The Court and Congress Expected the Other to Resolve the Obama Eligibility Question

A Place to Ask Questions to Get the Right Answers ^ | 4-17-10 | Mario Apuzzo

[STARWISE]

On Thursday, April 15, 2010, Hon. U.S. Supreme Court Justice Clarence Thomas was giving testimony before the House Appropriations Subcommittee on the issue of the composition of the United States Supreme Court.

The hearing was broadcast on C-Span. Subcommittee Chairman, Rep. Jose Serrano, D-NY (now the most senior Member of Congress of Puerto Rican descent), and he were having a pleasant exchange.

Rep. Serrano was explaining to Justice Thomas how he feels “a little uneasy” despite much of the dismay of his friends on the “left” about having a hearing for the Supreme Court because of the respect that he has for the Court.

He added that it was “humbling” but that the public understood the importance of what the Court does and the impact that it has on the future of our country.

Justice Thomas thanked Rep. Serrano for his words. Rep. Serrano then jumped in and commented on Justice Thomas’ view on who can sit on the Supreme Court. The following exchange occurred:

Rep. Serrano: I’m glad to hear that you don’t think that there has to be a judge on the Court because I am not a judge. I have never been a judge.

Justice Thomas: And you don’t have to be born in the United States. So you never have to ask, answer that question (smiling).

Rep. Serrano: Oh, really?

Justice Thomas: Yeah (the audience laughing).

Rep. Serrano: So, you haven’t answered the one whether I can serve as (Justice Thomas interjecting) President but you answered this one (smiling).

Justice Thomas: We’re evading that one (laughter from Justice Thomas and the audience). We are giving you another option (more laughter from Justice Thomas and the audience).

Rep. Serrano: Thanks a lot.

Justice Thomas: Thank you, Mr. Chairman.

Rep. Serrano: Mrs. Emerson.

Mrs. Emerson, Ranking Members, then starts to address Justice Thomas as he continues to laugh.

The YouTube video may be viewed at http://www.youtube.com/watch?v=O7qEH-tKoXA&feature=player_embedded. A biography on Rep. Serrano may be found at http://serrano.house.gov/Biography.aspx.

What does all of this mean in relation to Obama’s eligibility question? What is the message behind all the joking, laughter, and body language that can be viewed on the video?

From Justice Thomas’ first mentioning that one does not have to be born in the United States to sit on the U.S. Supreme Court, it appears that Justice Thomas is telling Congress that the Court is angry with Congress for allowing Obama to sit as President even though there is a reasonable doubt as to whether he was born in the United States.

Rep. Serrano read the real message of Justice Clarence’s statement and let him know about it, saying “Oh, really.”

Rep. Serrano did not like Justice Thomas blaming Congress for the mishandling of the matter so he shoots back at Justice Thomas by telling him the Court failed to answer the Obama eligibility question when it should have but now is answering the question of whether someone who is not born in the United States can sit on the U.S. Supreme Court.

From this comment we can conclude that Congress did not believe that it was its job to answer the question of whether Obama is eligible to be President and expected the judicial branch of government to answer that question.

This is borne out by the many letters that Congressmen wrote to concerned Americans on the question of what was being done to address the issue of whether Obama was eligible for the Presidency.

Justice Thomas then answered that the Court is “evading that one” and giving Congress “another option.” Here we can see that the Court is telling Congress that it avoided addressing the Obama eligibility issue so Congress could resolve it through the political process, giving Congress some other unknown “option” to resolve the crisis.

We can only speculate what that other “option” is at this point.

Needless to say, it appears that both Congress and the Court are angry at each other for the constitutional crisis that each accuses the other to have caused regarding the Obama eligibility question.

The Obama eligibility issue has run its course through the political process. We can reasonably expect Obama to run for a second term. We surely do not want to repeat during Obama’s second run for President what occurred during his first.

We cannot reasonably expect to resolve the question of whether Obama was born in Hawaii and the meaning of the “natural born Citizen” clause by way of Americans voting at the polls.

This issue is not going away. It is dividing our nation and needs to be decided as soon as possible. There is now no other way to resolve the question of Obama’s eligibility other than through the legal process.

