The latest Obama eligibility ruling shocks, mystifies, and outrages activists and Constitutional scholars who have seen it. Many argue that the judge did not properly apply either the law or existing precedent.
Obama eligibility from statutory construction
Activist Nick Purpura told CNAV this morning that Judge Michael M. Malihi failed to apply statutory construction in ruling against Plaintiffs Weldon, Svenson, and Powell. (The case of Plaintiffs Farrar et al. is a different matter.) Statutory construction means that when two propositions bear on a case, the court must construe a separate effect for each one, unless the legislature involved has said explicitly that one proposition repeals the other. No such thing as an “Abrogation Principle” exists in American law.
Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87-89 (1902).
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
In this case, two parts of the Constitution bear on the Obama eligibility challenges:
- Only a natural-born citizen may become President (or Vice-President) of the United States.
- Any person born in the United States (and subject to its jurisdiction) is a citizen.
Question: does Proposition 2 above qualify Proposition 1? Answer: No. Proposition 2 defines generally that class of persons who may vote, and hold offices other than that of President and Vice-President, by virtue of their birth. Proposition 1 gives the strict rule on who is eligible to be President. (By Amendment XII, a candidate for Vice-President must also be eligible to the office of President.) The terms citizen at birth and natural-born citizen do not mean the same thing. If they did, then Proposition 2 above would need the words “natural-born” within it. Because it did not, the phrase “natural-born citizen” must mean more than merely being born in-country.
Likewise, the Senate resolution somehow “declaring” that Senator John McCain, R-Arizona, was a “natural-born citizen” could have no force or effect. Only a Constitutional amendment could possibly suffice for that. (In an open letter to Georgia Secretary of State Brian Kemp, Purpura’s fellow activist Donald Laster points out that Congress has tried to change the definition of “natural-born citizen” many times over the last 50 years. It has tried eight times in the last six years. All these attempts have failed.)
A constitutional lawyer reacts
Emmerich de Vattel. Portrait: unknown.
Mario Apuzzo, of Jamesburg, NJ, has doubted the Obama eligibility claims since 2008. The night that Judge Malihi decided the Obama eligibility challenges before him, Apuzzo reacted almost at once. He said that “[n]either fact nor law” could support Malihi.
First, Apuzzo observed that Malihi had no evidence to support a finding that Barack H. Obama was in fact born in the United States. Obama never introduced any, and neither did his attorney. (Neither man even showed up for the hearing.) Orly Taitz introduced evidence to the contrary. Malihi found this “of little probative value” and “insufficient.” Result: Malihi merely presumed that Obama was born in the United States, though no one actually showed this. (In an administrative case, like one of these, a court does not presume to find for the defendant. Instead, the court decides between plaintiff and defendant by a preponderance of the evidence. That means that one side or the other must offer evidence that is more convincing and more likely to be true. Because the defense offered no evidence, the plaintiff should have prevailed.
Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue. Judge Malihi found the plaintiffs’ documentary evidence to be insufficient for whatever purposes it could have been used. Nor did he find that that evidence, which includes a paper copy of the computer scan of Obama’s alleged long form birth certificate, to be sufficient to prove that Obama was born in Hawaii. We can see from the exact words used by Judge Malihi that Obama has failed to carry his burden to conclusively prove that he was born in the United States.
Second, Apuzzo flatly rejected Malihi’s reasoning from Ankeny and Kruse v. Governor of Indiana. First, no State precedent could possibly be controlling. States may not decide what a natural-born citizen is; they need Supreme Court precedent for that. Instead of looking directly for it, Malihi read the Ankeny case (which he misspelled Arkeny) and accepted its reasoning. According to Apuzzo, he shouldn’t have.
Ankeny did not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution. It is a rule of constitutional construction that we can learn what the Founders and Framers intended by a certain term they included in the Constitution by discovering what their purpose was for including the term in that document. But the Ankeny court told us what an Article II “natural born Citizen” is without examining the purpose for which the Founders and Framers included that clause in Article II, Section 1.
Apuzzo went on to say what the Founders and Framers meant by the phrase “natural-born citizen.”
[O]ur U.S. Supreme Court has given the exact “natural born Citizen” clause only one definition and that is a child born in the country to citizen parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). This means that only a child born in the United States to two parents who are either Article II “natural born Citizens” or Fourteenth Amendment or statutory “born or naturalized . . . “citizens of the United States” is an Article II “natural born Citizen.” This is the consensus opinion of a “natural born Citizen” as provided by our U.S. Supreme Court and Congress since the beginning of our nation. Consequently, a “Citizen of the United States” is any citizen so made by Act of Congress, treaty, or other positive law such as the Fourteenth Amendment. Indeed, while a Fourteenth Amendment “born . . . citizen of the United States” may be born with dual and divided allegiance to the United States, an Article II “natural born Citizen” is born only within the sole, full, complete, and undivided legal, political, and military allegiance and jurisdiction of and sole citizenship in the United States.
Conclusion: Obama failed to show that he was even born in the United States. Even if he did, his father was a British colonial subject. For either reason, Apuzzo essentially urged Georgia Secretary Brian Kemp not to list Obama on the Georgia ballot.
Other activists react
Don Laster (see above) sent this letter to Secretary Kemp. He also told CNAV that Judge Malihi had “ignored the law” in dismissing the Obama eligibility challenges before him.
Once again an individual is protecting Mr Obama by failing to obey the US Constitution and use the real definition of the meaning of natural born citizen. Judge Malihi ignored U.S. Supreme Court rulings that have referenced the meaning of natural born citizen for more than 200 years. And his use of an Indiana State case in which the definition of natural-born citizen was distorted by twisting the source and misuse of U.S. Supreme Court rulings gives indication that the “fix was in.”
Nick Purpura gave a more pointed reaction: he speculated that someone bribed, blackmailed, or otherwise threatened Judge Malihi to make him rule as he did.
Orly Taitz made two posts on her site to urge interested people to call or send FAXes to Secretary Kemp, and not to Judge Malihi.
Obama eligibility challenge as part of Purpura v. Sebelius, parts one and two.