In what has to fall into the “Sorry we asked” category for the Birther movement, the Court of Appeals of Indiana has issued an Opinion for Publication defining “natural born citizen.”
The appeals court unanimously upheld a decision in the Marion County Superior Court dismissing Ankeny v. The Governor of Indiana (and the Democratic and Republican National Committees) on March 16, 2009. On April 13, the case was appealed. First filed on December 9, 2008, as a Petition for Extraordinary Writ of Prohibition, the pro se plaintiffs sought to stop Governor Mitch Daniels from certifying the state’s votes with Congress in the 2008 General Election.
The challenge was to Obama and Biden (and McCain and Palin) as Electors, rather than as candidates or elected officers of the Executive. Plaintiffs argued that the state’s appointment system for Electors violated the Article II of the Constitution. The question the plaintiffs posed: Is a sitting Senator eligible to be elected to the office of Elector?
By allowing the name of Barack Obama upon the ballot for appointment of Electors, the Governor of the State of Indiana has allowed Barack Obama to be appointed “Elector in Chief” in violation of Article II, Section 1, Clause 2′s prohibition that no United States Senator currently holding that office shall be appointed Elector for any State.
The Petition included this statement:
… the reason for this Petition is that neither Barrack Obama nor John McCain, have established, beyond any reasonable doubt, that either of them were naturally born in one of the 50 United States of America or that they were not holding the office of United States Senator at the time of their appointment as Elector in Chief on November 4, 2008.
The ever elusive discovery would be achieved:
Barrack Obama would be required to prove he was naturally born in one of 50 States, unless he proves he is older than 49, while John McCain would be required to prove he was naturally born in one of 48 States.
And the judiciary would be the ones to define natural born citizenship based on constitutional interpretation, because:
Congress of the United States, pursuant to the 10th Amendment, was not enumerated with any power to define or redefine the meaning of the phrase “natural born,” or the meaning of the word “natural” as appearing in Article II of the Constitution of the United States relating to the election of a President of the 50 United States of America.
The Government, in its Motion to Dismiss, said the court lacked jurisdiction, the plaintiffs failed to state a relievable claim, the process being complete made the issue moot, so the lawsuit was untimely. In a Memorandum of Support, Governor Daniels described the process by which Indiana’s Electors were chosen and certified, and he listed who they were: Barack Obama and John McCain, Joe Biden and Sarah Palin were not on the ballot as Electors, as noted in the Opinion:
Neither President Barack Obama nor Senator John McCain were nominated as electors for their respective parties in the 2008 election.
Plaintiffs do not state a meritorious claim. Notwithstanding the fact that it is unclear what Plaintiffs are referring to by the phrase “Elector in Chief,” Plaintiffs’ characterization of the electoral process in the State of Indiana simply is not consistent with the applicable laws. The fact that the names “Barack Obama” and “John McCain” are the ones that appeared on the ballot does not change the fact that they were in fact candidates for the presidency, not any of Indiana’s electors.
So the matter of dismissal seems pretty clear cut and the appeals court upheld that part of it. It could have been done 1-2-3 on standing and justiciability. But the appeals judges apparently saw an opportunity and took it— purposely—possibly because they felt it had to be said, and as a signal of just how fed up the judiciary is with these cases.
Judge Elaine Brown wrote for the court, with Judges Crone and May concurring:
Initially, we note that the Plaintiffs do not cite to any authority recognizing that the Governor has a duty to determine the eligibility of a party’s nominee for the presidency. The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates. However, we note that even if the Governor does have such a duty, for the reasons below we cannot say that President Barack Obama or Senator John McCain was not eligible to become President.
Birthers’ beloved de Vattel theories of birthright citizenship do not apply in a country whose legal system is based on common law: U.S. v. Wong Kim Ark and the 14th Amendment are the defining authorities.
The bases of the Plaintiffs? arguments come from such sources as FactCheck.org, The Rocky Mountain News, an eighteenth century treatise by Emmerich de Vattel titled “The Law of Nations,” and various citations to nineteenth century congressional debate.
The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century.
To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiff’ argument fall under the category of ‘conclusory, non-factual assertions or legal conclusions’ that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.
In a footnote:
We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution?s Article II language is immaterial. For all but forty-four people in our nation’s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States.
As if in anticipation of the Birther propensity for twisting words to suit their purpose:
We … note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the only way one can receive natural born citizen status.
This case could now be appealed to the Indiana Supreme Court, which will only review it if it wants to do so, and is not binding on other state or federal courts. But an “Order for Publication” is not for nothing and its influence will be felt as more Birther cases reach other courts, as every single Defense filing cites it in the future. Should the Indiana Supreme Court refuse to review, the only recourse is the US Supreme Court, which can also refuse to review, and probably will.
Is the Birthers’ natural born citizen argument dead as a doornail? I’d say it is. Now that they’ve had a case decided on its merits, maybe the Birther movement is dead, too. We’ll see.