Posted on 12/03/2008 11:43:31 PM PST by BP2
By James Wright
AFRO Staff Writer
(December 3, 2008) - In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obamas status as a United States citizen.
Thomass action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.
The court has scheduled a Dec. 5 conference on the writ -- just 10 days before the Electoral College meets.
The high courts only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the states presidential ballot because of Donofrios own questions about Obama citizenship.
Donofrio is a retired lawyer who identifies himself as a citizens advocate. The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obamas citizenship.
Calls made to Donofrios residence were not returned to the AFRO by press time.
Donofrio is questioning Obamas citizenship because the former Illinois senator, whose mom was from Kansas, was born in Hawaii and his father was a Kenyan national. Therefore, Donofrio argues, Obamas dual citizenship does not make Obama a natural born citizen as required by Article II, Section I of the U.S. Constitution, which states:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President
...to prevent the meeting of the Electoral College on Dec. 15, which
will certify Obama as the 44th president of the United States...
Donofrio had initially tried to remove the names not only of Obama, but also the names of Republican Party presidential nominee John McCain and Socialist Workers Party Roger Calero from appearing on the Nov. 4 general election ballot in his home state of New Jersey.
McCain was born in the Panama Canal Zone when it was a U.S. possession. Calero would be ineligible to be president because he was born in Nicaragua.
After his efforts were unsuccessful in the New Jersey court system, he decided to take his case to a higher level.
On Nov. 6, Souter denied the stay. Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.
Donofrios choice was Thomas. He submitted the emergency stay to Thomass office on Nov. 14. Thomas accepted the application on Nov. 19 and on that day, submitted it for consideration by his eight colleagues - known as a conference - and scheduled it for Dec. 5.
On Nov. 26, a supplemental brief was filed by Donofrio to the clerks office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerks office.
Thomass actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.
Morrison said that Thomass actions are once in a decade. When that does happen, the case has to be of an extraordinary nature and this does not fit that circumstance, he said. My guess would be that Thomas accepted the case so it would go before the conference where it will likely be denied. If Thomas denied the petition, then Donofrio would be free to go to the other justices for their consideration.
This way, I would guess, the matter would be done with. Petitions of Donofrios types are hardly ever granted.
Traditionally, justices do not respond to media queries, according to a spokesman from the Supreme Court Public Information Office.
Thomas was appointed to the Supreme Court by President George H.W. Bush in 1991 and has been one of its most conservative members.
Before his ascension to the court, he was appointed by Bush to the U.S. Circuit Court of Appeals for the District of Columbia. Earlier, he served as chairman of the Equal Employment Opportunity Commission - appointed by President Reagan - and worked various jobs under former Republican Sen. John Danforth.
It would take a simple majority of five justices to put Donofrios emergency stay on the oral argument docket. Because it is an emergency by design, the argument would take place within days.
Donofrio wants the court to order the Electoral College to postpone its Dec. 15 proceedings until it rules on the Obama citizenship. He is using the 2000 case Bush vs. Gore case as precedent, arguing that it is of such compelling national interest that it should be given priority over other cases on the courts docket.
The same conditions apply here, Donofrio said in his letter to the court, as the clock is ticking down to Dec. 15, the day for the Electoral College to meet.
Audrey Singer, a senior fellow at Washingtons Brookings Institution, who is an expert on immigration, said that the Donofrio matter is going nowhere.
There is no way that anyone can argue about whether Barack Obama is a citizen, Singer said. In this country, we have a system known as jus soli or birthright by citizenship. You are a citizen by being born on American soil and he (Obama) was born in Hawaii.
Singer said that Donofrios argument that Obamas father was a Kenyan national does not matter because citizenship is not based on parentage, but on where someone was born.
This is the issue that some people have with illegal aliens in our country, she said. Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.
“It doesnt matter if Obama had or has citizenships in a hundred other countries, so long as he had US citizenship at birth.”