As Chief Justice John Marshall so well taught in many of his important U.S. Supreme Court decisions, there is no doubt that the judicial branch of government is well equipped and capable of deciding this critical issue of constitutional law and by doing so will not interfere in the work of the other two branches of government.

The Kerchner et al v. Obama/Congress et al case which is now pending in the Third Circuit Court of Appeals in Philadelphia with a tentative merits hearing date of June 29, 2010 gives the judicial branch of government the prime opportunity to put this constitutional crisis finally to rest one way or the other.

Mario Apuzzo, Esq. April 17, 2010 http://puzo1.blogspot.com/

[American Constitutionalist]

" Rep. Serrano did not like Justice Thomas blaming Congress for the mishandling of the matter so he shoots back at Justice Thomas by telling him the Court failed to answer the Obama eligibility question when it should have but now is answering the question of whether someone who is not born in the United States can sit on the U.S. Supreme Court.
From this comment we can conclude that Congress did not believe that it was its job to answer the question of whether Obama is eligible to be President and expected the judicial branch of government to answer that question.
This is borne out by the many letters that Congressmen wrote to concerned Americans on the question of what was being done to address the issue of whether Obama was eligible for the Presidency.


Folks ? what this DOES tell us is ? that ? Congress knows that this is a big problem and that they are very aware of it because they are hearing from a lot of people and no, this is not some fringe movement or idea like what some would have us to believe, but, it is a big national problem that either the court or congress needs to address....

[American Constitutionalist]

If this were not about Obama’s eligibility, why then ? would Justice Thomas bring up the thought of someone doesn't even have to be born in the United States to sit on the Supreme Court ? what was his point to even bring it up at all ?

[STARWISE]

Speculating, but since he and Thomas have
have had a professional working relationship
for over 10 years, he would know that Serrano
was not born here and it’s an ongoing jibe
between them.

Congressman Serrano was born in Mayaguez, Puerto Rico, and though he moved to New York with his family at age six, he has always identified strongly with his Puerto Rican identity.

http://serrano.house.gov/Issues.aspx?ID=10

But I’m still not certain of the seriousness of that
exchange.

[Kenny Bunk]

waiting for the lawyers to present a case with the correct plaintiff, correct defendants and correct premise.

By the time that happens, The SCOTUS will have Hugo Chavez, Raúl Castro, and Evo Morales sitting next to la Justicia Sotomayor, the procedings will be en español, and Scalia, Alito, Thomas, and Roberts will be forcibly retired, a foursome on Celebrity Golf, raising money for Tiger Wood's Home for Wayward Waitresses. Obama should be well into his 4th Term, Aztlán will have seceded to join México, and Nebraska will be a Theme Park so that Americans can go see how those bad white people used to live in the olden days, before Allah sent Bartack to save the nation.

[hoosiermama]

God help us!

[Uncle Chip]

The Kerchner et al v. Obama/Congress et al case which is now pending in the Third Circuit Court of Appeals in Philadelphia with a tentative merits hearing date of June 29, 2010 gives the judicial branch of government the prime opportunity to put this constitutional crisis finally to rest one way or the other.

Datemarked

[El Gato]

Thomas references to “you” clearly were to Serrano himself not to Congress in general.

True, but that jabbing was about the eligibility of those born in Puerto Rico. But it was still about the Natural Born Citizen requirement. Now why bring that up in the current environment. Serrano was born in Mayaguez Puerto Rico.

[DrC]

“Now why bring that up in the current environment.”

Because SERRANO first brought up (jokingly) the question of his own presidential eligibility. Do you seriously think SERRANO was trying to tweak Obama on this question? Serrano then continued the joke by saying he appreciated that Thomas was willing to contemplate a non-judge to be on the Court, since he (Serrano) also was not a judge. Thomas (jokingly) replied “and you don’t have to be born in the United States. So you don’t have to answer that question.”

He DIDN’T say anything about “you don’t have to show your birth certificate,” so this clearly was a reference back to the original question of whether someone born in Puerto Rico was considered to be born in the U.S. for purposes of determining presidential eligibility.

Look at Thomas’ demeanor just before he makes this joke. He’s serious and responding to Serrano’s thanking him for his service. But it is Serrano who lightens the tone with his interjection about non-judges being able to serve on SC. Surely if Thomas had “planned” a zinger (or even did so extemporaneously), he would have made a point to specifically allude to showing a birth certificate. He could have been even more pointed by saying “you don’t even have to show your long-form birth certificate” etc.

