Judge David O. Carter
I’ve had a few days to think about the transcript from the October 5, 2009, hearing in Barnett v. Obama. I am not the first to try to figure out where Judge David O. Carter is leaning based on his comments during the hearing.
The bulk of the Judge’s questions related to two issues: the standing of the plaintiffs and the political process for removing a president. It seems to me that these two questions focus on the criteria under which Judge Carter may dismiss the case.
Judge Carter seems to be concerned with the question: if the plaintiffs are right that President Obama is not eligible, what is the mechanism under the Constitution through which their complaint is redressed? In his view, there must be some avenue for a citizen to seek redress for a legitimate complaint.
Is it in the courts? Here the question of standing arises. Without standing, the plaintiffs cannot proceed in the court. Judge Carter wanted to address the standing of each of the classes of plaintiffs: voters, political candidates, reserve military personnel and active military personnel. (The decision in Berg v. Obama already addressed the voter plaintiff’s lack of standing.)
Is it through a political process? The second area reaches into the political question doctrine. If the Constitution places the removal of a president from office within the sole power of the Congress (either through impeachment or determination of incapacity), then the courts have no role. However, Judge Carter wanted to gain the assurance that those Constitutional mechanisms are actually in place and that there is a process through which they could be carried out. Congress may be petitioned to redress the grievance.
Judge Carter asked no questions related to Gary Kreep’s assertion that “impeachment” and “incapacity” do not apply because Obama is not really president. I read the lack of such questions as a sign that the Judge doesn’t consider this argument valid.
I think Judge Carter will address both standing and the political question in his order regarding the government’s motion to dismiss. I believe the care he will give each of the issues will insure that his decision will not be overturned on appeal.
I think you are right.
Carter will most likely say everyone who wasn’t a candidate lacks standing.
With respect to the candidates (Keyes, etc., the government’s “mathmatically impossible” argument skirts standing…it becomes a substitute for merits in a way.
Carter will ultimately agree that Congress has the power to redress this “injury,” and thus they are the people birfers should be bothering.
As Taitz’s suit was filed after Obama was president, he doesn’t have to worry about any theoretical issues regarding the Electoral College, Congress’ certification, etc.
While candidates had standing before the election, I cannot see how the court could redress an injury now. What could it do, order new elections?
With respect to the candidates (Keyes, etc., the government’s “mathmatically impossible” argument skirts standing…it becomes a substitute for merits in a way.
While I agree with the “mathematical impossibility” argument with regard to Keyes, it seems to me that this was the one area where Carter was ambivalent. His comments suggested that the argument is prejudicial to the alternative possibilities (as opposed to the recent historical reality) that third parties represent in the event that the major parties’ candidates prove themselves unacceptable to the voters.
He brought up the subject of Ross Perot.
What could it do, order new elections?
Who are you, Taitz? 😉
That’s the justiciability argument. Any theoretical relief (enjoining the Electoral College, certification, or the inauguration) has passed. And the constitution plainly gives Congress the power to remove a sitting president. (And the “he’s an usurper, not a president” argument is easily disposed of under incapacity.)
Standing would involve 2 things, in my thinking..
One, WHO HAS the authority/reason to file any lawsuit? Meaning, a person who had actual harm.
Second, DID ANY INJURY IN FACT HAPPEN? As has been mentioned before, an “injury” cannot be something hypothetical. For this situation, of course, it is clear that the injury was not ONLY hypothetical/ speculative… but completely FALSE. The burden falls on the plaintiff to show “yes, your honor, my car was ACTUALLY destroyed”.
In other words.. even if one of them EVER GOT to the point of the “merits” (using the word loosely) being heard, the result would still be the same.
The document(s) from Hawaii are valid, and always were.
Another item struck me as telling.
Judge Carter seemed willing to consider defining Natural Born Citizen as anyone born to a citizen parent since precluding children born abroad from citizenship unless the mother met residency requirements would be discriminatory to the child.
If I caught that right, Judge Carter could rule that Obama is eligible for the Presidency even if Orly and Freep somehow proved all their wild accusations by making his place of birth irrelevant to the issue.
The only issue that would matter would be that one of Obama’s parents was a citizen or that he was born in a State or Territory.
(BTW: I was born abroad in a situation similar to McCain’s)
I cannot see how the court could redress an injury now. What could it do, order new elections?
Not without rewriting the Constitution from the bench.
The most the court could do is create “a situation where a single United States District Court judge would have the power to remove a President of the United States” (West)
And “then that individual potential judge, whoever he or she was in the country, that case then, going to the circuit or to the Supreme Court, and you’ve cast out at the very beginning the harm to the country in terms of the cloud or taint hanging over the executive branch.” (Carter)
Were there potential electors?
Would the individual State’s laws concerning the selection of Electors allow Keyes and the others to get elected in the alternate universe where they won enough States through the write-in process?
If so I see a possibility they may actually be given standing, but lose on the judicibility (sic?) question.
My question is when is he supposed to make this ruling, does anyone know?
I think its too late. I think that Keyes (or others like him) would have had standing to bring a pre-election challenge under state election laws in any state for which they were qualified for the ballot. That would be subject to each state’s procedure– and of course they would have had the burden of proof.
Post-election, a losing candidate can still bring a challenge — under state laws — but most of those laws are restricted to challenging the outcome and seeking a recount, rather than evaluating eligibility of candidates.
I don’t think any action could be brought by anyone to enjoin or influence the electoral college, because the date for the meeting of electors is essentially cast in stone by the Constitution.
So that leaves Congress in January, and the 20th Amendment clearly gives Congress the authority to determine whether a President-elect is qualified. Absent any objection raised in Congress, there’s no issue left to litigate.
Carter offered a hypothetical situation of Arnold Schwarzenegger (naturalized citizen) being elected with a Republican Congress — but I think its hard to fathom a scenario where no one would object either during pre-election challenges or in Congress.
