Posted on 04/30/2010 2:25:36 PM PDT by Smokeyblue
Part II of an investigative series
In the first part of this investigative report, background was provided to identify the core legal and constitutional arguments in the matter of Barack Hussein OBAMA II’s eligibility to hold the office of President of the United States. Using my investigative experience, I performed this investigation in compliance with the same “industry standards” that apply to performing background investigations of individuals selected for corporate positions by Fortune 100 companies.
As noted in my initial report, the primary intent of this investigation has been to establish whether Barack Hussein OBAMA has indeed furnished the necessary proof to confirm his eligibility to assume the position of the President of the United States, and whether that proof has been properly authenticated. In other words, this investigation sought to determine whether there are any legitimate questions or concerns over the eligibility issue, or whether the matter has been sufficiently resolved. Or to put it yet another way, is there a legitimate reason to mock, belittle, marginalize, or otherwise consider the so-called “Birthers” as kooks living on the fringe of conspiracy?
(Excerpt) Read more at canadafreepress.com ...
“II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
In essence, if the parents didn’t have what is now called diplomatic immunity, their children, if born in the USA, were considered to fall within the allegiance of the USA.
Also see post 56 for a comment from the dissent. The SCOTUS was making a deliberate decision to allow the children of aliens run for the Presidency.
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”
James Madison, The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)
I'll return to your other points in a moment. But as to the point above:
Dissenting opinions usually paint the majority opinion with which they are disagreeing with the broadest possible brush. Indeed, the whole point is to set out the worst possible scenario. This is not indicative necessarily of what the majority actually meant, how the case will operate, or how it will be applied or interpreted in the future.
As for the Court making a "conscious decision" as to who is eligible for the presidency, WKA did nothing of the sort. It had nothing to do with citizenship in the case of a President. And the hypothetical facts the dissent goes on about are nothing like the facts in WKA, where the parents were not just passing through.
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
Does the majority say this, or address this at all, anywhere in its opinion? Isn't this just a "look what you've possibly done" wail out of the dissenters?
Just trying to help out.
5.56mm
He’s not even a US citizen. Has used 15 to 20 ss numbers since he’s been in the US and the current ss he’s using now in the white house was from someone born around 1890. According to Mann, he was recruited by the cia. He was a foreign student from Indonesia, spoke the language and they used him as a go between etc with the taliban when we were supplying them against the russians.
His school records from Indonesia clearly show that he is an Indonesian and a moslem. Those are about the only records that have actually surfaced, that are not sealed.
This is gonna be an interesting case coming up this month, I believe.
http://www.spingola.com/Barack_Obama_CIA.htm
Spare me your bullsh!t.
The Court CLEARLY equates natural born subject and natural born citizen, and applies the common law of England to discover ‘original intent’, not Vattel (sp?).
That clearly leaves the child born in the USA of a native citizen and a foreigner legally residing in the US for non-diplomatic purposes a NBC, as the dissent understood.
I personally think WKA was poorly decided, and would prefer it be overturned. However, it has been cited in so many subsequent decisions that I don’t think there is any possibility of that happening.
My point on birther threads is that A) don’t count on the courts to remove Obama, B) don’t spend money supporting legal challenges, but give it to conservative candidates, and C) if one does want to pursue legal challenges, at least think carefully about the previous decisions - you won’t get them overturned without powerful arguments!
“Does the majority say this, or address this at all, anywhere in its opinion? Isn’t this just a “look what you’ve possibly done” wail out of the dissenters?”
Possibly. However, it shows that the majority was aware of the possibility.
Who certified that Obama was eligible to run for the highest office in the land? Try Nancy Pelosi... Apparently there was also two forms of certification submitted. One apparently with the words making it appear that Obama was eligible under the Constitution, and one form that did not mention the Constitution.
Maybe the “Birthers” know something we do not....
1. Was Wong Kim Ark a Chinese citizen at birth? IOW, although he was born in the U.S., did China consider him a citizen because of his parents’ Chinese lineage?
Don’t know. Might be able to pick it out if I wanted, but I think the quotes I’ve provided show the court doesn’t care about that answer.
It might not be material to the issue, but any time the SCOTUS does not specifically address an issue, it's possibly open to interpretation or application in a future case. If the Court wanted to rule on this question in the future, it's completely plausible that they would say since WKA was not decided in the context of eligiblity for the presidency -- which, they would expound upon at length, has its own special history, significance and constitutional intent -- WKA is not dispositive.
Any factual difference can later be used to distinguish a case in the future and, thus, is worth noting.
2. Were BO’s parents at the time of his birth “domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein,” as Wong Kim Ark’s parents were?
Yes.