I reiterate: this is much ado about nothing and I think it makes birthers look like real truth-stretchers to argue otherwise. At the end of the day, I don’t think that helps the birther cause. Better to rest on much more solid legal arguments such as Vattel’s claims in Law of Nations etc. From a logical perspective, invoking Thomas is relying on an “argument from authority” which is a logical fallacy. The truth of the claim about how NBC should be defined lies in legal arguments/evidence, not on a toting up of who is for or against one position or another.

[El Gato]

he would have made a point to specifically allude to showing a birth certificate

Why, the birth certificate is about evidence and proof, the "are Peurto Ricanos eligible" is about the meaning of "Natural Born", just as "born in the US of one citizen and one alien parent" would be.I reiterate: this is much ado about nothing

I tend to agree, but the statements are so veiled it's hard to tell who was digging a whom.

[DrC]

“the statements are so veiled it’s hard to tell who was digging a whom.”

All I’m saying is that it was Serrano, not Thomas, who kept poking away at the issue. And given Thomas’s generally respectful tone immediate prior to engaging in this banter, it seems improbable (though surely not impossible) that he was trying to “poke” the Dems with the birth certificate issue.

Of equal importance, had Serrano realized Thomas was attempting this, he likely would have called him out on it, pressing him to state publicly whether he believed president was born in Hawaii. The Dems have to date succeeded in making those who argue the “birther” position be subjects of ridicule (which preempts the necessity of discussing the issue rationally or using actual evidence). Serrano would have been happy to ingratiate himself to Nancy Pelosi by exploiting this opportunity to score a debating point.

You make it sound like a flip of a coin. In contrast, I believe the weight of the evidence (though not 100% of it) leans in favor of a benign interpretation of this exchange. Had Thomas wished to send a message to either birthers or Dems, he could have and would have done so.

[El Gato]

, it seems improbable (though surely not impossible) that he was trying to “poke” the Dems with the birth certificate issue.

Again, its not about the BC. At least not to a first order. It's about the very meaning of Natural Born Citizen. If it means, "born in the US", then the BC becomes important. If as I have come to believe, it means "Born in the US (with exceptions) of parents who are citizens" then Obama is not an NBC, unless the BC shows someone other than BHO Sr, a US Citizen someone, as his father.

[DrC]

“it means “Born in the US (with exceptions) of parents who are citizens”

OK, but that takes Thomas’s remark even further from establishing this principle. He could have, but didn’t, say that to serve on the Court, you neither have to be born in the U.S. nor even have citizen parents. If he wanted to drive home or even hint to Serrano of his “true” position on NBC, then he would have had to state his point much more clearly than he did.

I do understand your point that under this definition, Thomas’s alluding to the BC itself wouldn’t have been necessary. But that presupposes that Thomas himself knows the “truth” about where Obama was born. You are quite correct if indeed Obama was born in Hawaii (or even Seattle). You are not correct if he was born in Africa or Canada. Absent seeing a carefully vetted copy of the long-form BC, I don’t see how anyone can state with certainty where he was born.

Thus, as a legal strategy, it seems that you first wish to establish definitively his birth location since this alone could be dispositive depending on what the BC actually shows. So getting the long-form BC is step #1 of any sensible strategy to resolve this issue. If it turns out he WAS born in the U.S., you resort to the NBC definition. I concur with your view on the latter, but legally it is not a “slam dunk” (in light of the Wong Kim case). So it would be bad to put all your eggs in the NBC basket and learn that the SC disagrees, especially if it later turned out Obama never was born in the US in the first place.

[El Gato]

Thus, as a legal strategy, it seems that you first wish to establish definitively his birth location since this alone could be dispositive depending on what the BC actually shows. So getting the long-form BC is step #1 of any sensible strategy to resolve this issue. If it turns out he WAS born in the U.S., you resort to the NBC definition. I concur with your view on the latter, but legally it is not a “slam dunk” (in light of the Wong Kim case). So it would be bad to put all your eggs in the NBC basket and learn that the SC disagrees, especially if it later turned out Obama never was born in the US in the first place.

