U.S. District Court Judge Clay Land issued a stern warning to attorney Orly Taitz (left) and others in the so-called “birther” campaign: do not file another such “frivolous” lawsuit or you will face sanctions. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land (a Bush appointee) noted that “[u]nlike in ‘Alice in Wonderland,’ simply saying something is so does not make it so.”
Land held that “(Rhodes) has presented no credible evidence and has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as president of the United States. Instead, she uses her complaint as a platform for spouting political rhetoric, such as her claims that the president is ‘an illegal usurper, an unlawful pretender, [and] an unqualified imposter.'”
Land went the extra step of warning Taitz that he may impose sanctions if she files any more “similarly frivolous … actions in this Court.”
Taitz has reportedly responded not with a motion for reconsideration but an interview on local television that Land shows ” a total disrespect for the Constitution of the United States of America.”
and “should be tried for treason with Obama.”
Here is the opinion in full:
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
THOMAS D. MACDONALD, Colonel,
Garrison Commander, Fort
Benning; et al.,
CASE NO. 4:09-CV-106 (CDL)
O R D E R
Plaintiff, a Captain in the United States Army, seeks a temporary restraining order to prevent the Army from deploying her to Iraq in support of Operation Iraqi Freedom. Plaintiff alleges that her deployment orders are unconstitutional and unenforceable because President Barack Obama is not constitutionally eligible to act as Commander in Chief of the United States armed forces. After conducting a hearing on Plaintiff’s motion, the Court finds that Plaintiff’s claims are frivolous. Accordingly, her application for
a temporary restraining order (Doc. 3) is denied, and her Complaint is dismissed in its entirety.
Furthermore, Plaintiff’s counsel is hereby notified that the filing of any future actions in this Court, which are similarly frivolous, shall subject counsel to sanctions. See Fed. R. Civ. P. 11(c).
Plaintiff’s counsel is a self-proclaimed leader in what has become known as “the birther movement.” She maintains that President Barack Obama was not born in the United States, and, therefore, he is not eligible to be President of the United States. See Dr. Orly Taitz, Esquire,  http://www.orlytaitzesq.com (last visited Sept. 15, 2009). Counsel has filed numerous lawsuits in various parts of the country seeking a judicial determination as to the President’s legitimacy to hold the office of President. The present action is the second such action filed in this Court in which counsel pursues her “birther claim.” Her modus operandi is to use military officers as parties and have them allege that they should not be required to follow deployment orders because President Obama is not constitutionally qualified to be President. Although counsel has managed to fuel this “birther movement” with her litigation and press conferences, she does not appear to have prevailed on a single claim. In fact, Plaintiff previously filed the present action in the United States District Court for the Western District of Texas. That Court summarily dismissed her complaint upon finding that Plaintiff “has no substantial likelihood of success on the merits.” Rhodes v. Gates, 5:09-CV-00703-XR, Order Den. Mot. for TRO 3 (W.D. Tex. Aug. 28, 2009). Counsel then re-filed the same action in this Court.
 Article II, Section 1, Clause 4 of the United States Constitution provides in relevant part that “No Person except a natural born Citizen . . . shall be eligible to the Office of President.”
 This Court dismissed an earlier action filed by Plaintiff’s counsel on behalf of a military reservist based upon that plaintiff’s lack of standing. See Cook v. Good, No. 4:09-CV-82 (CDL), 2009 WL 2163535 (M.D. Ga. Jul. 16, 2009).
Plaintiff’s counsel speculates that President Obama was not born in the United States based upon the President’s alleged refusal to disclose publicly an “official birth certificate” that is satisfactory to Plaintiff’s counsel and her followers. She therefore seeks to have the judiciary compel the President to produce “satisfactory” proof that he was born in the United States. Counsel makes these allegations although a “short-form” birth certificate has been made publicly available which indicates that the President was born in Honolulu, Hawaii on August 4, 1961. To press her “birther agenda,” Plaintiff’s counsel has filed the present action on behalf of Captain Rhodes. Captain Rhodes entered the Army in March of 2005 and presently serves as a medical doctor. The American taxpayers paid for her third and fourth years of medical school and financially supported her during her subsequent medical internship and residency program. In exchange for this valuable free medical education, Captain Rhodes agreed to serve two years in active service in the Army. She began that term of active service in July of 2008 and had no concerns about fulfilling her military obligation until she received orders notifying her that she would be deployed to Iraq in September of 2009.
