Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

12/04/2008 (9:12 pm)

Natural Born Citizens and Birth Irony (Updated Twice)

Tomorrow the US Supreme Court gets to consider the question of whether they will accept for review a lawsuit addressing, among other things, the question of whether Barack Obama was eligible to run for President. Nine justices will consider whether to include on the docket the case of Donofrio v Wells, a request for emergency stay of the 2008 Presidential election to consider whether three of the candidates are qualified to run for President. If four justices agree to hear the case, they will schedule arguments.

I suppose there’s some irony to the Court waiting until Christmas season to consider the birth circumstances of The One. Ok, forget I said that, and let’s be serious.

I’ve been putting off writing about this for a long time, for several reasons. First, I hate being branded a conspiracy theorist, and the fluff over Obama’s Certificate of Live Birth posted on Daily Kos had the strong smell of that (though I did, at one point, contribute my expertise as a laser printer engineer to a discussion about whether certain visual anomalies might have been a printer error.) Second, I thought the lawsuit would just quietly vanish, and that would be that.

But here’s my concern at this point: what happens if the lawsuits are successful?

I’m not talking about the legal ramifications, although those will be sticky enough. Does anybody really imagine that the Obamatoons will grimace, snap their fingers in dismay, and say “Oh, doggone it, we were that close?” To this day, large numbers of BDS-addled Democrats refer to President Bush as “selected” as a result of the 2000 election’s Florida kerfuffle, a claim that’s so laughably wrong that making it immediately earns the speaker long-term “ignore” status. What if the Court now declares that Obama was not qualified to stand for election? They’re still not selecting the President, they’re just enforcing the law, but it’s a lot closer to selecting the President than was the 2000 decision, and Obama is a lot more popular. Hell, it’s a month after the election and we’re still reeling from the Prop 8 demonstrations. Strike Obama’s election and Obama supporters could literally go berserk. There may be riots. There may be violence. I’m not ruling out civil war, even. And can you imagine the level of hostility and the sabotage a President McCain would face if he won office this way? The Bush years were full of such subtle undermining; this would be worse.

The law is the law, and I’m all in favor of citizens’ cases being heard expeditiously. However, nobody sane should be hoping that the election be overturned; the practical outcome of that decision is not in any way clear, and none of the plausible outcomes are pleasant.

That being said, we do have to take this as a serious case.

Let’s deal with the cases they’re not hearing, first.

The original lawsuit by Philip Berg, Esq., a Hillary Clinton supporter from my old stomping grounds in Philly, demanded that Obama produce the evidence that he’s qualified to hold office. Berg’s lawsuit was dismissed because he lacks standing. For those who have no legal knowledge, the basic issue is that in order to sue, a citizen has to prove that he’s directly affected by the actions of the defendant; if my friend Joe is harmed by his neighbor’s dog, I’m not permitted to sue on Joe’s behalf, Joe has to sue for himself. I think the court was wrong about Berg’s standing: if the citizen has no legal standing to sue regarding the fitness of a candidate to hold office over him, who does? But that particular lawsuit seems doomed. I wasn’t going to touch it because I assess Berg to be somewhat of an idiot. Today, Berg’s case resides somewhere in a grey, shadowy legal limbo.

There is a second case that has not appeared in court yet, filed by candidate Alan Keyes in the state of California. Keyes, being a candidate for America’s Independent Party on the ballot for President, has clear standing to sue. His suit is against Debra Bowen, California Secretary of State, and also against Barack Obama, Joe Biden, and all of California’s electors. His suit demands that Obama produce proof that he is a natural born citizen of the US before the electors’ choices be certified, and not a citizen of Great Britain, Kenya, or Indonesia (Obama and his mother may have been naturalized as Indonesian citizens when she married and moved there, and it is known that Obama traveled to Indonesia using a passport claiming Indonesian citizenship when he was 20.) Likelihood that Keyes’ case will make it to a major court strikes me as high.

There are, as far I know, 17 cases filed in federal or state court attempting to settle the question of Obama’s qualification to run for President.

Obama’s team has three law firms — that’s three firms, not three lawyers — working hard to prevent any court from ever hearing these cases. You can’t take that as proof of guilt, though. Obama has won prior elections by removing opponents through legal challenges, some of them challenges with no merit against perfectly legitimate candidates. Naturally he’s going to take legal challenges against his own candidacy very seriously, even if those challenges are nonsense. He will fight these suits at every possible level just on principle. And let met just say now that if Obama does lose this election by being declared disqualified, it will serve karmic justice in a manner that should satisfy us all.

Now, let’s talk about the case they are hearing.

