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U.S. v. Arizona Amicus Brief Filed

admin — Wed, 22 Feb 2012 17:54:43 +0000

One of President Obama’s first actions upon taking office was to order his Department of Justice to sue the State of Arizona. Arizona was accused of following existing Federal immigration law. Sounds absurd, doesn’t it? It sounds absurd because it is absurd, but those are the facts of U.S. v. Arizona.

Unfortunately there’s even more to be upset about in U.S. v. Arizona. If this were a simple disagreement between a state and the federal government about who and how immigration law is to be enforced, it would be interesting, but not shocking. However, in U.S. v. Arizona the Obama administration actively violated existing Federal law (and continues to do so today). Federal law, passed by Congress before Obama took Office, prohibits any government agency from limiting access to INS information about the immigration status of any person. Yet the lawsuit filed by the Obama administration asked the Arizona Federal Court to do exactly what Federal law specifically said that no government agency can do.

But wait, it gets better: A liberal Federal Judge granted the Obama administration an injunction against Arizona. The Judge’s order ALSO violated clear Federal law. The law that Obama pointed to in support of his case, and that the Judge cited in her order, is literally the same Federal code section that states that no governmental agency can do what the Court did.

Here is the Federal code at issue in this case, quoting directly from 8 U.S.C. §1373, subsections (a) & (b).:

“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual…no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) …requesting or receiving such information from, the Immigration and Naturalization Service”

Now for the truly outrageous irony, both the Arizona Court and the Obama administration cite subsection (c) of the same law and claim that it allows them to prohibit Arizona from requiring Arizona police from requesting “information regarding the citizenship or immigration status” of individuals in police custody. Subsection (c) simply requires the INS to respond to any such requests. You see, the Arizona Court and Obama both reason that because subsection (c) requires the INS to respond, if Arizona police make too many requests, then the INS will be too busy to “pursue other priorities,” as determined by Obama.

To summarize the argument: Because Federal law requires us to do this, if you make us do it we won’t be able to not do it. And that argument won the day.

This argument essentially asks the Judicial branch to validate the Executive branch’s decision to ignore the Legislative branch’s mandate. Do you see the danger to our entire form of government?

So, earlier this month Liberty Legal Foundation filed an Amicus Brief with the U.S. Supreme Court. Our brief is short, by design. Our goal was to make two simple points: 1) The Obama administration and the Arizona Federal Court have violated Federal law. 2) If the Supreme Court allows this to stand, Obama will have replaced our three-branch system of government with an Executive dictator.

As far as we are aware, ours is the only brief to make these simple, obvious yet essential points. This Amicus Brief, and all the other work we do at Liberty Legal Foundation would not be possible without your support. If you agree with us that the Executive branch must follow laws passed by the Legislative branch, please support our work. Please continue to spread the word about what Liberty Legal Foundation is doing to restore our Constitution.

We could not continue in our mission without the faithful support of our members. Thank you to all who have supported Liberty Legal Foundation! Please consider making a donation today to help us cover our legal and administrative costs.

Liberty Legal Foundation is an non-profit organization that relies entirely on donations to continue our fight to restore Constitutional limits on government. To donate by mail, please make checks payable to “Liberty Legal Foundation” and mail to 9040 Executive Park Dr, Ste 200, Knoxville, TN 37923. Donations can be made online by clicking the link above.

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When I called the Supreme Court Clerk’s office to confirm filing of our U.S. v. Arizona Amicus Brief I was able to speak to one of the clerks responsible for reviewing briefs before they’re filed. I got the impression that she had been with the court for many years. Without any prompting she told me that she was impressed with our argument. I was surprised, and then very pleased at the comment. Clerks rarely read the substance of briefs filed, and when they do they almost never tell you their opinion about the substance of your filing. Such a decisive comment coming from that source was very surprising and encouraging. Apparently there are people In D.C. that can understand a simple argument and are tired of the government ignoring its own laws.

Appeal of Georgia Eligibility Ruling

admin — Thu, 16 Feb 2012 21:19:40 +0000

The Georgia Superior Court tried to pull a fast one. They initially refused to file our Petition for Appeal. They claimed that our papers lacked two dollars for the two motions that were included along with our petition. We DID include the $213.50 filing fee for the petition, but they were going to sit on our documents and not file any of them, in part because of the missing $2.

