, or statue, etc) is something the "judicial" branch can not address. Carter and all the other judges that ruled the judiciary doesn't have jurisdiction is, IN PLAIN SITE, contradicting the Constitution.
May I post it with attribution on this thread I started?
Or would you like to do it yourself, and join the fun there?
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