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.
Were you a citizen at birth? If so, you are natural born. How about the other two requiremetns? 14 years a resident? 35 years old? Those can be acquired with time.
“No, anyone that is merely BORN in the US cannot be President.”
True. However, everyone born a citizen of the United States can be president.
This might be a place for one of them renegade commas. But I think I get your point. McCain can only become President if enough Electors switch (but that is true for Mickey Mouse as well, and I dare anyone to challenge his natural born American status) or if it falls to the House, where the House members would have to vote for McCain or nobody (assuming nobody but Obama and McCain get EVs). If there is no qualified President-elect to take office, the VP-elect becomes Acting President - not President, but Acting President - until a President qualifies. Assuming that there is one or more Faithless Electors, whomever they cast their vote for also makes the House's short list (up to three total). It has to be someone that received an EV, though.
I've been asking for this for a month and not one of the people regurgitating the "a citizen at birth but not a natural born citizen" crap has provided such. Because it is an imaginary distinction.
“And yet that is exactly what we are debating, and why the Founders put requirements in place for the job.”
Not exactly. I was saying that not being able to be president hardly makes a difference in the life of a child not born a citizen, considering how hard it is to be elected president. To understand why it’s a fair trade-off to favor the interests of the nation over the interest of non-natural born citizens, you have to realize the distinction I’m using between naturalized citizens as a class and naturalized citizens as individuals. The chances that one person among the entire population of naturalized citizens is significant, whereas the chances that one particular natuaralized citizen could do the same is nill.
The qualification exists in the first place because the Founders didn’t think it was worth risking an enemy in the presidency, even if it wasn’t that likely. Of course, back then it was a lot more likely that foreigners could be elected, since the monarchies of Europe had so much money, and, given the state of mass media, starting out with a famous name would be a huge advantage.
“The chances that one person among the entire population of naturalized citizens is significant, whereas the chances that one particular natuaralized citizen could do the same is nill.”
I meant to say: “The chances that one person among the entire population of naturalized citizens could be elected president is significant, whereas the chances that one particular natuaralized citizen could do the same is nill.”
Perkins vs Elg eliminates the "two US citizen parents" [328, 329], "two US born parents" [329] and "Parents can renounce children's citizenship" [329] arguments. It validates the "citizen at birth by virtue of being born in US" argument [328] and "dual citizenships are okay" [330, 331] positions.
There is no such provision, unless, as St.George himself believed, 'native-born' and 'natural-born' are the same. Isn't the whole basis of the mythical 'born a citizen but not a natural born citizen' or 'native born but not natural born' that there is a distinction? You can hardly base such an argument on the writings of someone who used the terms interchangeably. He does not create this third class. He does say, in effect, that "we should not elect foreigners to the office", however, dual citizens are not foreigners.
You doubt it
LOL!
Here what the case says in quotes:
"Mr. Justice GRAY, after stating the facts in foregoing language, delivered the opinion of the court.
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873, in the city of San Francisco of California and the United States of America, and was and is a laborer
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873, in the city of San Francisco, in the state of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China.
Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; n d neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him [169 U.S. 649, 653] therefrom. In 1890 (when he must have been about 17 years of age) he departed for China, on a temporary visit, and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about 21 years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit, and with the intention of returning to the United States; and he did return thereto, by sea, in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission, upon the sole ground that he was not a citizen of the United States.
It is conceded that, if he is a citizen of the United States, the acts of congress known as the 'Chinese Exclusion Acts,' prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him....."
-end of excerpt-
After the facts of the case presented by Justice Gray, he delivers the majority opinion starting at Roman numeral I. Wong is never mentioned in his majority opinion of the court until he gives his disposition at the end of his writings, in Roman numeral VII. The only sentence that specifically mentions Wong Kim Ark as native born citizen is the one in bold above, in the fact section.
In Justice Grays opinion, it is full of historical details in the minutia; acts, doctrines, old statutes, and cases to the point of ad nauseum. He gives a dissertation on allegiances and the types of citizens from old Europe to the Emperor of China until he gets to section IV. Where he goes onto explain native-born citizens (of old France) who are independently of the origin of the father and mother, and of their domicile. This is the part of his opinion where judge Gray applied the law to Wong vs. U.S. in the case.
