TC
Platinum Hoya (over 5000 posts)
Posts: 9,480
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Post by TC on Aug 3, 2009 11:14:03 GMT -5
Phil Berg and Larry Johnson started this mess, true, and they're both Hillary supporters (they're not in her campaign). But you can't deny that the far right wing has run with this, can you? I never trusted Grandmama. Boz, you're right, I missed the part where they cited Rasmussen. My bad. |
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Post by HoyaLawya on Aug 3, 2009 11:26:04 GMT -5
Except Mombassa wasn't part of Kenya in 1961, and E(arth) F(riendly) Lavender is a type of detergent. Because the press doesn't generally deign to explore racist conspiracy theories? Trotting out the "R" word seems to be a reflexive but not a reflective response. Good fakes will usually place themselves in a plausible context. E.g., divorce filed January 20, 1964; decree of divorce granted March 1964; a birth certificate bearing a date of February 1964 (probably trying to come off as something unearthed from an archived file gathering dust in a law firm's warehouse of choice, and needed as documentation of the minor child whose custody would be awarded) surfaces. Kenya - independence in 1963. "Alleged" certificate / abstract of birth - February 1964. Trip-up - Constitutional adoption making it a Republic wasn't until December 12, 1964 so it's dubious a form issued in early 1964 carried that Republic of Kenya title. But who knows. Other oddities: the father reporting the birth instead of a doctor or hospital official? the "nil" reported about other children (senior and Kezia had had 2 by then) the numbers chosen like 47 (age of Obama) the middle zero ("O" for Obama?) and 44 (as in 44th Pres) Real exercise in Numerology, and forged documents are easily had on every street corner in most African countries. McCain had his own pitfalls, too. And he lied ("born on military base" he claimed until Hollander got the goods on him in summer of 2008). How the likes of Roger Calero (still a citizen of Nicaragua) ended up on many ballots makes for interesting chit-chat. The vetting of what voters are offered seems to have fallen into a low estate. Aaaaah, Bill: Aaaaah, the press. Bob Woodward is working on an Obama biography. Maybe he still has "the knack" eh? |
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Boz
Blue & Gray (over 10,000 posts)
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Post by Boz on Aug 3, 2009 11:42:35 GMT -5
Wait, wait.
You're not trying to say you buy any of this, are you Lawya? Please tell me you're just having some fun with the topic.
Look, I'll argue all day against anyone making the claim that having nutbars in their party -- and giving them attention -- is exclusively a Republican or conservative problem. I will also argue that Obama has been as trasparent as a brick wall when it comes to disclosing information that has been requested of him. But I'm certainly not giving any credence to any of this BS.
I will indulge for just one brief moment. Let's say that some of these claims are true. They are absolutely not, but for the sake of argument, let's just say that.
I'll ask the lawyers in the room, of which there are legion: Doesn't the fact that his mother is an American citizen (a fact that no one disputes) make all of the rest of this nonsense or even his birthplace moot anyway???
I apologize for even asking, because this is all tin foil quality craziness, but regardless of any paperwork, this issue ended for me before it even began, just knowing that his mom was an American.
I will say one last thing. I am not defending any Republican who is trotting out some birth certificate bill now, because it is low politics to do so (to say the least), and everyone knows it. In the abstract though, not attached to Obama in any way whatsoever, isn't a bill requiring presidential candidates to authenticate their natural born citizenship a good idea? Shouldn't we have something like that already? (maybe we do have something like that already, I plead ignornace on that count).