Expelliarmus, Tomtech:
I’m not arguing the third party standing applies in this case. Both counter-arguments are good — and at the very least, should have been brought before the election.
My impression was that Carter was a bit turned off by West’s dismissive attitude/argument toward third parties.
And that speaks well of the judge, as unbiased and non-partisan, IMO, since political parties are extra-constitutional.
No-one knows. There is no fixed deadline for him to rule. He will rule when he rules.
bothers me that it is taking so long..
On the other hand, I am hoping that it can be worded in such a way, that it can be made clear…
THIS IS WHAT THE LAW IS, IN FACT.
He isn’t there to “pick sides” on personal views. No matter how much Orly wants that to happen.
The problem, of course, is the grandstanding, when a 4th grader can spot her legal inadequacies. And, by grandstanding, she continues to keep the mob stirred up.
On the other hand, I am hoping that it can be worded in such a way, that it can be made clear…
THIS IS WHAT THE LAW IS, IN FACT.
Unfortunately, even if Carter displays the legendary wisdom of King Solomon in his ruling — dispelling all doubt for the rational — it will be rejected by the irrational, whom we have come to equate with the birthers.
It’s what they do.
I agree with Carter’s view toward third parties — I don’t think that in a pre-election challenge the Court would have any business assessing chances of success. A minor party candidacy can also influence the outcome of an election without winning. (Would Bush have been elected President in 2000 if Buchanan & Nader had not been on the Florida ballot?).
But I do see the point in the post-electoral college environment that this suit was brought — although I don’t think the US Attorney stated the point in an articulate manner.
As I see it, up until the meeting of the electoral college, everything happens at a state level, and any candidate who has qualified for the ballot in a given state should stand as an equal to any other candidate in terms of standing to raise a challenge.
But post-electoral college, the process shifts to a national (federal) context. The only “candidates” remaining on the field are those who have at least one electoral college vote. (1 vote could not possibly win an election, but it certainly could impact the outcome in a very close election).
Judges like Judge Robertson or Judge Land or Judge Lazzara didn’t rule based on personal views. They ruled as the law required. And they were sharped tongued because these cases are a waste of their time and judicial resources, and the attorneys filing them ought to know better.
But if you are impatient for Judge Carter to rule, think how poor Apuzzo feels, waiting for the judge to dismiss his case. (Looks like his “Obama can blow up the world!” argument was not persuasive.)
I would like to think that the longer he waits, the more detailed and well-documented will be the decision.
I think Judge Carter was not aware of the state of Immigration law at the time Obama was born. I think Judge Carter understands (correctly in my view) that they who are born citizens are natural born citizens. Obama, however, would not have been born a citizen had he been born outside of the United States according to the law at the time.
Not to repeat myself, but I think the most stunning read of Carter’s comments, is the part where he declares that he thinks that Congress has indirectly quaked the bedrock intent of the Constitution’s NBC clause already at least once (by changing how the prospective candidate’s PARENT’s citizenship is determined at the moment of the child’s birth, as a derivative of constantly changing statutes including family law, domicile definition, residency requirements, legal father, paternity etc etc) and that means it’s changed many times, often by other nation’s laws which also change the reckoning that finally determines who is eligible! To assert that our founder’s sacrosanct original intent has been prostituted out to every nation’s social service lobbyists, is to pull anyone’s righteously exclusive interpretation of “Natural Born Citizen”, right out of their poison dart quiver.
Judge Carter surely is seeing the Birther’s attack with that in mind:” Ms. Taitz, do I have this right, you want me to resolve the profound multiplicitous ambiguity of Article Two eligibility, ripening for over two hundred years, in favor of a definition specifically concocted to unseat the first Black President?”
Benji Franklin
This is why I argue in favor of the “citizen at birth” understanding of the term “natural born citizen”. In this case, Congress has not touched the actual qualification, and the Naturalization Act of 1790 was Constitutional.
He might have needed to wait for the clerk to get the transcript of Oct 5 typed up, if he needed the exact wording used for his findings. THose were released on the 16th.
Hmmm, the ECF server for the New Jersey District Court is unreachable. Maybe something HAS been posted and the birthers swarmed and crashed the server 😈
Bob,
I am not waiting for the court to dismiss my case. I am waiting for a well-researched and well-written opinion that will stand up on the defendants’ appeal.
By the way, the tone of this thread is much more professional. Congratulations to all of you.
Minor parties also can be harmed even if they have no shot at winning. Federal matching funds depend on the results of this election.
“Minor party candidates and new party candidates may become eligible for partial public funding of their general election campaigns. (A minor party candidate is the nominee of a party whose candidate received between 5 and 25 percent of the total popular vote in the preceding Presidential election. A new party candidate is the nominee of a party that is neither a major party nor a minor party.)The amount of public funding to which a minor party candidate is entitled is based on the ratio of the party’s popular vote in the preceding Presidential election to the average popular vote of the two major party candidates in that election. A new party candidate receives partial public funding after the election if he/she receives 5 percent or more of the vote. The entitlement is based on the ratio of the new party candidate’s popular vote in the current election to the average popular vote of the two major party candidates in the election.”
I too look forward to a well-researched and well-written opinion that will stand up on appeal (omitting your qualifier “defendants’) and I also like the tone of the responses on this thread. I think there are a wealth of well-written, thoughtful, well-argued, well-researched and courteous comments on this blog, but not all are and sometimes tempers run high.
If I had my druthers, everything here would be high-minded. But I also find it a compelling goal to distinguish this blog from others that censor ideas. I found it impossible to enforce tone without censoring ideas, and so I don’t try.
Assuming Carter is working on decision, I have a feeling he has granted standing but is trying to figure out the other issues. According to the transcript, Carter indicated that if denied standing he would not resolve the other issues (Juristication, etc.). Hence, a decision would be expected quickly. If Carter granted standing he would have to sort all the other issue meaning a decision would be much more complex. Judge Carter may still dismiss the case, but I think he has granted standing but will dismiss on juristication or other issues if a dismissal is given.
