SCOTUS Has No Original Jurisdiction To Issue A Writ of Quo Warranto re Obama; Legal presumption in favor of natural born citizen clause and effect
Before I address the legal facts of this headline, I want to address all of the other Presidential eligibility cases that went before SCOTUS including my own. It’s true that – technically – Donofrio v. Wells could still be pending if I chose to submit a full petition for writ of certiorari. Many have written to me and asked why I haven’t resorted to that tactic. The answer is fairly simple: my case is moot.
The same is true for Wrotnowski v. Bysiewicz, Lightfoot v. Bowen and the Berg cases, all of which asked for emergency stays or emergency injunctions to stop a candidate from becoming “president-elect” and later president.
Once my case stay application was denied, I had exhausted the only emergency procedure available to me and the US Supreme Court Rules would not have facilitated the resolution of a full petition before the candidate was sworn in as President (or become president-elect).
When Obama was sworn in by Chief Justice Roberts as President, our Constitutional separation of powers kicked in big time. Because of the separation of powers enumerated in our Constitution, the United States Supreme Court has no ability to remove a sitting President. Nowhere in the Document does it give the Supreme Court (or the judicial branch) any authority to remove a sitting President.
All of the eligibility law suits – brought before electoral college votes were counted in Congress – sought to challenge the qualifications of candidate Obama to be President. Once he graduated from “candidate Obama” to “President-elect Obama” and later “President Obama”, every single eligibility law suit pending before SCOTUS became moot.
Those actions are moot because SCOTUS has no authority to act on the relief requested in those law suits. And SCOTUS knows this better than anybody else.
Full petitions or motions to reconsider filed in any of the eligibility suits that went to SCOTUS before Obama became President (including my own) now leave SCOTUS with only one possible course of action thereto: a Supreme dog and pony show. And I don’t think Chief Justice Roberts will be calling in the Westminster Kennel Club anytime soon. Those cases are dead done and dusted. Call the embalming squad.
POINT I: SCOTUS HAS NO ORIGINAL JURISDICTION TO ISSUE WRITS OF QUO WARRANTO.
Article 3 Section 2 of the US Constitution grants SCOTUS its authority as follows:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
There you have it. SCOTUS only has original jurisdiction over cases affecting Ambassadors, other public Ministers, Consuls and where a State is a party to the law suit. If the action is not in aid of their appellate jurisdiction, then that law suit cannot originate with the United States Supreme Court. A quo warranto to determine POTUS eligibility brought directly to SCOTUS does not fall within their Constitutional authority. [Thanks to reader “Lawyer” for her insights on this issue.]
SCOTUS can probably review a quo warranto case under the All Writs Act. But such review is only available if it comes within their appellate jurisdiction. Original jurisdiction cannot be invoked for writs of quo warranto and any attempt to institute a proceeding in quo warranto directly with SCOTUS should fail. It would be a violation of the Constitution.
US Code Section 1651, aka “the all writs act”:
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
In the distribution of this power it is declared that ‘the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.’…
…If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance. (Emphasis added.)
SCOTUS cannot entertain any quo warranto brought directly to it. They must wait for it to come on appeal. Please take note of the statement above concerning the Constitution’s grant of Congressional authority to ordain and establish inferior courts. It is this Congressional power coupled with the exclusive power given to Congress to remove a sitting President which was exercised by Congress within the very text of the District of Columbia Code’s quo warranto statute.
In that statute, Congress exclusively authorized the District Court of the District of Columbia with the power to hear cases challenging the eligibility of a sitting officer holding a United States national office located in the District of Columbia.
SCOTUS is constitutionally estopped from issuing a writ of quo warranto regarding Obama’s qualifications to be President if the action is brought directly to them. Any attempt to do that should certainly be denied. This is simply a legal fact. Any attorney who brings such an action to SCOTUS directly will be doing terrible damage to the cause on account of the public relations disaster awaiting certain denial by SCOTUS.
POINT II: UNITED STATES LAW INCLUDES A PRESUMPTION THAT THE NATURAL BORN CITIZEN CLAUSE HAS A UNIQUE EFFECT OTHER THAN THAT OF A 14TH AMENDMENT CITIZEN.
