Obama eligibility and judicial embarrassment

May 31, 2012 Terry A. Hurlbut 21 Comments

The Constitution. It's good to know your history, including the biblical foundations of this document.

The New Jersey Obama eligibility challengers went to court yesterday. The result was a setback for them and an embarrassment for the court.

Disinterested judges

The case of Purpura and Moran v. Obama is on appeal after an administrative-law hearing before ALJ Jeff S. Masin (April 10). Judges Clarkson S. Fischer, Jr. (presiding), Philip Carchman, and Linda Baxter heard the argument. Mario Apuzzo, who is working pro bono, argued for the appellants. Angelo Genova, of Genova, Burns, Giantomassi and Webster, argued for Barack Obama. George Cohen, Assistant Attorney General, argued for the Secretary of State.

As they filed in and took their seats, they seemed more than disinterested. They were plainly bored. Judge Fischer, as the embedded video shows, walked into court with his robe open and looked almost disheveled. As they sat and listened, Judges Fischer and Carchman rested their chins in their hands and stared into space, not necessarily at the speaker’s lectern.

The judges asked nearly all their questions of Mr. Apuzzo. Judge Fischer’s question gave the best clue to what all now expect to be a decision to affirm Judge Masin’s rulings. They are:

Obama, as a candidate in a primary, need not show his eligibility to be President.
Obama was born in Hawaii and is therefore a natural born citizen.

Obama’s lawyers argued that New Jersey did not even have subject-matter jurisdiction in such a case. Judge Fischer gave away the reasoning of the court when he suggested to Apuzzo that “chaos” might result if each State determined, on its own, who should have his name on a Presidential ballot, and who shouldn’t. Fischer later suggested that Congress, and the Electoral College as a body, should decide who is eligible as President and who is not.

Obama eligibility and lack of evidence

In his brief to the court, Apuzzo argued that Judge Masin had decided, without evidence, that Barack Obama was born in Hawaii. Furthermore, Masin had made new law when he seemed to rule Obama a natural born citizen. No court has actually ruled that a natural born citizen is merely one born in a country, regardless of parentage.

In US v. Wong Kim Ark, the Supreme Court held that respondent Wong was a citizen, and therefore the US could not expel him from the country. The Court did not say that he would be eligible to the office of President. More telling is Minor v. Happersett, in which the Court held that persons born in-country to citizen parents were “natural born citizens.” That case is still the case that defines the term “natural born citizen,” as opposed to a citizen-at-birth.

Obama eligibility and Constitutional ignorance

Mario Apuzzo, arguing the latest Obama eligibility challenge

Mario Apuzzo walks toward the Office of Administrative Law with his two clients. Photo: CNAV.

The three judges seemed ignorant of the Constitution, especially what it says about how the United States elects Presidents. Article II, Section 1, Paragraph 2 begins:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Judge Fischer asked Apuzzo about “chaos” arising from having each State decide who should appear on a ballot. But the Constitution clearly says that States decide whom to send to the Electoral College.

Furthermore, Fischer seemed to think that the Electoral College, as a whole, had the authority to decide who is eligible and who is not. But the Constitution also says that the Electoral College never meets as a body. Instead, each set of Electors meet in their own States, mark their ballots, seal them, and send them to Congress. The Vice-President then opens them in front of Congress in early January.

And, as Apuzzo tried to tell the court, Presidential Electors are pledged to vote for named candidates for President and Vice-President. Indeed, no voter ever knows the name of a candidate for the post of Presidential Elector. The judges reminded Apuzzo that the pledging or binding of Presidential Electors was not an issue at bar. (Twenty-four States legally bind Presidential Electors, though no State has ever punished a “faithless Elector.” New Jersey is not one of those States.)

Activsts react

A handful of Tea Party activists sat through the hearing. All expected the court to affirm Masin’s holdings. They cited the seeming boredom of the judges, and the questions that Judges Fischer and Carchman asked. (Judge Baxter kept silent throughout the hearing.)

“They just said that New Jersey is no longer a sovereign State!” said Bob and Linda Gordon. Paul Draper, of Wall Township, agreed:

What Federal law trumps State law, or State courts? Do they even know that the Constitution gives States the right to run elections in this country?

Draper is correct. Article I of the Constitution gives States the right to run elections for US congressmen. (Amendment XVII gives States the right to run Senate elections.) Article II (see above) gives States the right to appoint Presidential Electors, except that States may not appoint sitting Senators, Representatives, or federal officers.

Nick Purpura, the lead plaintiff in the case, expressed similar outrage.