I think Gary Kreep’s argument was much stronger than Orly’s. Obama can not be impeached for his ineligibility because being ineligible in not a crime. Yes, Obama can be impeached on fraud and other crimes based on his eligiblity, but he can’t be impeached solely on his eligiblity. However, Obama can still be removed. Provisions in the Constitution state the POTUS can removed if he dies or resigns. However, when the POTUS dies or resigns, he is not impeached. Further, the POTUS can be removed if the POTUS has a condition that renders him with the inability to discharge his duties. Being ineligible would fall under this. While the courts can’t remove the POTUS from office, I submit that the courts certainly have the power to determine if Obama is ineligible or not since this ties directly to a consitutional provision. With a judgement that Obama is ineligible, Congress would compelled to act and they treated Obama as if he had died, resigned, or had a stroke. No impeachment would be necessary and Biden would become the POTUS.
Great theory you got there. Only one leetle problem. Obama is eligibile because he was born in Hawaii, which makes him a citizen by birth, which is all the Constitution requires. Nice try, though.
Further, the POTUS can be removed if the POTUS has a condition that renders him with the inability to discharge his duties. Being ineligible would fall under this.
But the constitution explicitly gives this job to Congress; it is a political question. The judiciary cannot “compel” Congress to act in this regard.
Orly is posting info on family members of the clerk, Carter’s inaction is taking a nasty toll.
Naah. There are 49 plaintiffs, give or take a dozen, classified into 3 or 4 different categories: active military, retired military, candidates, electors, voters. Thus, there has to be a standing decision on each one.
Add in a detailed explanation of the justiciability doctrine, political question, and other doctrines that he could raise sua sponte.
Or, he could be working on cases that actually have plaintiffs who were injured.
Some more problems with this:
1. Kreep’s argument that Obama can’t be impeached because he isn’t eligible to be president ignores the “de facto officer” doctrine.
2. The claim that a POTUS cannot be impeached for ineligibility ignores the fact that it’s for the Congress (House and Senate) to determine what an impeachable offense is. They can be guided by precedent of course, but are not bound thereby. Nothing you or I or any Court says is binding on Congress, which makes its own determination of what constitutes impeachable conduct or action.
3. It’s not for the courts to determine whether a POTUS is unable to discharge his duties. Under the Constitution (25th Amendment, section 4) it’s for the VPOTUS and a majority of the Cabinet to determine that. Also, the POTUS can make a counter-determination. If the two determinations are ultimately contradictory, then Congress decides, requiring a two thirds vote of both houses to suspend the POTUS. Note that two branches of government are involved: the executive branch, through the POTUS, VPOTUS and the Cabinet; and the legislative branch, Congress. But no role for the third branch, the courts.
4. There is no reason to believe that Section 4 of the 25th Amendment is addressed to the eligibility issue. It’s clearly meant to deal with the issue of physical or mental incapacity of the POTUS.
That is debatable. As Gerald Ford famously stated in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
It isn’t that simple, which is one reason why the issue of Obama’s eligibility is not justiciable. Even if the Federal Court asserted jurisdiction and somehow found Obama to be ineligible, and such a finding survived the inevitable appeal to the Supreme Court, it is far from clear that the Court would be able to enforce it. The Constitution states that Congress is the sole branch of government which has the ability to remove a president from office or strip a president of his or her powers. The Federal Court does not have the authority to require Congress to remove an ineligible president from office, because that would run afoul of the 25th Amendment and Article II, Section 4.
For a president to be removed from office due to incapacity, the 25th Amendment requires that both the vice-president and a majority of the cabinet must send a written declaration to that effect to both the President pro tempore of the Senate and the Speaker of the House (the 25th Amendment allows Congress to designate by legislation a body other than the cabinet to take part, but no such legislation has ever been enacted so under current law it would have to be a majority of the cabinet). If the president disputes the declaration of incapacity, the issue goes to both houses of Congress and 2/3 of both bodies must agree that the president is incapacitated.
So even if the Federal Court ruled that Obama is ineligible, it would require the assent of Joe Biden, a majority of Obama’s cabinet, and 2/3 of both houses of Congress to strip Obama of his presidential powers. And even in the extremely unlikely event of that ever happening (Biden and the cabinet could simply ignore the Court’s ruling and decline to issue the declaration), Obama would still be president in name. Biden would not become president, he would become acting president.
And that, in a nutshell, is why the issue of Obama’s eligibility is not justicable by the Federal Court – because the Court has no Constitutional authority to remove him from office.
That is really going to endear her to Judge Carter!
Obama family pics of 1961 are turning up and apparently Stanley Ann Dunham was not pregnant. Going to be tough to explain that one to Judge Carter don’t you think?
White American mother not pregnant yet suposedly has Black child in Hawaii? Tough sell.
I think Judge Carter is ordering discovery as we read this.
this is a joke!
Oh, this is so much fun. Ann wasn’t the mom? And Malcolm X was the father?
And their race has what to do with this?
this stupid story is an example what hate can invent, Carter needs to rule to end this crap. Birthers actually believe this garbage, that’s how dumb they are.
Let’s see if we can make a choice
1- Official documents from the state of Hawaii
2- almost definitely doctored “family pics” not backed by anything.
Nope. No contest.
Judge Carter should be ordering something. I strongly think it will not be what you expect.
Let’s see if we can make a choice
1- Official documents from the state of Hawaii
2- almost definitely doctored “family pics” not backed by anything.
Nope. No contest.
Judge Carter should be ordering something. I strongly think it will not be what you expect.
It might be a root beer float.
I think Kreep’s argument then is very valid and troubling. How do we get Congress to act if they unwilling to act? If the Federal Courts can’t do it, then it must fall to “We the People”. An uprising may be needed to compel Congress to act.
