Thomas Breaks Tradition: Forces Supreme Court to Look at Obama Citizenship Case

U.S. Associate Supreme Court Justice Clarence Thomas

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 Obama’s status as a United States citizen.

Thomas’s 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 court’s 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 state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Donofrio is a retired lawyer who identifies himself as a “citizen’s advocate.” The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obama’s citizenship.

Calls made to Donofrio’s residence were not returned to the AFRO by press time.

Donofrio is questioning Obama’s 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, Obama’s 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.

Donofrio’s choice was Thomas. He submitted the emergency stay to Thomas’s 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 clerk’s office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerk’s office.

Thomas’s 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 Thomas’s 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 Donofrio’s 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 Donofrio’s 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 court’s 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 Washington’s 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 Donofrio’s argument that Obama’s 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.”

WHERE is it DEFINED:

(1) American Citizen + (1) Foreign Citizen + Birth on US Soil = NATURAL BORN CITIZEN ???

Like I've said previously, Congress has attempted to Amend the Constitution 26 times since the 1870s, and it's failed in Committee -- EVERYTIME. For example...

Ponder the words of Forrest McDonald, Historian and Professor of History, University Of Alabama, who provided testimony July 2000 on House Joint Res. 88, "Constitutional Amendment To Allow Foreign-Born Citizens To Be President":

    Americans of the founding generation were extremely distrustful of executive authority. By the time of the Constitutional Convention, however, difficulties undergone during and after the War for Independence had convinced public-spirited men that a national executive was necessary, but they approached the problem cautiously.

    At least one-third of the delegates favored a plural executive in the interests of safety. The others endorsed a single executive, but only because George Washington would obviously be the first President. But Washington could not serve forever, and the delegates groped almost desperately to devise a means of choosing his successors. The search took up more time, more of the debates, than any other subject.

    The greatest fear was of corrupt influences upon the election, particularly from abroad. Since the time of Louis XIV, every major European power had developed a secret service. The damage that such agencies could do was vivid in the American imagination, and it was not imaginary.

    The horrible example of Poland was commonly cited. Poland had an elected monarch, and only 15 years earlier, in 1772, the secret services of Austria, Prussia and Russia had rigged the election of their own candidate, whereupon Poland was partitioned and divided among those three powers.

    As Charles Pinckney, a delegate from South Carolina, put it, the danger was that ''we shall soon have the scenes of Polish Diets and elections re-acted here, and in not many years, the fate of Poland may be that of United America.''

    Fear of foreign influence was pandemic. Elbridge Gerry of Massachusetts even wanted to prevent foreigners from becoming citizens, taking the position that naturalized citizens would always have divided loyalties.

    On much the same ground, John Jay, then Superintendent of Foreign Affairs, wrote to Washington, as Mr. Canady said, as president of the Convention, urging that the Constitution ''declare expressly that the command in chief of the American Army shall not be given to nor devolved on any but a natural-born citizen.''

    Meanwhile, as Mr. Canady also pointed out, a rumor was circulating that the Convention intended to invite a distant relative of George III to assume the American crown, a rumor that delegates publicly denied, despite the mantle of secrecy cloaking all those deliberations. Such nervous talk emphasized that the Convention must come up with something that in no way resembled or could be converted into a monarchy.

    Debates about electing the President raged until early September, less than 2 weeks before the Convention adjourned. Then Pierce Butler, an Irish-born delegate, came up with a cumbersome plan that overcame the objections to all earlier proposals. This was the electoral college system. The system was so diffuse that it would be virtually impossible, given the primitive communications then available, for foreign agents to corrupt it. But for good measure Butler's proposal included the restrictive language, ''no person except a natural-born citizen.''

    That language was adopted without a single dissenting voice, nor did anyone speak in its support. Its meaning and rationale went without saying. As Joseph Storey later explained in his famous commentaries, the phraseology ''cuts off all chances for ambitious foreigners who might otherwise be intriguing for the office and interposes a barrier against . . . corrupt interferences of foreign governments.''

    Now, the question before the subcommittee is not the original purpose of the clause, but whether it has outlived its usefulness. The circumstances that prevailed at the time of the founding have changed. Yet it seems to me on balance that conditions in the foreseeable future warrant a continuation of the caution shown by the framers.

    Take the matter of the possible corruption in the electoral process. The system is still structurally diffuse, but in practice it might as well be centralized, given modern techniques of communication and the instant portability of money, the most potent corrupting influence. Presidential candidates spend scores of millions of dollars. Just consider the prospective influence of a few billion dollars, a sum well within the means of a number of countries, any one of which, while unwilling to risk such a sum on a natural-born American, might be eager to support a candidate who had been born and raised in their country.

    The original Constitution contemplated a relatively weak Presidency, but the office has become the most powerful in the world, and safeguards surrounding it are therefore more indispensable than ever. The one area of Presidential authority that is virtually unchecked and uncheckable is the President's power as Commander in Chief. Can that power be safely entrusted to a foreign-born citizen?

Let us consider a few scenarios, starting with an extreme example. The espionage agencies of some countries have occasionally employed agents under deep cover who might not be activated for decades. It is not difficult to imagine such an agent being elected to an office of trust, but a Senator is 1 of 100, and a Representative is 1 of 435. What check is there on a President who is 1 of 1, except for the constitutional restriction?

    Or consider a more likely case. A person from country X becomes a citizen and lives his life as a loyal American. Nevertheless, in dealing with his original country, he is bound to be influenced by his nativity, whether in the form of hostility or favoritism. Even should he prove able to deal with the old country objectively, he would still be widely regarded as prejudiced, and the media would fan such suspicions.

    In the role of Commander in Chief, it is not enough to be above reproach. One must be above the suspicion of reproach. For example, given the emotionalism shown during the Elian Gonzalez case, would a Cuban-born President be perceived as objective in handling a military conflict with Cuba?