As far as I know, the answer is NO. Barack Sr. was never permanently domiciled or a permanent resident of the U.S.. He certainly did not have anything close to the type of ties to this country that WKA's parents had.
Barack Sr. was, in fact, more along the lines of what the dissent in WKA worried about: a person simply passing through and fathering a child along the way. The majority, obviously, was not very worried about this. This was not because it ACCEPTED this situation as giving grounds to presidential eligibility. Rather, it was because the actual facts on which WKA was decided did NOT support automatic extension of the Court's rationale, from deciding the citizenship of a laborer to deciding the CONSTITUTIONAL ELIGIBILITY of a citizen to be President.
IOW -- unless I am forgetting some dicta in the case -- regardless that the dissent wailed about it, the issue of constitutional eligibility of a President, rightly, was left by the (binding) majority for another day. This was because it was in no way raised by the facts in WKA.
3. Might answers to these questions make a difference to the legal analysis and result?
Not really.
I disagree.
Whenever a case is not on "all fours" on the facts, there is room for a different result. It may be remote, but the greater the fact differences, and especially the greater the stakes for the country, the less precedent that is not precisely on point is applied.
I agree.
Although I do not follow the merits of the case really, I do get on the threads sometimes to see what's going on with the process and talk about the law. You never know what might come out of an interesting discussion that would actually be helpful to safeguarding eligibility of future presidents. That's what really burns me up -- is that some hack like Nancy Pelosi signs a paper that she thinks her guy is eligible and that's apparently it for all time.
Of course, there are certain kinds of evidence that would raise this issue to judicial review no matter what. That said, I still don't think the process we have for evaluating and vouching for a candidate's eligibility does justice to the Constitution. It needs to be formalized and made reviewable, albeit upon a high threshold.
If ‘natural born subject’ and ‘natural born citizen’ are different ways of saying the same thing, and common law is the key to the meaning of NBC, then there really isn’t much doubt about Obama being eligible.
To overturn Obama’s eligibility, you would need a court EAGER to get involved on one side. That doesn’t exist.
As for Obama’s parents vs WKA, his mother WAS a natural born citizen, and his father was here with the permission of the US Government. Then his father, who wasn’t legally married to Barry’s mother and doesn’t seem to have lived with her, abandoned them both and only saw Barry once again in his life.
Barry has a stronger case than WKA for natural allegiance to the USA...
“That said, I still don’t think the process we have for evaluating and vouching for a candidate’s eligibility does justice to the Constitution. It needs to be formalized and made reviewable, albeit upon a high threshold.”
Strongly agree. I’d support state laws requiring anyone on the ballot to open up educational and birth/service records. Don’t know if that would be legal, but I’d support a Constitutional amendment if not.
Possibly. However, it shows that the majority was aware of the possibility.
And I would argue that this powerfully shows that the majority was leaving this issue for another day, when those specific facts regarding the eligibility of a particular person for the presidency, was before it.
Being aware of the possibilities of how its decision might be applied in the future, and saying nothing about them, cuts both ways. Most of the time the jurisprudential assumption is that the Court is deliberately declining to address how its ruling might work in other fact patterns -- because those fact patterns are not before the Court, they have not been researched, briefed and argued, there is no "harm" to consider, etc..
That's the argument I'd make.
Now you are showing up one of the weak spots in this issue: you seem to be arguing "natural allegiance" in terms of a person's specific circumstances, i.e., subjectively.
But the Court can only apply an objective criteria. IOW, it's not about how American the child may feel or whatever. Obama's father was NOT similarly positioned as WKA's father, who also was here by permission of the U.S. Government (that is required for him to be a "permanent domiciliary and resident," as the Court found). Obama's father was here temporarily. His relationship with the U.S. was very different from that of a person who is a "permanent domiciliary and permanent resident," and who maintains that status long past the child's birth.
(Look up the intent required to be a domiciliary.)
In terms of objective ties to the U.S., WKA's father was way more "American" than Barack Sr.
I don’t see any problem with state laws on this point. If they are challenged, all the better. Then we’d get a read-out from the SCOTUS that clearly addresses what the standard is for eligibility and what steps can be taken to require proof of eligibility and then to challenge it and have a remedy.
That never will exist, I pray. No SCOTUS in its right mind would ever want to, much less be eager to get involved in such a potentially contentious issue. That said, I think if the proof of a possible question were undeniable, and the need for the SCOTUS to resolve the issue was evident, the Court would do what it had to do, as best it could.
But people who bring these truly legal and constitutional issues up in political terms are only shooting themselves in the foot. The last thing any Supreme Court Justice wants to do is be seen as "political."
Again, it would be helpful to learn what it means to be “in amity” with the Crown. I think that could be key here.
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