Is this Sven making up stories again? I think he is getting his info from AXJ, and they have been right how many times so far? Zero. Even if some pictures actually did exist they could never be authenticated or dated for a specific time unless she is holding a newspaper in every picture. This slander is getting out of control…
So, Natural Born Citizen has to mean born to two citizen parents on US soil because an obscure Swiss philosopher of international law said as much in a book ten years after the Constitution was written. But, “provisions in the Constitution” which “state the POTUS can removed [sic] if he dies or resigns” has to mean dies or resigns OR whatever the hell else we want it to mean.
It’s too bad you guys are irony impaired.
Kreeps “argument” is flatter than a week old soda.
Congress is not dumb enough to fail to understand that OFFICIAL GOVT VITAL RECORDS are completely valid.
Hence, their lack of action before.
Hence, the absolute probability that they won’t act now.
Plain English…
You don’t throw someone out for fraud.. when no fraud happened. What you read in some comic book, does not count as fraud.
In recent weeks it appears overwhelmingly that circumstancial evidence says Obama was born in Kenya. And since we do not know how Obama COLB is derived, the statements from Hawaiian officials simply don’t cut it. What is needed is coorborating proof that Obama was born in Hawaii. A verifiable signature from a doctor or witness would be sufficient. But, without how Obama’s COLB is derived, continued statements from Hawaiian officials mean nothing.
one more item to add to the sanctions list, and cause for disbarment.
That is for those who have some concept of ABA or Calif Rules of Professional Ethics.
It might rise to stalking charges.
How do we get Congress to act?
1. Vote out the folks who won’t act.
2. Picket.
3. Demonstrate
4. Hold sit ins.
The campaign to get civil rights lasted decades – without an “uprising.”
You guys don’t like Democracy, which is often messy and difficult. And sometimes you lose.
Go live in Russia.
You clearly don’t understand the basic concepts of evidence.
I think the jury at this point is Congress. A court Judgement is not necessarily required. All that is required is the opportunity to get discovery and see Obama’s sealed records. Once that happens, Obama is history. The trick is getting discovery. Even if Obama survives Carter and gets by Mario Apuzzo he will still have to contend with 9 more lawsuits if Gary Kreep intends on filing them. And of course, you can be sure Orly and Berg will not be staying silent as they will file many more lawsuits. The fighting will continue until we get discovery. Even if the truth about Obama’s eligibilty comes out long after his term is over, the history books can finally mark Obama as so: “Barack Hussein Obama the 44th President of the United States served his term as a INELIGIBLE Candidate.”
Do you remember when some in the media declared that Sarah Palin was not the mother of her last child because she did not look pregnant in pictures? There are women who deliver babies who do not look pregnant.On a personal note, I never showed pregnancy at all until I was in my 7th month for my first pregnancy. I would send pictures to my husband overseas and belive me I did not look as though I was about to deliver a baby. Some women “look” pregnant early, some late and some not at all. That covers this fiction. Now, what will the next one be?
Yeah. Keep dreaming. Of course, if you weren’t a law-school wannabe, you’d realize that discovery would get you all of a new copy of the COLB (which would be accepted and then you’d be out of court AGAIN).
Evidence 101.
Here we go again. Now we know that nothing anyone says will suffice. You would find problems with the doctor, or the nurse, or could it have been forged. Get a life, John!
I like that the pictures, allegedly in July, show a Christmas tree and gifts.
John: All that is required is the opportunity to get discovery and see Obama’s sealed records. Once that happens, Obama is history.
I congratulate you on the strength of your faith in the evidence you have not seen.
Can I state just once how much I detest the terms POTUS and SCOTUS being used to talk about the President and the Supreme Court. How hard is it to just use the real word?
And exactly where does the Constitution say that “POTUS” can be removed if he dies or resigns? I always assumed that dieing was an effective removal.
Anyway- as usual John- big mess of wild speculation. Always fun when you add your bit of craziness to the site.
sure…
all you need is a Judge stupid enough to not know the law, give you discovery of records that you have no right to have..all to prove a fraud that never happened in the first place.
Article III Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;-
The court can hear the case assuming it get past Standing.
Agreed.
He can only be removed involuntarily via impeachement or due to physical or mental incapacity under the 25th Amendment.
Not via a lawsuit brought after Congress has certified the electoral college vote and the President has been inaugurated. Congress’ ratification of the electoral college vote is clearly a legal determination that the President-elect is qualified, under the express terms of the 20th Amendment.
Your statement is exactly WHY this is a political, non-justiciable question. Separation of powers means that the courts can NOT “compel” Congress to act on any matter. Congress could simply disregard any district court level judgment it disagrees with (and they do it all the time).
“How do we get Congress to act if they unwilling to act? If the Federal Courts can’t do it, then it must fall to “We the People”. An uprising may be needed to compel Congress to act.”
John, do you have any concept of how scary you sound? The majority of voters voted Obama in. And you think if Congress and the Courts don’t act as you want them to there should be an uprising? So you want to ignore the will of the voters and the Constitution, all in order to protect the United States?
Scary indeed. Budding Fascism actually.
Kreep’s argument is a joke. The President being born in HI makes Kreep’s theories fiction…As was explained above even if the President was somehow ineligible, it would be up to Congress to decide that. The birthers are hilarious…You guys come up with new farfetched theories every week. After awhile, you would think that the birthers would probably give up…
You are forgetting that this is not the only case on Judge Carter’s docket.
He might simply be giving the case the priority and care he thinks it deserves… which might not be much — and focusing on issuing decisions and opinions for more weighty matters before him.
John, what overwhelming evidence are we talking about? Altered newspaper articles? Fake COLB’s? Unsubstantiated afffidavits? Come on, if you are going to say that please provide us with the so called evidence that would be admissible. You make all of these allegations without any kind of proof or supporting proof. Yet you dismiss the certified COLB, the vital statistics that Leo got, and the statement by Dr. Fukino. Funny….
The court can hear the case assuming it get past Standing.
That’s a huge assumption. And there’s the political question issue. And justicability.