The Superior Court’s clerk’s office made several other excuses as to why our petition couldn’t be filed. I won’t bore you with the details. Suffice to say they tried several excuses, none of which reflect normal operating procedures for any court I’ve heard of. Each time I explained why their reason didn’t make any sense under the law or court rules, they moved on to another excuse. After being transferred, placed on hold, hung up on, and argued with, they finally agreed to file the petition, but still refused to file the motions until they got their $2. In my experience as an attorney, including being temporarily admitted in 4 states outside Tennessee, and admitted to practice at every level of Federal and State courts, this is unheard of.

To top off our little story, the Georgia Superior Court didn’t contact our office to tell us that there was a problem with our filing. They just sat on our petition and emergency motion. Had we not called to verify that our petition was filed we would have missed tomorrow’s filing deadline. (This is why we call to verify filings.) The $2 was personally delivered today and the emergency motions are now filed.

One of those motions is an Emergency Motion for Stay and Preliminary Injunction prohibiting the Georgia Secretary of State from including candidate Barack Obama on the Georgia Presidential Primary ballot. Read the filing on our website. Quoting from the motion,

“should this Court incorrectly deny this motion it would confirm that the judicial branch is now unwilling to enforce the clearest and most basic requirements of the U.S. Constitution. Harm to Petitioner that would result from such incorrect refusal to grant this motion represents nothing less than the loss of our constitutional form of government for all Americans.“

Our 15 page Appeal, available on our website, argues that the decision of the OSAH court:

violated Rules of Constitutional Construction,
misapplied Minor v. Happersett,
ignored the clear definition and precedential status of Natural Born Citizen in Minor,
ignored the Minor Court’s discussion of other categories of citizens,
ignored the Minor Court holding that the 14th Amendment “Did Not Add to the Privileges and Immunities of a Citizen”,
applied dicta from Wong Kim Ark instead of precedent from Minor, and
relied upon the severely flawed Indiana state court ruling, Arkeny v. Governor.

The OSAH decision concludes that any person born within the United States, regardless of the citizenship or legal status of their parents, is a “natural born citizen” under Article II of the United States Constitution. This conclusion runs contrary to common sense, violates venerable rules of Constitutional Construction followed by the U.S. Supreme Court since its inception, and violates the explicit holding of the Supreme Court case relied upon.

Had the drafters of the Constitution intended all people born in the U.S. to be considered natural born citizens, the 14th Amendment would not have been necessary. Had the drafters of the 14th Amendment intended that Amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term “natural born citizen” is not found anywhere within the 14th Amendment. The Amendment also makes no reference to Article II. The OSAH ruling, therefore, violates rules of construction that the OSAH had itself relied upon just days earlier in the same litigation. Quoting Judge Malihi,

“When the Court construes a constitutional or statutory provision, the ‘first step…is to examine the plain statutory language.’ [T]his Court is not authorized either to read into or to read out that which would add to or change its meaning.”

The OSAH decision ignores a precedential holding from the U.S. Supreme Court in favor of dicta from a later Supreme Court case. This issue was presented at length to the OSAH at oral arguments and in written submissions, yet the OSAH chose to completely ignore this issue in its decision.

That the OSAH decision relies upon a non-binding opinion from an Indiana State Appellate Court to support its conclusion further illustrates their failure to follow venerable rules of construction and judicial restraint. In Arkeny v. Governor, the Indiana opinion relied upon was litigated by pro-se citizens of Indiana against the Governor of that state. The Indiana court reached its holding via an issue that did not require interpretation of the U.S. Constitution, yet that court then proceeded to construe the U.S. Constitution anyway. The Indiana court?s decision to construe the U.S. Constitution without need to do so represents an overreaching Judiciary and violates a doctrine of judicial restraint established by the Supreme Court over 150 years ago. The OSAH’s reliance upon the Indiana court’s opinion, rather than follow a precedential holding of the U.S. Supreme Court, further demonstrates the OSAH’s errors of law.

So now our case is in the hands of the Georgia Superior Court. We will continue to pursue the vindication of our Constitution from this outrageous ruling. Thank you for standing with us and supporting Liberty Legal Foundation in this important effort.

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What about our Georgia Motion for Contempt?

admin — Thu, 16 Feb 2012 21:15:20 +0000

The Georgia OSAH is refusing to certify facts to the Superior Court in connection to our Motion for Contempt.