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Post by HoyaLawya on Aug 3, 2009 11:50:40 GMT -5
HoyaLawya, a foreign law granting citizenship means nothing in eyes of US law on this issue. Unless Obama renounces his US citizenship and claimed his Kenyan one, this means nothing, especially since the Kenyan citizenship was conditional. Furthermore, you've yet to provide any evidence that dual citizenship somehow runs afoul of the natural born citizen requirement. A natural born citizen is one who was an American citizen at birth. Since Obama was born in Hawaii, and being born on American soil is enough to grant citizenship, any dual citizenship objection seems to be moot. You'd be wrong on that score (see bold-face). It means something if there's a "legal hook" to legitimate the claim, which in Obama's case would be his father's citizenship. (It leaves out crazy instances where, e.g., some outlaw nation might lay claim to people as citizens who have utterly no "ties" to the nation.) It used to be that minors with dual citizenship had to make an affirmative election of which "one" citizenship they would select when they reached majority. I had college classmates in that situation. The Bancroft Treaties, moreover, were one long series of bilateral agreements between the U.S. and other countries by which formal elections for citizenship by individuals in one country would allow for automatic extinguishment of their old citizenship if the U.S. and various co-signing nations were either the "old" or "new" nations impacted. You stated: A natural born citizen is one who was an American citizen at birth.That's conflating two things. Popular rebuttal point but not too carefully researched or it might be brought up short. Article II carries the language (but not the definition) of the former; 14th Amendment and statutory schemes enacted under it handle the latter; Minor v. Happersett distinguished between the two; Wong Kim Ark's actual ruling did not define the former term even though Justice Gray blathered a lot in abundant dicta about natural born. The dissenting opinion of the Chief Justice is worthwhile reading since the actual ruling broke with a lot of historical precedent ( patrem concepts and the like). www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZD.html |
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TC
Platinum Hoya (over 5000 posts)
Posts: 9,480
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Post by TC on Aug 3, 2009 11:52:09 GMT -5
I'll ask the lawyers in the room, of which there are legion: Doesn't the fact that his mother is an American citizen (a fact that no one disputes) make all of the rest of this nonsense or even his birthplace moot anyway??? There's a few arguments here : - Obama is not an American citizen because he was born in Kenya, look at this fake birth certificate someone sent into WorldNutDaily for $10K, it proves it - The I-hate-Chester-A-Arthur-argument : Obama is not a natural-born citizen because his Dad wasn't a US citizen (see www.colbertnation.com/the-colbert-report-videos/229691/july-28-2009/womb-raiders---orly-taitz) |
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theexorcist
Diamond Hoya (over 2500 posts)
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Post by theexorcist on Aug 3, 2009 11:55:59 GMT -5
Oh, please. The Gates incident? You mean the one where POTUS screwed up so bad that he held a big alcohol apology session in the White House? Where all allegations about racism pretty much went up in smoke? THAT Gates incident? Give it up, man. Your side has its own kooks, too. And your "halcyon days of America for white people" argument is a reach. So stop tarring Republicans as racists. As far as the Gates incident, it is incorrect to call it an apology session. Indeed, many criticized Obama for not apologizing, even at the fellowship summit at the White House. The White House also issued statements to that effect. The outrage over Gates' comments has less to do with the fact that he called someone a racist than the fact that the person called a racist is white. The "racist" label finds popularity on the right to describe even the most accomplished jurists of our time. If you Google "Sotomayor racist," you may be astonished by the number of hits you get for prominent Republican commentators - Tucker Carlson (who should know better), Newt Gingrich, et al. I await the round condemnation of these comments from the GOP. Perhaps they would be kind enough to invite Sotomayor to their homes for coffee. My post did not foreclose the possibility that there are nuts on the left. The 9/11 Truthers were disgusting, and, as others have noted, roundly condemned by Republicans and Democrats. Such side shows only distract from the need to condemn the birthers quickly and forcefully. As far as my race-based argument, I think you dismiss it too easily. The best defense is for Republicans to do something about it. * * * * * The marriage license issue is truly disgusting. It has nothing to do with presidential legitimacy but rather