“overwhelming evidence” …
uhhh… no… well scripted publicity stunts.
sorry you can’t tell the difference, but if you KNEW the difference, WND would have to find a new source of income.
What I really like about John’s post is that he is admitting that all of these lawsuits are really about Discovery to go fishing for ‘real’ evidence, because they have zilch.
Frankly- if there were any ‘real’ evidence that President Obama was not eligible to be President, Michael Steele would be waving it on Fox News tonight, or cackling about it with Rush tomorrow. If there were real evidence Newt Baby would be intoning gravely about the dangers of this ineligible President. But they don’t because there is no evidence.
But the Birthers hope that if they get their fishing expedition, they hope they will find something to embaress the Obama’s. They don’t really care so much about evidence, but hope to disrupt Obama’s Presidency.
I believe the understanding of ineligibility is shortsighted here.
If President Obama is ineligible, then his election is automatically void. He is not President.
Removal from office is not required because he does not hold the office.
In effect, he is an impostor.
Not to mention the ability to completely disregard the evidence he has already seen.
This is an unprecedented case. No has ever challenged the eligibility of the sitting POTUS. Even if Carter dismisses the case, hopefully Carter may give an insight on how the POTUS may be removed if Congress has failed to act in its duty accordingly. Perhaps, Carter may provide the solution and mechanism by which Obama can be removed without Congressional intervention. Obviously the Quo Warranto solution is one possible method that can be explored. But as Kreep has pointed out which is troubling and disturbing, is what happens if we have and ineligible POTUS in office and Congress won’t act. Hopefully, Carter will answer this question. Certainly, the answer may lie within the 9th Admendment which puts certains powers in “We The People”.
Well, you have to admit this approach kinda worked against Clinton. They just kept fishing until they caught something.
So where in there does it say the judicial branch has the power to remove a president from office?
Article One is rather specific:
The Senate shall have the sole Power to try all Impeachments.
Sole. Hmm. Gee, I always thought that meant someting like “only.”
“Carter may give an insight on how the POTUS may be removed if Congress has failed to act in its duty accordingly”
John, the obvious answer is the same as when a jury fails to do its duty and doesn’t convict someone. First your mob lynches the criminal and then the mob tries to kill the jury. Mob rule John, thats what you are advocating- vigilante, mob rule.
Violate the Constitution to save it.
Socialists celebrate Christmas in July. Everybody knows that!
Obviously, one other solution…
figure out that the COLB is not only real, but completely valid for proof.
figure out that a child who was born in Hawaii, is a natural born citizen.
Of course, the above would require recognition of how much you got scammed.
Clearly, that isn’t gonna happen.
Last, by the way..
attempts to overthrow a LEGAL AND VALIDLY ELECTION IS SEDITION.
Look that one up.
Carter’s silence on the ‘sedevacantis’ argument might be construed as consent. The new clerk’s acceptance might be an attempt at ‘bipartisanship’ to increase the weight of a posssibly contrary position.
Perhaps, Carter may provide the solution and mechanism by which Obama can be removed without Congressional intervention.
And perhaps it will rain lollipops and gumdrops.
Obviously the Quo Warranto solution is one possible method that can be explored.
It can be “explored,” but it’ll be doomed to failure since there’s no law to support this theory.
But as Kreep has pointed out which is troubling and disturbing, is what happens if we have and ineligible POTUS in office and Congress won’t act.
Too bad the constitution assigns this very job to Congress. You’d have to vote them out.
Certainly, the answer may lie within the 9th Admendment which puts certains powers in “We The People”.
The 9th Amendment is a reservation of rights. There is no right to mob rule.
Since Central California District Court decisions are only binding on the Central District of California, if Carter dismisses the case, but gives an insight into how POTUS may be removed, what good will it do outside the Central District of California?
Sorry, you’ve got that backwards. Justiciability is the threshold question. If the court has not the power to hear the challenge, it doesn’t matter who brings the challenge.
Only if the court has the power to hear the case do you reach the issue of standing.
Go reread (or read) Judge Land’s dismissal of Orly’s case in Georgia. It’s not the same thing exactly (since that case involved a soldier refusing to honor military orders), but it’s a similar concept.
Carter’s silence on the ’sedevacantis’ argument might be construed as consent.
Construe how you like; not legally binding.
The new clerk’s acceptance might be an attempt at bipartisanship’ to increase the weight of a posssibly contrary position.
As federal clerks are hired months, if not years, in advance: no.
And what would happen the next time some group or other does not like an election? The folks who wrote the constitution were smarter than that. There is a mechanism and it is impeachment. If you have evidence, take it to your Congressperson, or any Congressperson and present it.
Actually, district court decisions aren’t binding on anyone but the parties.
It’ll take the 9th “most liberal court” Circuit. And even that binds only the western states.
I believe the understanding of ineligibility is shortsighted here.
If President Obama is ineligible, then his election is automatically void. He is not President.
Removal from office is not required because he does not hold the office.
In effect, he is an impostor.
I believe the understanding of REALITY is shortsighted here.
Obama meets all the qualifications/ criteria.
You don’t like COLBs… that is your issue. Not the judges fault or anyone else’s if you don’t know a valid birth document when you see it.
WND is not a law school. despite Taitz apparently thinking it is, and she knows more than 30+ judges in this country (or so she would like you to think).
obviously, the huge mistake of accusing Clay Land of treason/ corruption, DID NOT SINK IN.
The clerk/ clerks family has no bearing on any decision. Insinuating that it does, is gonna sink Orly (not that she wasn’t already drowning).
Ken Conibear: I believe the understanding of ineligibility is shortsighted here.
What you believe has no relevance to the legal question. Do you have some law or legal precedent to share?
Bob: And perhaps it will rain lollipops and gumdrops.
Now that’s the kind of fantasy I like — not that conspiracy junk.
John: No has ever challenged the eligibility of the sitting POTUS.
No surprise there. The chance of someone ineligible passing through scrutiny of an American presidential election is vanishingly small.
