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.
That's the whole crux of Donofrio's case, though. He says on his blog that a Hawaiian birth certificate would make no difference to his argument.
The passage you quote stood out for me, too, but for another reason.
What is the purpose of "Rule 22," or any rule for that matter, if the custom is to ignore it? And why ignore the rule just out of "respect" for another Justice, rather than on the merits of the case?
-PJ
They may be the only branch of government willing to tackle and resolve this issue, but they are not the only branch capable of doing so.
It only takes one member each from the Senate and the House to file a challenge to Obama's Natural Born Citizen qualifications for the Congress to initiate proceedings.
Will they do it as justices of the highest court in the land in an impartial manner or will they play politics with it?
The high court isn't given to playing politics with any issue. The individual Justices often have different interpretations about what the Constitution means, but they take their position as sole arbiters of that document very seriously.
I've bookmarked it too, and am going to spend some quality time there soon.
>>> "Which just proves the point about divided loyalty which the Founding Fathers were trying to make." <<<
I am crossing my fingers that the Supreme Court looks at this important issue through the lens of Original Intent.
It may not be codified to your satisfaction in US law, and I may have erred in stating it as such, but the fact is, that statement comports with the original intent of the Framers of the Constitution.
http://www.archives.gov/exhibits/charters/charters_downloads.html
...the comma is in fact where others have claimed it's located on the original parchment.
See for yourself.
Hint: open the Constitution image that's the third one down, out of four images placed vertically, in the second section from the top of the page. Use the magnification function in the browser viewer. FYI: I'm using MS Vista.
Isn't the FReeper community grand? ;o)
See #173. A renunciation has to be voluntary, and can’t be made on someone else’s behalf, according to the State Department.
We disagree.
I interpret the meaning of the phrase "and subject to the jurisdiction thereof" to indicate that a person is bound to a nation by birth, or naturalization of their citizenship.
That does not mean that such a person cannot be arrested for breaking our laws while in our country. Any recognized foreigner can be, and would be, in any foreign country, including America.
Why so angry at me for making that statement, even if I may have erred in doing so, if it's just a simple matter of legal definition?
I'll admit that I didn't consult case law, or search the Constitution for the exact definition I stated. However, I feel that my statement is in accord with the original intent of the Framers, regarding the required birth conditions for qualifications of a President.
It's my hope that the high court will shed some light and clarity on the precise interpretation of the Natural Born Citizen qualification in the Constitution. It's entirely reasonable to assume that they would choose to define it as I have, if they consult the reasoning and original intent of the Framers.
Well, wouldn't those old guys have a hoot if they could see us today poring over their words--and commas--on computer screens!
“For the gazillionth time... The Constitution requires that the President be a Natural born citizen, not just a citizen.”
As far as I know, this suit does not dispute that Obama was born in Hawaii, which in itself, in my opinion, would make him a natural born citizen.
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
Fourteenth Amendment framer, Rep. John A. Bingham, argued before the House in 1871 that Dr. John Emilio Houard was a natural-born citizen of the United States. According to Bingham he was a natural-born citizen because he was born of naturalized parents within the jurisdiction of the United States by the express words of the Constitution, as amended today.
What does ‘subject to the jurisdiction thereof” mean?
Both Sen. Trumbull and Sen. Howard provides the answer, with Trumbull declaring:
The provision is, that all persons born in the United States, and subject to the jurisdiction thereof, are citizens. That means subject to the complete jurisdiction thereof. What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.
Sen. Trumbull further added, It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is subject to the jurisdiction of the United States. Sen. Jacob Howard agreed:
[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
“There is a great deal of difference. Only a Natural Born Citizen can become President. For that, you have to be born on US soil, to two US parents.”
I don’t know about the two parents part. I always thought being born on U.S. soil was enough. I mean, children born on U.S. soil are citizens, right? And if they’re citizens at the time they’re born, I’m pretty sure that means they’re natural born citizens.
a comma creates a whole different meaning, doesn’t it?
not necessarily
“He will be seen as a traitor to his race.”
Uh, in what world is that not already the case?
The whole pile isn't doing too good either.
“That is fact and will probably disqualify McCain too, who was born in Panama.”
Except that McCain had two citizen parents, which I think probably fits what was originally intended.
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