an effort to combat Obama's image as a self-made intellectual with the image of a bastard child of a multi-racial couple. To the birther-types, perhaps the question remains of what is worse - a bastard child or a multi-racial couple? Ok, this is really starting to annoy me. There are a lot of Republicans on this board, and, contrary to your insinuations, we're not racists. It's nasty and it's beneath you, and, unless you have proof, it's wrong. Stop it. And I find it interesting that, under your logic, anyone who questions anything about Sotomayor automatically becomes a racist. On the Gates thing, it matters less about the race of who was called a racist and more that, you know, the charge didn't stick. At all. The birthers are nuts. They're clinging to increasingly small shreds that aren't of any value. Obama won, he's mortgaging our grandchildren's futures and taking the United States on the happy train to Hades, but taking him out of office on what amounts to, at most, a technicality, is ludicrous. |
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Post by jerseyhoya34 on Aug 3, 2009 12:09:39 GMT -5
As far as the Gates incident, it is incorrect to call it an apology session. Indeed, many criticized Obama for not apologizing, even at the fellowship summit at the White House. The White House also issued statements to that effect. The outrage over Gates' comments has less to do with the fact that he called someone a racist than the fact that the person called a racist is white. The "racist" label finds popularity on the right to describe even the most accomplished jurists of our time. If you Google "Sotomayor racist," you may be astonished by the number of hits you get for prominent Republican commentators - Tucker Carlson (who should know better), Newt Gingrich, et al. I await the round condemnation of these comments from the GOP. Perhaps they would be kind enough to invite Sotomayor to their homes for coffee. My post did not foreclose the possibility that there are nuts on the left. The 9/11 Truthers were disgusting, and, as others have noted, roundly condemned by Republicans and Democrats. Such side shows only distract from the need to condemn the birthers quickly and forcefully. As far as my race-based argument, I think you dismiss it too easily. The best defense is for Republicans to do something about it. * * * * * The marriage license issue is truly disgusting. It has nothing to do with presidential legitimacy but rather an effort to combat Obama's image as a self-made intellectual with the image of a bastard child of a multi-racial couple. To the birther-types, perhaps the question remains of what is worse - a bastard child or a multi-racial couple? Ok, this is really starting to annoy me. There are a lot of Republicans on this board, and, contrary to your insinuations, we're not racists. It's nasty and it's beneath you, and, unless you have proof, it's wrong. Stop it. And I find it interesting that, under your logic, anyone who questions anything about Sotomayor automatically becomes a racist. On the Gates thing, it matters less about the race of who was called a racist and more that, you know, the charge didn't stick. At all. The birthers are nuts. They're clinging to increasingly small shreds that aren't of any value. Obama won, he's mortgaging our grandchildren's futures and taking the United States on the happy train to Hades, but taking him out of office on what amounts to, at most, a technicality, is ludicrous. Perhaps you can help me identify where I called Republicans racist? My comments were to the birther nuts and tacit approval of them by the Republican Party and many Republicans (indeed most Republicans, if the polls are correct). The former group, I would argue, is formed by racist coup plotters, and the latter group is not actively racist in this context. My attempt to get you to read comments made by Newt Gingrich et al. were to show her being called a racist, again something that you have not condemned. My comments have never been that opposition to her alone is racist but rather that the reaction to the Gates incident and strange requests for Professor Gates and President Obama to apologize,* along with opposition to Sotomayor (in many cases strangely without much discussion) and the refusal of many Republicans to condemn the birthers creates an unfortunate concoction that raises doubts as to the commitment of the Republican Party to equality in society and in law. *The irony of this is perhaps a "wise Latina" would have handled the situation better than Sgt. Crowley at least initially. His press operation and legal team have been stellar since the incident. |
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theexorcist
Diamond Hoya (over 2500 posts)
Posts: 3,506
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Post by theexorcist on Aug 3, 2009 12:13:29 GMT -5
The Republicans must be in better shape than I thought if comments by Tucker Carlson and Newt Gingrich are held in the same esteem as comments by POTUS during a press conference.