However, there have been unfounded and false challenges before. Search here for Chester A. Arthur.
I just find it remarkable that individual like John here can totally ignore The State of Hawaii Health Director and to turn to a fantasy world. Just remarkable.
To ignore reality is just not healthy.
Thomas Jefferson to J.Cartwright 1824:
“(It)Our Revolution….presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those(laws) of nature…”
Let’s pretend for a moment that being ineligible really was comparable to mental incapacity. So, could any soldier about to be deployed file suit claiming the President had alzheimers and expect a judge to allow discovery in the form of a mental exam to prove the incapacity? Of course not. Even someone with actual standing — like the vice president who would be entitled to a salary increase if the president was removed — wouldn’t be able to file a lawsuit. The 25th amendment argument doesn’t get anywhere (John) because the system would not work if the judiciary had the power (and this every one with a filing fee had the opportunity) to adjudicate the president’s capacity.
This is simply untrue. The election of an ineligible candidate does not automatically void the election. The person who was elected is considered a de facto officer and actions taken while in office are valid.
Historically there were several Senators who were elected and served their terms despite being under the minimum age required by the Constitution at the commencement of their terms. This is but one example of a technically ineligible officer serving in office.
“While the courts can’t remove the POTUS from office, I submit that the courts certainly have the power to determine if Obama is ineligible or not since this ties directly to a consitutional provision.”
So, let’s review the job of the Court/ Judge-
You submit. They decide.
A judge decides that your what you submit is garbage, he sends you packing. Or, as Judge Land attempted to explain to Ms Orly
“YOU saying it is so, does not make it so”
Actually Vattel didn’t say two citizen parents; he said the father.
I bolded some words to give you a clue. Standing means that you have an actual case or controversy for the Court to decide. That means that both sides have some skin in the game – you have to have an actual injury (plaintiff/standing) and you have to have something the court can fix, in equity (injunction) or law ($$$) – the defendant.
The Court doesn’t issue advisory opinions, and it doesn’t allocate its precious judicial resources to people who just want to test out their theories.
Think about it. Your cause has attracted a sometime-lawyer/sometime-dentist, a thrice-disbarred attorney, a poker-player/lawyer, and a DUI lawyer. Why? Because none of your plaintiffs have enough stake in the issue to front the $50,000 retainer, much less the $350/hour it would take to argue this case right.
Compare the motley assortment of “lawyers” the birther movement has attracted with the team that John McCain would have assembled if he thought he had a case to disqualify Obama.
Do you think he’d be hanging his hopes on a lawyer who can’t remember to sign her briefs? Who has pulled more teeth than filed papers?
There are important reasons to limit access to our courts to those who have actual injuries. This isn’t horseshoes. It’s not tiddlywinks. It’s the law, where what you do today will impact on what others can do tomorrow. If you got through the standing barrier and actually litigated this thing, with the motley assembly you have, you’ll set precedent, most of which you probably won’t like.
First, the issue will be decided (and I guarantee you’ll lose) and when I say decided, I mean decided – res judicata. As in cannot be re-opened when you find the next fake Kenyan birth certificate.
Second, what’s sauce for the goose is sauce for the gander. If you can proceed to trial on a 1/300 millionth of an injury, then, well, I’m pretty sure that Orly has negligently inflicted emotional distress on me. And I’m certain that with enough thought and the right obscure Swiss philosophers, I can create a plausible reading of the Constitution that says that “14 years a resident within the United States,” really means continuous living in the same house. And how can I be sure that Mike Huckabee isn’t a space alien? And, since NBC really forbids “dual loyalty,” it has to disqualify Mormons and Catholics. And I don’t think Alaska was ever really made a state, so Palin wasn’t living within the United States.
Standing protects the valuable resources of our court system, and protects posterity from the precedents made in fake cases.
That “…” there looks very troublesome, and there is no context for the quotation, so that one cannot tell what is actually being talked about.
Quotations like this with no links to the full citation are less than useless. I’m clicking the thumbs down.
I think Orly deserves some jail time for this.
Here’s a link to the letter: link.
So the unedited citation is:
So I guess in order to figure out the definition of natural born citizen, we shall have to dig up Mr. Jefferson and look at his heart.
You and the other birthers demonstrate time and again that you have no understanding of legal issues and legal proceedings.
Obama’s COLB is prima facie evidence that he was born in Hawaii. If the case is not dismissed by Judge Carter, all Obama has to do is produce his COLB. The COLB creates a legal presumption that Obama was born in Hawaii. The burden of proof is then upon the plaintiffs to prove, by a preponderance of admissible evidence, that the COLB is not authentic.
As he would in an civil case, Judge Carter has already indicated to the parties that if the case ever gets to discovery, it will be narrowly limited. The birther dream that Orly and Kreep are going to be allowed to dig up Obama’s college records, etc. is just that, a dream. The plaintiffs have to show that any proposed discovery is likely to lead to admissible evidence. They are not permitted to go on a fishing expedition.
Even to get permission to subpoena the so-called “vault copy” of Obama’s birth certificate, I believe that the plaintiff’s would first have to produce convincing evidence that the COLB is not authentic. Despite Orly’s claims that it is a forgery, the truth of the matter is that a single forensics expert has examined the COLB and doubted its authenticity. And of course the State of Hawaii has already vouched for its authenticity.
Well we have our friends over at “The Betrayal” website putting their 2 cents worth regarding the inevitable ruling by Judge Carter….
“In truth Barack Hussein Obama —because of his British father and the 4 rulings of the Supreme Court which require both parents be U.S. Citizens at the time of the birth of the child, for that child to be considered a “natural born citizen” in the sense the Founders of the Nation intended — has neither claim, nor right, nor title to the office of President of the United States. He is in law a tyrant, a dictator, a pretender, and an intruder into the office and all who obey him are traitors to the republic and criminals.”
http://www.oilforimmigration.org/facts/
Amazing…And the 4 cases them mention, they are the following…
1)The Venus, 12 U.S. 8 Cranch 253 253 (1814)
2)Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
3)Minor v. Happersett , 88 U.S. 162 (1875)
4)United States v. Wong Kim Ark, 169 U.S. 649 (1898)
http://thepostnemail.wordpress.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/
Of course since they got it from the Post and Fail, who got it from Leo, it is full of wrong conclusions and leaving out important sections of the ruling….
