The question of Barack Obama’s eligibility to occupy the Oval Office under the Constitution’s “natural born” citizen requirement is once again being appealed to the U.S. Supreme Court, which has refused to hear a number of previous cases.
Judges have ruled Obama’s eligibility is a political question that is not for the courts to decide. They have argued the plaintiffs didn’t have “standing,” the requirement that they have sustained or will sustain direct injury or harm that can be redressed by a court.
Now, however, a plaintiff has surfaced who claims he has suffered a specific and individual injury – the $90 he is seeking to have returned by the U.S. Patent and Trademark Office.
The president’s eligibility is being questioned in a friend-of-the-court brief submitted to the U.S. Supreme Court by the constitutional experts at William J. Olson, P.C. and the United States Justice Foundation.
They are asking the high court to take up the case of Christopher John Rudy, a registered patent attorney who paid to the Patent and Trademark Office “fee increases” totaling $90 under the America Invents Act, “purportedly enacted into law in September 2011 by Congress and the president.”
Rudy sued for a refund “on the ground that the AIA was invalid, having been signed into law by Barack Obama, a person who … was not a ‘natural born citizen,’ and thus, was ineligible to hold the office of president of the United States.”
The courts rejected his claim, insisting they had no authority to look into Obama’s eligibility.
The law firms’ brief explained Rudy’s argument.
“Until now, the question of President Obama’s qualifications as a ‘natural born citizen’ has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court – and thus lacked ‘legal’ standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90 because of the new law signed by President Obama.”
The brief also argues that until now, “no one has questioned the validity of a law signed by the president.”
“Rather, previous cases have sought the removal of President Obama from the presidential ballot or from office altogether. In this case, however, the complaining patent attorney is not seeking President Obama’s removal from office, but simply a refund of his $90 and a declaration that, unless he is a ‘natural born citizen,’ President Obama does not have the constitutional authority to sign a bill into law. Yet, the courts are attempting to avoid declaring that the law is based on the judge-made expedient of labeling the issue a ‘political question,'” the attorneys said in their statement.
‘Constitutional eligibility’ ruling already out
They also note that the dispute is arising again only two months after the U.S. Supreme Court ruled on a question of constitutional eligibility. That came in a case in which an order of the National Labor Relations Board was invalidated because members were appointed by Obama in an unconstitutional manner.
That made them constitutionally ineligible to be on the board.
“Our amicus brief in Rudy argued that if the U.S. Supreme Court can decide whether members of the NLRB meet the constitutional requirements of their office, it can also decide whether the president of the United States meets the constitutional requirements of his office,” the attorneys said in their statement.
“Further, as our brief demonstrated, the requirement that a president be a ‘natural born citizen’ is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the president’s sworn oath to ‘defend, preserve, and protect’ the Constitution of the United States,” they said.
In the Supreme Court’s NRLB ruling, Justice Stephen Breyer noted the Federalist Papers “make clear that the Founders intended th[e] method of appointment, requiring Senate approval, to be the norm … because … the need to secure Senate approval provides ‘an excellent check upon a spirit of favoritism in the president, and would tend greatly to preventing the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.”
Justice Antonin Scalia argued that when questions “involving the Constitution’s government-structuring provisions are presented in a justiciable case, it is the solemn responsibility of the judicial branch ‘to say what the law is.'”
The attorneys acknowledged the subject may be unpopular.
“Many object to any challenge to the eligibility of a president, or presidential aspirant, but if the law is to apply equally to every person, presidents cannot be deemed to be above the law based on vague tests such as whether the case presents ‘political question.’ Indeed, demonstrating that the term ‘natural born citizen’ is a constitutional requirement that has continuing political significance which needs resolution are questions not just about President Obama, but also about Republicans Marco Rubio, Rick Santorum, Ted Cruz, and others,” they explained
Nevertheless, they said, “the executive appointments clause of Article II, Section 2, the presidential eligibility provision of Article II, Section 1 – especially its ‘natural born citizen’ requirement – is part of the ‘enduring structure’ of the federal government established by the U.S. Constitution.”
‘Judicially enforceable standards’
They argue in their brief: “This court unanimously decided that there are judicially enforceable standards limiting the president’s recess appointment power [in the NLRB case.] In the instant case, the question before the court is whether there are judicially enforceable limits governing the exercise of the powers of the presidency by a person who allegedly does not meet the eligibility requirement that he be a ‘natural born citizen,’ or whether that question is nonjusticiable, enforceable only at the discretion of the Congress.”