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Post by jerseyhoya34 on Aug 3, 2009 12:19:36 GMT -5
The Republicans must be in better shape than I thought if comments by Tucker Carlson and Newt Gingrich are held in the same esteem as comments by POTUS during a press conference. This is your third failure to reject the race-baiting of prominent conservative commentators. I didn't think it would be that hard. It is truly astonishing given that some of the comments were made on global television, not in their own living rooms. I recognize that my comments are "not nice." I suspect they irritate more than a few posters, and folks usually end up more Editeded off than when they started reading my stuff, but I certainly won't be bullied in the name of political correctness. My regrets are dwarfed by the deafening silence from the right on the issues that I have raised. I should also note that the "racist" label does have a place, regrettably, in our society to this day. Attacking people who use it is easy but fixing and attending to the underlying problems that remain is more difficult, and my experience has been that one party is more forthcoming in those respects. |
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Post by HoyaLawya on Aug 3, 2009 12:22:07 GMT -5
Wait, wait. You're not trying to say you buy any of this, are you Lawya? Please tell me you're just having some fun with the topic. Look, I'll argue all day against anyone making the claim that having nutbars in their party -- and giving them attention -- is exclusively a Republican or conservative problem. I will also argue that Obama has been as trasparent as a brick wall when it comes to disclosing information that has been requested of him. But I'm certainly not giving any credence to any of this BS. I will indulge for just one brief moment. Let's say that some of these claims are true. They are absolutely not, but for the sake of argument, let's just say that. I'll ask the lawyers in the room, of which there are legion: Doesn't the fact that his mother is an American citizen (a fact that no one disputes) make all of the rest of this nonsense or even his birthplace moot anyway??? I apologize for even asking, because this is all tin foil quality craziness, but regardless of any paperwork, this issue ended for me before it even began, just knowing that his mom was an American. I will say one last thing. I am not defending any Republican who is trotting out some birth certificate bill now, because it is low politics to do so (to say the least), and everyone knows it. In the abstract though, not attached to Obama in any way whatsoever, isn't a bill requiring presidential candidates to authenticate their natural born citizenship a good idea? Shouldn't we have something like that already? (maybe we do have something like that already, I plead ignornace on that count). The more I started kicking the tires of the subject and blowing dust off old cases and looking at historical letter exchanges between George Washington and others who went on to become Framers, and dating from the period of the Revolutionary War where reversals in battles thanks to feckless enlistees from abroad ("spies") or enlistees with little rootedness in the colonies (no parents, no spouse/child, no property ownership) caused the early losses such that there was a tightening up of the screening process for who could enlist and who got military promotions, the more I became troubled about the original meaning (admittedly, an "originalist" interpretation) potentially ruling out a dual citizen. I'm not arguing Obama's American citizenship. But going back to Olden Times, and a patriarchal worldview, plain fact of the matter is that dual citizenship was pretty much unknown in the law. A woman took on the citizenship of the man she married. That continued through 1922, when a lot of American-born women whose foreign national husbands had left them widowed woke up to the fact that they had to "naturalize" themselves to regain their American citizenship -- even if they'd never left the country. You start digging into some of the hoary old stuff, and you start realizing there's more than meets the eye. As far as the vetting process, the answer is that all the Secretaries of State in all the 50 states pretty much "punt" to a sworn statement signed by the chairpersons of the parties' nominating convention and the chairs of the parties themselves. Some blogger at YourFellowCitizen wrote away to all 50 states and that's the answers he got from them. Electoral politics leaves it to "opposition research" by opponents and the TLC of the Fourth Estate to get at facts/proofs etc. Final moment of truth is when the joint session confirms the Electoral College vote. At least one Representative and one Senator must object to throw eligibility challenges into