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Supremes' 'avoidance behavior' on eligibility called 'appalling'
Posted By Bob Unruh On 03/08/2011 @ 8:43 pm In Front Page | Comments Disabled
An attorney who has been working with a case challenging Barack Obama’s eligibility to be president says it is appalling the Supreme Court justices are allowing the constitutional rule of law to be destabilized by their “avoidance behavior,” and it’s even worse that two of Obama’s appointees apparently participated in the recent case conference.
“Their defiance of the court cases, their attitude they don’t really need to adhere to the law, is really unparalleled,” said Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website and monitoring the case brought by attorney John Hemenway on behalf of retired Col. Gregory Hollister case.
“The public is going to grow increasingly concerned about Obama and the failure of the courts to deal with these concerns,” he told WND today.
It was just a day earlier the Supreme Court posted its March 7 “orders list” in which the case, “10-678 Hollister, Greg S. V. Soetoro, Barry et al,” was refused a hearing in the court.
The case petition had argued, “We have not exaggerated in presenting the question of the constitutional rule of law being at stake in this matter. … A man has successfully run for the office of president and has done so, it appears, with an awareness that he is not eligible under the constitutional requirement for a person to be president.”
Court notations when a justice recuses
When the appeal first was denied without comment in January, the attorneys submitted a petition for rehearing because the two court members who owe their lifetime appointments and significant income to Obama’s appointments – Sonia Sotomayor and Elena Kagan – apparently participated.
The two justices apparently took part even though there was a pending motion for them to recuse themselves from the case.
The Supreme Court then granted the request for a rehearing on the issue. But Monday’s notice turning away the case not only did not address the motion to recuse, it also did not include a notation – present in other cases when court members did not participate – on whether Sotomayor and Kagan sounded off on the eligibility of their benefactor.
Notice of Hollister case being denied certiorari, with no notations of recusal
Supreme Court officials refused to respond to WND requests for a comment or explanation on the issue of the motion to recuse, as well as whether Kagan and Sotomayor took part in the conference on the case and how decisions were made to step away from a case because of a personal involvement.
Elgin said he is “absolutely baffled by this breakdown in the constitutional rule of law.”
“I can’t describe it any other way,” he said.
He accused the court of “avoidance behavior” and argued “either law is normative or it is not.”
“The avoidance of the rule of law by this bunch is just startling,” he said.
The Supreme Court earlier had acknowledged the “motion for recusal,” but the court changed it on official docketing pages to a “request.”
Elgin said the tactic of ignoring the issue ultimately will fail.
“These judges are going to be exposed,” he said. “It’s going to come out. History is going to reveal this man as a fraudulent president. It’s very disturbing that the votes cannot be mustered [in the court].
“This was an appalling decision,” he said. “What’s happening is there’s a growing public perception the courts are not willing to examine the law and perform their functions. That’s why I think it’s going to backfire.”
The appeal brief earlier had argued the same point:
“The real question here is one of getting members of the judiciary to take seriously the oath that they swore to protect and preserve the Constitution,” Hemenway wrote in his petition for rehearing. “To continue to avoid the issue will destroy the constitutional rule of law basis of our legal system when it is under vigorous assault as surely as if the conscious decision were made to cease preserving and protecting our founding charter.”
That the justices are “avoiding” the Obama issue already apparently has been confirmed by one member of the court. Last year, Justice Clarence Thomas appeared before a U.S. House subcommittee when the issue arose. Subcommittee 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 appeal brief further argued that because of the lack of a response or acknowledgment by the court, the court should have considered the motion as granted as well as “the law of nations on matters of citizenship such as the phrase in question here as placed in Article II, Section 1, Clause 5, namely, the requirement that a president ‘be’ a ‘natural born citizen.’”
In the original petition to the high court, the pleadings noted that if Obama is not constitutionally eligible, it will create a crisis.
“If proven true, those allegations mean that every command by the respondent Obama and indeed every appointment by respondent Obama, including the appointment of members [Elena Kagan and Sonia Sotomayor] of this and every other court, may be only de facto but not de jure [by right of law],” stated the pleading.
“Further, his signature on every law passed while he occupies the Oval Office is not valid if he is not constitutionally eligible to occupy that office de jure,” it continued.
“Thus, it is not hyperbole to state that the entire rule of law based on the Constitution is at issue. Moreover, it would indicate that the respondent Obama ran for the office of president knowing that his eligibility was at the very least in question,” it said.
Although proceedings are not public, it is believed that a case must earn four votes among the nine justices before it is heard.
WND reported when another eligibility attorney who has brought cases to the high court, Orly Taitz, approached Justice Antonin Scalia about the issue.
