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Obama eligibility and Constitutional law



Mario Apuzzo, arguing the latest Obama eligibility challenge

Mario Apuzzo knows a thing or two about Obama eligibility jurisprudence. He has one case that has gone through New Jersey’s courts (and might go to the United States Supreme Court). Now he is helping a Minnesota Electoral College candidate serve notice on his party’s ticket: show me your birth certificates. Today he chatted with CNAV about this latest (if indirect) Obama eligibility challenge. He also shared some thoughts on what the relevant Constitutional and Supreme Court case law does and does not say.

Obama eligibility: the latest challenge

Jim Grinols is on the Republican elector slate for Minnesota. Technically, Jim Grinols is not directly challenging Barack Obama’s right to run for President. He wants to set an example for other Presidential Electors to look carefully at Presidential and Vice-Presidential candidates before they vote for them. To do that, Grinols, with Apuzzo’s help, sent a letter to Governor Mitt Romney and Congressman Paul Ryan. Those two are, of course, running for President and Vice-President as Republicans. Grinols wants each man to send to Mr. Apuzzo a

paper, full form official certificate of birth with raised seal from the place of your birth.

Apuzzo told CNAV that Grinols is simply doing due diligence. Any Presidential Elector should make sure that the candidate that he or she votes for, is eligible to the office. Today, no official body seems to have the duty to “vet” whether a candidate is eligible or not. The courts, says Apuzzo, have changed their rulings over time in an interesting way. First they denied that any ordinary citizen had standing to challenge the eligibility of any candidate. (The courts threw out the first Obama eligibility challenges, by Philip Berg and Orly Taitz, on that ground.) Now the courts seem to say that only Congress and the Electoral College have any jurisdiction over eligibility. The Obama eligibility question, the courts seem to say, is not a question for them, but a question for those other two bodies.

But there’s a problem. The Electoral College has no history even of trying to check whether a candidate is eligible. Since at least 1800 (with Amendment XII of the Constitution), the Electoral College has behaved like a set of fifty (or, since Amendment XXIII, fifty-one) “rubber stamps.” If a given ticket “carries a State,” all Electors from that State vote for that ticket. Period. Electors rarely, if ever, change their minds. (And even when they do, no such Elector has ever thrown an election from his pledged ticket to another ticket.)

Jim Grinols has a different view. As Apuzzo explained it, Grinols has a duty under the Constitution. Because no one else will reject a candidate out-of-hand for non-eligibility, Grinols feels that the Electoral College must. Grinols wants Romney and Ryan each to show that he is:

  1. A natural born citizen within the meaning of Article II, Section 1, Clause 5 of the Constitution,
  2. At least thirty-five years old, and
  3. At least a fourteen-year resident of the United States.

Grinols has no reason to doubt that Mitt Romney or Paul Ryan is any of these things. But he wants Mitt Romney and Paul Ryan to prove it. A paper long-form raised-seal birth certificate from each man would be a first step.

Obama eligibility: absurd happenings

Mario Apuzzo, arguing the latest Obama eligibility challenge

Mario Apuzzo walks toward the Office of Administrative Law with his two clients. Photo: CNAV.

Apuzzo decried as “absurd” some of the things that courts and State legislatures have done, or not done, on the Obama eligibility matter. Legislatures in some States (Apuzzo didn’t say which) seem to refuse to let anyone challenge a candidate for being ineligible.

Apuzzo rejects the various rulings from some State courts trying to say that Barack Obama is eligible anyway. The reason: not one of these courts has ever analyzed either the case law, the Constitution, or the historical context to find what a natural born citizen really is. The only case with anything close to a proper analysis is Minor v. Happersett (88 US 162, 1875). Apuzzo discussed at length why that case is so valuable:

The parties to that case came to the Supreme Court assuming that Virginia Minor was a citizen, in asking whether she had the right to vote. The Supreme Court said, “First we will show you why she is a citizen, before we get to whether she may vote.”