deliberative mode. That's what derailed the challenge to Schrub back in the day ... plenty of Reps came forward, but no one from the Senate. The laws of colonial Kenya are their own bizarre subset. But they allowed for recognition of "customary" (tribal; no paperwork) marriages. It's typical for a marriage recognized as legitimate by the country where it takes place to be given recognition by our own country and relevant states. Ergo, Kezia was the first wife and the Hawaiian marriage (if it really happened) was bigamous. And, absent a legitimate marriage, the British Nationality Act of 1948 cited by FactCheck is of no effect on Obama whatsoever. It says so right in the enumerated paragraphs. It has a retroactive provision, too, stating that if a Brit citizen father marries a non-Brit mother after baby is born, then the British citizenship will relate back to the birth date. I'm satisfied that Obama is natural born, based on limited facts actually known, but mostly on application of laws to the possible scenarios. Thing is this: a cogent explanation of those laws really, really would lay all the conspiracy crap to rest. But not in the minds of those who want him ousted so bad that they'll latch onto legal technicalities and refuse to listen to the truly important near-certainty (legally speaking) that he had only a mother to confer a citizenship to him. Michelle Obama pretty much came out with that truth when she described her mother-in-law as very alone and very single when Obama was born. Happened at a July 2008 campaign stop. |
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Post by HoyaLawya on Aug 3, 2009 12:37:43 GMT -5
And for the record: I'd like at least some of the states to step it up, and not rubber stamp some sworn statement of party hacks. All it would take is a few of them saying "No docs, no place on our ballot" and the word would get out about what got turned over. Or the declination would smell fishy. I'd like SCOTUS to definitively rule on the meaning of natural born citizen to settle that issue once and for all. I'd rather have SCOTUS issue such a ruling in a totally different context than the present situation, where fear of setting off a racial tinderbox might weigh heavily for a "practical outcome" approach to their decision rather than a legally well-reasoned outcome. I'd like for the hacks in Congress (both houses) to be largely turned out to pasture in the next election cycle(s) because they've so manifestly proved their general worthlessness as crafters of sound and sane economic and regulatory policies. I'd like all amendments to the Constitution to be pursued in the way envisioned by its framework, and not through sneaky methods like bogus non-binding Sen. Res. 511 (Congress usurping the role of the Courts to interpret the Constitution) or SCOTUS rulings that knock down the known gates of various legal pastures (encroaching on legislative function). Hmmm ... anyone want to add to this List for Santa Claus?  |
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Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
Posts: 2,431
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Post by Bando on Aug 3, 2009 12:46:04 GMT -5
Bull. Conspiracy theories never die. Adherents simply move the goalposts and start over. Nothing Obama can do will ever satisfy those who don't think he's a natural born citizen, just like no amount of debunking will ever convince those that think 9/11 was an inside job. There is a preponderance of evidence that Barack Obama was born in Hawaii in 1961. The burden of proof is on those who would say otherwise.
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Post by HoyaLawya on Aug 3, 2009 14:02:42 GMT -5
Bull Edited. Conspiracy theories never die. Adherents simply move the goalposts and start over. Nothing Obama can do will ever satisfy those who don't think he's a natural born citizen, just like no amount of debunking will ever convince those that think 9/11 was an inside job. There is a preponderance of evidence that Barack Obama was born in Hawaii in 1961. The burden of proof is on those who would say otherwise. Tell me about the blinders. I actually communicated a little bit with Donofrio since his research -- out of the whole pack of people running into courthouses around the election -- seemed more legally well-grounded. (He wasn't too far removed from private practice days and he hadn't staged his seemingly bipolar flame-out either.) But when I pointed out the Achilles' heel to his theory (towit, no valid Obama marriage) it was like the lead door dropped down to keep the gamma-rays at bay. Didn't want to hear it. Another lawyer who'd gotten really deeply into the Kenyan laws and "knew his stuff" on that score (and sent chapter and verse to me for review) got the same kind of treatment. Ego? Blinders? Insecurity