    In short, on constitutional questions, we are still best guided by the wisdom and prudence of the Founders. The structure they have created has stood the test of time and continues to stand as the truest foundation for our freedom.

... and yes, I know current documentation indicates Obama was born on US soil, with only ONE parent who was a foreign citizen, but...

... there are some eerie omens in this testimony given 8 years ago...

LAUNCHING NEW POST IN A FEW MINUTES:

Full Symposium documented in Sept 08 Mich Law Review on McCain Natural Born / Eligibility!!

http://www.michiganlawreview.org/firstimpressions/vol107/mccain.htm

What goes on here? Why haven’t I heard this mentioned on the Plainsradio shows, of which I’ve heard at least 75% of? Why hasn’t Donofrio or anyone mentioned this organ? I’m sure he hadn’t as it would have been most memorable. You can see readily the first (and longest-some 27 pages pasted into MS Word- the others are less than ten- and these are REAL academic pieces with full footnoting) has it McCain ineligible, the final two that he is. I’ve only browsed them as I pasted into MS Word. I see many references to things being discussed here on FR and I believe some I have not seen (other cases). Perhaps the large, late Benjamin piece on TD blog has more refs to those here (in comments JB gives a list of about 5 cases to a detractor). I haven’t sussed two articles set between.

Just looking here it’s a wonder the 9 in SCOTUS wouldn’t be taking on the Donofrio case. One would have to think they have disgorged these five articles. One would have to think the four conservatives and at least one other would issue or want to issue decision.

In haste I post. It’d take me a lot of time to study as I should. Just passing it on without comment, except my real PC has just had its famous pre-repair crash now back from the shop a week. I’ve also lost my long ping list so do as you would, please. Someone should get this to Donofrio, really. I just don’t, in what I’ve scrolled through here, think he’s onto some of this anyways. My files are trapped in a CPU that won’t turn on as of less than an hour ago. Of course there are many references to his cited materials but there are things…well, maybe I’m dreaming.

Here is the one FR post from this I found in quick search of “Natural Born Citizen”.

Originalism and the Natural Born Citizen Clause
10/22/2008 6:31:48 PM PDT • by Dajjal • 7 replies • 707+ views

There are four more entries that go back to Sept 13 – didn’t FR lose files with a server change back around here? I believe I caught it on Atlas Shruggs, where I was lurking / mining back then, along with Godlikeproductions (yes, of all places) and TexasDarlin. I didn’t join FR until later.

Here goes:

Volume 107, No. 1 (September 2008)
An Online Symposium on
Senator John McCain and Natural Born Citizenship
Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a “natural born citizen” as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.

Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship [HTML] [PDF]
Gabriel J. Chin, University of Arizona Law School
Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.

Originalism and the Natural Born Citizen Clause [HTML] [PDF]
Lawrence B. Solum, University of Illinois Law School
The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

The Justiciability of Eligibility: May Courts Decide Who Can Be President? [HTML] [PDF]
Daniel P. Tokaji, The Ohio State University, Moritz College of Law
The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.

McCain’s Citizenship and Constitutional Method [HTML] [PDF]
Peter J. Spiro, Temple University Beasley School of Law
Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.

Why John McCain Was a Citizen at Birth [HTML] [PDF]
Stephen E. Sachs
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.

"the natives, or natural-born citizens"

Here, again, we see the terms are interchangeable.

"parents"

if we take the plural here to mean exclusively both parents then you might have a point, but we also express 'the male parent of this child and the female parent of that child and the male parent of the female parent of that other child' as 'parents' - the plural of parent when they do not share offspring. I wish I could have avoided the very awkward constructs above, as did Vattel.

Citizen at birth by ancestry is not in dispute. Citizen at birth by location of birth is another facet of English common law. The 14th Amendment does use 'OR'. US Law and the COTUS are more relevant than either Natural Law or English Common Law - George Mason, [a] father of the Bill of Rights, said: "English Law is not our Law". All these 'Natural Law' and 'English Common Law' arguments are tenuous at best. I have yet to see the expression 'father and mother are citizens' or the like in any of these supposed proofs of the 'two citizen parents' argument. Furthermore, how does any of this supersede the COTUS, including the 14th Amendment? On top of all that, as I mentioned earlier, women acquired the citizenship of their husband at marriage, if different from his prior (all you English Common Lawyers go look that one up). Citizenship of the mother simply was not a factor. And, further, the John Jay letter has no bearing. We already know that 'natural born' means 'having that attribute from birth' and that was important. I do not accept your 'proof' to, well, prove anything.

P.S. Don't use yellow, at least not this shade, it is difficult to read. Not enough contrast.

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WHERE is it DEFINED:

(1) American Citizen + (1) Foreign Citizen + Birth on US Soil = NATURAL BORN CITIZEN ???

Like I've said previously, Congress has attempted to Amend the Constitution 26 times since the 1870s, and it's failed in Committee -- EVERYTIME. For example...

Ponder the words of Forrest McDonald, Historian and Professor of History, University Of Alabama, who provided testimony July 2000 on House Joint Res. 88, "Constitutional Amendment To Allow Foreign-Born Citizens To Be President":

... and yes, I know current documentation indicates Obama was born on US soil, with only ONE parent who was a foreign citizen, but...

... there are some eerie omens in this testimony given 8 years ago...

Relax, I'm playing devil's advocate -- I actually believe he has 2 or 3 layers of "birth certificate" records, starting with a "Certificate of Hawaiian Birth."

Like I explore here: Obama's "birth certificate" - the devil's in the details

BonRad, I've looked at Solum's research on this extensively, and see him to be a good source of info -- although he's a bit non-committal at times.