“Scalia stated that it would be heard if I can get four people to hear it. He repeated, you need four for the argument. I got a feeling that he was saying that one of these four that call themselves constitutionalists went to the other side,” Taitz said.
At that time, the Supreme Court was considered to have a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally was Chief Justice John Roberts, Justices Samuel Alito, Scalia and Thomas. Justice Anthony Kennedy often is the swing vote. The liberal side frequently included Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
Stevens and Souter have departed since then and have been replaced by Obama with the like-minded Kagan and Sotomayor. Presumably, should there be only seven justices in the discussion, three votes might be sufficient to move the case forward.
Hollister’s case is one of the longest-running among those challenging Obama’s eligibility.
Elgin told WND that the case, throughout the district and appellate court levels, never was denied standing, a major hurdle that has torpedoed many of the other eligibility disputes to rise to the level of court opinions.
The petition for rehearing explains that the “certification of live birth” posted online by the Obama campaign in 2008 cannot be cited as proof, since “Sun Yat Sen, the Chinese nationalist leader,” was granted “the same type of document that the respondents have claimed on the Internet and from the White House ‘proves’ that the respondent Obama was born in Hawaii.”
The Hollister case made headlines at the district court level because of the ruling from District Judge James Robertson of Washington.
In refusing to hear evidence about whether Obama is eligible, Robertson wrote in his notice dismissing the case, “The issue of the president’s citizenship was raised,
vetted, blogged, texted, twittered, and otherwise
massaged by America’s vigilant citizenry during
Mr. Obama’s two-year-campaign for the
presidency, but this plaintiff wants it resolved by
Along with the sarcasm, the evidence pertinent to the dispute was ignored.
The fact that the evidence never was reviewed and the judge based a “biased” decision on “a completely extrajudicial factor” — twittering — prevented Hollister from having the constitutional rule of law applied, the court file explains.
The motion to recuse explained that federal law requires that judges exclude themselves when circumstances arise that would involve “even the appearance of impartiality.”
“It would seem literally to apply to Justice Kagan in any case since she was serving as Solicitor General during the pendency of this and other cases involving the ineligibility question. The U. S. Attorney did make a brief appearance in this case in the appellate document and did appear in many parallel cases,” the motion said.
The president is represented by a private law firm in the current case.
“Historical analysis establishes, therefore, that … respondent Obama, since his father was a Kenyan of British citizenship and not a U. S. citizen, was not ‘eligible to the office of president,…’ Therefore his appointment of the present Justices Sotomayor and Kagan are not valid appointments under the Constitution and they should not, therefore, be sitting as justices deciding upon our petition if this court itself observes the law it has set out under the Constitution as the supreme law of the land. Otherwise the concept of a rule of law based upon the Constitution, which we contend is at issue in our petition, is being flouted at the very outset of consideration of the petition,” the motion explained.
Neither is Hollister a novice on the issue of eligibility, it explains.
“It is a matter of record that Colonel Hollister, while on active duty in the Air Force, in a career from which he honorably retired, inquired into the legitimacy of President Clinton’s orders because President Clinton participated, while at Oxford, in communist protest marches in Eastern Europe against the Vietnam War at a time when we were at war with communism in Vietnam, something that would seem to violate the Fourteenth Amendment,” the site explains.
While the district judge dismissed the case because it had been “twittered,” the appeals court adopted his reasoning but wouldn’t allow its opinion affirming the decision to be published, the petition explains.
Hollister’s concern rests with the fact that as a retired Air Force officer in the Individual Ready Reserve, it is possible that he could be subject to Obama’s orders.
“If Congress called up the Air Force Individual Ready Reserve the respondent Obama would have to give the order … If, as it appears, those orders would not be lawful, Col. Hollister would be bound … to question them and look to the respondent [Vice President Joe] Biden as constitutionally next in succession for lawful orders,” the pleading said.
The case doesn’t have the “standing” dispute that has brought failure to so many other challenges to Obama’s eligibility, the pleading explains, because Robertson “found that it had jurisdiction of the case, and therefore that petitioner Hollister had standing.”
John Eidsmoe, an expert on the U.S. Constitution now working with the Foundation on Moral Law, has told WND a demand for verification of Obama’s eligibility appears to be legitimate.
Eidsmoe said it’s clear that Obama has something in the documentation of his history, including his birth certificate, college records and other documents that “he does not want the public to know.”
WND has reported on dozens of legal and other challenges to Obama’s eligibility. Some suggest he was not born in Hawaii as he claims; others say his birth location makes no difference because a natural-born citizen was understood at the time to be a child of two citizen parents, and Obama’s father was subject to the British crown when Barack Obama was born.
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