Supremes need to 'do their job,' make ruling on constitutional question
By Bob Unruh
© 2011 WND
|Barack Obama and Kenyan Prime Minister Raila Odinga|
Just one day after a case challenging Barack Obama's presidential eligibility was scheduled to be heard in conference at the U.S. Supreme Court, several veteran attorneys who already have fought that battle say it's time for the high court to step up, do its job and make a ruling on the controversial constitutional question of eligibility.
"This is a fundamental part of the Constitution," said Mario Apuzzo, an attorney who handled the case brought by Charles Kerchner up to the Supreme Court, where the justices refused to address the issue.
"They won't do their job. They are washing their hands of it. There is no standing (issue). There's no political question here," he said.
His comments came just one day after a case brought on behalf of then-presidential candidate Ambassador Alan Keyes reached the nation's highest court. And it came only a couple days after the Federal Election Commission stunningly said a foreign-born naturalized American citizen fits its requirements to run for president.
The decision muddied what already was an unclear standard regarding the Constitution's requirement that a president be only a "natural born Citizen," assumed at the time of the writing of the document to be the offspring of two U.S. citizens.
It is the Keyes vs. Bowen case, handled by Gary Kreep of the United States Justice Foundation, that was scheduled to be discussed by the justices yesterday. The case argues that in California, state officials previously investigated the eligibility of candidates – removing some from the ballot for ineligibility – but then refused to do the same for Barack Obama.
The case also cites a precedent out of the state Supreme Court in North Dakota for removing a chief elected officer who was already installed in the office when it was discovered he was ineligible.
The FEC decision involved New York lawyer Abdul Hassan, who was born in Guyana in 1974. Hassan argued it was discriminatory to not allow him to run for office.
In its official decision, the FEC said a naturalized citizen is not prevented by the Federal Election Campaign Act from becoming a "candidate,' however, that person would not be eligible for federal matching funds.
Stated the FEC ruling: "In regard to the definition of 'person,' the act defines that term as including 'an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons,' excluding the federal government. There is no reference to natural born or naturalized citizens. As an individual, Mr. Hassan is a 'person' under the Act."
While the FEC's own rules now allow Hassan to run for high office, the attorney must still clear judicial hurdles before his eligibility can become official.
At issue is the stipulation in Article 2, Section 1, Clause 5 of the U.S. Constitution that only a "natural-born" citizen can be president.
The clause 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."
The Fourteenth Amendment to the Constitution specifically defines "citizen" but not "natural-born citizen."
A "citizen" is defined as: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are Citizens of the United States and of the State wherein they reside."
However, no definition of "natural-born citizen" – which is only used in the presidential requirement clause – was provided anywhere in the Constitution, and to this day the precise meaning of the term is still being debated.
Kreep told WND that the FEC's result is "ludicrous."
"It flies in the face of the U.S. Constitution, and it just another example of how the Obama administration and its minions in the federal bureaucracies don't care about the U.S. Constitution and are more interested in the politics and appearing to be politically correct, and appeasing special interest groups instead of running the country according to the rule of law."
He confirmed that his organization is reviewing the FEC decision and may consider a legal challenge should an opportunity develop.
It was Apuzzo who took the issue into a broader context, warning that the authors of the Constitution had expressed that individuals who do not qualify as a "natura-born citizen" cannot be trusted to be president.
"They told us you can't trust this person as much as you can a natural-born citizen," he told WND. "And that [constitutional provision] hasn't been changed."
He said he earlier had argued for the court to take up the question not just because of the issue of Obama's eligibility in the 2008 election but also for Obama 2012 and for other candidates in the future.
"The Supreme Court should have decided the case. It's not a political question [as judges have claimed in rejecting cases.] We need to know what is a 'natural born citizen.
"The Supreme Court is the third branch of government. The Founders gave them the power to interpret the Constitution. The wolf can't guard the henhouse. We can't expect Congress and Obama to tell us whether he's not a natural born citizen," he said.
But mud was splashed on the issue when the Supreme Court justices refused on numerous occasions to make a determination, he contended.
He explained the lower court in the case he handled on behalf of Kerchner said if the petitioners were upset with Congress failing to address the issue, they could take the issue to the polls.
"The court actually told us that we're a mob democracy," he said. "Just go to the polls and define natural born citizen. … Imagine during the civil rights movement the courts saying if you don't like segregation, go to the polls."
"It's tearing us apart," he said.
He said the FEC ruling just stirs up more uncertainties.
"They distinguished between running for office, and sitting for office," he said. A president, he noted, "still has to be qualified." In fact, the Founders anticipated such a situation, by providing that Congress is responsible to check the eligibility of an elected president before allowing him to take office.