Administrative Rules of Procedure 616-1-2-.39 states “Upon application by a party, the Administrative Law Judge shall certify the facts to the superior court… for a determination of the appropriate action, including a finding of contempt.” (emphasis added). Liberty Legal Foundation made such an application before the OSAH published their decision in in our case, Welden v. Obama. Judge Malihi has no discretion in this matter.

Yet, the OSAH has responded that they no longer have jurisdiction and apparently they believe that relieves Judge Malihi of his duty in this matter.

By that same logic, any trial court could refuse to forward a trial record to an appellate court because the trial court’s jurisdiction ended when an appeal was filed. In other words, the OSAH’s excuse for refusing to perform their duty makes no sense, and they should know it.

The rules of the OSAH require Judge Malihi to certify facts to another court that does have jurisdiction, because Malihi doesn’t have authority to decide any contempt issue. He never did. Malihi should have certified the facts alleged to the other court immediately upon receipt of our application. It’s an administrative function that would take no more than 30 minutes to do. Yet he sat on our request for days, then continued to sit on it after his ruling. When we inquired, the silence was deafening. We didn’t hear back at all. This is from a court that had previously responded to e-mails within hours, or even minutes, on every other occasion. Four days later we e-mailed again. That’s when we got the unbelievable “lack of jurisdiction” statemen t from Malihi’s staffer.

This reflects a court simply refusing to do its job under the law and then when questioned, making up a pretty lame excuse. We have reminded the OSAH of its own rules and are still waiting to hear back…

To donate by mail, please make checks payable to “Liberty Legal Foundation” and mail to 9040 Executive Park Dr, Ste 200, Knoxville, TN 37923. Donations can be made online by clicking the link above.

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Obamacare Amicus Brief Filed with U.S. Supreme Court

admin — Mon, 13 Feb 2012 18:28:42 +0000

The Supreme Court can save America from an out of control Congress this session! The Court has accepted and will review Liberty Legal Foundation’s amicus brief in the Health and Human Services v. Florida anti-Obamacare litigation . Rather than argue about whether the individual mandate goes “too far” under current Commerce Clause precedent, we argue that the Commerce Clause was grossly misinterpreted under the 1942 precedent of Wickard v. Filburn. We urge the Court to correct a 70 year mistake and overturn Wickard v. Filburn.

Our brief proves the link between Wickard and uncontrolled growth in the federal government. We show that the Court’s elimination of Constitutional limits on Congressional authority have left Congress unable to control itself. Wickard was a direct cause of exponential growth in federal spending, decreased faith in Congress, shocking growth in federal regulations, and loss of freedom in America. Our brief proves these points by citing the government’s own statistics.

The statistics are shocking. They include a 15,474% increase in per-citizen annual federal spending and a 26,586% increase in national debt. There are 16 times as many federal regulations as there were at the time of Wickard. The number of Federal agencies have increased from 97 in 1942 to 529 today. All of this started immediately after the Supreme Court’s Wickard decision.

We remind the Court of the drastic shift Wickard represented by reviewing what the legal standard was for the first 150 years of our nation’s history. Our brief then explains why every court that has reviewed the individual mandate has been unable to find reasonable limits on Congressional authority under Wickard: BECAUSE THERE ARE NONE! We then show the Court how it could easily return to pre-1942 limits on Congressional authority.

Without your support the Court would not have heard this argument. Every other party is arguing whether or not the current Commerce Clause precedent allows Congress to impose the individual mandate. Without YOU, the argument would have ended there. Now the Supreme Court has been reminded that it needs to fix a 70 year old mistake. It has been SHOWN that Wickard destroyed America.

As you read our brief imagine what would happen if this Court returned to its pre-Wickard understanding of the Constitution. States, not Congress, would decide what regulations were appropriate for agriculture, mining, manufacturing, and most service industries. Congress would once again be limited to the powers granted to it by the States. As we concluded our brief, we reminded the Supreme Court that it now has an opportunity to correct a devastating mistake. It has the authority and duty to do so.

Thanks to you the Court now has an opportunity to save America from an uncontrolled Congress and the crushing debt they have created. Thanks to you the Court has been shown exactly what it needs to do.

