Orly Debunked – Claim 21 Declaratory Relief – Keyes/Barnett November 12, 2009
Posted by Exploring the Natural Born Citizen Clause in Uncategorized.trackback
Judge Carter
The case of Newdow v. Bush is instructive regarding the power of the Court to issue an injunction or declaratory judgment against the President. In Newdow, the court considered whether plaintiff had standing to seek a preliminary injunction against President Bush restraining him from inviting clergy to give a religious prayer at his inauguration. 355 F. Supp. 2d 265, 268 (D. D.C. 2005). The court observed that issuing an injunction against the President “raises serious separation of powers concerns” and further asserted that “[t]here is longstanding legal authority that the judiciary lacks the power to issue an injunction or declaratory judgment against the co-equal branches of the government–the President and the Congress.” Id. at 280. The court rejected the argument that there should be an exception read into the President’s immunity “where he is claimed to have violated the Constitution.” Id. at 282. Further, the court found that the same considerations foreclosing the possibility of issuing an injunction against the President foreclosed the possibility of issuing a request for declaratory judgment. Id. at 281. In this case, Plaintiffs ask the Court to declare that President Obama is not a constitutionally elected president. Plaintiffs do not ask the Court to enjoin the President from issuing a particular order; they request that President Obama be enjoined from issuing any orders whatsoever and be enjoined from holding the office of President. Plaintiffs make it clear from their briefing that they believe that any order issued by a president who does not satisfy the natural-born citizen clause is unconstitutional. Therefore, in order to cure Plaintiffs’ perceived injury, the Court would need to wade deep into the waters of the President’s official duties–in fact, it would have to declare that the President could no longer perform any official duties. The separation of powers concerns implicated by this request are grave.
Orly ‘reasons’
21.The court has made an error of law in regards to the declaratory relief cause of action. From p.16 to p.25 the court proceeds with a voluminous argument on jurisdiction to remove the president and at the end of the argument makes a huge leap and lumps declaratory relief together with the injunctive relief in one denial. Even if one were to assume arguendo that the court has no power to remove Mr. Obama from office, it has absolutely nothing to do with the Declaratory Relief. In the declaratory relief the plaintiffs are simply looking for the judicial determination of the meaning of the Natural Born Citizen and factual determination, whether Mr. Obama possess proper vital records and citizenship status to qualify as a Natural Born Citizen.
Again Orly is forgetting that the ruling is that the Court lacks subject matter jurisdiction and thus is in no condition to grant declaratory relief. Furthermore, the Court is not in the business of providing advisory opinions to declare someone a natural born citizen without the existence of some case or controversy. See for instance Craig v US. This has nothing to do with the lack of power to remove President Obama from office, but everything with the simple fact that the Court has no jurisdiction.
The Court also references
Franklin v. Massachusetts, 505 U.S. 788 where Judge Scalia observes
For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. Many of the reasons we gave in Nixon v. Fitzgerald, supra, for acknowledging an absolute presidential immunity from civil damages for official acts apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity suits that challenge the President’s performance of executive functions: The President’s immunity from such judicial relief is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Id., at 749, 102 S.Ct., at 2701; see also id., at 749-757, 102 S.Ct., at 2701-2705; id., at 760-764, 102 S.Ct., at 2706-2708 (Burger, C.J., concurring).3 Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to “take Care that the Laws be faithfully executed,” U.S. Const. Art. II, § 3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. (If official-action suits against the President had been contemplated, surely they would have been placed within this Court’s original jurisdiction.) It is noteworthy that in the last substantive section of Nixon v. Fitzgerald where we explain why “[a] rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive,” 457 U.S., at 757, 102 S.Ct., at 2705, because of “[t]he existence of alternative remedies and deterrents,” id., at 758, 102 S.Ct., at 2705, injunctive or declaratory relief against the President is not mentioned.
Comments
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True, the US is not a fragile Republic…that is unless one listens to Glenn Beck, then everything is Fragile, the Republic, the Military…etc…If we were so fragile, we would not have lasted so long.
It’s true that while most countries open up their highest offices to all citizens of their respective countries…it wasn’t that long ago that Arnold almost had the door opened for him to run as President. I have served with many individuals who came to this country, joined our military, became citizens and love our country as if they were born here…it makes them no less of a citizen than I, in fact, more so because they CHOSE to be citizens…I was merely fortunate enough to be born here.
You are correct that the circumstances now are vastly different from 1789. We are not trying to create a new nationality. The constitution has been amended to limit presidents to two terms, which goes a long way towards resolving the “we don’t want a foreign prince becoming king problem”. Also there are a lot fewer princes around nowadays.
However, as rational as your idea is, I don’t see any group that is going to expend the money, time and effort to try to get an amendment through. Given the republican party’s stated position to block Obama at every step, any action from the left or dems to do this would be (a) blocked, (b) taken as “proof” that Obama was, in fact, born outside the US.