The lawsuit that’s being considered tomorrow is by one Leo Donofrio, a retired attorney from New Jersey and by my assessment of his work, a much, much better attorney than Philip Berg. Donofrio’s lawsuit was a great deal more clever than Berg’s, and based on much better law. You can read Donofrio’s blog about the case here. It’s full of interesting detail, if that’s what you like.

There’s very little question he has standing: his suit is against Nina Mitchell Wells, Secretary of State for New Jersey, and it’s for a Writ of Mandamus — essentially, a writ forcing her to do her job. As a citizen of New Jersey, he has every right to ask her to do that. The job he’s asking her to do is to properly vet the candidates on the ballot, and he’s questioning the qualification of three of them to stand for President: John McCain, Barack Obama, and Socialist Worker’s Party candidate Roger Calero.

On Calero, there’s no question: he’s a resident alien from Nicaragua, and not qualified to be President. John McCain was born to a military officer stationed in the Panama Canal Zone; since both of his parents were American citizens, and law exists clarifying the status of citizens born in the Canal Zone, he’s probably in the clear.

Donofrio’s basis for challenging Obama’s qualification has nothing whatsoever to do with his birth certificate or where he was born; the news reporting on this has been inaccurate. Donofrio claims that Obama was born a British citizen by virtue of his father’s citizenship, and as a consequence does not fit the legal definition of a “natural born citizen” as required by Article II, section 1 of the US Constitution. That Obama was both a British citizen and a US citizen at the time of his birth is actually supported by FactCheck.org. Donofrio claims that dual citizenship at birth does not fit the definition of “natural born citizen” per Article II.

Donofrio’s case has been saddled along the way with numerous mishaps, the type of mishaps we’re now used to seeing happen to those who dare to question The One. The most serious was a deliberate mishandling of his case by a stay clerk at the Supreme Court named Danny Bickell that prevented the case from being heard before the popular vote on Nov. 4 (Donofrio has since filed an official complaint of misconduct with Chief Justice Roberts.) Donofrio reportedly found a case that supplied precedent for his complaint against Bickell — and mysteriously, every link to that case has disappeared off the internet. Donofrio’s blog site at Blogger incorrectly warns everybody browsing there that the site has been flagged as spam (Blogger is owned by Google, which is apparently deliberately scrubbing anti-Obama content.) Donofrio has another complaint of official misconduct filed against an Appellate Court judge who allegedly created a fraudulent case file, omitting official documentation from the file.

Donofrio has responded to each of these with professional grace, making no accusations that he cannot support in court. Good for him. Allow me to make the unprofessional accusation for him: Obama supporters seem commonly to believe they are above the law. Welcome to the Progressive United States, a third world corruptocracy.

Allow me also to remind us all that technically, the election is not over until the Electoral College has met and voted. Donofrio hopes his request for emergency stay will be heard before that happens. It has not taken place yet.

There’s a pretty nice summary of the issues surrounding Obama’s citizenship here; don’t be put off by the apocalytic-sounding language on the blog, the article is pretty sane. There’s also a nice hub page with pointers to related information here, although they seem to be focused on birth certificate issues, which is pretty much silliness.

It should be over, but the election of 2008 still continues to entertain like no other. Amazing.

UPDATE 12/5: As of end of business Friday, the Supreme Court had issued a memo indicating a grant of certiorari for two cases, and Donofrio v Wells was not on the list. A grant of certiorari means the Supreme Court will hear the case. Some reporters claim the absence of Donofrio from the memo means certiorari was denied, but Donofrio himself thinks they’ll release their decisions on the rest of the cases Monday. Short version: it looks like the Court said “No,” but we’re still waiting.

UPDATE 12/8: It’s official. The Supreme Court has turned down Donofrio’s request for a stay, without comment. There are lots of disparaging comments from both sides of the aisle, most notably from conservative firebrand David Horowitz.

In a vaguely related issue, Andrew Sullivan’s research assistant has weighed in on the Trig Palin conspiracy that poor Andrew simply cannot let go, and agreed that his boss is chasing a unicorn for no apparent reason. As Michelle Malkin has been snarking, “Troofers to the right of me, troofers to the left of me…” Fifteen snob brownie points to anyone who recognizes the phrase as a reference to Tennyson’s poem, The Charge of the Light Brigade.

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December 5, 2008 @ 12:26 pm #


I concur with your speculation of possible riots/violence/civil war in your hypothetical. I am betting the Supreme Court doesn’t have the balls to get anywhere near those scenarios, and so will refuse to hear any of these cases, regardless of merit.

I would, however, like to clarify one point regarding your statement,

“… although they seem to be focused on birth certificate issues, which is pretty much silliness.”