Captain Rhodes does not seek a discharge from the Army; nor does she wish to be relieved entirely from her two year active service obligation. She has not previously made any official complaints regarding any orders or assignments that she has received, including orders that have been issued since President Obama became Commander in Chief. But she does not want to go to Iraq (or to any other destination where she may be in harm’s way, for that matter). Her “conscientious objections” to serving under the current Commander in Chief apparently can be accommodated as long as she is permitted to remain on American soil. Captain Rhodes is presently stationed at Ft. Benning, Georgia awaiting deployment to Iraq. This deployment is imminent and will likely occur absent an order from this Court granting Plaintiff’s motion for a temporary restraining order.
 The Court observes that the President defeated seven opponents in a grueling campaign for his party’s nomination that lasted more than eighteen months and cost those opponents well over $300 million. See Federal Election Commission, Presidential Pre-Nomination Campaign Disbursements Dec. 31, 2008, http://www.fec.gov/press/press2009/20090608Pres/3_2008PresPrimaryCmpgnDis.pdf (last visited Sept. 15, 2009).
Then the President faced a formidable opponent in the general election who received $84 million to conduct his general election campaign against the President. Press Release, Federal Election Commission, 2008 Presidential Campaign Financial Activity Summarized (June 8, 2009), available at http://www.fec.gov/press/press2009/20090608PresStat.shtml. It would appear that ample opportunity existed for discovery of evidence that would support any contention that the President was not eligible for the office he sought.
Furthermore, Congress is apparently satisfied that the President is qualified to serve. Congress has not instituted impeachment proceedings, and in fact, the House of Representatives in a broad bipartisan manner has rejected the suggestion that the President is not eligible for office. See H.R. Res. 593, 111th Cong. (2009) (commemorating, by vote of 378-0, the 50th anniversary of Hawaii’s statehood and stating, “the 44th President of the United States, Barack Obama, was born in Hawaii on August
I. Jurisdiction and Abstention
Plaintiff seeks to have this Court declare a deployment order issued by the United States Army void and unenforceable. It is well settled that judicial interference in internal military affairs is disfavored. As the Supreme Court has explained:
[J]udges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.
Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953), quoted with approval in Winck v. England, 327 F.3d 1296, 1302-03 (11th Cir. 2003). The limitation on the judiciary’s involvement in military affairs does not mean that such interference is never appropriate. However, “‘a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.’” Winck, 327 F.3d at 1303 (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971)). Moreover, mere allegations of a constitutional violation unsupported by a reasonable factual foundation are insufficient to warrant judicial review. To hold otherwise would be to create chaos within the military decision-making process and chain of command. As explained below, the Court must balance several factors to determine whether judicial review of a military decision is authorized.
Typically, the first issue to be resolved in cases seeking judicial review of a military decision is whether the soldier has exhausted all intraservice administrative remedies. See Winck, 327 F.3d at 1304. In the present case, Defendants do not contend that Plaintiff was required to exhaust her intraservice administrative remedies, presumably because no procedure is in place for a soldier to contest the qualifications of the Commander in Chief. Defendants do argue, however, that the dispute presented by Plaintiff’s complaint is not justiciable in the courts.
Even if a soldier has exhausted her intraservice administrative remedies, the Court must decline to review the military decision if the review would constitute an inappropriate intrusion into military matters. Id. at 1303 & n.4 (citing Mindes, 453 F.2d at 201). It has long been the law in this Circuit that in determining whether judicial review of a military decision should be undertaken, the reviewing court
‘must examine the substance of that allegation in light of the policy reasons behind nonreview of military matters,’ balancing four factors: (1) ‘The nature and strength of the plaintiff’s challenge to the military determination’; (2) ‘The potential injury to the plaintiff if review is refused’; (3) ‘The type and degree of anticipated interference with the military function’; and (4) ‘The extent to which the exercise of military expertise or discretion is involved.’