Speaking of the Post and Fail, their new article by Charlton/Charles Lincoln, is up….And as usual has no basis in reality…
http://thepostnemail.wordpress.com/2009/10/21/judge-carter-ignores-constitutional-requirements-of-office-for-president/
Plus it was used in the posting at the Betrayal…In other words the birther crap is recycled…
Here is a funny section from the article though…
“Attorney Leo Donofrio, who sued the New Jersey Secretary of State before the national election last year, to remove 3 ineligible candidates from the ballot (Obama, McCain and a Nicaraguan national), has recently taken umbrage with Judge Carter for his outrageous flippancy with the Constitution”
Wow…umbrage with the Judge and outrageous flippancy with the Constitution….Isn’t that a Pot calling Kettle situation? I mean if anyone is messing with the Constitution it is the birthers. Funny stuff…
Actually, I don’t think it’s funny at all, and I dearly hope, nay, pray, that America isn’t going to pay a price for tolerating what basically amounts to sedition.
Cults (which is what the birthers are, just like the Talibans, the Scientologists and the Raelians) are by nature intolerant in the extreme, and therefore dangerous.
I read somewhere that your Secret Service is being stressed beyond its ability to cope — not a good sign either.
Kerchner’s case dismissed.
I found the last footnote particularly crushing.
Mendacious Mario is booted out of court.
hey, this just means they get to discovery, amirite?
the usurper must be getting real nervous to screw up this badly and dismiss mario’s case!
Lupin, I hear you. But sometimes you have to laugh at this idiots because if you don’t you will get fustrated at their obvious ignorance. I agree that they are a cult and I also feel that it will get to a point where someone is going to try and do something stupid. However we must also realize that a lot of these people are “keyboard commandos” and are full of hot air. But it is disturbing none the less…
Despite Orly’s claims that it is a forgery, the truth of the matter is that a single forensics expert has examined the COLB and doubted its authenticity.
Even that’s not true. Nonexpert “Polarik” (who lied about his qualifications, and has had his “work” thoroughly debunked) said the digital image of the COLB had been altered. Sandra Lines, an actual expert, took a cursory look at the digital COLB and said that “Polarik”‘s hypothesis was possible.
I wonder when we will see Mario over here defending himself and saying that the judge was wrong and he was right…
With apologies to Godwin, this is a story that was told to me by Spike Milligan (the great British comedian) over 30 years ago when I did some contract work for a French adaptation of the Goons.
Milligan said that a friend of him was talking about the great German stand up comedians of the Berlin Cabaret scene in the 30s. (I assume a number of them were Jewish.) How mercilessly they mocked and skewered Hitler and the Nazis with their rapier wit. How everyone laughed.
To which Milligan claimed he replied, “Yes, they sure showed him.”
I remembered this anecdote because sometimes, one can laugh, rightly so, at a situation, and still end up crushed by the brutes.
Perhaps because of my age, or my foreign perspective, I find your birthers (and I don’t mean the mendacious grifters like some attorneys I could mention, but the genuine fanatics) rather scary. Like all fanatics, really.
Lupin, I agree with you. Trust me. These zealots are a scary bunch. As a matter of fact look at what one wrote over at “the Betrayal” site…
goldie j wilbur // Oct 21, 2009 at 4:13 pm
AFTER LEARNING THAT THE JUDGE RECENTLYL HIRED CLERK WHO HAS OBAMA LEANINGS, NOTHING SURPRISES ME, THE BLACK SNAKE HAS CRAWLED INTO THE INNERMOST WORKINGS OF OUR GOVERNMENT AND LOOK WHAT WE ARE FACED WITH. HIS HAS TO GO AS IF HE GOES THEN ALL THIS CRAP WILL UNCOIL AND SOME THINGS WILL BE BETTER, THE DEBT NOT SURE, BUT THE ABSENCE OF OBAMA WILL MAKE FOR A BETTER COUNTRY FOR US, I HATE ABORTION BUT THINK IN THE LONG RUN IT WOULD HAVE BEEN BEST IF THIS HAD BEEN IN EFFECT IN 1961. GOD BLESS USA
We know that for the most part we are dealing with an uneducated racist xenphobic bunch. And that they are an extreme minority of the population. They are not even 1% of the population of the US. I think we are right to laugh at them and their ridiculous statements, but we also need to make sure we are aware of them and keep an eye on them. Just in case.
I would remind you that we just elected Barack Obama as president. I think that says a lot about where majority opinion lies.
PS: Loved Spike and the rest on the BBC Goon Show. My favorite was:
Arctic expedition leader: Doctor, are there any cases of frozen feet?
Doctor: You didn’t order any cases of frozen feet.
I haven’t had a chance to read all the comments yet, so I apologize in advance if I am repeating something that someone else already said:
It looks like Taitz outright lied to Judge Carter when she stated that a three-judge panel found that Foreign Service Officer David Rodearmel has standing to challenge Hilalry Clinton’s qualifications to serve as Secretary of State. I checked the electronic docket in that case and there has been no such ruling. I realize this Taitz character is “borderline delusional” but what gives? That kind of misrepresentation is sanctionable conduct. I hope this woman eventually gets disbarred. She is a disgrace to the profession.
Judge Carter seems absolutely determined to demonstrate that he is taking both sides seriously. He even listened patiently to Taitz’s completely irrelevant story about her great-uncle being sent to Siberia, leaving her great-aunt with the options of suicide or begging (cue the violins). I think Judge Carter may even hold a naive belief that giving these litigants a sense of a fair hearing will satisfy them.
