DOJ Last Minute Demands to Judge Carter
Tomorrow we will see what happens with Dr. Taitz’s latest case before Judge David Carter in the US District Court of California.
As a last minute surprise, the DOJ filed a motion to dismiss, which seeks to dismiss this action on various grounds, starting with,
The Constitution’s commitment to the Electoral College of the responsibility to select the President includes the authority to decide whether a presidential candidate is qualified for office because the examination of a candidate’s qualifications is an integral component of the electors’ decision-making process.
To back up this point in their object the DOJ references the Federalist Papers No. 68.
As footnote the DOJ has is as follows,
Explaining this provision of the Constitution, Alexander Hamilton stated that: “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government who shall assemble within the State, and vote for some fit person as President.” [emphasis added]. See Federalist Papers, No. 68.
This would have been a great point except that
§ 6906. The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.
They made their own argument moot and in fact is highlighting
the need for judicial review because
The DOJ calls upon the courts lack of jurisdiction by referring to the case of Corrie v. Caterpillar, 503 F.3d 974, 980, 982 (9th Cir. 2007) In this case the 9th Circuit Court of Appeals affirmed the lower courts assertion that it lacked jurisdiction under the “political question.” The Appeal was correctly affirmed because it interfered with the Presidents authority to conduct foreign policy decisions. This however is not a political question but a constitutional question as Article III, Section 2 provides the Court with jurisdiction.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
Even more poignant is the 9th Circuit’s prefixing of the “political question” they reach back into history.
The political question doctrine first found expression in Chief Justice Marshall’s observation that “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Surrounding the “observation” are the following of Chief Justice Marshall,
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be considered as having exercised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus directing the performance of a duty not depending on Executive discretion, but on particular acts of Congress and the general principles of law?
If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process?
If we accept the 9th Circuit Courts statement that the Political question was first observed by Chief Justice Marshall, then we can look to him to see what does the political question entail. Such a question of the eligibility of the Commander in Chief surely is not an intrusion into the secrets of the cabinet, but it is clearly a constitutional question.
The DOJ further alleges that neither Ambassador Keyes or Lightfoot has a mathematical chance to win.
The FAC (First Amended Complaint) does not allege, nor could it allege, that any of these Plaintiffs were even on the ballot in enough states in the year 2008 to gain the requisite 270 electoral votes to win the Presidential election. Accordingly, the “unique[ly] political” Plaintiffs cannot establish standing on this basis.
Their candidacy to be effective did not need to provide them with a means of winning, especially if their candidacy was to prevent Obama from taking office. This has been practiced by the political parties since the inception of political parties. Having a chance to win is irrelevant if their candidacy was intended to prevent Obama from winning.
Regardless of how you feel about a spoiler effect, the thought that a court could entertain this argument would set the precedent for the absolute control of the political mechanisms to only two parties. Imagine that one day a major party candidate could remove 3rd party spoiler candidates because they had no mathematical chance to win. This would silence the most cherished form of political speech of being a candidate. Clearly this not what the DOJ is suggesting.
As to the DOJ assertion that
“[G]eneral public interest is not sufficient to authorize a private citizen to institute such[Quo Warranto] proceedings; for if it was, then every citizen and every taxpayer would have the same interest and the same right to institute such proceedings, and a public officer might, from the beginning to the end of his term, be harassed with proceedings to try his title.”
However preceding this observation by the court in Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915) is
In a sense -- in a very important sense -- every citizen and every taxpayer is interested in the enforcement of law, in the administration of law, and in having only qualified officers execute the law. But that general interest is not a private, but a public, interest. Being such, it is to be represented by the Attorney General or the District Attorney, who are expected by themselves or those they authorize to institute quo warranto proceedings against usurpers in the same way that they are expected to institute proceedings against any other violator of the law.
This is a unique case in that the qualified officer in
question happens to occupy the office of President of the
Obviously, the issue to standing rests on what is called the Liberty Interest as Mario Apuzzo calls it, no citizen can safely exercise their liberty unless they are certain that the government is in fact not simply acting with in the bounds placed upon it by the Constitution, but is in fact Constitutional. Each persons liberty to pursue happiness is unique, but all form a nexus upon the eligibility of the President.
There are many questions that the DOJ has not addressed such as if the Congress fails to do its constitutional duty what recourse do the citizens have? One duty of the government is Article IV, Section 4,
The clear and present danger here is if the President is not a natural born citizen, and was born with allegiances to a foreign power, then clearly the guarantee of a Republican Form of Government is in danger in the event of either invasion or insurrection.
Does the DOJ suggest that a usurper holding the office of President can attempt to suspend “our” Republican Form of Government, denying us such fundamental rights such as voting without recourse to both Congress and the Courts? Clearly if the government passes a blatant unconstitutional law, the people have recourse to change the government through the ballot box. If citizens are against the Congress abrogating their responsibly under Article 1, Section 8 “To coin Money, regulate the Value thereof, and of foreign Coin,” to a private corporation called the Federal Reserve, even though it is unconstitutional clearly the people have recourse to remove those members of the government who voted for this. Pray tell what recourse do the people have is such a fundamental right to vote is suspended? Surely, none of the case law cited was intended to give government an avenue to destroy the very fabric of our Nation.
All the arguments that the DOJ are making lead to only one outcome
and that is we the people of the
Published: September 7, 2009