Winck, 327 F.3d at 1303 n.4 (quoting Mindes, 453 F.2d at 201). Although certain aspects of the Mindes decision have been eroded through the years, the Eleventh Circuit has relatively recently reaffirmed the “unflagging strength of the principles of comity and judicial noninterference with, and respect for, military operations that informed” the analysis in Mindes. Winck, 327 F.3d at 1304.
 It is not always clear whether the analysis of the appropriateness of judicial review of military decisions involves subject matter jurisdiction or abstention principles based on comity and respect for the unique military decision-making process. The Court finds that the proper analysis in this case requires an evaluation of the deployment order using principles of abstention. See Winck, 327 F.3d at 1299-1300 (distinguishing subject matter jurisdiction from abstention principles).
Using the Mindes factors as an analytical framework, the Court finds that it is not authorized to interfere with Plaintiff’s deployment orders. First, Plaintiff’s challenge to her deployment order is frivolous. She has presented no credible evidence and has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as President of the United States. Instead, she uses her Complaint as a platform for spouting political rhetoric, such as her claims that the President is “an illegal usurper, an unlawful pretender, [and] an unqualified imposter.” (Compl. ¶ 21.) She continues with bare, conclusory allegations that the President is “an alien, possibly even an unnaturalized or even an unadmitted illegal alien . . . without so much as lawful residency in the United States.” (Id. ¶ 26.) Then, implying that the President is either a wandering nomad or a prolific identity fraud crook, she alleges that the President “might have used as many as 149 addresses and 39 social security numbers prior to assuming the office of President.” (Id. ¶ 110 (emphasis added).) Acknowledging the existence of a document that shows the President was born in Hawaii, Plaintiff alleges that the document “cannot be verified as genuine, and should be presumed fraudulent.” (Id. ¶ 113 (emphasis added).) In further support of her claim, Plaintiff relies upon “the general opinion in the rest of the world” that “Barack Hussein Obama has, in essence, slipped through the guardrails to become President.” (Id. ¶ 128.) Moreover, as though the “general opinion in the rest of the world” were not enough, Plaintiff alleges in her Complaint that according to an “AOL poll 85% of Americans believe that Obama was not vetted, needs to be vetted and his vital records need to be produced.” (Id. ¶ 154.)
Finally, in a remarkable shifting of the traditional legal burden of proof, Plaintiff unashamedly alleges that Defendant has the burden to prove his “natural born” status. (Id. ¶¶ 136-138, 148.) Thus, Plaintiff’s counsel, who champions herself as a defender of liberty and freedom, seeks to use the power of the judiciary to compel a citizen, albeit the President of the United States, to “prove his innocence” to “charges” that are based upon conjecture and speculation. Any middle school civics student would readily recognize the irony of abandoning fundamental principles upon which our Country was founded in order to purportedly “protect and preserve” those very principles.
Although the Court has determined that the appropriate analysis here involves principles of abstention and not an examination of whether Plaintiff’s complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court does find the Rule 12(b)(6) analysis helpful in confirming the Court’s conclusion that Plaintiff’s claim has no merit. To state a claim upon which relief may be granted, Plaintiff must allege sufficient facts to state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted). For a complaint to be facially plausible, the Court must be able “to draw the reasonable inference that the defendant is liable for the misconduct alleged” based upon a review of the factual content pled by the Plaintiff. Id. The factual allegations must be sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff’s complaint is not plausible on its face. To the extent that it alleges any “facts,” the Complaint does not connect those facts to any actual violation of Plaintiff’s individual constitutional rights. Unlike in Alice in Wonderland, simply saying something is so does not make it so. The weakness of Plaintiff’s claim certainly weighs heavily against judicial review of the deployment order, and in fact, would authorize dismissal of Plaintiff’s complaint for failure to state a claim.
Examining the second Mindes factor, the Court further finds that the risk of potential irreparable injury to Plaintiff as a result of the Court’s refusal to review the deployment order is minimal. Plaintiff has not sought to be excused from all military service. She does not seek a discharge from the Army. She does not even seek to avoid taking military orders under President Obama’s watch. She simply seeks to avoid being deployed to Iraq. As observed by the Eleventh Circuit, one “cannot say that military deployment, in and of itself, necessarily entails [irreparable harm], even if to volatile regions.” Winck, 327 F.3d at 1305 n.9. “Holding otherwise could unduly hamper urgent military operations during times of crisis.” Id. Thus, the lack of potential irreparable harm to Plaintiff weighs against judicial review.