Please download and forward our amicus brief, your amicus brief, to everyone you know. Thank you for supporting Liberty Legal Foundation.

P.S. Please feel free to share, copy and/or reuse any of our legal filings or email communications. Our goal is to restore our Constitutional republic. If any of our written words can help do that by being republished elsewhere, then you are helping us achieve our mission!

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Georgia Court Ignored Basic Rules of Interpretation

admin — Sat, 04 Feb 2012 19:46:13 +0000

By now many of you have probably heard that the Georgia court ruled that Obama is a natural born citizen. (Link to opinion) More importantly it ruled that any person born on U.S. soil is a natural born citizen. According to the Georgia court, a woman from any country can visit the U.S. for one day, give birth, take the baby back to any country to be raised under any culture, and that baby can return as an adult, live here for 14 years and run for President. The end result of this ruling is outrageous. It runs contrary to common sense as well as to established law.

So, what happened in Georgia? The court determined that a clear definition of natural born citizen from Supreme Court precedent was overturned by dicta in another Supreme Court case. Precedent is any statement by the court that is pivotal to reaching the court’s ruling. Dicta is the opposite of precedent. Dicta is a statement by the court about matters that are not pivotal to reaching its ruling. Dicta is persuasive, but it cannot overturn precedent.

In other words, the Georgia court violated a basic rule of legal interpretation by ruling as it did. But wait, there’s more! The Georgia court also violated rules of Constitutional interpretation that have been around since the earliest Supreme Court. Our first Chief Justice explained that no part of the Constitution should be interpreted in a way that leaves any other part of the Constitution without independent meaning. By ruling that anyone born on U.S. soil can run for President the Georgia court concluded that the 14th Amendment was intended to alter article II of the Constitution. Such an interpretation is 180 degrees in opposite to Chief Justice Marshall’s explanation of how to interpret the Constitution.

But WAIT, there’s more! In order to reach this conclusion the Georgia court ALSO had to disregard yet another part of the holding from the Minor v. Happersett Supreme Court ruling. Even if you ignore the rules of Constitutional construction and the rule that dicta can’t overturn precedent, even if you agree with the Georgia court that the definition of natural born citizen in the Minor decision was dicta, you still can’t reach the Georgia court’s ruling. You see, the Minor Court ALSO explicitly ruled that the 14th Amendment didn’t create any new privileges and immunities. So, if a person couldn’t run for President before the 14th Amendment, they couldn’t run for President after the 14th Amendment. This means that the Minor Court explicitly ruled that the 14th amendment didn’t alter the definition of natural born citizen under article II of the Constitution. Yet the Georgia court ignored this Supreme Court ruling as well.

The Georgia court was aware of all of these arguments because these arguments were made at the January 26 hearing and they were included in our written brief after the hearing. Yet the Georgia court’s ruling only addresses one of these three arguments and poorly at that.

The one point of good news from this ruling is that we have FINALLY gotten a court to rule on the merits of our argument. This may seem like a hollow victory, but it isn’t. Before this everyone that has brought a challenge against Obama’s eligibility has been dismissed on procedural grounds. Nothing is more devastating to the rule of law than a judicial branch that refuses to do its job. Before this case we had courts across the country telling Americans that they had no right to enforce the Constitution. That was absurdity at its most extreme. Liberty Legal Foundation found a case that we believed would at least get a ruling on the merits. We hate the ruling we got, but at least we got a ruling. Now we can appeal that ruling. The appeals process now will focus on the definition of “natural born citizen” rather than procedure for the first time since the issue of Obama’s eligibility was raise in 2008.

For all the reasons I’ve mentioned in this message, we will be appealing the Georgia Court’s ruling. We will continue to fight for Constitutional rule of law. Failing that we will continue to force Courts to show their true colors. If our judicial branch will not uphold the rule of law, that fact needs to be exposed to the harsh light of day for all the world to see.

Please consider making a donation today to help us cover our legal and administrative costs. We could not continue in our mission without the faithful support of our members. Thank you to all who have supported Liberty Legal Foundation!

Georgia Ruling Coming Soon

admin — Wed, 01 Feb 2012 22:26:22 +0000

Thank you to all our members who drove to Atlanta to attend the hearings last Thursday. We regret that many of you were turned away for lack of space in the hearing room or overflow room. However, your presence was not lost on the court!
Also, thank you for all who attempted to watch the hearings online. There, as well, the interest was more than the streaming sites could handle and many viewers were unable to see all the arguments. The video of the entire proceedings is now available online at art2superpac.com and at westernjournalism.com.