The most recent court decision on Obama’s eligibility, in March, ended similarly to previous challenges. The majority in a 7-2 Alabama Supreme Court decision had no opinion on the eligibility issue itself.
However, the dissenting minority of Justice Tom Parker and Chief Justice Roy Moore concluded the case has serious constitutional significance, warranting an investigation of the qualifications of 2012 presidential candidates by Alabama’s secretary of state.
Moore wrote in his dissent that the circuit court should have granted the plaintiffs’ request to order the state secretary of state “to implement the natural-born-citizen requirement of the presidential-qualifications clause in future elections.”
“Although the removal of a president-elect or a president who has taken the oath of office is within the breast of Congress, the determination of the eligibility of the 2012 presidential candidates before the casting of the electoral votes is a state function,” Moore argued.
He said the case was of “great constitutional significance in regard to the highest office in our land.”
“Should he who was elected to the presidency be determined to be ineligible, the remedy of impeachment is available through the United States Congress, and the plaintiffs in this case, (Hugh) McInnish and (Virgil) Goode, can pursue this remedy through their representatives in Congress.”
Two judges wanted eligibility confirmed
Parker agreed with Moore’s reasoning, except that he would call for the secretary of state to investigate eligibility issues once she “has received notice that a potential candidate may lack the necessary qualifications to be placed on an Alabama election ballot.”
Both justices earlier had expressed concern about the issue.
Parker had filed a special, unpublished concurrence arguing plaintiff Hugh McInnish’s charge of “forgery” was legitimate cause for concern.
“Mclnnish has attached certain documentation to his mandamus petition, which, if presented to the appropriate forum as part of a proper evidentiary presentation, would raise serious questions about the authenticity of both the ‘short form’ and the ‘long form’ birth certificates of President Barack Hussein Obama that have been made public,” he wrote.
Moore, in an interview with WND in 2010, defended Lt. Col Terrence Lakin’s demand that Obama prove his eligibility as commander in chief as a condition of obeying deployment orders.
Lakin was stripped of his rank and removed from the military when he demanded to see evidence that Obama was a legitimate commander-in-chief of the military before carrying out deployment orders. He reasoned the orders would be illegal if Obama was not eligible to be president.
At the time, Moore said Lakin “not only has a right to follow his personal convictions under the Constitution, he has a duty.”
“And if the authority running the efforts of the war is not a citizen in violation of the Constitution, the order is unlawful,” he said.
In the 2010 interview with WND, Moore said he had seen no convincing evidence that Obama is a “natural born citizen” and considerable evidence that suggests he is not.
“This is the strangest thing indeed,” he said. “The president has never produced [evidence] in the face of substantial evidence he was not born in our country. People are accepting it blindly based on their feelings, not on the law.”
That case was brought on behalf of 2012 Constitution Party presidential nominee Virgil Goode and Alabama Republican Party leader Hugh McInnish, who asked Alabama’s highest court to force Secretary of State Beth Chapman to verify that all candidates on the state’s 2012 ballot were eligible to serve.
The only formal law enforcement investigation of Obama’s birth certification, done by a Cold Case Posse assembled by Sheriff Joe Arpaio in Arizona, found evidence the birth certificate presented by the White House as “proof positive” of Obama’s eligibility actually is fraudulent, created on a computer and not representative of any official document.
Arpaio’s investigator have raised the possibility of fraud and forgery committed against American voters.
‘You tell me about eligibility’
Among the skeptics about Obama’s eligibility is billionaire Donald Trump.
Trump said he can’t be certain that Obama is eligible to be president, and he pointedly noted that a reporter who was poking fun at the issue admitted he can’t, either.
At one point, he offered $5 million to the charity or charities of Obama’s choice if he would release his passport records and authorize the colleges he attended to release his applications and other records.
Trump argues those documents would show whether or not Obama ever accepted scholarship or other aid as a foreign student, which could preclude him from being a “natural-born citizen.”
A conversation with ABC’s Jonathan Karl started with Karl stating that Trump took on the “not serious” issue of eligibility.
“Why does that make me not serious?” Trump demanded. “I think that resonated with a lot of people.”
Karl replied: “You don’t still question he was[n’t] born in the United States, do you?”
“I have no idea,” Trump said. “I don’t know. Was there a birth certificate? You tell me. You know some people say that was not his birth certificate. I’m saying I don’t know. Nobody knows, and you don’t know either. Jonathan you’re a smart guy, and you don’t know.”
When Karl admitted he was “pretty sure,” Trump jumped on the statement.
“You just said you’re pretty sure. … You have to be 100 percent sure,” he said. “Jonathan, you said you’re pretty convinced, so let’s just see what happens over time.”