 One piece of “evidence” Plaintiff’s counsel relies upon deserves further discussion. Counsel has produced a document that she claims shows the President was born in Kenya, yet she has not authenticated that document. She has produced an affidavit from someone who allegedly obtained the document from a hospital in Mombasa, Kenya by paying “a cash ‘consideration’ to a Kenyan military officer on duty to look the other way, while [he] obtained the copy” of the document. (Smith Decl. ¶ 7, Sept. 3, 2009.) Counsel has not, however, produced an original certificate of authentication from the government agency that supposedly has official custody of the document. Therefore, the Court finds that the alleged document is unreliable due to counsel’s failure to properly authenticate the document. See Fed. R. Evid. 901. 10
Finally, the “type and degree of anticipated interference with the military function” that judicial review would cause is significantly burdensome. Any interference with a deployment order injects the Court directly into the internal affairs of the military. This type of interference has serious implications. For example, it would encourage other soldiers who are not satisfied with their deployment destination to seek review in the courts. It also will have an adverse effect on other soldiers who honorably perform their duties. Presumably, some other military doctor, who does not resort to frivolous litigation to question the President’s legitimacy as Commander in Chief, would be required to go to Iraq in Plaintiff’s place. Similarly, the doctor who Plaintiff is being sent to relieve and who has likely been there for months would be delayed in receiving his well deserved leave because his replacement seeks special treatment due to her political views or reservations about being placed in harm’s way. “It is not difficult to see that the exercise of such jurisdiction as is here urged would be a disruptive force as to affairs peculiarly within the jurisdiction of the military authorities.” Orloff, 345 U.S. at 94-95.
Based on an evaluation of all of these factors, the Court concludes that it must abstain from interfering with the Army’s deployment orders. Accordingly, Plaintiff’s motion for a temporary restraining order is denied, and her complaint is dismissed in its entirety.
II. Failure to Satisfy Elements for Temporary Restraining Order
Even if the Court did not abstain from deciding the merits of Plaintiff’s claim, the Court finds that Plaintiff has failed to establish her entitlement to a temporary restraining order.
Plaintiff must establish the following to obtain a temporary restraining order:
(1) [Plaintiff] has a substantial likelihood of success on the merits;
(2) irreparable injury will be suffered unless the injunction issues;
(3) the threatened injury to [Plaintiff] outweighs whatever damage the proposed injunction may cause the opposing party; and
(4) if issued, the injunction would not be adverse to the public interest.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir. 2005).
As explained previously, Plaintiff has demonstrated no likelihood of success on the merits. Her claims are based on sheer conjecture and speculation. She alleges no factual basis for her “hunch” or “feeling” or subjective belief that the President was not born in the United States. Moreover, she cites no legal authority supporting her bold contention that the alleged “cloud” over the President’s birthplace amounts to a violation of her individual constitutional rights. Thus, for these reasons alone, she is not
entitled to a temporary restraining order.
Second, as previously noted, the Court’s refusal to interfere with Plaintiff’s deployment orders does not pose a substantial threat of irreparable injury to her. Plaintiff does not seek to be discharged and apparently is willing to follow all orders from her military command except for any order that deploys her to Iraq.
Although close proximity to any combat zone certainly involves personal danger, Plaintiff, somewhat disingenuously, claims that fear is not her motivation for avoiding her military duty. She insists that she would have no qualms about fulfilling her duties if President George W. Bush was still in office. The Court cannot find from the present record that deployment to Iraq under the current administration will subject Plaintiff to any threat of harm that is different than the harm to which she would be exposed if another candidate had won the election. A substantial threat of irreparable harm related to her desire not to serve in Iraq under the current President simply does not exist.
Third, any potential threatened injury that may be caused to Plaintiff by the denial of the temporary restraining order certainly does not outweigh the harm that will result if the injunction is granted. As mentioned previously, the threatened injury to Plaintiff is not substantial; yet if the temporary restraining order was granted, the harmful interference with military operations would be significant.