That was a function Congress failed in the 2008 election, he asserted.
"If he's not qualified, then Congress really shouldn't be confirming him," he said.
Laurence Elgin of the Constitutional Rule of Law Fund and website, who worked on many of the briefs in the Greg Hollister case that was brought to the Supreme Court by attorney John Hemenway, again challenging Obama's eligibility, said in the FEC case, officials "confused 'citizenship' under the 14th Amendment with the 'natural born citizen' requirement of Article II [in the Constituiton.]"
He noted one of the cases cited in the FEC arguments stated plainly, "The only difference drawn by the Constitution [between citizen and natural born citizen] is that only the 'natural born' citizen is eligible to be president."
He concluded there "is no historical support" for the claim by Hassan that is it somehow discriminatory to differentiate between a citizen and a natural born citizen.
"His entire argument is based on a notion of 'equal protection' as if the Framers had had no authority to make certain persons eligible for high office while excluding others. By the same argument the requirements to serve in Congress could be wiped out as well," he noted.
"I believe that this sort of broad assault on the precise language of the Constitution as chosen by its Framers and those who drafted its amendments is incompatible with the oath that Mr. Hassan would have to swear should he be elected president in that he would be assuming an office he knows from his arguments he is not eligible to hold unless the Constitution is assaulted.
"It will be interesting to see if his lack of eligibility, which is a fortiori greater than that of the present occupant of the Oval Office, goes unchallenged. What would be next, eligibility for illegals?" he wondered.
He suggested that it would be appropriate to ask members of the FEC, particularly the Republicans, "whether they swore an oath to uphold and protect the Constitution when they assumed office."
The issue of defining "natural born" could have implications for President Obama's 2012 bid. Many have argued Obama is not eligible since his father was a foreign national from Kenya and was not a U.S. citizen.
There are no records of any definitive discussion on the "natural born" matter during the Constitutional Convention. That – coupled with the absence of definitive Supreme Court rulings and a wide array of opinions throughout the centuries – has only further confused the question of what "natural born" actually means.
Still, many constitutional legal arguments lean heavily toward the definition of "natural born" meaning both parents were citizens in the U.S.
The legislative and judicial bodies of the U.S. government have held no formal discussions, nor did they conduct a single formal investigation into whether Obama is eligible to serve under the Fourteenth Amendment.
Congress did, however, question the "natural born" qualifications of Obama's 2008 presidential opponent, Republican Sen. John McCain.
The scion of distinguished U.S. naval officers, McCain was born to two American parents in the Panama Canal Zone. On April 30, 2008, the U.S. Senate sought to answer the question by passing a nonbinding resolution, which states, "Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it resolved, that John Sidney McCain, III, is a 'natural born citizen' under Article II, Section 1, of the Constitution of the United States."
The resolution clearly determined "natural born" to mean born of two parents who are U.S. citizens.
The closest that anything has come to an explanation for the high court's refusal to address the issue was a series of remarks by Justice Clarence Thomas, who appeared before a U.S. house subcommittee and responded to the issue.
Thomas was before the House subcommittee when Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
"I'm still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States," said Serrano, who was born in the island territory. "That's another issue."
Yet after Serrano questioned him on whether or not the land's highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
"I'm glad to hear that you don't think there has to be a judge on the court," said Serrano, "because I'm not a judge; I've never been a judge."
"And you don't have to be born in the United States," said Thomas, referring to the Constitution, which requires the president to be a natural-born citizen but has no such requirement for a Supreme Court justice, "so you never have to answer that question."
"Oh really?" asked Serrano. "So you haven't answered the one about whether I can serve as president, but you answer this one?"
"We're evading that one," answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. "We're giving you another option."
The latest developments include an investigation of Obama announced by Maricopa County, Ariz., Sheriff Joe Arpaio based on a complaint from constituents that Obama's birth certification documentation is fraudulent.
The president, after essentially ignoring the controversy for years, personally got involved in defending his eligibility recently. In April he dispatched a private attorney to Hawaii to pick up a copy of what the state purported to be his original birth documentation.
This is the image that was released:
However, the authenticity of the image posted by the White House has been challenged by a number of analysts and other critics as fraudulent. And some note that if the document is real, it lists Barack Obama Sr. as the father, proving Obama Jr.'s ineligibility since a "natural born Citizen" was considered by scholars cited by the Founding Fathers to be the offspring of two citizen parents.
Read more: Nation 'tearing itself apart' over presidential eligibility http://www.wnd.com/?pageId=349545#ixzz1ZFsCkYkb