Judge Malihi moved the deadline for filing our legal briefs up to today, so today we filed two documents with Georgia’s Office of State Administrative Hearings. We expect Judge Malihi to rule promptly on this matter. As soon as he does, we will let you know both what his ruling is and what it means.

The first filing was our Proposed Findings of Fact and Conclusions of Law. This is written as a proposed order in the Judge’s voice, but it is not his order. This filing is written in this way to show how we would like the Judge to rule on the evidence and arguments we presented last Thursday in Atlanta. We showed that Obama’s father was never a citizen via several documents. We then showed Supreme Court precedent that “natural born citizen” requires two citizen parents at the time the candidate was born. We therefore propose a ruling that Obama is not Constitutionally qualified to be on the Georgia ballot for the office of President.

The second filing today was a Motion for Finding of Contempt against Obama. My message last week, Is the Judicial Branch Dead?, covered the implications of Obama’s actions last week. Never before in our history have we had a President simply ignore a court order. We have had Presidents subject to a court order more than once, but in every one of those instances, the President in question followed lawful procedure in dealing with those orders. We now have a sitting President that has openly declared that he is not subject to the Judicial Branch of our government. This is dangerous territory and our Motion urges Judge Malihi to recommend “that the Superior Court find the Defendant in willful contempt of Court, and that the Superior Court impose sanctions commensurate with an act that threatens the foundations of our Constitutional Republic.”

Please continue to help spread the word about our arguments. There is so much misinformation circulating about what a Natural Born Citizen is and what our Constitution says. Many wonder why this is even important at this point. It is important because everything is connected. If we fail to follow the Constitution in one circumstance, how can we defend upholding the Constitution in another? This is not a partisan issue, this is not a gender issue, this is not a race issue. This is a rule of law issue. Either we have rule of law in the United States or we don’t.

What about Mitt and Marco?

admin — Fri, 27 Jan 2012 20:03:47 +0000

Many of you have asked about how the Minor v. Happersett definition of natural born citizen effects the eligibility of Mitt Romney and Marco Rubio to be President. First, let me reiterate that the Constitution should be applied to everyone equally. So, if Mitt, Marco, or anyone else meets the definition of Natural Born Citizen, they meet the minimum Constitutional qualifications to serve as President. If they don’t, they don’t.

The definition of Natural Born Citizen, as defined by the Supreme Court, has two elements: 1) you must be born in the U.S.; 2) both of your parents must be citizens of the U.S. at the time of your birth. If both of these elements are fulfilled, you are a Natural Born Citizen. Assuming Mitt was born in the U.S. and both of his parents were U.S. citizens at that time, then he is a NBC. I’ve been told, but don’t know for sure, that Marco was born here, but that his parents didn’t naturalize until Marco was 14 years old. If this is true, then Marco Rubio can never be a Natural Born Citizen. He can be a Senator, his children could be President, but Marco doesn’t meet the minimum Constitutional qualifications to be President. This means that he can’t be VP either.

Understand that this is a Constitutional matter. It has nothing to do with the experience, value, or skills of the individuals. Our Constitution simply says that you must meet the Natural Born Citizen requirements or you cannot be President.

Is the Judicial Branch Dead?

admin — Fri, 27 Jan 2012 20:01:15 +0000

One of my earliest childhood memories is of my parents talking about Nixon and the Watergate scandal. I remember the newspaper headline: “Nixon Resigns!” President Nixon’s fight against court subpoenas made international news. Yesterday President Obama completely ignored a court subpoena, and the world shrugged.

Obama’s behavior yesterday is even more disturbing than Nixon’s. Nixon at least respected the judicial branch enough to have his attorney’s show up in court and follow procedure. Nixon’s fight in the courts followed existing law. Nixon acknowledged the authority of the judicial branch even while he fought it. Obama, on the other hand, essentially said yesterday that the judicial branch has no power over him. He ordered his attorneys to stay away from the hearing. He didn’t petition a higher court in a legitimate attempt to stay the hearing. Instead he showed complete contempt for the entire judicial branch and for the rule of law. Rather than respecting the legal process, Obama went around the courts and tried to put political pressure directly on the Georgia Secretary of State. When that failed, he simply ignored the judicial branch completely.