that other lawyers come up with a different angle? (I quickly noticed how the solo practitioners and pro se people represented 100% of the activity on this issue. ) Hatred? Who the heck knows. One simply can't "reason" with the close-minded. But rational lawyers throw out a Welcome Mat to critiques of their weakest points. One of the benefits of practicing in a firm with others around to spot the blind alleys and errors. As far as burden of proofs: A sworn affirmation by party officials puts the onus on them, and it's a pro-active burden to demand their nominees' proofs, imho, or run the risk of standing accused of submitting a false swearing for lack of due diligence. It'll be interesting if the states which have enacted newly stringent demands are states in which the electoral votes (if low enough) get a "bye" from candidates who don't want to turn over their bona fides. Proper time to demand proofs under state law really ought to be when the candidates themselves are required to sign their own paperwork to be placed on the primary ballots. If you're going to run a campaign involving multiples of tens or even hundreds of millions of $$$$, no big deal to pony up 50 X $15 to get raised-seal copies and use a stapler. |
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Post by StPetersburgHoya (Inactive) on Aug 3, 2009 15:10:44 GMT -5
Bull Edited. Conspiracy theories never die. Adherents simply move the goalposts and start over. Nothing Obama can do will ever satisfy those who don't think he's a natural born citizen, just like no amount of debunking will ever convince those that think 9/11 was an inside job. There is a preponderance of evidence that Barack Obama was born in Hawaii in 1961. The burden of proof is on those who would say otherwise. Tell me about the blinders. I actually communicated a little bit with Donofrio since his research -- out of the whole pack of people running into courthouses around the election -- seemed more legally well-grounded. (He wasn't too far removed from private practice days and he hadn't staged his seemingly bipolar flame-out either.) But when I pointed out the Achilles' heel to his theory (towit, no valid Obama marriage) it was like the lead door dropped down to keep the gamma-rays at bay. Didn't want to hear it. Another lawyer who'd gotten really deeply into the Kenyan laws and "knew his stuff" on that score (and sent chapter and verse to me for review) got the same kind of treatment. Ego? Blinders? Insecurity that other lawyers come up with a different angle? (I quickly noticed how the solo practitioners and pro se people represented 100% of the activity on this issue. ) Hatred? Who the heck knows. One simply can't "reason" with the close-minded. But rational lawyers throw out a Welcome Mat to critiques of their weakest points. One of the benefits of practicing in a firm with others around to spot the blind alleys and errors. As far as burden of proofs: A sworn affirmation by party officials puts the onus on them, and it's a pro-active burden to demand their nominees' proofs, imho, or run the risk of standing accused of submitting a false swearing for lack of due diligence. It'll be interesting if the states which have enacted newly stringent demands are states in which the electoral votes (if low enough) get a "bye" from candidates who don't want to turn over their bona fides. Proper time to demand proofs under state law really ought to be when the candidates themselves are required to sign their own paperwork to be placed on the primary ballots. If you're going to run a campaign involving multiples of tens or even hundreds of millions of $$$$, no big deal to pony up 50 X $15 to get raised-seal copies and use a stapler. Ok, then - three critiques for you: 1) Standing 2) Political Question 3) Rule 11 |
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Post by HoyaLawya on Aug 3, 2009 16:07:03 GMT -5
[ Ok, then - three critiques for you: 1) Standing 2) Political Question 3) Rule 11 1. www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm2. Need to overrule Bush v. Gore? Scroll down for apt discussion on this one. moritzlaw.osu.edu/electionlaw/electioncourt/docs/neutral_memo.pdf3. You could be more specific. Take your pick. www.law.cornell.edu/rules/frcp/Rule11.htmIf a litigant pursues the matter in his/her state court system up through its highest state (supreme) court, with an action against well-chosen defendants such as the SOS or (possibly) party officials that litigant then is able to go from state-codified procedural rules and straight to SCOTUS' own rules, effectively bypassing FRCP. www.law.cornell.edu/rules/supct/index.htmlPreference might be for an extraordinary writ. One of the areas that was being looked into by people who were "late to the party" in figuring out McCain really did have "technical eligibility