Finally, Plaintiff has failed to establish that the granting of the temporary restraining order will not be adverse to the public interest. A spurious claim questioning the President’s constitutional legitimacy may be protected by the First Amendment, but a Court’s placement of its imprimatur upon a claim that is so lacking in factual support that it is frivolous would undoubtedly disserve the public interest.
For all of these reasons, the Court finds that Plaintiff’s motion for a temporary restraining order should be denied.
For the reasons previously stated, Plaintiff’s motion for a temporary restraining order is denied and Plaintiff’s complaint is dismissed in its entirety. Defendants shall recover their costs from Plaintiff. See Fed. R. Civ. P. 54(d).
IT IS SO ORDERED, this 16th day of September, 2009. S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
Taitz has faced equally hostile comments from the media:
For the full story, click here.
512 thoughts on “Federal Judge Calls Obama “Birther” Challenge “Frivolous” and Orly Taitz Calls for Judge to Be Tried for Treason”
Just a word to those who say this would all go away if Obama just released his real birth certificate, whatever that means.
Please note that all of the birther lawsuits maintain that Obama would not be a natural born citizen, even if he had been born in Hawaii, as he was.
They maintain that to be a natural born citizen he must have two citizen parents, or that he is disqualified by the temporary citizenship he received from his foreign-citizen father, or both.
Obama can never prove that he had two citizen parents, or that his father was not a foreign citizen at the time of his birth.
Because only his mother was a citizen and his father was a citizen of Kenya.
But this constitutional is a flimsy attack on Obama that has no substantive legal support, and was only dreamed up in 2008 AFTER Obama met his burden of proof by producing a valid state-issued birth certificate. The legal custodians of Hawaii birth records have officially confirmed the fact of his birth in Hawaii. Contemporary newspaper listings reported his birth in 1961.
But these lawsuits can never go away, no matter how many documents are released proving his birth in the United States.
As Dr. Conspiracy has said at his site on Obama Conspiracies, http://www.obamaconspiracy.org/, name just one suit that would be withdrawn if more birth certificates were released.
I think that the correspondence with Senator Johnson FGFC posted (and I don’t really care if FGFC is bdaman, Jim Byrne/BIRTHER, or some new poster that happened to show up right after BIRTHER got sent to the penalty box and bdaman stormed out in a huff, posting things verbatim from the blog constitutionallyspeaking) illustrates a point I made on this thread (or the previous one) a while back – casually dismissing the birthers (by characterizing all of them as arguing that Barack Obama was not born in Hawaii instead of their own baseless theories on why he should be ineligible) just adds to their certainty that they are right since you didn’t deny their theory specifically. This is why I think that the work Vince has done here is so important – it leaves no doubt in any rational readers mind that Barack Obama is the legitimate POTUS and that none of the birthers’ arguments have merit. Once again, Well done Vince! And on top of that, Vince’s reporting on the antics of Orly Taitz is top-notch entertainment.
For the good of the legal profession, Ms. Orly Taitz deserves sanctioning. That might alert others who want to become lawyers to choose good law schools–or another careers.
On the Orly front, the Judge ordered her to show cause within 14 days why she should not be sanctioned.
Today, September 24, she instead filed an unsigned MOTION TO WITHDRAW AS COUNSEL.
How was that again?
Read it for yourself: http://ohforgoodnesssake.com/?p=3553
[Once again, this is GOOD stuff].
She asks the court to release her from her obligations of confidentiality and loyalty in what she says is now a “quasi criminal prosecution of the undersigned attorney.”
She tells the court that she will call witnesses and offer evidence and take a position adverse to and in opposition to her former client’s interests.
This seems to violate all known ethical canons.
There is no mention of why the court should not impose the proposed $10,000 sanction on her.
Still crazy after all these months.
FGFC “Then, Sen. Johnson & his staff conveniently leave out the fact that just last year, the Senate voted unanimously that it took 2 American parents for a citizen to be natural born. At least, that is what they said when that determined McCain eligible when they passed Senate Resolution 511.”
The Senate referred to two parents BECAUSE MCCAIN WAS BORN OUTSIDE THE UNITED STATES.
Obama was born in the United States. The 14th Amendment says that all born in the U.S. are citizens.
There are only TWO kinds of citizens of the U.S., naturalized and natural born. Citizens who are naturalized are naturalized citizens, and citizens who are born as citizens are natural born citizens. They are alike in ALL respects, except that naturalized citizens cannot be President.