Wong Kim Ark vs. U.S. has nothing to do with answering the question who can be a "natural born citizen" What it does is establish who can be a "native-born citizen" by virtue of being born in the United States. The opinion of the court is a narrow judgment.
See my post above #669 for info.
Journalists? - Where?
“Wong Kim Ark vs. U.S. has nothing to do with answering the question who can be a ‘natural born citizen’ What it does is establish who can be a ‘native-born citizen’ by virtue of being born in the United States. The opinion of the court is a narrow judgment.”
It hardly matters to me that the judgement was narrow; I of course knew in the first place that the presidency was not at issue. What I was looking for was whether or not the justices consciously used the term “native born” to mean something different from “natural born.” It appears that they did not. Most likely, it’s a matter of pure chance that they used the word “native” instead of “natural.”
Nothing from your post, or any case law I’ve ever read, tells me there is a difference between a native born citizen and a natural born citizen. Both refer to a citizen from birth. If Mr. Wong, born of two non-citizens on American soil, is a citizen from birth according to the 14th amendment, then I submit that he (and Obama, for that matter) are elligible for the presidency.
Thanks, RS. I'm glad there are people on this forum who know of these decisions, and are willing to share them with the rest of us. It's very educational, and helps to understand the current imbroglio better.
becasue we need to have justices appointed that realize this and rule based on teh law and not personal preferences
The Supreme Court in 1898 used the term to describe the citizen status of 'native born' instead of 'natural born' for a good reason, and to cite a key clause in the 14th Amendment with the meaning of Not owing allegiance to anybody else. Because of this clause in the 14th Amendment they withheld bestowing natural born citizen on Wong Ark because of his ties to the Empire of China through his alien parents. Therefore, they gave a narrow ruling, for which Wong Ark could never be president of the United States.
“The Supreme Court in 1898 used the term to describe the citizen status of ‘native born’ instead of ‘natural born’ for a good reason, and to cite a key clause in the 14th Amendment with the meaning of ‘Not owing allegiance to anybody else.’”
You must be refering to the “subject to the jurisdiction thereof” clause. Nothing about the clause in itself implies that children born on American soil to parents with foreign allegiances are not natural born citizens. You’d have to find language to such an effect somewhere else in the Constitution. Since the 14th amendment is the only place in the Constitution that defines citizenship, and since the presidential qualifications clause does not define “natural born citizen” as seperate from the people born as citizens in the 14th amendment, I still see no reason why Wong, Elg, or Obama aren’t qualified to be president.
I’ve read a quote either on this thread or somewhere else that said, 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. Be that as it may, such language is not in the 14th amendment. In fact, I have not read such language anywhere in the Constitution, in federal law, or in case law. Language baring citizens with “parents...owing allegiance to any foreign sovereignty” from being president simply does not exist, so far as I know.
“Because of this clause in the 14th Amendment they withheld bestowing natural born citizen on Wong Ark because of his ties to the Empire of China through his alien parents.”
Where do you get that? I have seen no evidence that they used the term “native born” instead of “natural born” because they consciously decided Wong was a citizen but not elligible to be president. They granted Wong Ark citizenship under the 14th amendment because of where he was born, which makes him both a natural born and a native born citizen. I have searched and searched the internet, and could find no reliable source to tell me that there is a difference between “native born” and “natural born,” because those terms mean the same thing, i.e. citizen by birth (via “the right of soil”).
“The Supreme Court in 1898 used the term to describe the citizen status of ‘native born’ instead of ‘natural born’ for a good reason, and to cite a key clause in the 14th Amendment with the meaning of ‘Not owing allegiance to anybody else.’”
I think I just noticed a logical problem. If, as you argue, the “subject to the jurisdiction thereof” clause requires that a child’s parents not owe allegiance to another country, why would the court decide that Wong Ark was a U.S. citizen? That is to say, how do you exclude Wong Ark from being president using text from the 14th amendment when the exact same text was used to give citizenship?
If the “subject to the jurisdiction thereof” clause did not keep him from being a citizen, then how could it keep him from being president? Again, no part of the Constitution offers a different definition of natural born citizen than the definition of a “native” born citizen offered under the 14th amendment.
Great job .. have you forwarded this research
to the attorneys on the citizenship cases?
I bet they would appreciate it ... 9 days
and counting.
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