Taitz’s efforts to smear the law clerk may cause the scales to fall from the judge’s eyes. Judges tend to be protective of their law clerks. It is as if Taitz went out of her way to calculate what would be most likely to piss off an otherwise even-tempered judge. Maybe that’s her strategy: push the judge’s buttons and then claim persecution when he gets angry.
To get back to your original question about addressing an inelibility question:
(1) The courts in some point in the process could have weighed in with a plaintifff who at the time had actual standing.
(a) In many states, the state law allows (by statute)for citizen/voter challenges (often called “protests”) to the qualifications, eligibility of those on the ballot. These have to be timely, generally within a month or two of the relevant election or primary, and the courts could have then looked at a legitimate challenge to having a particular candidate on the ballot. (See, for example, in Ohio, Ohio Revised Code, § 3513.05 (formerly Ohio Gen. Code § 4785-70), and McGowan v. Board of Elections, 105 N.E.2d 639 (Ohio 1952), appeal of voter protest of citizenship qualification in statement of candidacy of a federal candidate.)
(b) A legitimate opposing candidate, or even an opposing political party may have had standing to have filed a TIMELY suit to challenge the qualifications and thus the “ballot placement” of a candidate under the theory of “competitor standing.” (See, e.g., Texas Democratic Party v. Benkiser, 459 F.3d 582, 585-588 (5th Cir. 2006), Application for Stay to Supreme Court, denied., No. 06-A-139 (2006), regarding ballot placement of a “substitute” opposition candidate under state law, and the constitutional “eligibility” of the original candidate; see also Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990), finding standing of opposition party to challenge ballot placement of opposing candidates.)
2. Secretarys of State in many States would have the DISCRETIONARY authority (note, not mandatory duty subject to mandamus)recognized under either statute or case law to inquire of a candidate about whom actual, real, and valid evidentiary issues and proof have been raised concerning age, citizenship, or residency, i.e., qualifications for office as a pre-requisites to ballot placement.
3. The issue could be raised in writing by one Member of the U.S. House and one member of the Senate as an objection to electoral votes in the joint session of Congress called for counting and certifiying the electoral votes. See now 3 U.S.C. sec. 15. For example, Congress in the 19th Century rejected 3 electoral votes (from Georgia) given for a candidate who was no longer eligible (Horace Greely had died).
4. After election, after certification and announcment in Congress, after inauguration, – we’ll always have impeachment.
The birfers still seem to think they are going to win this case!
Lucas Smith is back in the picture, although it’s unclear whether this has actually been filed with the court:
http://www.scribd.com/doc/21483759/PURPORTED-NEW-DECLARATION-OF-LUCAS-SMITH-RE-KEYES-BARNETT-v-OBAMA-Lucas-Daniel-Smith-10-12-09-New-Declaration
As of this moment, it has not appeared on the docket list. As a non-party to the suit, I’m not sure he can “file” it at all.
Why doesn’t all our right-winged leaders like
Glenn Beck, Sean Hannity, Rush Limbaugh, Sarah Palin, Herman Cain, and all the other 100 or so leaders get together and combine forces? I’m not the smartest person in the world, but even I can see that that would be a good move and would allow us to accomplish our agendas. There is Power and Safety in large numbers.
Ray
“Glenn Beck, Sean Hannity, Rush Limbaugh, Sarah Palin, Herman Cain,”
All that ego in one place screaming “no, listen to me, not them!” would cause immediate implosion.
However, I would be for it as long as they were allowed to use folding chairs on each other.
Also notice: all the conservative leaders are entertainers yet they complain about Al Franken not having substance.
Ray, that presumes that Beck, Hannity, Limbaugh, etc. share your agenda or any agenda for that matter other than their own personal advancement.
Stephen Colbert is a comedian who plays a character also named Stephen Colbert. I think the same is true of, for example, Rush Limbaugh. The folks you mentioned aren’t “leaders”. They are entertainers that play to a particular part of the population, to conservatives who want to feel outraged to validate their viewpoint.
Ray, did you ever think the reason that they don’t “combine forces” like you say is because they think all of the birthers are full of crap? Did you ever think that maybe they believe that the President was born in HI and is eligible to be President? Did you ever think that your “agenda”, which is not even 1% of the population is not worth their time? The problem with the birthers is that they think that they are some large movement. You are not. The birthers are a small fringe group that are mocked and ridiculed by people on the left and the right. What is more amazing is that after knowing all of that, you still think that somehow you are going to undo an election by violating the Constiution.
i think ray’s onto a fantastic idea. they could all get a cool logo and matching spandex outfits. darth cheney could loan them his undisclosed location for a swinging hangout. they could call themselves “the justice league of extraordinary wingnuts”.
SFJeff: yet they complain about Al Franken not having substance
I think Al Franken has a significant amount of substance, having read 3 of his books, the best of which is The Truth.
Well, we now know where O’Reilly (rhymes with Orly) stands, since he orally dissed Taitz last night, and our fellow poster nbc put the video up on his site:
http://nativeborncitizen.wordpress.com/2009/10/28/bill-oreilly-on-taitz/
Taits and the teeming millions are now starting a Fox hunt. Tallyho!
Orly has the attention span of a .. look a plane…
Depends on what the definition of “best” is; Lies and the Lying Liars was hilarious (I laughed out loud throughout the book), The Truth was good but was dead serious (at least to me).
Texlaw, I would agree with you. I meant “best” in terms of substance. And of course my sentimental favorite was Rush Limbaugh is a Big Fat Idiot.
1% of the population Black Lion?? You need to re think about that. I know plenty of people who voted for Obama that now openly admit it was a mistake. The numbers are growing and if he is legitimate, then he lasts his only term and moves on. If he has fleeced America then he needs to get out asap.
There are 304 million people in the United States. How many people do you know?
1% of 304 million is 3 million people.
Do you know 3 million people? Until you can say you know 3 million people your anecdotes are meaningless.
There is clearly a correlation between believing insanely stupid things and being innumerate.