If the Governator wanted to be prez, he has the money, the fan base, and is not Obama, and might be able to swing it, if he wants to spend the next ten years pushing (and if Cal does not end up filing bankruptcy before his term expires).
It’s interesting that a Republican, Senator Hatch, 2004 held a hearing in 2004 over doing away with NBC, specifically so Schwarzenegger (who hadn’t tacked left at that point and was a Republican darling) could run. Of course the issue is not whether you would vote for Ahnold, but whether he should be barred from running.
There is an interesting subtext here that I wonder if anyone else has noticed. According to Leo Donofrio and his followers, this is all about a President having divided loyalties. But, I’m guessing from his ethnicity that Donofrio is at least nominally Catholic and thus owes allegiance to a foreign organization headed by a German citizen. That allegiance is much stronger for many Catholics than the allegiance of a US-born and raised child of a Russian citizen to Russia, for example. Now of course all this came up and was supposedly put to bed when Kennedy ran, but if you follow the birthers’ logic, then Catholics should be barred from the Presidency for divided loyalties. Good luck taking that argument to the current SCOTUS!
But, but, what if OSAMA BIN LADEN’s son was born in the US!!11!!?? You’d let the son of OSAMA BIN LADEN be president?
/sarc
Unbelieveably, birthers think that is a slam dunk argument, as though the son of Osama bin Laden could actually get elected! However, there is too much rapid xenophobia in this country to get an amendment passed repealing the NBC requirement.
Yes, the obviousness of the flaw in logical reasoning is why they have yet to detect it.
That is assuming they have the ability to logically reason through any thought…
Also, there’s no requirement that a Supreme Court Justice be either a natural born citizen or a lawyer, so, OMG, Orly Taitz could be Chief Justice!
I completely agree with you. Look, James Madison agreed with you as he didn’t think it necessary to have any such limitations on any office holders. However, the right in this country has too much xenophobia to ever get a constitutional amendment passed on this. I think there is a decent argument that Congress can define “natural born citizen” by naturalization statute, but not sure how the court would rule on that.
In my humble opinion, the NBC requirement is entirely in the hands of the Electoral College and Congress anyway, because the Constitution doesn’t give the courts any role in presidential elections. As far as I’m concerned, if Schwarzenegger was nominated for president by the GOP (not that that’s going to happen), and the electors cast 270 votes for him, and Congress certified the election, he would be entitled to be sworn in as President and the courts would have no grounds for stopping it, despite the fact he is a naturalized citizen. There is nothing in the Constitution automatically giving the Supreme Court final say in interpreting the Constitution.
I think the framers might agree with you, though today it is clear everyone would think the court the final say (though they might still give some deference to Congress’ interpretation). Nevertheless, I think it at least 50-50 they would agree that Congress could pass a law that Schwarzenegger is natural born. The first congress thought they could add to the class of “natural born citizens.” They were just micking parliament, which added to the class of natural born subjects by naturalization act. The word “naturalization” generally meant to remove the disabilities of alienage, such as the disability from holding offices. The word “naturalization” is not defined in the constitution and hence the court should give it it’s common law meaning. Would make an interesting case.
I think there is a difference between fundamental human rights as enshrined in the Bill of Rights, where I think the Court does have ultimate jurisdiction and procedural matters of governance, like how various offices are filled. When it comes to fundamental rights, we often need to protect unpopular minorities from the will of the majority. When it comes to electing a President, the will of the majority should be the last word.
I’ve only found this blog recently and have enjoyed reading it very much. Many here are extremely knowledgeable and thoughtful, in marked contrast to the birther sites. It seems clear that the legal action is entering the mopping up stages-the Keyes case was the birthers’ best shot, since he was the only plaintiff with any claim to standing (though a weak one at best). The cases have been epic failures, not just because of the incompetence of the attorneys (though they have certainly been incompetent) but because the cases lack any factual basis regarding Obama’s birthplace being anywhere other than Hawaii and ignore the law regarding the relevance of paternal citizenship (none). Obama is incontrovertibly a natural born citizen.
But this whole silly episode argues that it is long past time to reconsider the rationale for retaining the natural born citizen clause. No doubt, when the Republic was young and fragile and the world was largely ruled by kings, there was reason to fear a foreign prince trying to make himself President and turn the US into a monarchy. This hardly seems a credible threat today.
Most countries open their highest office to all citizens. Any citizen can become Prime Minister of Britain, Canada or Australia. Now you may argue that those offices don’t have the unitary executive power of the US President. However, the French President is actually more powerful than his US counterpart, in that he can dissolve parliament and call elections, whereas the US President had no power over Congress. Yet the French Presidency is open to all citizens of 23 years or more.
The US is no longer a fragile Republic, looking to crown a European prince. Naturalized citizens are no less loyal as a group than natural born ones; in fact, since they have chosen citizenship one could argue they value it more highly. Loyalty is in the heart, not in birth certificates or passports. Why not trust the voters and let them assess the loyalty of candidates for President?
I would welcome thoughts on this issue.