difficulties" (that was no "bogus research" in Michigan Law Review by the U of AZ law professor b/t/w) and angered by the apparent lack of eligibility on both sides of the major party ballots both Dem and Pubbie -- and at a time the Kenyan laws were less researched and found to point to a "no way in hell was it anything but void" conclusion about the Dunham/Obama Hawaiian marriage -- was RICO, class action, fraudulent procurement of funds using means of interstate commerce, amount in controvery meeting jurisdictional threshold for diversity jurisdiction, class comprised of donors to the three candidates believed to be ineligible (McCain, Obama, Calero) and the parties running funds to them as well (RNC, DNC and whatever brand of Socialism Calero was supported by) and the officials signing the post-convention forms submitted to the states (with particular attention to the swearing Hawaii required and the form used by Arizona and needing candidate signature). Some highly irate (and highly wealthy) campaign donors were prepared to hire NYC counsel if it were found the ineligibility dog would hunt and in a bipartisan fashion. Turned out the case against McCain was the far stronger of the two. (What can you say about a guy who induces his own mother to lie, and claim she heard the sounds of celebration at a "nearby" officers' club from the bed in her on-military-post hospital which, in fact, is 5 years from even being built in the first place?) And the GOP was already heading to greater bankruptcy (moral and "lost in wilderness" if not financial) as things stood. I'm not sure if that article pointing to greater polarity and extremes of partisanship (and related "conspiracy lunacy") is as accurate a description of what ails people as, perhaps, a sense that Big protects Big (Corporations, Wall Street, Congress being "fed" with political donations, Presidential candidates "fed" from same trough, Pork Barrel) while average Joe's see jobs exported, home equity collapse amid scammed liar loan "bubbles", and sons come back in coffins from foreign fights predicated on bogus intelligence. Ya think? |
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Post by StPetersburgHoya (Inactive) on Aug 3, 2009 17:22:31 GMT -5
[ Ok, then - three critiques for you: 1) Standing 2) Political Question 3) Rule 11 1. www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm2. Need to overrule Bush v. Gore? Scroll down for apt discussion on this one. moritzlaw.osu.edu/electionlaw/electioncourt/docs/neutral_memo.pdf3. You could be more specific. Take your pick. www.law.cornell.edu/rules/frcp/Rule11.htmIf a litigant pursues the matter in his/her state court system up through its highest state (supreme) court, with an action against well-chosen defendants such as the SOS or (possibly) party officials that litigant then is able to go from state-codified procedural rules and straight to SCOTUS' own rules, effectively bypassing FRCP. www.law.cornell.edu/rules/supct/index.htmlPreference might be for an extraordinary writ. One of the areas that was being looked into by people who were "late to the party" in figuring out McCain really did have "technical eligibility difficulties" (that was no "bogus research" in Michigan Law Review by the U of AZ law professor b/t/w) and angered by the apparent lack of eligibility on both sides of the major party ballots both Dem and Pubbie -- and at a time the Kenyan laws were less researched and found to point to a "no way in hell was it anything but void" conclusion about the Dunham/Obama Hawaiian marriage -- was RICO, class action, fraudulent procurement of funds using means of interstate commerce, amount in controvery meeting jurisdictional threshold for diversity jurisdiction, class comprised of donors to the three candidates believed to be ineligible (McCain, Obama, Calero) and the parties running funds to them as well (RNC, DNC and whatever brand of Socialism Calero was supported by) and the officials signing the post-convention forms submitted to the states (with particular attention to the swearing Hawaii required and the form used by Arizona and needing candidate signature). Some highly irate (and highly wealthy) campaign donors were prepared to hire NYC counsel if it were found the ineligibility dog would hunt and in a bipartisan fashion. Turned out the case against McCain was the far stronger of the two. (What can you say about a guy who induces his own mother to lie, and claim she heard the sounds of celebration at a "nearby" officers' club from the bed in her on-military-post hospital which, in fact, is 5 years from even being built in the first place?) And the GOP was already heading to greater bankruptcy (moral and "lost in wilderness" if not financial) as things stood. I'm not sure if that article pointing to greater polarity and extremes of partisanship (and related "conspiracy lunacy") is as accurate a description of what ails people as, perhaps, a sense that Big protects Big (Corporations, Wall Street, Congress being "fed" with political donations, Presidential candidates "fed" from same trough, Pork Barrel) while average Joe's see jobs exported, home equity collapse amid scammed liar loan "bubbles", and sons come back in coffins from foreign fights predicated on bogus intelligence. Ya think? That made no sense. 