An administrative law judge in Georgia dismissed four Obama eligibility challenges yesterday. His flawed ruling does not do justice to those cases or to the US Constitution.

Summary of the Obama eligibility ruling

Judge Michael M. Marihi of the George Office of State Administrative Hearings had four cases before him. All asserted that Barack H. Obama should not appear on primary or other ballots in Georgia because he is not a natural-born citizen of the United States. One (Farrar et al. v. Obama) asserted that his birth certificate is a forgery and that he might have forged an identity from, among other things, a false Social Security number. The other three addressed a much more salient issue: whether being a natural-born citizen requires two citizen parents as well as a US birthplace.

In his ten-page ruling, Judge Malihi began with a swipe at Mark Jablonski, attorney for Obama in the case, who did not even show up for the January 26 hearing:

By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant’s attorney, Mr. Jablonski.

In so doing, the judge also said that he had offered to grant a default judgment against Obama for failing to appear or even send Jablonski as a surrogate. The judge further said that he based his decision

on the law, as well as on the evidence and legal arguments presented at the hearing.

That last part is debatable at best.

The Farrar case

Emmerich de Vattel. Portrait: unknown.

Judge Malihi disposed of the Farrar case first. In two pages, he said that attorney Orly Taitz had offered several witnesses, but never “qualified or tendered them as experts.” Greg Rogers at International News said that Taitz made a prima facie case that:

1. Obama’s Internet birth certificate is a forgery,
2. Obama is using a false Social Security number, and
3. Any other person offering so many false identity papers should expect the courts to deport him.

The real problem: the court accepted the witnesses and took their testimony. No one objected to the qualifications of those witnesses. (How could anyone? Obama’s attorney was absent!) And yet, after closing the hearing and waiting for briefs to arrive (and no account says whether anyone sent any), Judge Malihi said that the witnesses were useless, because Taitz forgot to offer them as experts. Why didn’t the judge say that at the hearing? And how can the judge throw out the qualifications after the fact, when no one challenged them at the hearing?

But that is not the most glaring flaw in the ruling. Nor is Obama’s birthplace the strongest argument against him. (No one has offered proof positive that he was born elsewhere than in the United States, for example.) The flaw lies in Judge Malihi’s treatment of the other Obama eligibility challenge claim: that Obama’s parentage disqualifies him.

What is a natural-born citizen?

The Welden, Swensen and Powell cases turned on what being a natural-born citizen really means.

For the purpose of this section’s analysis, the following facts are considered:

1. Mr. Obama was born in the United States;
2. Mr. Obama’s mother was a citizen of the United States at the time of his birth; and
3. Mr. Obama’s father was never a United States citizen.

Plaintiffs contend that, because his father was not a U.S. citizen at the timeof his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the United States. The Court does not agree.

To support this disagreement, Judge Malihi cited Ankeny and Kruse v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. Ct. App. 2009). (The judge misspelled that Arkeny.) Messrs. Ankeny and Kruse, acting in pro se, sued the Governor to enjoin him from certifying the results of the Presidential Electors meeting in December of 2008. They contended that neither Obama nor his opponent, John McCain, were natural-born citizens of the United States. (McCain was born in the Panama Canal Zone, which at the time was a United States possession but not within one of the fifty States.)

The Ankeny court, as Judge Malihi quoted it, relied mainly on US v. Wong Kim Ark, an Amendment XIV case. That case held that any person born in the United States was a citizen of the United States, and thus had the right to vote or hold office. But the Wong Kim Ark case said nothing about whether Wong Kim Ark could someday become President. That was the issue before Judge Malihi. (Furthermore, Malihi acknowledged that in a footnote.)

Regarding the landmark Minor v. Happersett case, the Ankeny court essentially said that, though the court recognized the plaintiff as a citizen, the court did not say under what circumstances Ms. Virginia Minor would not have been a citizen. In fact, she was born in-country of two citizen parents. The Minor court said flatly that she was a citizen on that ground.

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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

But the Ankeny court did try to “solve these doubts.” To do so, it turned to Wong and then to English common law.

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural  born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.”

The Ankeny court made this critical mistake: it forgot that the Minor court said that as to [that] class of persons born in-country of alien parents, there [were] doubts. How could the natural-born citizenship of a person born in-country to alien parents be in any doubt if this was a settled issue in common law? Part of the problem is that the Ankeny court assumed, incorrectly, that English law was the federal common law. English law is the common law in Indiana, and in most States within the United States. (Spanish law is the common law in Florida and the American Southwest, and French law is the common law in Louisiana.) The federal common law cannot be English law, not if the Minor court held that the natural-born citizenship of one born in-country to alien parents was doubtful.

In fact the real federal common law is the so-called “law of nations.” The best treatment of that is Emmerich de Vattel’s Law of Nations. In that work, Vattel clearly said that a natural-born citizen is one born in-country to citizen parents. The US Supreme Court has cited Vattel in its rulings on natural-born citizenship. See:

• The Venus, 12 U.S. 8 Cranch 253 253 (1814), a War-of-1812 case defining natural-born citizenship.
• Perkins v. Elg, 307 U.S. 325 (1939), a case that defines dual citizenship, renunciation, and expatriation.

The Venus ruling certainly was available to the Minor court in 1876.

To be continued…

Related:

External:

Obama eligibility challenge as part of Purpura v. Sebelius, parts one and two.

Internal:

• Obama eligibility challenges multiply
• Health care reform bill re-argument
• Obama eligibility cases explode
• Obama eligibility cases go forward

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