The rule of law, and our three-branch system of government, now hang in the balance. If the Georgia court issues a ruling on the merits and an order finding Obama in contempt of court, and if that contempt order actually results in real punishment of some kind, then we will still have a Constitutional Republic. If this doesn’t happen, then Obama will have been rewarded for showing complete contempt for the judicial branch.

Understand that the goal of the Georgia ballot challenge was to have a court rule on the merits of the Constitutional question: Does the term “natural born citizen” in Article II of the Constitution require a Presidential candidate to have two parents that were U.S. citizens at the time the candidate was born? Obama wants to avoid having a court rule on this question. That is why he didn’t show up and ordered his attorneys to not show up. Obama was hoping that the Georgia court would enter a default judgment rather than rule on the merits. If the court enters a default judgment, Obama will have succeeded in avoiding the Constitutional eligibility question. He will then appeal the default judgment, get the appellate court to suspend the default judgment pending appeal, and then delay the appeal until after the primary. This is undoubtedly Obama’s plan.

If the Georgia Court rules that Supreme Court precedent must be followed and therefore Obama simply does not meet the minimum Constitutional requirements to hold the office of President, then we will at least have succeeded in finding one court in the nation willing to do its job. If that court finds Obama in contempt of court, then we still have three viable branches of government. The Georgia court has the authority to do both of these things. The world should be holding its breath.

Unfortunately the world is apparently unaware that our great Republic is on life support. The Roman Empire died a slow death. It’s death was so gradual that few people living at that time probably noticed the individual events that marked the death throes of that great empire. Apparently the same is true of America. Yesterday marked a stunning turn of events in the constant power struggle between the three branches of our government. Our President openly showed that he believes he is completely above the law. I wonder if the court even noticed its own death certificate. We will see in a few days.

I will certainly try to explain this to the court in our proposed findings of fact and law that the court requested we file before February 5th. Please pray with me that Judge Malihi rules on the merits of our case.

All of your encouragement and prayers have been greatly appreciated. They are needed even more over the next few weeks. This battle is FAR from over. And it has taken on importance beyond what we predicted (which is truly astounding). Please tell everyone you know about Obama’s contempt of the judicial branch. Please explain to them what it really means. Even those that agree with Obama politically and disagree with our ballot challenge should be shocked, appalled, and scared of Obama’s contempt for the judicial system.

Obama Denied Again!

admin — Wed, 25 Jan 2012 01:10:50 +0000

Georgia Secretary of State responds to Obama’s attorney by saying, “if you and your client choose to suspend your participation in the
OSAH proceedings, please understand that you do so at your own peril.” Read Jablonski’s letter HERE.

The Office of Secretary of State

January 25, 2012
VIA REGULAR MAIL & EMAIL

Michael Jablonski
260 Brighton Road, NE
Atlanta, Georgia 30309

RE: Georgia Presidential Preference Primary Hearings

Dear Mr. Jablonski:
I received your letter expressing your concerns with the manner in which the Office of State Administrative Hearings (“OSAH”) has handled the candidate challenges involving your client and advising me that you and your client will “suspend” participation in the administrative proceeding. While I regret that you do not feel that the proceedings are appropriate, my referral of this matter to an administrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. § 21-2-5. As you are aware, OSAH Rule 616-1-2-.17 cited in your letter only applies to parties to a hearing. As the referring agency, the Secretary of State’s Office is not a party to the candidate challenge hearings scheduled for tomorrow. To the extent a request to withdraw the case referral is procedurally available, I do not believe such a request would be judicious given the hearing is set for tomorrow morning. In following the procedures set forth in the Georgia Election Code, I expect the administrative law judge to report his findings to me after his full consideration of the evidence and law. Upon receipt of the report, I will fully and fairly review the entire record and initial decision of the administrative law judge. Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril. I certainly appreciate you contacting me about your concerns, and thank you for your attention to this matter.
Sincerely,
Brian P. Kemp

cc: Hon. Michael Malihi (c/o Kim Beal)
Van Irion, Esq.
Orly Taitz, Esq.
Mark Hatfield, Esq.
Stefan Ritter, Esq.
Ann Brumbaugh, Esq.