Is that not clear enough? You criticize Sen. Johnson for honestly voting for a non-binding bill affirming McCain’s natural born citizenship. That bill in no way contradicts the natural born status of Obama.
And the premise of the “dualists,” as I have shown, is misconceived, because the 14th amendment never included the language subject to any foreign power or subject to any foreign jurisdiction.
It just did not.
I have yet to see a response to the point that the language of the Civil Rights Act was DROPPED from the 14th Amendment.
Sorry, FGFC. The “national officers” the Court referred to in Newman were officers of the federal government appointed by the President. The “National Officers” I referred to were the President and the Vice President.
The officer in the case, Newman, was one of the Commissioners of the District of Columbia, not the President or Vice President. The Court noted that the writ also applied officers of the United States Government as well as of the District of Columbia Government. For this reason, the Attorney General has to initiate the writ.
If the AG refused, an interested person could apply for the writ, but he had to be someone with a claim to the office, not a third party bystander. Since Frizell was just a DC citizen and taxpayer with no claim to the office, he could not apply for the writ.
So nothing in Newman supports the use of the writ against the President or Vice President, who are elected constitutional national officers, not appointed national officers. The case applied to an officer appointed by the President and removable by the President.
The President and Vice President are not appointed. They are elected. The term is four years. They are not like appointed officers, who are removable by the appointing power. Their removal is specified by the Constitution – impeachment. The sole power of impeachment is in the House. There is no other procedure for removal in the Constitution.
The framers provided that the people elect a President by means of the Electoral College. The removal of the President is reserved to the Representatives of the people elected to Congress. The framers never granted the power of removal to any court. Since removal is committed to Congress by the text of the Constitution, the issue is nonjusticiable.
If you don’t like that, amend the Constitution.
[quote] The President has the power of removal, and there have been few, if any, cases brought to test the title of federal offices. But such cases might arise as to statutory officers attached to the seat of government, and if they did, the Supreme Court of the District could exercise quo warranto jurisdiction, as it now does in cases of mandamus and injunction against appointed federal officers who perform duties in Washington. This appears from comparing the provisions of Rev.Stat. §§ 1795 and 1796 with § 1538(1) of the District Code. The Revised Statutes declare that the District of Columbia shall be the seat of government, and “all offices attached to the seat of government shall be exercised in the District of Columbia.” The Code (§ 1538(1)) provides that the supreme court shall have jurisdiction to grant quo warranto “against a person who unlawfully holds or exercises within the District a . . . public office, civil or military.” It was probably because of this fact that national officers might be involved that the Attorney General of the United States was given power to institute such proceedings, instead of leaving that power to the District Attorney alone, as would probably have been the case if only District officers were referred to in the Code.
Manifestly, Congress did not intend that all these officers attached to the executive branch of the government at Washington should be subject to attacks by persons who had no claim on the office, no right in the office, and no interest which was different from that of every other citizen and taxpayer of the United States.
9. This fact also shows that §§ 1538-1540 of the District Code, in proper cases, instituted by proper officers or persons, may be enforceable against national officers of the United States. The sections are therefore to be treated as general laws of the United States, not as mere local laws of the District. Being a law of general operation, it can be reviewed on writ of error from this Court. American Co. v. Commissioners of the District, 224 U. S. 491; McGowan v. Parish, 228 U. S. 317. [unquote]
The case is Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915), and the text is at:
Oops I don’t know what I did, let me try this:
Fabulous point to recall, indeed a prescient question to ask and an ending statement that nails it.
I was just wondering if any of these alleged birther ‘purists’ could tell me where Cheney resided during the 2000 election. Was it Texas or Wyoming and what amendment made the residences of Bush and Cheney’s so important?
Ya know what, I’ll just venture a guess that these alleged constitutional purists neither know the answer nor showed any more concern than when SCOTUS breached Article IV and the separation of powers doctrine by taking a non-justiciable case and using it to appoint a president.
But should a black man born in Hawaii ever become president… well, “How dare that boy.” Right?
I get your point salon works for me and adds a dash of elegance.
“CABAL is too sinister, but a valued newcomer Elaine M. used “think tank” and I like the sound of that.”
