Obama argues against appearing at eligibility hearing

'Electors, Congress, not Georgia, hold responsibility for qualifications of candidates'

Barack Obama has outlined a defense strategy for a multitude of state-level challenges to his candidacy on the 2012 presidential ballot in a Georgia case that is scheduled to come before a judge later this month – simply explain that states have nothing to do with the eligibility of presidential candidates.

“Presidential electors and Congress, not the state of Georgia, hold the constitutional responsibility for determining the qualifications of presidential candidates,” Obama’s lawyer argues in a motion to quash a subpoena for him to appear at the hearings Jan. 26.

“The election of President Obama by the presidential electors, confirmed by Congress, makes the documents and testimony sought by plaintiff irrelevant,” the lawyer said.

Hearing have been scheduled for that date for three separate issues to be handled. They all are raised by Georgia residents who are challenging Obama’s name on the 2012 ballot for various reasons, which they are allowed to do under state law.

It is states, usually through the office of secretary of state, that run elections, not the federal government. The national election is simply a compilation of the results of the individual elections within states.

The schedule for the hearings was set by Judge Michael M. Malihi of the Georgia state Office of State Administrative Hearings. In Georgia, a state law requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”

State law also grants the secretary of state and any “elector who is eligible to vote for a candidate” in the state the authority to raise a challenge to a candidate’s qualifications, the judge determined.

Three different plaintiffs’ groups are lined up for separate hearings, including one represented by California attorney Orly Taitz. She had the judge sign a subpoena for Obama’s testimony, and Michael Jablonski, Obama’s attorney for these cases, argtued that he should be exempted.

Jablonski earlier had argued that state eligibility requirements didn’t apply to Obama, but the judge said that isn’t how he reads state law.

“Statutory provisions must be read as they are written, and this court finds that the cases cited by [Obama] are not controlling. When the court construes a constitutional or statutory provision, the ‘first step … is to examine the plain statutory language,” the judge wrote. “Section 21-2-1(a) states that ‘every candidate for federal and state office’ must meet the qualifications for holding that particular office, and this court has seen no case law limiting this provision, nor found any language that contains an exception for the office of president or stating that the provision does not apply to the presidential preference primary.”

In Obama’s attempt to be excused from providing testimony and evidence such as his original birth certificate, he argues that such testimony would “interrupt duties” as president.

He also argues that the documents and testimony “is, on its face, unreasonable.” And further, the documents and testimony already have been made public, he argued.

“The president made the documents available to the general public by placing it on his website. Although the document has been generally available for years, the president took the extraordinary step of acquiring a copy of the record of birth, informally known as the ‘long form,’ making it available to anyone who cares to check the website,” the filing argues.

And the state should mind its own business anyway, he argued.

“The sovereignty of the state of Georgia does not extend beyond the limits of the State. … Since the sovereignty of the state does not extend beyond its territorial limits, an administrative subpoena has no effect,” the filing explains.

Taitz’ supporters joined a discussion on her website, where she also solicits support for the expenses of the battles she’s confronting, judging that Obama is on the defensive.

“What a joke. He claims to be too busy performing the duties of the president of the United States. How many days of vacation has he taken? How many rounds of golf? If he is too busy to provide the documents that provide the basis for meeting the requirements of the office, then perhaps he better sit out the next four years,” said one.

Wrote another, “The election of President Obama by the presidential electors, confirmed by Congress, makes the documents and testimony sought by plaintiff irrelevant. … This is complete utter nonsense!”

In fact, a presidential elector in California brought a lawsuit challenging Obama’s eligibility at the time of the 2008 election, and was told the dispute was not yet ripe because the inauguration hadn’t taken place. The courts later ruled that the elector lost his “standing” to bring the lawsuit after the inauguration.

Those bringing the complaints include David Farrar, Leah Lax, Cody Judy, Thomas Malaren and Laurie Roth, represented by Taitz; David Weldon represented by attorney Van R. Irion of Liberty Legal Foundation; and Carl Swensson and Kevin Richard Powell, represented by J. Mark Hatfield.

Irion said not many court observers believed Obama actually would comply with the subpoena for a number of reasons. He said for his clients’ arguments the testimony wouldn’t even be an issue.

His argument is that the Founders clearly considered a “natural born citizen,” as the Constitution requires of a president, to be the offspring of two citizen parents. Since Obama himself has written in his books that his father, Barack Obama Sr., was a Kenyan, and thus subject to the jurisdiction of the United Kingdom, Irion argues that Obama is disqualified under any circumstances.

Those who argue against his birth in the United States note that a multitude of experts have given testimony and sworn statements that they believe Obama’s Hawaiian birth documentation to be fraudulent.

It is that concern that also has prompted Maricopa County Sheriff Joe Arpaio in Arizona to turn over an investigation of that issue to his Cold Case Posse. Their investigation report is expected to be released in the next few weeks.

The Georgia hearing will be the first time among dozens of so-far unsuccessful lawsuits brought over Obama’s eligibility issue that evidence will be heard in a court. Other cases all have been dismissed over issues such as standing, without a presentation of the evidence.

Top constitutional expert Herb Titus explains that the use of “natural born citizen,” does, in fact, require parents who are citizens. That argument also is supported by a 19th-century U.S. Supreme Court decision

The hearing is set at 9 a.m. on Jan. 26 for the complaint brought by Weldon. Following immediately will be hearings for the cases brought by Swensson and Powell, and the issue raised by Farrar, Lax, Judy, Malaren and Roth will be third.

Malihi’s ruling said: “The court finds that defendant is a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.”

There are similar challenges to Obama’s 2012 candidacy being raised before state election or other commissions in Tennessee, Arizona, Illinois, New Hampshire and other states as well.

The U.S. Supreme Court opinion cited is Minor v. Happersett from 1875. It includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen,” a requirement imposed by the U.S. Constitution on only the U.S. president.

That case states:

“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”

What the White House in April released was as an image of a “Certificate of Live Birth” from the state of Hawaii in support of Obama’s claim that he was born in the state. The White House has not addressed the questions raised by Obama’s father’s nationality.

The image that the new lawsuits contend is irrelevant:

Obama long-form birth certificate released April 27 by the White House

An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.

“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”

If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.

“Now what we’ve learned from the Hawaii birth certificate is that Mr. Obama’s father was not a citizen of the United States. His mother was, but he doesn’t qualify as a natural born citizen for the office of president.”