The U.S. Supreme Court justices may be trying to avoid the eligibility issue, as Justice Clarence Thomas apparently confirmed. But no matter, try as they might, it appears that it’s not going away.
The newest case to be scheduled for conference before the high court is Alan Keyes and Wiley Drake v. Obama. The case was launched on the day of Obama’s inauguration in 2009 and has been advancing ever since.
Conferences are meetings at which justices determine which cases they will take and review. Every other eligibility case that has been brought to the U.S. Supreme Court has died by this point, without support from enough justices to move it forward.
But even if that happens again, there are other cases already developing that could end up facing the judges.
The case at hand asks the justices to settle the question of eligibility, or else “there remains a question as to whether absurd results may occur.”
Gary Kreep of the United States Justice Foundation is arguing the case.
“Arnold Schwarzenegger is well known as having been born in Austria. If there are no means of compelling verification of a presidential candidate’s birth status, Mr. Schwarzenegger could run for, and be elected, president. … If the Libertarian Party were to nominate the late Ayn Rand as their candidate for president, could she be removed from the ballot on the grounds that she is not a natural born citizen of the United States?” his asserts.
The petition was filed on behalf of Keyes and Drake, candidates on the 2008 ballot for president and vice president, and Markham Robinson, an elector for the state of California in 2008.
As candidates during 2008, Keyes and Drake “had an interest in having a fair competition for those positions. This interest is akin to the interest of an Olympic competition, where one of the competitors in an athletic competition is found to be using performance enhancing drugs, but is not removed.”
The case explains that in such cases, “all of the athletes who had trained for the event legitimately are harmed if that disqualified contestant remains, as the contestants would not be competing on a level playing field.”
“Obama entered this race without having met the eligibility requirements for the office of president of the United States, and, as a result, Keyes and Drake have been injured, because they did not have fair competition for the office.”
To the government argument that third-party candidates really aren’t hurt because they couldn’t win anyway, Kreep writes: “Does the law, therefore, provide opportunities for, and encourage, majority party presidential candidates to skirt, or ignore, election rules and laws, since, according to respondents, third party presidential challenges would never have standing to challenge?
“Such a result would never be acceptable in the jurisprudence of this court,” he says.
And, Kreep noted, third-party candidates have included H. Ross Perot and George Wallace, who had an impact on the general election.
“The injury suffered here … is the denial of the right of all candidates to have a level playing field. … This simply means that all candidates running for the office must be eligible for the office,” the appeal says.
“The injury here is not that some candidates … were prevented from winning … but that these candidates were denied a fair opportunity to run for the office, because their competition was disqualified from the outset.
“Whether a candidate can win a race for an office is irrelevant to the question of whether the election is fair.”
The appeal notes there already is precedent in the U.S. for removing an elected chief executive who is ineligible.
That happened in North Dakota, where Gov. Thomas H. Moodie was elected but later found to be ineligible because of residency requirements.
He was removed from office and replaced by the lieutenant governor.
And whether Obama has committed impeachable offenses also is not an issue, since only a legitimate president can be impeached, the appeal argues.
The petition argues that while Congress approves the Electoral College balloting, the law “does not directly address any eligibility issues.”
The provisions of the Constitution, that the president be a “natural born citizen,” also cannot be changed by means of a popular vote, the brief argues.
The origins of the case come from the day of Obama’s inauguration, when he flubbed the oath of office and the White House reported he retook it in private later.
The 9th Circuit earlier rejected the claim, although the panel of judges, Harry Pregerson, Ray Fisher and Marsha Berzon, explained a concept called “competitive standing” is a valid argument.
“This notion of ‘competitive standing’ has been recognized by several circuits,” the opinion said. “We, too, have upheld the notion of ‘competitive standing.’ In Owen v. Mulligan, we held that the ‘potential loss of an election’ was an injury-in-fact sufficient to give a local candidate and Republican party officials standing. In that case, the candidate for local office sued the Postal Service for giving his rival a preferential mailing rate, in violation of its own regulations.”
The opinion said the case had the candidate and party officials seeking “to prevent their opponent from gaining an unfair advantage.” However, in Obama’s case, the court panel simply said that once the inauguration was held, the claims evaporated, because the plaintiffs no longer were “candidates.”
“The original complaint was filed Jan. 20, 2009, at 3:26 p.m. Pacific Standard Time, after President Obama was officially sworn is as president,” the judges wrote. “Once the 2008 election was over and the president sworn in, Keyes, Drake … were no longer ‘candidates’ for the 2008 general election. Moreover, they have not alleged any interest in running against President Obama in the future.”
The opinion neglected to note Obama’s flub of the oath of office and his decision to retake it later.
In the Moodie case, from the 1930s, the governor failed to meet a state residency requirement and was removed from office after his election.
According to Kreep, the court in the Moodie case held:
The lack of residential qualifications on the part of the governor is a legal disability. The [North Dakota] constitution does not differentiate between a disability existing before election and one occurring after election in regard to the right of the lieutenant governor to assume the powers and duties of the office of governor. The provision in the constitution devolving these powers and duties upon him must be construed in the light of reason. … When the framers of the constitution used the language which we are here considering, they intended to include legal as well as physical or mental disabilities, and did not exclude disabilities existing prior to election.
Here, in like manner, Drake and Robinson allege that Obama is legally disabled by his birth status. The condition of being ineligible for particular elected office does not change on account of winning the requisite number of votes to otherwise win the office. If one is ineligible when a candidate, the same person continues to be ineligible after being elected,” the brief said.
If Mr. Obama is, in fact, ineligible for the office of president of the United States, it is insufficient that he received a majority of the Electoral College votes and has served for some time in the office, because ineligibility is not vacated by votes, else the Constitution could be amended contrary to the Constitution’s own dictates.
While Obama’s “Certificate of Live Birth” was released by the White House last year, other documentation for him remains sealed, including kindergarten records, high school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, medical records, his files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.
In addition, Sheriff Joe Arpaio’s investigation of Obama’s eligibility found probable cause that the birth document was forged and fraudulently presented as authentic.
The Supreme Court justices repeatedly have refused to address the constitutional issues pertaining to Obama’s eligibility. The justices apparently are “avoiding” the Obama issue, according to Thomas. The justice appeared before a U.S. House subcommittee when the issue arose. Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the issue 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 image that Obama released as his birth documentation, which has been challenged repeatedly by computer, imaging and document experts as a fraud:
Just this week in a separate case, a state judge in Florida scheduled a hearing to address the definition of “natural born citizen.”