This may seem insipid on my part, but, as of yet, I am not aware that Obama has made available to the public an authenticated birth certificate. If he is allowed to assume the presidency without ever producing an authenticated birth certificate, (something I see as totally plausible in the current “The One” climate), why would an objection to that result fall under your “silliness” classification?

I would hope we are still a nation of laws.

December 5, 2008 @ 1:41 pm #

Excellent post, Phil. A lot of stuff here I was not aware of. I concur with Ken that SCOTUS won’t disqualify The One. Will be interesting to see how it plays out. Otherwise I have nothing to add. The questions about why Obama is hiding this and why he wasn’t vetted ahead of time have been asked 100 times before. One wonders if we will ever learn the answers, even 50 years from now?

December 5, 2008 @ 3:38 pm #

What’s really amazing is that the Birth Hoax was started in 1961:


That’s when Obama’s parents placed birth announcements in two Hawaiian newspapers.

December 5, 2008 @ 5:21 pm #

Regarding why Obama is hiding whatever, I thought I answered it: he’s the guy who won two elections by legal challenges, so he’s automatically going to play hardball with any legal challenge, no matter what the merits. He knows perfectly well that the merits of the case don’t matter, so he’s not going to leave anything to chance; he’s going to lock every single document down tight, and won’t turn them over until the sheriff comes to pry them out of his vault with an ironclad writ and a very big drill. That’s just good, careful legal tactics.

Short version: he’s a snake, so he knows to protect against snakes.

Regarding why he wasn’t vetted ahead of time, at least on the “natural-born citizen” issue, the truth is that the problem has never come up before, and we have no idea how to handle it. That’s why it’s in the Supreme Court today, and why the Court just might accept the case; it’s an area of Constitutional law that’s never been explored. There are no mechanisms in place to address this.

December 5, 2008 @ 10:46 pm #

[…] Natural Born Citizens and Birth Irony Natural Born Citizens and Birth Irony Tomorrow the US Supreme Court gets to consider the question of whether they will accept for review a lawsuit addressing, among other things, the question of whether Barack Obama was eligible to run for President. Nine justices will consider whether to include on the docket the case of Donofrio v Wells, a request for emergency stay of the 2008 Presidential election to consider whether three of the candidates are qualified to run for President. If four jus […]

December 6, 2008 @ 11:55 am #

Looks like the moral of the story will be if you have no paper trail, you may come from anywhere and run for POTUS, as long as you run as a dem.

December 7, 2008 @ 11:29 am #

Thanks Phil for the moderate pov on the BO birth Certificate. You may have a point that the snake BO will react to defend any disclosure just because he has been so successful in forcing disclosures on his political opponents. I am surprized by many on the Rightside Blogosphere, Malkin, Horowitz, etc. been so willing to attack their supporters who see this as a current and continuing Constitutional Crisis. Why?

December 8, 2008 @ 10:21 am #


I suspect the harsh negative reaction has a couple of sources, but I think the main one is that Malkin, Horowitz, et al are already denounced as extremists by the left (and therefore by the media,) and are for that reason overly sensitive to any activity that might give the charge even a little bit of legitimacy.

Your own comment gives an example why. You call it the “BO birth certificate” issue. Frankly, I think his birth certificate will explain nothing at all, and the great hue and cry over it is misdirected, and has the look and feel of conspiracy lunacy. The serious challenges to Obama’s fitness to hold office, in my humble opinion, lie in his dual citizenship at birth as suggested by Donofrio, and in the fact that he probably abrogated his citizenship (through his mother’s actions) when he moved to Indonesia, and never properly reinstated it. Some observers suggest that the reason Obama has locked down his college records from Columbia and Harvard is because he leveraged his status as a foreign student to gain admission and other benefits. It’s plausible, and would hurt his case badly if true. The flap over the birth certificate just looks a little crazy, and I think it’s off point.

I’m personally not comfortable calling this a Constitutional “crisis.” I’m not strictly a rule-bound guy by nature, and I’m inclined to think of the rule in this case being less relevant to actual fitness to serve in the practical sense than in the legal sense. The natural-born citizen rule was aimed at disqualifying Presidents with divided loyalty. I don’t think Obama’s divided loyalty arises from his fluctuating citizenship, I think it arises from his aberrant ideology.

Still, the law is the law, and the time to correct a law that’s not serving its useful purpose is after the election in which it’s been exposed, not in mid-election. You simply cannot ever permit a rule change mid-election; allow that even once, and every election will become a legal contest over which rules are valuable and which are not. In any case, I’m not sure the law can be improved much, and it does make sense to limit the Presidency to those whose sole national commitment is the United States of America.

December 8, 2008 @ 9:31 pm #

As I predicted …


Court: No review of Obama’s eligibility to serve

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