December 4, 2008

Prepare Yourself for Political Apocalypse: Obama is Ineligible to be President

It is quite possible that the United States of America is about to outdo itself in the realm of explosive politics and racial issues. The gentleman pictured at left, Leo Donofrio, a former attorney turned poker player, has become the catalyst for what could be a full blown constitutional crisis that will divide this country for decades to come. The Supreme Court has taken up for consideration in conference Donofrio v. Wells, a suit brought in state court against the Secretary of the State of New Jersey, challenging Barack Obama's eligibility to be President of the United States on the basis that he is not a "natural born" citizen of the United States. It is worth noting that the same lawsuit also alleges that McCain is not a "natural born" citizen, for a somewhat different reason, and therefore also ineligible to stand for election to the Presidency.

For the sake of clarity:
  • The lawsuit does NOT allege that Obama is not a United States Citizen.
  • The lawsuit does NOT allege that Obama was not born in the U.S. in Hawaii in 1961.
On both of these scores, the plaintiff agrees that Obama is a US citizen and agrees that Obama was born on US soil in Hawaii. Rather, the lawsuit alleges that Obama does not fit the meaning of the term "natural born" citizen as that term is used by the U.S. Constitution in Article 2, Section I which states,

"No person except a natural born citizen of the United States, at the time of adoption of this Constitution, shall be eligible to the office of President."

As far as the issues surrounding Obama’s birth certificate are concerned, Denofrio states Obama has not been presented with a legal request from a party with proper standing to command him in any way, and therefore has no legal responsibility to produce one.

However, Denofrio says he believes if “Obama is presented with a legal request from a government authority sanctioned to make such request, that Senator Obama will respond accordingly and put the issue behind him forever.

“That being said, petitioner regretfully submits that since candidate Obama was born to a Kenyan father, he also is not eligible to the office of president since he is not a ‘natural born citizen’ by the Constitution.”

Broken down to plain everyday language, the lawsuit argues that the term "natural born" citizen essentially means not merely someone who is a citizen, or even someone who was born in the United States, but a citizen born to two citizen parents in the United States.

If SCOTUS concludes that the above is the operative definition, then Obama is not eligible to be President because he was born of parents who were not both citizens of the United States. According to Factcheck. Org:

When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children:
British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

The Donofrio lawsuit alleges therefore that Obama's dual citizenship status at birth means he does not fit the meaning of the term "natural born" citizen and is therefore disqualified from eligibility for election to the office of the President.

Positively diabolical isn't it? Under this interpretation, Obama could have been born on the mall in Washington D.C. in front of Jesus and ten million witnesses and he would not be eligible to be President, by virtue of his dual citizenship at birth. The typical everyman/everywoman on the street has always figured that if you are born on US soil, you are a natural born citizen and can be President. Turns out, not so much. The average person on the street that voted for Obama, and I'll bet some that didn't are gonna say, thats a technicality. You're going to blow up the entire election on a technicality.

As if that was not explosive enough, Clarence Thomas may very well have played what will become an absolutely infamous role in this drama. Cobb, given that the issue at stake is the presidency itself, actually manages to understate this today:

Apparently Clarence Thomas is about to draw the ire of millions, and some massive fudge is going to happen or else all hell will break loose in America. He apparently has made the move that will force the Supreme Court to consider one of the several lawsuits over the birth of Barack Obama.

What has he done? Donofrio’s first application was denied by Justice David Souter on Nov. 6. The rules of the court, however, allow for a renewed submission to a justice of the petitioner’s choice. Who answered the call? Justice Thomas referred the case to the full Court on November 19, and then the full Court distributed it for conference tomorrow, December 5, 2008, after an initial consideration on the Thomas referral. The full Supreme Court will meet in conference on the suit to determine whether or not they will take up the case or decline to hear it.

Our prediction: if SCOTUS decides to take up this case, they will ultimately agree with the plaintiff's interpretation and construe the Constitution to state that Obama is not a "natural born citizen" within the meaning of Article 2, Section 1, rendering him ineligible for election to the office of the President. At that point, several species of Hell are going to break loose.

I am almost incapable of imagining the scope of the civil and political fallout from such an action by SCOTUS to render null and void the will of 52 million voters who cast their vote for Barack Obama. This case is nuclear and has just gone to DEFCON 2.