1) The law review you cite agrees with me that there would be no standing for such a suit determining the legitimacy of a candidate through interpreting the natural born citizen language. There is also no way that a state court could fashion a remedy in such a case. Even if there were separate state election grounds stated, a challenge to a candidates eligibility under Article II would arise under federal law and 28 USC 1441(c) dictates that the case could be easily removed to federal court where standing and other theories of judicial restraint would stop the suit in its tracks. 2) The courts are not the proper place to seek a remedy. The text of the Constitution clearly shows that there are two fora for such a remedy - (1) the state legislatures with regard to naming electors, and (2) Congress with regard to reviewing the electors' choice. The article you cite without explanation agrees with me that a court fashioning a remedy would likely intrude into these Article II powers of the state legislature and Congress. This is further supported by the concurrence in Bush v. Gore. In addition to the Court stating that Bush v. Gore has no value as precedent, the Court was ruling based on the "one person, one vote" line of 14th amendment cases dealing with the fundamental right to vote. The Court was not concerned with the qualifications of either candidate to serve, they were concerned with whether the remedy mandated by the Florida Supreme Court violated the 14th amendment. This case could easily be distinguished from an Article II challenge to a candidate's qualifications for office. 3) I am referring to Rule 11 of the Federal Rules of Civil Procedure. You'd still run into Rule 38 of the Federal Rules of Appellate Procedure if the court finds that you are filing for a frivolous purpose. State Courts also have rules that resemble Rule 11, so I have no idea how you'd be getting around it simply because you aren't filing in a federal district court. Seeking an extraordinary writ in a state appellate court also won't get you around ethical rules against filing frivolous actions or strike suits. As to your remaining paragraph, having subject matter jurisdiction is not the same thing as being able to adjudicate the controversy under Article III. |
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Post by HoyaLawya on Aug 3, 2009 17:54:56 GMT -5
AND points to a way around it by recommending pursuit of an appropriate defendant in state court, since the standing threshold has gotten so high over time as to create a situation where people are promised rights with no real procedural ability to actually pursue them. |
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Post by HoyaLawya on Aug 3, 2009 18:05:24 GMT -5
2) The courts are not the proper place to seek a remedy. The text of the Constitution clearly shows that there are two fora for such a remedy - (1) the state legislatures with regard to naming electors, and (2) Congress with regard to reviewing the electors' choice. |
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Post by HoyaLawya on Aug 3, 2009 18:10:57 GMT -5
There is also no way that a state court could fashion a remedy in such a case. Even if there were separate state election grounds stated, a challenge to a candidates eligibility under Article II would arise under federal law and 28 USC 1441(c) dictates that the case could be easily removed to federal court where standing and other theories of judicial restraint would stop the suit in its tracks. What was encountered in a number of the states was a finding that the state legislatures have tightened the window for challenging the eligibility of candidates to about 4 to 7 days after presentation of their nominating petitions to the SOS. That seems to have been the main reason why a suit filed in Hawaii by another (albeit independent party) Presidential candidate -- who might understandably have had less of a "standing" impediment than an ordinary voter -- was dismissed for being too late. |
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GIGAFAN99
Diamond Hoya (over 2500 posts)
Posts: 4,487
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Post by GIGAFAN99 on Aug 3, 2009 18:12:40 GMT -5
I think the birther folks are calling Obama a "liar" which is clearly covered in Sticks et al v. Names.
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