Obamacare challenge to cite eligibility doubts
'Mr. Obama has not yet verified whether he is a natural-born citizen'
October 31, 2011
By Bob Unruh
If the justices of the U.S. Supreme Court thought they could avoid the issue of Barack Obama's eligibility simply by refusing to hear any of the multitude of cases concerning the issue they might be surprised to find that briefs regarding Obamacare's constitutionality will include the topic.
Although the Supreme Court has not yet confirmed it will take on the issue of Obamacare's legality, it is widely expected to happen, as there have been opposing decisions at the lower court level which, if left unaddressed, could create a patchwork across the nation of regions where it is – or isn't – the law.
The arguments primarily have focused on the decision by Congress to order all citizens to buy the insurance products that members of Congress specify or face penalties.
But a new friend-of-the-court brief by the Western Center for Journalism in support of those challenging Obamacare takes the argument back to its foundation. The brief, prepared by Gary Kreep of the United States Justice Foundation, explains that it's not really known yet whether Obamacare is, in fact, the law.
"Federal legislation, to become law, must be signed by a sitting president," the brief, filed just days ago, states.
"The underlying action herein is a dispute over the constitutionality of legislation purportedly signed into law by Barack Obama, acting as president of the United States. However, pursuant to Article I, Section 7, Clause 2 of the U.s. Constitution, legislation passed by both houses of Congress does not become law unless and until it is signed into law by a sitting U.S. president, or both houses of Congress override a sitting president's veto by a two-thirds vote," the brief argues.
"If there was no sitting U.S. president when Obamacare was purportedly signed into law, then the law was never properly enacted, and it is of no force and effect, being void."
The Supreme Court justices repeatedly have refused to address the constitutional questions involved. In fact,that the justices are "avoiding" the Obama issue apparently has been confirmed by one member of the court. Justice Clarence Thomas appeared before a U.S. House subcommittee when the issue arose. Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
"I'm still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States," said Serrano, who was born in the island territory. "That's another issue."
Yet after Serrano questioned him on whether or not the land's highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
"I'm glad to hear that you don't think there has to be a judge on the court," said Serrano, "because I'm not a judge; I've never been a judge."
"And you don't have to be born in the United States," said Thomas, referring to the Constitution, which requires the president to be a natural-born citizen but has no such requirement for a Supreme Court justice, "so you never have to answer that question."
"Oh really?" asked Serrano. "So you haven't answered the one about whether I can serve as president, but you answer this one?"
"We're evading that one," answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. "We're giving you another option."
The arguments on Obamacare are beginning to coalesce as several appellate courts already have ruled on it, and the rulings don't agree with each other. Most of the arguments say it's simply not within the power of Congress to order the purchase of a commercial product under threat of penalty.
Those who oppose the law say that if it is upheld, there is no action that Congress could not require of Americans, such as the purchase of a product or the consumption of a food or an activity, since the Commerce Clause authority would have been extended to cover the actions of any individual sitting in his or her own home.
The Western Center's brief explains the Constitution has simple requirements for a new law: Congress may legislate only through passage of bills which are approved by both Houses and signed by the president.
"Since a piece of legislation becomes law immediately upon the signature of the president, then there must be an eligible person sitting in the office of president of the United States to sign it. There are two requirements for a person to be eligible to hold the office of president … having either received a majority of the Electoral College votes, or having succeeded a prior president following his, or her, death or constitutional disability, and (2) meeting the minimum eligibility for the office."
Under the Constitution, "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of 35 years, and been 14 years a resident with the United States."
The brief states "there is no question as to whether Mr. Obama received the requisite votes from the Electoral College. However, Mr. Obama has not yet verified whether he meets all the requirements for minimum eligibility, namely whether he is a natural born citizen."
The brief states that "a provision of the U.S. Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States."
There are ways to change the Constitution, by a two-thirds vote of both houses of Congress and ratification of three-fourths of all state legislatures.
The brief argues that voters simply do not have the power to determine the eligibility of candidates, and the Constitution must be followed or else the nation would be reduced to "the whims of the majority of voters."
"The proper remedy for eligibility disputes is to bring such disputes to the court for a determination … and this court has the power to make determinations of fact and law regarding controversies over the eligibility of an officeholder," it said.
"The issue of the eligibility of Barack Hussein Obama Jr. substantially impacts on the determination of whether the legislation commonly known as Obamacare was ever properly enacted, for, if he is not eligible to serve as president of the United States, Obamacare was never properly enacted, and, as a result, it never legally had any force or effect."
The brief also argues that the mandate for individuals to buy products also is well beyond the reach of the federal government's authority, and so Obamacare should be overturned based on that as well.
The brief cites a case that has been pending since the 2008 election before the 9th U.S. Circuit Court of Appeals concerning eligibility.
The plaintiffs alleged that Obama's qualifications were not checked properly, resulting in a violation of the U.S. Constitution. It argues that a man is occupying the Oval Office who does not meet the requirements of "natural-born" citizenship.
California attorney Orly Taitz told WND her hope is for a decision that will return the case to the district court for proceedings, which could include a discovery process through which a large number of Obama's life documents could be obtained. She is representing one set of plaintiffs in the case.
Another set of plaintiffs is being represented by Kreep.
Since his election, sometimes using private attorneys and sometimes using taxpayer-funded legal teams, Obama has battled almost six dozen lawsuits across the country, including several that reached the U.S. Supreme Court, to keep his records concealed from the public.
Taitz' case cites the removal of Thomas H. Moodie from the office of governor in North Dakota in the 1930s as proof that a government's chief officer can be removed from office by the courts – even after an election and inauguration. Moodie had failed to meet a state residency requirement to be governor. But he was elected anyway, installed and ultimately removed from office by the court over that failure.
The plaintiffs also cite an earlier California case in which a candidate for president was removed from the ballot by state officials because he failed to qualify for the office under the Constitution's age requirements.
Even though Obama's "Certificate of Live Birth" was released by the White House, still-withheld documentation for him includes kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, medical records, his files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.