What happens if SCOTUS decides against Obama, as best I can tell at the moment, will be determined in part by the timing of any such decision. Bear in mind that despite the manner in which Obama is addressed, technically he is NOT YET the President Elect. He does not officially become the President Elect until December 15th, when the Electoral College meets to certify the electors of each state.

There are two potential scenarios to consider:

  1. Barack Obama is ruled to be ineligible for President before the Electoral College votes on December 15
  2. Barack Obama is ruled to be ineligible for President after December 15 but before the inauguration

Candidates for POTUS are chosen by the two major political parties, Democrats and Republicans, which are private organizations.

The Right Side of Life saved me some research:


Per the Call for the 2008 Democratic National Convention (As Adopted by the Democratic National Committe, February 2, 2007), VIII. PROCEDURAL RULES OF THE 2008 DEMOCRATIC NATIONAL CONVENTION, Paragraph G:

Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.


Per The National Republican Committee Rules, RULE NO. 9, Filling Vacancies in Nominations:

(a) The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

(b) In voting under this rule, the Republican National Committee members representing any state shall be entitled to cast the same number of votes as said state was entitled to cast at the national convention.

(c) In the event that the members of the Republican National Committee from any state shall not be in agreement in the casting of votes hereunder, the votes of such state shall be divided equally, including fractional votes, among the members of the Republican National Committee present or voting by proxy.

(d) No candidate shall be chosen to fill any such vacancy except upon receiving a majority of the votes entitled to be cast in the election.

If Barack Obama is ruled to be ineligible for President before the Electoral College votes on December 15?

The above party rules would apply and the Electoral College would vote based on what their respective party decides as well as the Electoral College Process. Essentially the party would decide who the candidate would be. Presumably, they would elevate Joe Biden and he would select a running mate, though it would be such an unprecedented moment in history that anything might happen.

If Barack Obama is ruled to be ineligible for President after December 15 but before the inauguration?

It seems to me that the Twentieth Amendment to the United States Constitution would then control the situation. The Twentieth Amendment provides,

“if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or in the manner in which one who is to act shall be elected, and such person shall act accordingly until a President or Vice President shall have qualified.”

In this scenario, Joe Biden becomes the President, as he is not handicapped by this issue of his status as a "natural born" citizen at birth.

Circling back to the several species of Hell that will ensue, it would not be out of the question that there might be civil unrest. Clarence Thomas will become the most reviled black man alive. People will spit on his likeness. If they were going to take Obama down, we'll say, Thomas didn't have to be the one to hand overThe One. He will be the 2nd coming of Judas, the successor to Brutus for the rest of his life. Leo Donifrio will find himself branded among the most hateful of men, for all that he sounds like a reasonable enough guy. I imagine that there will be a massive collective gasp of horror and shock planetwide when this historical electoral result is rendered meaningless. The planet is going to recoil from America if SCOTUS renders Obama ineligible. Financial markets around the world will plummet as the US plunges into unprecedented political turmoil and uncertainty. Black Americans will fall into a pit of unrelenting and bitter despair, with our niggling suspicion confirmed that America would find some way to prevent a black man from ascending to the Presidency. We'll also believe that despite the fact the Donifrio's suit seeks to invalidate McCain as well, if McCain had won the election, this suit would not even have been given consideration. The Court's standing and legitimacy will be severely diminished in the eyes of a vast amount of the electorate. Millions of youth and latinos and people everywhere who got involved for the first time, inspired by a campaign for the first time, will become cynical and distrustful and will check out of the political process in disgust.

Prepare yourself for political Apocalypse. Today we are at DEFCON 2. If and when SCOTUS should decide to take up this case, we will go to DEFCON 1. Should SCOTUS conclude that Obama is rendered ineligible as a candidate to stand for election to the Presidency, this country will rip itself apart.

Update: I spoke this morning with Tony Mauro, Supreme Court correspondent for Legal Times, a legal news website that covers SCOTUS. Tony very graciously gave me a few minutes of his time and indicated that he was aware of the Donofrio v. Wells case being scheduled for conference and told me a bit about the procedure. Generally, the conference is held in the morning and if the court decides to take up a case, they will announce that in the afternoon. If they decline to hear a case, the announcement of that is typically not made until the following Monday. Assuming this custom holds, if there is no announcement that the case is being taken up this afternoon, it is therefore likely that the Court decided to decline the case and that decision will be made public on Monday.