A veteran attorney who has pursued a lawsuit challenging Barack Obama's presidential eligibility since he was elected is telling the U.S. Supreme Court that if its members continue to "avoid" the dispute they effectively will "destroy the constitutional rule of law basis of our legal system."
And he asks whether the justices still are committed to the principle of considering the Founders' intent when ruling on constitutional issues.
The warning comes from attorney John D. Hemenway, who is representing retired Col. Gregory Hollister in a case that alleges Obama never was eligible under the Constitution's requirements for a president to occupy the Oval Office.
"We have not exaggerated in presenting the question of the constitutional rule of law being at stake in this matter," Hemenway wrote in a petition for rehearing before the high court. "A man has successfully run for the office of president and has done so, it appears, with an awareness that he is not eligible under the constitutional requirement for a person to be president.
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"Despite a vigorous campaign that he has conducted to make 'unthinkable' the very idea of raising the issue of his eligibility under the Constitution to 'be' president the issue has not gone away," Hemenway said.
Instead it has steadily grown in the awareness of the public. Should we be surprised that he shows no respect for the constitutional rule of law? What else would we expect?" he wrote. "The real question here is one of getting members of the judiciary to take seriously the oath that they swore to protect and preserve the Constitution," Hemenway wrote. "To continue to avoid the issue will destroy the constitutional rule of law basis of our legal system when it is under vigorous assault as surely as if the conscious decision were made to cease preserving and protecting our founding charter."
That the justices are "avoiding" the Obama issue already has been confirmed by one member of the court. It was last year when Justice Clarence Thomas appeared before a U.S. House subcommittee that the issue arose.
Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
"I'm still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States," said Serrano, who was born in the island territory. "That's another issue."
Yet after Serrano questioned him on whether or not the land's highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
"I'm glad to hear that you don't think there has to be a judge on the court," said Serrano, "because I'm not a judge; I've never been a judge."
"And you don't have to be born in the United States," said Thomas, referring to the Constitution, which requires the president to be a natural born citizen but has no such clause for a Supreme Court justice, "so you never have to answer that question."
"Oh really?" asked Serrano. "So you haven't answered the one about whether I can serve as president, but you answer this one?"
"We're evading that one," answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. "We're giving you another option."
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Hemenway's arguments come in the petition for rehearing that follows the decision last month by the court not to hear the arguments. However, he pointed out in the petition for rehearing that the U.S. Supreme Court appears to have broken its own rules in his case by failing to respond to a pending recusal motion.
That circumstance is enough, he argues, for another hearing to be held on the case, and this time without participation by the two justices appointed to the court by Obama.
Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website and monitoring the Hollister case, said the attorneys wanted Justices Elena Kagan and Sonia Sotomayor to remain out of the arguments since both were appointed to their lifetime posts by Obama and clearly would have a personal interest in the dispute if Obama was found to be ineligible and his actions, including his appointments, void.
"Petitioners would request the court to rehear their petition and in doing so to consider the consequences of their motion for recusal of December 30, 2010 being treated as conceded because it was not opposed in a timely fashion under the rules of this court," said the document, submitted to the court yesterday and expected to be docketed today.
"Rule 21 (4) of the court requires that any motion shall have an opposition to it filed, if one is to be filed, 'as promptly as possible considering the nature of the relief sought … and, in any event, within 10 days of receipt.' Thus by January 14, 2011, when petitioners' petition was denied without comment, the respondents had failed to respond to the motion," Hemenway wrote.
"Therefore, as a matter of due process of the court, petitioners suggest that the court should have on that day considered the possibility that the motion had been conceded by respondents with an examination of the consequences of that failure," the brief explains.
"If petitioners are entitled to have their motion for recusal as conceded because of lack of a timely opposition, as petitioners contend is the case, then the court was obliged to make sure that the Justices Sotomayor and Kagan did not participate in the decision. Yet there was no statement that they did not participate," the brief states.
The brief further argues that because of the lack of a response or acknowledgment by the court, the court should have considered "the law of nations on matters of citizenship such as the phrase in question here as placed in Article II, Section 1, Clause 5, namely, the requirement that a president 'be' a 'natural born citizen.'"
"That is, of course, assuming that the majority of its members still believe that the intent of the Framers is essential to the constitutional rule of law in this country," the filing said.
A spokeswoman for the court told WND the motion for recusal was received Dec. 30, but the justices wouldn't treat it as an actual motion for the court, just as a "request."
"These types of requests are not treated as motions, but are requests that are forwarded by the clerk's office to the justice or justices to which the request is addressed. The requests are handled by the individual justice or justices.
"If a justice recuses from a case the recusal is noted on the docket typically at the time the court issues an order acting on the case," the spokeswoman said.
However, the document prepared for the Supreme Court clearly stated "Motion for Recusal of Justices Sotomayor and Kagan," and a second time, "Petitioners' Motion to Recuse."
But the court spokeswoman declined to respond to the inquiries about the procedures regarding recusal of justices who have a personal stake in such cases -- what ethical guidelines are used by the court to determine those cases and whether there was a violation of the court rules in the case.
In the original petition to the high court, the pleadings noted that if Obama is not constitutionally eligible, it will create a crisis.
"If proven true, those allegations mean that every command by the respondent Obama and indeed every appointment by respondent Obama, including the appointment of members [Elena Kagan and Sonia Sotomayor] of this and every other court, may be only de facto but not de jure [by right of law]," stated the pleading.
"Further, his signature on every law passed while he occupies the Oval Office is not valid if he is not constitutionally eligible to occupy that office de jure," it continued.
