Due to a sloppy headline by Associated Press, Ga. judge orders president to appear at hearing, Birfistan is agog that President Barack Obama will be present at the administrative hearing scheduled by Judge Michael Malihi on Thursday in Atlanta.
All of Birfistan except Dean Haskins, who has now discovered that Dr. Orly Taitz, Esq. lies to her supporters, is mean as a “cactus loofah” and is the worst lawyer on the face of the Earth. Welcome almost to reality, Dean Haskins. You are very close.
According to White House Dossier:
Obama, however, will be nowhere near Atlanta on Thursday. According to the White House, he will be out West promoting the agenda he plans to lay out in Tuesday’s State of the Union address. Obama Thursday plans to make appearances in Las Vegas and Denver areas before traveling on to Detroit to spend the night.
Nowhere near Atlanta. How can that be if he was court-ordered, as AP claims, to Atlanta? Easy. He was not ordered. But just about every media outlet subscribing to AP has that error in its headline. It’s very sad, but at this moment, there are 42,400 Google entries for that exact misleading headline.
Even though President Obama was not ordered by Judge Malihi to attend Thursday’s hearing, what if he had been? It wouldn’t mean the President has to agree to be there.
The local CBS News station in Atlanta asked both Democrats and Republicans, trying to find somebody to confirm that Judge Malihi could order President Obama to the hearing there, and all said no, there were laws stopping it.
Indeed, the Administrative Rules of Procedure 616-1-2-.22 Hearing Procedure. Amended, states the limited power of Administrative Law Judges, who can only report disobedience or resistance of orders, refusal to produce documents ordered, refusal to testify or “appear after having been subpoenaed,” to a superior court.
Should the superior court agree with the Administrative Law Judge’s recommendation, that the President was in contempt, for example, it wouldn’t matter, because no state court has the power over federal officials to order him into court or to find him in contempt. That could only come from an order issued by a federal district court judge. Then it would be appealed to the Supreme Court of the United States, where precedent is not favorable.
In SCOTUS Clinton v. Jones, 520 U.S. 581, 591 (1997):
First, because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two, see, e. g., Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam), it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns, 13 as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court, see 28 U. S. C. § 1442(a); Mesa v. California, 489 U. S. 121, 125-126 (1989). Whether those concerns would present a more compelling case for immunity is a question that is not before us.
fn 13: Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e. g., Hancock v. Train, 426 U. S. 167, 178-179 (1976); Mayo v. United States, 319 U. S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials … to take action in derogation of their … federal responsibilities”).
Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so.14
fn 14: Although Presidents have responded to written interrogatories, given depositions, and provided videotaped trial testimony, see infra, at 23, no sitting President has ever testified, or been ordered to testify, in open court.
Unprecedented; and reason enough for such a subpoena to have been quashed. If Judge Mahili had so ordered the President to appear, it would have been meaningless, even without that. Judge Mahili is collecting information for an administrative determination hearing in order to make a non-binding recommendation to the Secretary of State; he is not making a ruling of law, because his is not a court of record. His venue is part of the Executive branch, not the Judiciary. He has the authority to adjudicate specific matters, on behalf of the Executive, such as ballot challenges and Judge Malihi handles those routinely. This is not a civil lawsuit; it’s a ballot challenge, like the one in New Hampshire.
The Secretary of State, who already has President Obama shown as qualified on his web site, will decide if President Obama stays there. Whoever doesn’t like the outcome, Plaintiff or Defendant, can appeal to the Superior Court in Fulton County. That’s where legal jurisdiction will be.
The same court where a Birther challenge, Terry v. Handel, was Dismissed with Prejudice in 2008:
In Georgia, as elsewhere in the United States, voters vote on “presidential electors” rather than voting directly for a candidate when voting for the office of President of the United States. … This is consistent with the plan of our United States Constitution which expressly calls for election of the President by electors in the United States House of Representatives. …
The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes the candidate might not be qualified. … Georgia law, rather, imposes duties simply for examination of presidential electors. … The political parties’ candidates for President are determined by (typically and as apparently was the case for Mr. Obama) convention of the political party.
While not binding on other states, the outcome of another Birther case may be instructive. In the California Court of Appeal, Third Appellate District, issued in Keyes v. Bowen last October, when Dismissal in a lower court was Affirmed by a 3-Judge Panel, it was decided for publication, which makes it weighty:
Plaintiffs’ contentions lack merit. Among other things, we conclude that the Secretary of State does not have a duty to investigate and determine whether a presidential candidate meets eligibility requirements of the United State Constitution. …
In any event, the truly absurd result would be to require each state’s election official to investigate and determine whether the proffered candidate met eligibility criteria of the United States Constitution, giving each the power to override a party’s selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes. (3 U.S.C. § 15.)3
We already know President Obama has unimpeachable evidence under the rules of evidence and Georgia law, a certified birth certificate and a United States passport. We already know where he’s been, holding public office in this country for the past fifteen years. That takes care of Article II:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
This can be handled by legal counsel, to establish the record, and President Obama would be entitled to Summary Determination at that point in the hearing. Attorney Jablonski or the Georgia Democrats can also simply submit the documentation directly to the Secretary of State, if they choose to go about it that way. None of it requires the personal presence of President Barack Obama.
Thursday’s hearings will not reveal much of Judge Malihi’s thinking, in any case. On December 20, he ordered:
“All parties must be prepared to submit Proposed Findings of Fact and Conclusions of Law by 5:00 PM, February 5, 2012. The parties are encouraged to limit their proposed order to twenty-five (25) or fewer pages, and only include pertinent facts and law. All citations will be reviewed carefully. Therefore, it would be injudicious to embellish the testimony of witnesses or points of law.”
After that, he will make his recommendations to the Secretary of State. The Georgia primary is March 6. Absentee voting commenced on January 21, with President Obama on the Democratic primary ballot unopposed.
The Plaintiffs are also looking to Judge Malihi for a definition of Natural Born Citizen, because they’ve decided it requires two citizen parents for a person to qualify as a candidate for president. The Congressional Research Service has disagreed in several legal memos prepared for Congress:
There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.
Can the Superior Court in Fulton County, Georgia define Natural Born Citizen? Sure. Why not? To my knowledge, it’s only been done once, in the Marion County Superior Court in Indiana in a ruling in Ankeny v. The Governor of Indiana, also for publication:
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.
Can an Administrative Judge issue a definition of Natural Born Citizen? No, not as a matter of law. He can listen to the arguments, analyze statutes and legal precedent, and give his opinion of them to the Secretary of State.
Is all this going to accomplish much of anything? No. Even in the unlikely event President Obama’s name is removed from the Georgia primary ballot, the Democratic National Convention is going to nominate President Barack Obama and Georgia Democratic delegates will be there with their votes. President Barack Obama will be on the general election ballot in November.
The losers would be those Georgia voters who wanted to vote Obama in Georgia’s open primary, who would be deprived of their primary vote, of their basic right to suffrage, to expression of preference, and deprived of their civic dignity.
Once again, in Georgia, a black man has to show his papers. I don’t mention this to accuse Birthers of racism. I wouldn’t waste my breath. I know they couldn’t care less. Surely, the decent people of the State of Georgia do care.
Thanks to the generous lawyers at The Fogbow, who help me wade through the tall grass of the legal system.