- The Washington Times - Friday, December 5, 2008


The Supreme Court plans to meet Friday to decide whether to hear a case that could determine whether President-elect Barack Obama ever becomes the nation’s president.

Justice Clarence Thomas picked up the petition to hear New Jersey attorney Leo Donofrio’s lawsuit after it was denied by Justice David H. Souter. Justice Thomas referred it to the full court, which decided to distribute the case for the judges’ conference.

The decision to put the case on Friday’s docket resulted from more than a dozen lawsuits challenging Mr. Obama’s right to be president based on his citizenship at birth. The issue preoccupied many conservative bloggers in the weeks before the Nov. 4 election.

Some legal analysts say the lawsuits have little chance of success. The Supreme Court rarely grants the kind of court orders - or stays - sought by Mr. Donofrio.

“Nothing in what we’ve seen from the court so far suggests any likelihood the court is actually going to take the cases,” said Eugene Volokh, constitutional law professor at the University of California at Los Angeles School of Law.

Nevertheless, for the lawsuit even to make it to the docket raises the possibility of an unprecedented case going before the Supreme Court . At least four of the court’s nine judges must approve before the case is heard.

Mr. Donofrio originally sued New Jersey Secretary of State Nina Mitchell Wells, seeking a court order to stop the Nov. 4 presidential election. When that was denied, he amended his complaint to stop the Electoral College from certifying Mr. Obama as the winning candidate when it meets Dec. 15.

Unlike many of the lawsuits regarding Mr. Obama’s citizenship - which claim he was born on foreign soil - Mr. Donofrio’s case concedes that Mr. Obama was born in Hawaii as he claims. Mr. Donofrio contends, however, that Mr. Obama is not a “natural born citizen,” as Article II, Section I of the U.S. Constitution requires.

“Don´t be distracted by the birth certificate and Indonesia issues,” Mr. Donofrio said in a statement on the Citizen Wells Web site. “They are irrelevant to Senator Obama´s ineligibility to be president.

“Since Barack Obama´s father was a citizen of Kenya, and therefore subject to the jurisdiction of the United Kingdom at the time of Senator Obama´s birth, then Senator Obama was a British citizen ‘at birth,’ just like the framers of the Constitution, and therefore, even if he were to produce an original birth certificate proving he were born on U.S. soil, he still wouldn´t be eligible to be president.”

Kenya was formerly British East Africa. It received its independence in 1963.

Mr. Donofrio contends that Mr. Obama’s dual citizenship - his mother was a U.S. citizen - is the reason for his lawsuit. The framers of the Constitution intended that anyone with allegiance - citizenship - outside the U.S. would be ineligible for the presidency.

The framers, however, wanted themselves to be eligible even though they were British citizens, so they included a grandfather clause to include a “citizen of the United States” as well as a “natural born citizen.”

“The framers were comfortable making an exception for themselves. They did, after all, create the Constitution. But they were not comfortable with the possibility of future generations of presidents being born under the jurisdiction of foreign powers, especially Great Britain and its monarchy, who the framers and colonists fought so hard in the American Revolution to be free of.”

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