An administrative law judge in Georgia today ruled that Barack Obama’s name can be on the state’s 2012 presidential election ballot because he was born in Hawaii, is “native born” and thus also is “natural born” as required by the Constitution.
He cited a little-known determination by an Indiana judge.
“The Indiana court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth,” wrote Michael Malihi, an administrative law judge in Atlanta.
“For the purposes of this analysis, this court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny, he became a citizen at birth and is a natural born citizen.”
Malihi’s decision came without any evidence being presented by Obama or his lawyer after they refused to participate in the required hearing under a state law that mandates all candidates qualify for the office they seek.
The law also allows any voter to raise a challenge, and several did. A hearing was held on their evidence on Jan. 26.
Malihi essentially tossed all of the information the plaintiffs and their attorneys presented.
“The court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support plaintiffs’ allegations,” he said.
He was miffed at Obama but decided the case on the merits, as requested by the plaintiffs.
“Neither defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the court would enter a default order against a party that fails to participate in any stage of a proceeding. … Nonetheless, despite the defendant’s failure to appear, plaintiffs asked this court to decide the case on the merits of their arguments and evidence. … By deciding this matter on the merits, the court in no way condones the conduct or legal scholarship of defendant’s attorney, Mr. Jablonski,” he said.
The judge ignored plaintiffs’ urging that a request for a contempt citation be issued against Obama for refusing to appear as subpoenaed.
The decision can be reviewed by Secretary of State Brian Kemp, who earlier warned Obama and his attorney that to snub the Georgia court system would be at Obama’s “peril.”
Mark Hatfield, one of the attorneys who, along with Van Irion, focused on the issue of the definition of “natural born citizen,” said the judge ignored the issue of burden of proof.
“If Obama has the burden of proof, and failed to show up, clearly he didn’t carry the burden,” he told WND. “The judge here completely ignores that.”
He also noted it was highly unusual for a judge to reach into another state’s repository of court rulings to support his decision when the U.S. Supreme Court itself has made a determination.
He said he’s hoping the Georgia secretary of state will evaluate the issue carefully, but he’s prepared to take the dispute to the appeals level.
Another attorney, Orly Taitz, represented several plaintiffs and brought in allegations of fake Social Security numbers and alternative names.
She said Malihi “makes absolutely no sense.”
Under Georgia law, she said, it is up to a candidate to prove his eligibility.
“[Obama] proved nothing. He didn’t show up. He didn’t provide evidence,” she said.
The decision follows a hearing last week on concerns raised by citizens of Georgia under a state law that allows voters to challenge the eligibility of candidates on the state’s ballot. It is the states that run elections in the U.S., and national elections are just a compilation of the results of the 50 state elections.
The state law requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”
State law also grants the secretary of state and any “elector who is eligible to vote for a candidate” in the state the authority to raise a challenge to a candidate’s qualifications, the judge determined.
Citizens raising concerns include David Farrar, Leah Lax, Thomas Malaren and Laurie Roth, represented by Orly Taitz; David Weldon represented by attorney Van R. Irion of Liberty Legal Foundation; and Carl Swensson and Kevin Richard Powell, represented by J. Mark Hatfield. Cody Judy is raising a challenge because he also wants to be on the ballot.
Irion, representing David P. Weldon, had urged the court not to overlook the fact that Obama had been subpoenaed for last week’s hearing. Obama’s attorney, he pointed out, acknowledged the subpoena by asking that it be quashed. But when the judge refused his request, but told a state elections official he would not participate.
“Plaintiff Weldon moves this court to refer an order for contempt to the Superior Court for confirmation that defendant Obama is in contempt of court,” the motion says. “Grounds for this motion are that defendant Obama willfully defied this court’s order to appear and testify during this court’s hearing of January 26.”
The motion explains that when Malihi refused to quash the subpoena, Obama and his attorney, Jablonski, “requested that the Secretary of State [Brian Kemp] halt the proceedings. … The letter ended with a statement that the defendant and his attorney would suspend all further participation in the proceedings of this court pending response.”
But after Kemp confirmed later that day that the hearing would continue and said that failing to participate “would be at the defendant’s peril,” Obama and his lawyer still refused to attend.
The letter from Obama’s lawyer to the state official, “coupled with the defendant’s willful refusal to comply with an order of this court, represent a direct threat to the rule of law,” the motion says. “The … actions represent a direct threat to the entire judicial branch and the separation of powers.”
Willfully ignoring a court subpoena is “unprecedented,” Irion argued. “While past presidents have litigated against subpoenas, in every case those presidents acknowledged and respected the authority of the judicial branch. … In the instant case the defendant did not appeal to a higher court, and instead instructed the Secretary of State that he would not participate. … When the Secretary of State refused to act in an unlawful manner the defendant ignored the Secretary of State, violated an order of this court, and apparently instructed his attorney to act in a manner that violates the professional rules of conduct of this state.”
Obama’s action, he said, “amounts to no less than a declaration of total dictatorial authority. Such declaration cannot go without response from this court. Failure to respond to the defendant’s contumacious conduct would amount to an admission that this court and the judicial branch as a whole do not have the authority granted to them under articles III and IV of the Constitution.”
The controversy over Obama’s eligibility dates to before his election in 2008. Some contend he was not born in Hawaii and that the birth documentation the White House released in April is a forgery.
Others say it doesn’t matter where he was born, as his father never was a U.S. citizen.
The Constitution requires presidents to be “natural-born citizens,” and experts say that the Founders regarded it as the offspring of two U.S. citizens.
Jablonski had asked Malihi to quash the subpoena, requested by Taitz. When the judge refused, Jablonski wrote to Kemp.
The attorney told Kemp that “serious problems” had developed in the hearings “pending before the Office of State Administration Hearings.”
Jablonski said, “At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements.”
He said the judge had “exercised no control” over the proceeding.
“It threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the state and your office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full participation of the president in his capacity as a candidate,” Jablonski wrote.
Kemp said the hearing, however, was in line with Georgia law, and he would be reviewing Malihi’s recommendations in the case.
He also had a warning about the cost of not showing up for a court hearing.
“Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.”
Top constitutional expert Herb Titus contends that a “natural-born citizen” is born of parents who were U.S. citizens at the time of the birth. The argument also is supported by a 19th-century U.S. Supreme Court decision, Minor vs. Happersett in 1875. The case includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen.”
That case states: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”
An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.
“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”
If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.
“Now what we’ve learned from the Hawaii birth certificate is that Mr. Obama’s father was not a citizen of the United States. His mother was, but he doesn’t qualify as a natural born citizen for the office of president.”