Chief Justice Marshall (pictured above) delivered the opinion of the Court in Marbury v. Madison. His “form without substance” quote truly made me wonder what he would say about the natural born citizen clause.
As I thought about it, Chief Justice Marshall’s voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:
“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”
This must kill the argument that being “a 14th Amendment citizen” has the same effect on Presidential eligibility as being a “natural born citizen”. If being a “citizen” had the same exact effect as being a “natural born citzen” then the clause would have no effect. As stated by Chief Justice Marshall, “such a construction is inadmissible.”
Holy cow. I just had one. It’s more like the proverbial elephant in the room.
We know that the 14th Amendment only mentions the word “citizen”. It does not use the words “natural born citizen”. And it makes no distinction between a “citizen” born in the US and a “citizen” naturalized in the US. Under the 14th Amendment, they are equals. The 14th Amendment certainly does not state that being a “citizen” satisfies the qualification of Article 2 Section 1 Clause 5.
Those who are trying to read such an interpretation into the 14th Amendment do so at the ignorance of Chief Justice Marshall’s landmark opinion in Marbury v. Madison. Those cunning arguments would leave the “natural born citizen” clause without effect. Such a construction is inadmissible.
Chief Justice Marshall provided only one exception to this rule, “such construction is inadmissible, unless the words require it”. The words “natural born citizen” don’t require the clause to be construed to mean the same thing as the word “citizen”. The exact opposite is true. The plain text of the Constitution shows that the framers allowed persons to become Senators and Representatives if they were “Citizens”, but as to the office of President they required a “natural born citizen”. So the exception is irrelevant here.
Marbury v. Madison creates a standing presumption against any interpretation that would render the “natural born citizen” clause to have no effect independent of being a “citizen”. Chief Justice Marshall insisted such a construction is inadmissible.
Inadmissible in this context means such an argument is not competent to be considered. It’s essentially no different from the situation where a piece of evidence is excluded from trial. It means you can’t even argue such a thing before the court. Please think about this carefully. This means any argument that a “14th Amendment citizen” is the same as a “natural born citizen” – for purposes of effecting POTUS eligibility – is not competent to be considered by the court.
If the natural born citizen issue were ever heard on the merits, the court hearing the case must recognize that a presumption exists requiring the natural born citizen clause to have independent effect from all clauses which just refer to “citizen”.
Effect is the key.
What is the independent effect attributed to the “natural born citizen” clause? The effect is that just being a “citizen” isn’t enough to satisfy the requirement of Article 2 Section 1 Clause 5 which demands that the President of the United States be a “natural born citizen”.
This means that under current United States law, the “natural born citizen” clause is presumed to mean something other than a “14th Amendment citizen”. And no other construction is even admissible.
You can take all the law review articles, emotional pleas claiming the natural born citizen clause is obsolete, the 14th Amendment arguments, Wong Kim Ark, and every main stream media barker, throw them before the SCOTUS altar, and make them kneel to Chief Justice Marshall and the framers.
SCOTUS has spoken on this issue, and it said the “natural born citizen” clause, being a clause directly written into the text of the Constitution, is presumed to have a unique and independent effect.
This is a point I have failed to make up until right now, so please forgive me for having not locked it down earlier. But don’t spank me too hard since it appears to be an original argument. It’s not a point I’ve seen published anywhere else.
Of course it’s well known that each Constitutional clause must have an independent effect. But I don’t believe any other commentary has been published exposing this legal presumption in favor of the “natural born citizen” clause which also renders other arguments inadmissible. By other arguments, I refer to all theories claiming that a 14th Amendment “citizen” born on US soil satisfies the Constitutional qualifications for President.
Regardless, I must give credit to my sister (an ex prosecutor) for having brought the independent legal effect argument to my attention while Donofrio v. Wells was still pending with SCOTUS. But without having Chief Justice Marshall’s brilliant opinion from Marbury v. Madison in front of me, I didn’t grasp the spectacular power of the presumption. So I’ll leave you with those words once more. Please give them your utmost concentration:
“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible…”
Leo C. Donofrio 03.16.2009