The U.S. Supreme Court, which has refused even to consider the issue of Barack Obama’s eligibility – and at one point was reported by one justice to be avoiding the issue – has put the question on its schedule for a conference this fall.
That means the issue of Obama’s eligibility, which dogged the candidate during the 2008 race and has plagued his administration with questions ever since, could be looking at the nation’s highest court reviewing the controversy even as the 2012 election race heats up.
The court has announced that the case Alan Keyes, et al., v. Debra Bowen, California Secretary of State, et al., will be heard in conference Sept. 26.
A conference is a meeting at which the justices consider which cases to accept. The court has had numerous other similar cases before the justices in conference and routinely has rejected requests to hear them without any explanation.
The closest that anything has come to an explanation was a series of remarks by Justice Clarence Thomas, who appeared before a U.S. house subcommittee and responded to the issue.
Thomas was before the House subcommittee when 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.”
Another recent case rejected by the high court was brought by attorney John Hemenway on behalf of retired Col. Greg Hollister.
When the justices refused to listen to the concerns, Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website and monitoring the case, said, “Their defiance of the court cases, their attitude they don’t really need to adhere to the law, is really unparalleled.
“The public is going to grow increasingly concerned about Obama and the failure of the courts to deal with these concerns,” he told WND.
The case to be heard, brought by Gary Kreep of the United States Justice Foundation on behalf of Ambassador Alan Keyes, challenges Obama’s eligibility.
The president, after essentially ignoring the controversy for years, personally has gotten involved in defending his eligibility recently. In April he dispatched a private attorney to Hawaii to pick up a copy of what the state purported to be his original birth documentation.
This is the image that was released:
However, the authenticity of the image posted by the White House has been challenged by a number of analysts and other critics. And some note that if the document is real, it lists Barack Obama Sr. as the father, proving Obama Jr.’s ineligibility since a “natural born Citizen” was considered by scholars cited by the Founding Fathers to be the offspring of two citizen parents.
State officials declined to respond when Obama released the “Certificate of Live Birth” image and WND requested confirmation that the image released was an accurate representation of the state’s records.
The Keyes case, filed at the 2008 election, argues that officials previously had investigated candidates’ eligibility qualifications and should have done in this instance. Kreep is representing Ambassador Alan Keyes, Wiley S. Drake and Markham Robinson in the case that up until now was being heard in the California state court system.
Kreep and attorney Orly Taitz represent the same individuals and others in a similar case that has been traveling through the federal court system. In that case, arguments were presented recently before the 9th U.S. Circuit Court of Appeals, but a decision has not been released.
Kreep’s state court case was rejected by the California Supreme Court earlier this year, opening the path for appeal to the U.S. Supreme Court.
In his arguments, Kreep cites the decision by California officials in 1968, when the Peace and Freedom Party submitted the name of Eldridge Cleaver to be a presidential candidate. He said the California Secretary of State at the time, Frank Jordan, found Cleaver was only 34 years old, one year short of the 35 years required by the Constitution for presidential candidates, and removed him from the ballot.
A legal case ensued and the U.S. Supreme Court by denying review affirmed the actions of the secretary of state.
“Similarly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the presidential primary,” the arguments explained. “When the then SOS checked his eligibility, it was found that Mr. Holmes was, similarly, not eligible, and Mr. Holmes was removed from the ballot.
North Dakota Gov. Thomas Moodie, removed from office when the state Supreme Court found him ineligible
“In this case [Obama], we have a similar situation in that the Democratic Party submitted the name of Obama as a candidate for president,” the arguments explain.
The arguments suggest that since the courts have determined they don’t have jurisdiction in such eligibility cases, and there is no effective procedure to qualify candidates in Congress, the logical result would be to have election officials, such as the secretary of state, make such decisions.
And regarding the removal of a sitting official who is ineligible, there is state Supreme Court precedent, the petition argues.
It was in the 1930s in North Dakota when Thomas H. Moodie was “duly elected to the office of governor,” the case explains.
Later, “It was discovered that Thomas H. Moodie was not eligible for the position of governor, as he had not resided in the state for a requisite five years before running for office, and, because of that ineligibility, he was removed from office and replaced by the lieutenant governor,” it confirmed.
North Dakota’s historical archives document the case.
The Democrat was nominated by his party for governor in 1934 and beat his Republican opponent, Lydia Langer.
“As soon as the election was over, there was talk of impeachment, but no charges were filed,” the state’s archives report. “After Moodie’s inauguration on January 7, 1935, it was revealed that he had voted in a 1932 municipal election in Minnesota. In order to be eligible for governor, an individual has to have lived in the state for five consecutive years before the election. The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935,” the state reports.
The case there called the “lack of residential qualifications” a “legal disability.”
“Here, in like manner, appellants allege that Obama is legally disabled by his citizenship status. Therefore, all votes cast in favor of the Obama/Biden joint and unseverable ticket by the California Electors should be deemed null and void, since the votes were cast for an individual ineligible to run for the office of president of the United States of America.”
There is no constitutional provision addressing the process to determine candidates’ eligibility, nor does federal law address the question, Kreep wrote. But he said the courts clearly have the authority to rule on the controversy at hand.
“The issue here is not one of determining new election law, but one of whether California was in line both with its own state constitution and the United States Constitution on this issue,” the case alleges.
“The issue of whether Obama is eligible to serve as president of the United States is one that has ‘significant political overtones,’ given that it has a direct relation to the election of the most powerful political office in the Untied States, but it is, nonetheless, an issue which the courts can make a determination on, because the requirements for said office are clearly stated in Article II, Section 1, Clause 5, of the U.S. Constitution, and courts routinely decide questions such as at issue in this case.”
At the appellate court level in California, the judges appeared to say a judicial review of a president’s eligibility is a possibility – after the Electoral College and congressional procedures run their courses.
The results are found in the opinion that upheld a state district court’s dismissal of a challenge to the procedures under which California’s electors helped install Obama in the Oval Office.
The appellate opinion in the case, which alleges both California Secretary of State Debra Bowen and the state’s electors for the Electoral College in the 2008 election failed to verify that Obama is eligible, said the eligibility of candidates “is best left to each party.”
The opinion said that should a “president-elect shall have failed to qualify,” the responsibility rests with Congress.
But the opinion also suggested a line of responsibility that would include the courts. It warned that should Congress fail to act “in the first instance” – and during the 2008 election there was no action on the part of Congress regarding the issue – “Judicial review, if any, should occur only after the electoral and congressional processes have run their course.”