Tactically, I disagree. If you use the BC issue as your first point of attack, and it turns out that he really was born in Hawaii, you've lost what little credibility you have, and getting anyone to listen to the "1789 meaning" argument will be next to impossible.

But if you make the "1789 meaning" of Natural Born Citizen your main point, it doesn't matter where he was born., and that we really do not know. There is evidence both ways. Not all of it true of course, but evidence none the less.

The only downside to that is that birth abroad might be easier to establish than that the Vattel definition is the one understood by the founding generation. But, in the birth abroad scenario, BHO controls most of the low hanging fruit, the BC, the school records, etc, etc.

[El Gato]

Some states are already starting legislation to provide proof of eligibility before a candidate can be on the state ballot. Should be every state in the Union.

But what will the criteria be? That's really not settled, as a matter of Supreme Court case law. Will it be "Born in the US", "Citizen at Birth" (seems unlikely since the Court has already said that those born overseas, and citizens at birth under statute law, are naturalized), or as Vattel would have it "born in the country of parents who were citizens at the time". (with a couple of exceptions to the "in the country" criteria)

But if the "Born in the Country" definition takes hold, as it surely would in the Blue states, and probably quite a few others,then

[El Gato]

He could have, but didn’t, say that to serve on the Court, you neither have to be born in the U.S. nor even have citizen parents. If he wanted to drive home or even hint to Serrano of his “true” position on NBC, then he would have had to state his point much more clearly than he did.

I took the 'you don't have to answer that question' remark to mean "you don't have to say if you are a natural born citizen or not"

[DrC]

“I took the ‘you don’t have to answer that question’ remark to mean “you don’t have to say if you are a natural born citizen or not”

Now I see exactly where/why we disagree. Listen to the clip again http://www.youtube.com/watch?v=7MNdweV8Qv4&NR=1

He says “and you don’t have to be born in the United States. So you never have to answer that question.” So my interpretation is “that question” refers to whether the person was born in the U.S. rather than the question of NBC etc.

[DrC]

“If you use the BC issue as your first point of attack, and it turns out that he really was born in Hawaii, you’ve lost what little credibility you have”

In a legal brief, this isn’t an either-or proposition. In a legal brief, you would start with the point that place of birth has not yet been definitely established and point to the evidence supporting that claim and argue for a remedy to redress that problem (e.g., subpoena the LFBC) on grounds that birth outside U.S. would definitively establish he wasn’t NBC—a matter on which there would be no legal dispute.

You then would turn to your “next line of defense” which is that “even if it were demonstrated that BHO was born in Hawaii” he fails the NBC test on grounds that both parents weren’t citizens. You can even acknowledge that his paternity has not been established beyond all reasonable doubt and that the original LFBC would help resolve this issue too. After all, if Frank Davis were his father, then proof of birth in Hawaii in conjunction with proof that Frank Davis was a U.S. citizen would suffice to establish NBC status. Thus, there end up being 2 independent reasons to secure the LFBC: to confirm place of birth AND to confirm paternity. But in this second argument, you would place most weight on Obama’s own claim that BHO, Senior is his father, in which case the available record demonstrates convincingly he was not a citizen. Hence, by Vattel and others, you can establish Obama fails the 2 citizen parents test. This argument would of necessity have to explain why Wong Kim was ruled incorrectly or has been misinterpreted etc.

Any reasonable court is not going to let their skepticism (or your failure to prove) the first point “contaminate” their ruling on the second point. If this were a purely political matter to be decided by public opinion then I would concur that the credibility issue might need to be given greater weight. The reality in light of Obama’s obstinance is that this matter can ONLY be resolved in a court of law. Having stonewalled for 2 years, Obama has no incentive to reverse himself now, especially if the evidence shows he fails the NBC test for either reason.

[El Gato]

I did not understand that you were talking strictly a single case legal tactics. That's different.

[cvq3842]

Good point - Thomas brought it up. It would be easy to read too much into this but I would assume that the cases brought against Obama would be on Thomas’s mind.

Also, I think people are forgetting that there would be some damage to Obama if the facts of his birth were not what he represented them to be, even if he were still deemed eligible. Some people believe that Frank Marshall Davis was his biological father. In that event, he’d be eligible to be president but badly damaged as a liar and a fraud. (Although the media would work hard to spin the story as persecution of Obama.)