In a conference today [December 5, 2008] the Supreme Court will reconsider together whether to take on a suit challenging the eligibility of Barack Obama to be president of the United States under a sometimes-arcane section of Article II of the Constitution.
Is Barack Obama a “natural born” citizen of the U.S.?
In the building where “Equal Justice Under Law” is engraved high over the front door, poker-player Leo Donofrio’s challenge will be examined to see whether at least four of the nine justices of the Court think he has enough of a case to actually merit a hearing. Justice David Souter rejected Donofrio’s case earlier, so this is a hail-Mary play on the part of Obama’s opponents.
The Court takes seriously the principle engraved over the door, however. This is the same Court that ruled earlier this year an accused terrorist and all-around bad guy held at Guantanamo Bay has the right to a writ of habeas corpus over the objections of the Most Power Man in the World, U.S. President George W. Bush. The humble, gritty, or even unsavory history of litigants does not limit their rights under the law.
So the question is, what sort of case does Donofrio have against Obama’s eligibility?
Would Justice Clarence Thomas have agreed to bring this case to the conference if it doesn’t have a chance to succeed?
I’ve not lunched with Thomas in more than two decades, so I can’t speak with any inside knowledge. Historically, the Court, and indeed all the federal courts, have agreed to examine cases like this often simply to provide an authoritative close to the issue. In this case, the outright hysteria of the anti-Obama partisans suggests the issue should be put to bed if possible.
Under usual Court procedures, we won’t learn the results of the conference until Monday. I would not be surprised if the results are announced today, just to promote the settling of the issue.
Does Donofrio have a case?
I don’t see a case. It’s clear that Obama is a U.S. citizen now. Donofrio’s argument is rather strained, and sexist. He claims that Obama’s father having been a British subject in 1961 (Kenya was not yet independent), Obama had dual citizenship at birth — and, further, Donofrio alleges, this dual citizenship trumps both Obama’s birth on U.S. soil (which should be dispositive) AND Obama’s mother’s U.S. citizenship, conferring a special status that doesn’t meet the intentions of the framers of the Constitution.
Donofrio’s claim is odd in that it would grant a lesser-status to children of legal immigrants than is allowed by law to children of illegal immigrants, or temporary visitors. It also is bizarre, to me, in the way it dismisses Obama’s mother’s existence as a factor in Obama’s citizenship status — and while equal rights for women were not wholly obtained in 1961, no one has successfully argued that the citizenship of the father trumps that of the mother in citizenship cases.
Donofrio is arguing that Obama’s dual citizenship at birth disqualifies him from holding the presidency, technically, in a very narrow reading — though Obama would have absolutely every other right of a natural born citizen.
A couple of observations:
First, this is not an easy issue to litigate. Standing is the easiest way for a federal court to avoid a decision — what harm can a citizen claim from letting Obama be president? It’s difficult to find an injury even were Donofrio’s claims valid. No blood, no foul. No injury, no standing to sue. It is upon this basis that most of the cases against Obama’s eligibility have been tossed out, as Donofrio’s has been tossed, twice already.
Second, it is unclear what entity enforces the eligibility clause of the Constitution, or indeed, whether any entity can. For most of the summer Obama’s critics were pressuring the Federal Election Commission (FEC) to do something, even though the FEC lacks a quorum of members to do anything. More to the point, there is nothing in any law that confers on the FEC the function of checking the citizenship status of any candidate. Sometime in October they finally figured out that state secretaries of state might have a role, since they set up the ballots in each state.
I admit I thought that, until I reflected on the issue of the electoral college. In U.S. presidential elections, voters do not vote directly for president and vice president. Instead, we vote to elect people who will be the electors who decide — electors of the electoral college. The history of this institution can be found elsewhere. For the sake of these suits, however, it means that the secretaries of state have no role at all in the eligibility of the candidates. They rule on the eligibility of the electors, which is an entirely different kettle of fish. Some states even list the electors on the ballot.
But in any case, it means Donofrio is suing the wrong entity, even if we can’t tell him what the correct entity is.
Third and most important, Donofrio is asking for U.S. citizenship law to be overturned in a most inconvenient time and place. Dual citizenship is a bar to very little in American life. There is an assumption that people who hold that status are fully American citizens, absent a showing of contrary facts. There are no contrary facts in evidence from Donofrio, nor from anyone else, despite promises of the revelation of conspiracies.
In short, Donofrio is arguing that there is, somewhere, somehow, some information that Barack Obama is not the shining patriot his life story reveals. Donofrio doesn’t know what that information is, or where it might be found, but he thinks maybe the State of Hawaii is complicit in a conspiracy to hide this information, which is hidden on the hand-written records of Obama’s birth in 1961. You might think Donofrio has watched “National Treasure” a few too many times, and whether it’s that movie or some other source, you’d be right — paranoid suspicions of conspiracy are not the stuff good court cases are made of.
The dozen or more cases against Obama’s eligibility all suffer from this astounding, dramatic lack of evidence. Is there an affidavit from someone who alleges that Obama’s citizenship should be called into question? If so, they’ve not been presented to any court. (Obama tormentor Corsi claims to have interviewed Obama’s Kenyan grandmother, and he alleges she said through an interpreter that Obama was born in Kenya; oddly, he didn’t bother to get an affidavit from the woman, nor from anyone else — and others who listen to the tape think she thought Corsi was asking about the birth of her son, not grandson. This is not solid evidence.)
I argued earlier there is a long chain of evidence creating rebuttable presumptions that Obama’s a natural born U.S. citizen. To contradict this chain of evidence, contestants should provide extraordinary, clear evidence of contradiction. What is offered by Donofrio is neither extraordinary, nor clear, nor necessarily contradictory to the presumptions.
This is not an issue solely for the hysterical. Lawyers and scholars have looked at the issue through the years, and intensely this year, and arrived at the conclusion that Obama is perfectly eligible for the presidency.
Will sanity ever prevail?
Resources you may want to consult:
- Supreme Court Docket listing for the case, Donofrio v. Wells
- “Natural Born Citizenship — McCain OK for Presidency?” from the New York University Law Journal, August 22, 2008
- “McCain’s birth abroad stirs debate,” Washington Post, May 2, 2008
- “A hint of new life to McCain birth issue,” New York Times, July 11, 2008
- Jonathan Turley’s blog, at Res Ipsa Loquitur: “Olson and Tribe argue that McCain is natural born,” and “Eligibility questions: Can Clinton serve Obama, and can Obama serve the country?”
- See below, Jonathan Turley on Keith Olberman’s “Countdown”
- The hysterics, Texas Darlin’, Donofrio’s blog Natural Born Citizen, Earth Frisk