- 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.”

Mr. Donofrio then points out that no one alive today can claim eligibility under the grandfather clause, because nobody alive today was a citizen of the U.S. at the time the Constitution was adopted.

The Federal Election Commission weighed in on the issue with an Oct. 31 legal brief in another one of the lawsuits. The FEC said persons suing to stop Mr. Obama’s presidency lack “standing.” Standing refers to the ability of a plaintiff in a lawsuit to demonstrate he suffered personal harm from the actions of someone he is suing.

“Even if it were within the court’s power to enjoin this presidential election as requested, that remedy would irreparably harm the public interest,” said the FEC in a filing before the U.S. Court of Appeals in Philadelphia.

About half a dozen people who say Mr. Obama should not be allowed to become president protested in front of the Supreme Court on Friday morning.

“He does not meet the criteria of the Constitution that the founding fathers set out,” said Roger Bredow, an Internet publisher from Bethlehem, Ga., who has tried to rally lawsuit supporters to block Mr. Obama’s presidency.

Valerie Wohllheden, a stay-at-home mom from Alexandria, said the danger is that in deciding the lawsuit, the Supreme Court might bend to “the will of the people” by allowing Mr. Obama to become president despite constitutional provisions.

“Then you’ve got mob rule,” she said. “How can he uphold the Constitution if he’s breaking it?”

Mr. Obama tried to resolve questions over his citizenship during his campaign by circulating a copy of a “Certification of Live Birth” from the state of Hawaii showing he was born Aug. 4, 1961, in Honolulu.

“It’s clearly been altered,” said Pennsylvania attorney Philip J. Berg in published ads that he sponsored nationwide, including in The Washington Times. He filed one of the lawsuits to block Mr. Obama’s presidency.

Mr. Berg claims there is a tape recording from Mr. Obama’s paternal grandmother in Kenya saying she attended the birth of her grandson in Mombasa.

Mr. Berg also says Mr. Obama later enrolled as a student at an Indonesian school at a time only Indonesians could attend it. Mr. Obama’s stepfather was Indonesian.

In October, a federal judge dismissed Mr. Berg’s lawsuit filed in U.S. District Court in Philadelphia, saying Mr. Berg lacked standing.

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