This point is critical. The Supreme Court never accepts a mere assumption that a litigant, or a lower court, has made about any case it takes. The Court always tests those assumptions when it rules. The Court tends to assume that material facts are as lower courts have found them. But it does not accept a lower court’s findings of law. The Court’s job is to vet a lower court’s findings of law and court rules, to make sure that the lower court has acted properly.

And so, in Minor, the Supreme Court took care to test whether Virginia Minor was a citizen. The court held, unanimously, that she was, on these grounds: she was born in-country to two citizen parents. That made her a natural born citizen.

Critics habitually dismiss this holding as obiter dicta. Apuzzo laughed at that. Obiter dicta (Latin: “outside sayings”) is anything beside the point that a Court might say. The Minor court did hold that Virginia Minor did not have the right to vote, even though she was a citizen. But the analysis of her citizenship was still on point. The Court did what it has done since its founding: set out exactly where each party sits, then rule on the law and how it applies to each party. So when the Court defined a natural born citizen in Minor, that was not and could never be obiter dicta.

The most absurd aspect of the Obama eligibility controversy, says Apuzzo, is the idea that someone could run for President without even showing who he is.


A child may not enroll in the Little League without proof! The first thing the Little League asks you for, is your birth certificate!

Similarly, any State asks a would-be motorist to prove who he or she is before licensing that person to drive. This is especially true in New Jersey, with its six-point system for rating documents that motorists offer to prove themselves.

A Quo Warranto writ?

Grinols told Jerome Corsi, the reporter for WND, that he

could not force presidential electors for Democrats in Minnesota or Republican presidential electors in any other state to join him in demanding to see the original birth certificates of presidential and vice presidential candidates.

Nick Purpura, Apuzzo’s lead New Jersey client, disputed that. He told CNAV earlier that Grinols, as a private citizen, could serve a writ of Quo Warranto on any Democratic Elector, if the Democrats carry Minnesota. The Quo Warranto writ asks its target by what authority (or warrant) he or she discharges some power or duty he or she claims to have. Apuzzo acknowledged to CNAV that he had not discussed the Quo Warranto writ with Grinols. He then said that he intended to explore that option with his client if the Democratic Party “carries” Minnesota.

One could argue that the proper writ would be a challenge to the Democratic elector(s) to show by what authority they could vote for Barack Obama if they have no evidence of his identity, his birthplace, or the other elements of natural born citizenship and eligibility. But Minnesota election law complicates that. In Minnesota, if any Elector casts his vote differently from how his Party tells him to (before the election), his vote will not count. So Minnesota law essentially picks an Elector and tells him to act like a rubber stamp, or not at all. Under that circumstance, a Quo Warranto writ would apply exactly.

In other news, Apuzzo admitted to CNAV that the Supreme Court of New Jersey has denied certiorari in the case of Purpura and Moran v. Obama. Nick Purpura and Ted Moran, the two plaintiffs, are now considering whether to petition for certiorari to the United States Supreme Court.



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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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Our host writes: “The courts, says Apuzzo, have changed their rulings over time in an interesting way. First they denied that any ordinary citizen had standing to challenge the eligibility of any candidate. (The courts threw out the first Obama eligibility challenges, by Philip Berg and Orly Taitz, on that ground.) Now the courts seem to say that only Congress and the Electoral College have any jurisdiction over eligibility.”

It’s not a recent change. Even in cases filed before Obama took office, courts held that they do not have jurisdiction over presidential eligibility. In Keyes v. Bowen, the Superior Court of California for the County of Sacramento wrote, “the Secretary of State persuasively argues that the appropriate remedy for an issue concerning the qualifications of a President is an action before the United States Congress pursuant to the Twelfth Amendment to the United States Constitution and 3 U.S.C. section 15.”

In Kerchner v. Obama, the U.S. District Court for the District of New Jersey wrote: “The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.”

Those are from 2009. Apuzzo should at least know about Kerchner v. Obama; he was the losing attorney.


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