AEI is a “think tank”. That leaves a bit of a nasty aftertaste to me anyway. I still like the word “Salon”.
Or perhaps “JT’s Thought-a-palooza”.
I’m not so sure FGFC is genuine his exact words can be found at this web site.
“FGFC, someone asked me about trolls in a private email, after reading the post that barred birther. As far as I am concerned, you are not a troll, since you seem to be posting your own arguments, not cut and paste. Welcome to the blog.”
As I’ve said before you’re a better man than I am and I mean that sincerely.
Mike Appleton and I have thoroughly discussed the quo warranto theory above and on other threads. It does not apply to National Officers, Judges and Justice, and Members of Congress. Impeachment is the sole power of removal for National Offiers and Judges, and Expulsion for Members of Congress and Senators.
We have been through this with birther. Please refer to those postings.
Still no response to the fact that “not subject to any foreign power” is not in the Constitution.
According to Mr. Treacy, should Congress decide to violate the Constitution, it would be the responsibility of that same Congress to make that determination.
This would place Congress above the law, should they decide they want to be.
Does Congress have the authority to perform an unconstitutional act? According to Mr. Treacy, yes.
This is not a durable assumption. While it is true that the courts are without jurisdiction to interfere with the discretionary powers of Congress, the courts, as the branch designated to make the final determination of “what the law is”, would be acting fully within their power to address a constitutional prohibition.
The SCOTUS holding in Newman recognizes that;
“The Revised Statutes declare that the District of Columbia shall be the seat of government, and “all offices attached to the seat of government shall be exercised in the District of Columbia.” The Code (§ 1538(1)) provides that the supreme court shall have jurisdiction to grant quo warranto “against a person who unlawfully holds or exercises within the District a . . . public office, civil or military.” It was probably because of this fact that national officers might be involved that the Attorney General of the United States was given power to institute such proceedings, instead of leaving that power to the District Attorney alone, as would probably have been the case if only District officers were referred to in the Code.
Manifestly, Congress did not intend that all these officers attached to the executive branch of the government at Washington should be subject to attacks by persons who had no claim on the office, no right in the office, and no interest which was different from that of every other citizen and taxpayer of the United States.
This fact also shows that §§ 1538-1540 of the District Code, in proper cases, instituted by proper officers or persons, may be enforceable against national officers of the United States. The sections are therefore to be treated as general laws of the United States, not as mere local laws of the District.”
The Constitution of the United States,Art. III, Section 2 declares, “[T]he judicial power of the United States’ shall extend to all cases arising under this Constitution, the laws of the United States, and the treaties made under their authority”. Congress created the inferior court, and provided that court with jurisdiction.
FGFC [quote] in 1866, under Sec. 1992 of the revised statutes, the same Congress confirmed and adopted as law the principle in regards to determining citizenship at the time of birth:
“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be “citizens” of the United States.” [unquote]
One more time.
The words “and not subject to any foreign power” were left OUT of the 14th Amendment. They were not included in the text of that amendment. Congress had considered the words two months earlier but declined to include them. Bingham was NOT talking about the 14th Amendment, but about the Civil Rights act.
You cannot read a provision back into the 14th Amendment after Congress expressly declined to include it.
The words in the 14th Amendment are “subject to the jurisdiction thereof.” The framers of the Amendment and the Supreme Court agreed that these words excluded only the children of diplomatic personnel and of hostile occupying forces. Congress later included Indians as citizens by statute.
There is no support for the “dualist” idea that a person who is born in the United States, but has a parent who is a citizen of another country, is not a natural born citizen. See Wong Kim Ark. The idea that there are “born” citizen who are not “natural born” originated in 2008 after Obama proved he was born in Hawaii.
[FGFC, someone asked me about trolls in a private email, after reading the post that barred birther. As far as I am concerned, you are not a troll, since you seem to be posting your own arguments, not cut and paste. Welcome to the blog].
You are hardly a slut, or whore, in my opiniont. I would refer to you as a valuable member of JT’s gang, but perhaps he wouldn’t want the term gang used in conjunction with his work.
CABAL is too sinister, but a valued newcomer Elaine M. used “think tank” and I like the sound of that.
Isn’t a Whore paid by definition and a slut like me just gives it a way? (a way intended or a whirl)
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