"Thus, it is not hyperbole to state that the entire rule of law based on the Constitution is at issue. Moreover, it would indicate that the respondent Obama ran for the office of president knowing that his eligibility was at the very least in question," it continued.
Elgin earlier confirmed that Hemenway, as the attorney of record, got the notice from the court that the certiorari petition was denied without comment. But he said there was nothing from the court on the motion for recusal.
The order on Jan. 18 from the high court simply listed case 10-678, Hollister, Gregory S. v. Soetoro, Barry, et al as "denied" with no explanation.
It appears from the court's documentation that Kagan and Sotomayor participated in the "conference," the meeting at which Supreme Court justices determine which cases they will take. On other cases there are notations that Kagan or Sotomayor did not participate, and the Hollister case is without any such reference.
Although proceedings are not public, it is believed that a case must earn four votes among the nine justices before it is heard.
WND reported when another eligibility case attorney who has brought cases to the high court, Orly Taitz, approached Justice Antonin Scalia about the issue.
"Scalia stated that it would be heard if I can get four people to hear it. He repeated, you need four for the argument. I got a feeling that he was saying that one of these four that call themselves constitutionalists went to the other side," Taitz said.
At that time, the Supreme Court was considered to have a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally was Chief Justice John Roberts, Justices Samuel Alito, Scalia and Thomas. Justice Anthony Kennedy often is the swing vote. The liberal side frequently included Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
Stevens and Souter have departed since then and have been replaced by Obama with the like-minded Kagan and Sotomayor. Presumably, should there be only seven justices in the discussion, three votes might be sufficient to move the case forward.
Hollister's case is one of the longest-running among those challenging Obama's eligibility.
Elgin told WND that the case, throughout the district and appellate court levels, never was denied standing, a major hurdle that has torpedoed many of the other eligibility disputes to rise to the level of court opinions.
The petition for rehearing explains that the "certification of live birth" posted online by the Obama campaign in 2008 cannot be cited as proof, since "Sun Yat Sen, the Chinese nationalist leader," was granted "the same type of document that the respondents have claimed on the Internet and from the White House 'proves' that the respondent Obama was born in Hawaii."
It cited as an example of Obama's disconnect from the "rule of law" his administration's "illegal ban on offshore drilling," which was struck down by Judge Martin Feldman.
"They immediately came back and instituted a further illegal ban, showing no respect for the rule of law at all," the petition argues.
Further is the recent judge's ruling in Florida that Obama's health-care law is unconstitutional.
"The respondent Obama and those working for him have made it clear that they intend to ignore the decision and proceed as if they never opposed it vigorously in court and the decision never happened," the argument explains.
The Hollister case made headlines at the district court level because of the ruling from District Judge James Robertson of Washington.
 Judge James Robertson |
Along with the sarcasm, the evidence pertinent to the dispute was ignored.
The fact that the evidence never was reviewed and the judge based a "biased" decision on "a completely extrajudicial factor" -- twittering -- prevented Hollister from having the constitutional rule of law applied, the court file explains.
The motion to recuse explained that federal law requires that judges exclude themselves when circumstances arise that would involve "even the appearance of impartiality."
"It would seem literally to apply to Justice Kagan in any case since she was serving as Solicitor General during the pendency of this and other cases involving the ineligibility question. The U. S. Attorney did make a brief appearance in this case in the appellate document and did appear in many parallel cases," the motion said.
The president is represented by a private law firm in the current case.
"Historical analysis establishes, therefore, that ... respondent Obama, since his father was a Kenyan of British citizenship and not a U. S. citizen, was not 'eligible to the office of president,…' Therefore his appointment of the present Justices Sotomayor and Kagan are not valid appointments under the Constitution and they should not, therefore, be sitting as justices deciding upon our petition if this court itself observes the law it has set out under the Constitution as the supreme law of the land. Otherwise the concept of a rule of law based upon the Constitution, which we contend is at issue in our petition, is being flouted at the very outset of consideration of the petition," the motion explained.
Neither is Hollister a novice on the issue of eligibility, it explains.
"It is a matter of record that Colonel Hollister, while on active duty in the Air Force, in a career from which he honorably retired, inquired into the legitimacy of President Clinton's orders because President Clinton participated, while at Oxford, in communist protest marches in Eastern Europe against the Vietnam War at a time when we were at war with communism in Vietnam, something that would seem to violate the Fourteenth Amendment," the site explains.
While the district judge dismissed the case because it had been "twittered," the appeals court adopted his reasoning but wouldn't allow its opinion affirming the decision to be published, the petition explains.
Hollister's concern rests with the fact that as a retired Air Force officer in the Individual Ready Reserve, it is possible that he could be subject to Obama's orders.
"If Congress called up the Air Force Individual Ready Reserve the respondent Obama would have to give the order … If, as it appears, those orders would not be lawful, Col. Hollister would be bound … to question them and look to the respondent [Vice President Joe] Biden as constitutionally next in succession for lawful orders," the pleading said.
The case doesn't have the "standing" dispute that has brought failure to so many other challenges to Obama's eligibility, the pleading explains, because Robertson "found that it had jurisdiction of the case, and therefore that petitioner Hollister had standing."
John Eidsmoe, an expert on the U.S. Constitution now working with the Foundation on Moral Law, has told WND a demand for verification of Obama's eligibility appears to be legitimate.
Eidsmoe said it's clear that Obama has something in the documentation of his history, including his birth certificate, college records and other documents that "he does not want the public to know."
WND has reported on dozens of legal and other challenges to Obama's eligibility. Some suggest he was not born in Hawaii has he claims; others say his birth location makes no difference because a "natural born citizen" was understood at the time to be a child of two citizen parents, and Obama's father was subject to the British crown when Barack Obama was born.