These folks would beg to differ with you on that:
http://federalistblog.us/2008/11/natural-born_citizen_defined.html
You are misreading it. The word "citizens" does not impose a requirement that both parents be a citizen. The word is simply referring to all American citizens living abroad. It means the children of any American citizens living abroad.
Not so.
Except for the "natural born" i.e. children of US Citizens born in the United States or otherwise qualified under as such under Constitutional law, It has only "existed" since the Wong Kim Ark case in 1898. Admittedly that is a long time - a century - but from 1868 until the Supreme Court set all precedent, legislative history, and the clear words of the Amendment itself squarely on its head, that is for 30 years, the prevailing view was the correct one - the one I have elucidated.
Check out Elk v. Wilkins for appropriate dicta.
I'm still waiting for a case directly on point to make it to the Supremes. 100 years of Constitutional error is not precedent, and won't be ratified.
The Constitution will be.
“And only natural born citizens, or persons who are citizens of the U.S. while the Constitution was being adopted, are eligible to become President, Correct?”
Yes. Our founding fathers added the clause “or citizens of the US at the time of the adpotion of the Constitution” so that one or more of them could hold the office of President. Washington was born in VA and Adams was born in MA, but at the time of their birth our country was still under British rule. So although they were born on the soil of our new country, they were not “natural born” because they were British subjects at birth, but were citizens of our new country at the signing of the Constitution.
Their status as foreign soil is a legal fiction created by treaty. Most countries respect the fiction, of course. But, the host country can kick embassies out. That makes them different from real sovereign territory- no one can kick the US out of Florida or some other part of sovereign US territory in the same way.
It is my understanding that Bobby Jindal although a citizen, he is not a “natural born” citizen and can not hold the office of President. He certainly can be a Governor, House or Senate member.
Maybe you or I can't, but the Supreme Court can, by ignoring earlier rulings as if they didn't exist, as the Court did to Elk v. Wilkins when ruling in 1898 in the Wong Kim Ark case. They can just make it up. This notion of making up law out of thin air may help decide tough cases, but it was a bad practice then and it remains a bad practice today, because it brings untold and unforeseen results that are not well grounded in law, like "anchor babies".
Kenya declared independence from the U.K. on December 12th, 1963.
So at the time Obama was born, his father was a British citizen. "Natural Born" status requires that BOTH parents of a "natural born citizen" have to be U.S. Citizens at the time of the person's birth. "Natural Born" status is required to be sworn in as President.
Therefore Obama is disqualified. Which is why Leo Donofrio's case has legs.
No hospital would give out that information. Doing so would be a violation of HIPAA, as well as State privacy rules.
If you want to test this, if you have a child or other family member born at a certain hospital, call that hospital and ask if they were born there and see what they say.
“Which just proves the point about divided loyalty which the Founding Fathers were trying to make. Given the stories floating around about Obamas visit to Kenya and his meddling in their election, it would certainly seem that he has divided loyalties. Not to mention the fact of all his relatives still in Kenya.”
To me, this is the most important point of the whole affair. He clearly has divided loyalty.
bump
What if certain talkradio hosts really really really like Bobby Jindal, can we allow him to be President then? /sarc
It’s scarry how so few people are enlightened but rather rely upon an entertainer to think for them.
Great news!
Thankyou for responding: What about the response from Drew68:# 220
Andrew Jackson was the son of two parents who were not born on U.S. soil. Five other presidents (Thomas Jefferson, James Buchanan, Chester Arthur, Woodrow Wilson, Herbert Hoover) each had one parent not born on U.S. soil. Obama would be the sixth president to have one parent not born on U.S. soil.
This “natural born = both parents born on U.S. soil” argument is completely bogus and fabricated and exists nowhere in the U.S. Constitution.
(Is there truth in this response from Drew68 and how does this not cancel out the natural born argument if these statements are true)?
However...
Well if Jindal’s parents were not born in the U.S. then the same law would apply to him also! Right?
This is an accurate toon
It was a rhetorical question directed toward certain talkradio hosts that have utterly ignored this case.
Woodrow Wilson’s mother was English, too.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.