Obama’s Attorney Attempts to Cancel Hearing

admin — Wed, 25 Jan 2012 00:56:42 +0000

Just In! Obama’s attorney is desperate. He sent the following letter to the GA Secretary of State asking that the hearing be cancelled. The letter is full of misrepresentations (Surprise, surprise!). Further, he states that he will “suspend further participation in these proceedings, including the hearing scheduled for January 26.” Read it for yourself here:

January 25, 2012

Hon. Brian P. Kemp
Georgia Secretary of State
214 State Capitol Atlanta, Georgia 30334
via email to Vincent R. Russo Jr., Esq.

Re: Georgia Presidential Preference Primary Hearings

Dear Secretary Kemp:
This is to advise you of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial proceedings around the country, all of which have concluded that they were baseless and, in some instances – including in the State of Georgia – that those bringing the challenges have engaged in sanctionable abuse of our legal process.
Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and it threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the State and your Office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full participation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff’s counsel for the personal appearance of the President at the hearing, now scheduled for January 26.
For these reasons, and as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued.
It is well established that there is no legitimate issue here—a conclusion validated time and again by courts around the country. The State of Hawaii produced official records documenting birth there; the President made documents available to the general public by placing them on his website. “Under the United States Constitution, a public record of a state is required to be given ‘full faith and credit’ by all other states in the country. Even if a state were to require its election officials for the first time ever to receive a ‘birth certificate’ as a requirement for a federal candidate’s ballot placement, a document certified by another state, such as a ‘short form’ birth certificate, or the certified long form, would be required to be accepted by all states under the ‘full faith and credit’ clause of the United States Constitution.” Maskell, “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement,” Congressional Research Service (November 14, 2011), p.41.
Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office—and by extension, yours—to the political and legally groundless tactics of the plaintiffs. One of the attorneys for the plaintiffs has downloaded form subpoenas which she tried to serve around the country. Plaintiff’s attorney sent subpoenas seeking to force attendance by an office machine salesman in Seattle; seeking to force the United States Attorney to bring an unnamed “Custodian of Records Department of Homeland Security” to attend the hearing with immunization records; and asking the same U.S. Attorney to bring the same records allegedly possessed by “Custodian of Records of U.S. Citizenship and Immigration Services.” She served subpoenas attempting to compel the production of documents and the attendance of Susan Daniels and John Daniels, both apparently out of state witnesses, regarding Social Security records. She is seeking to compel the Director of Health for the State of Hawaii to bring to Atlanta the “original typewritten 1961 birth certificate #10641 for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair…,” even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-1-1731-08 RAN.
In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009), Judge Clay Land wrote this of plaintiff’s attorney:
When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law….
As a national leader in the so-called ‘birther movement,’ Plaintiff’s counsel has attempted to use litigation to provide the ‘legal foundation’ for her political agenda. She seeks to use the Court’s power to compel discovery in her efforts force the President to produce a ‘birth certificate’ that is satisfactory to herself and her followers.” 670 F. Supp. 2d at 1366.
All issues were presented to your hearing officer—the clear-cut decision to be on the merits, and the flagrantly unethical and unprofessional conduct of counsel—and he has allowed the plaintiffs’ counsel to run amok. He has not even addressed these issues—choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made of his office—that it address constitutional issues—is by law not within its authority. See, for example, Flint River Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975); Ga. Comp. R. & Regs. r. 616-1-2-.22(3).
The Secretary of State should withdraw the hearing request as being improvidently issued. A referring agency may withdraw the request at any time. Ga. Comp. R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings before the ALJ, the original hearing request was defective as a matter of law. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. (“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 that the candidate might not be qualified.”) Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. O.C.G.A. § 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires.
We await your taking the requested action, and as we do so, we will, of course, suspend further participation in these proceedings, including the hearing scheduled for January 26.
Very truly yours,
MICHAEL JABLONSKI
Georgia State Bar Number 385850
Attorney for President Barack Obama

cc: Hon. Michael Malihi (c/o Kim Beal)
Van Irion, Esq.
Orly Taitz, Esq.
Mark Hatfield, Esq.
Vincent R. Russo Jr., Esq.
Stefan Ritter, Esq.
Ann Brumbaugh, Esq.
Darcy Coty, Esq.
Andrew B. Flake, Esq.