Saturday, May 12, 2012

Investigation: Indiana Judge Rules Obama Natural Born Citizen - Ankeny v. Governor


While investigating legal issues surrounding the term "Natural Born Citizen," the case Ankeny v. Governor of Indiana popped up. In the Marion, Indiana case Judge David J. Dyer dismissed a challenge to the eligibility to run for president. The Indiana Court of Appeals upheld the dismissal and also proclaimed that Barack Obama was a Natural Born Citizen based upon his birth place.

This goes against long-standing tradition in America. A tradition summarized by Breckinridge Long and published in the Chicago Legal News on 7 December 1916:
"Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a 'natural-born' citizen of the United States."
This common definition has been upheld in several supreme court cases.  We have further detailed the reasoning behind the constitutional requirement for presidency with regard to both Republicans and Democrats.

Judge D.Dyer worked for Democrat Senator Evan Bayh at Bayh, Tabbert & Capehart. Republican Governor Mitch Daniels filed action to dismiss case. The case argued that Gov. Daniels failed to do his duty and should have rejected the Presidential Candidate(s) based upon Natural Born Citizenship.  Judge Dyer Reasoning for dismissal:
"failed to state a claim upon which relief can be granted and that they are barred from bringing the action under the legal doctrine of laches, which means the plaintiffs waited too long to assert a time-sensitive claim."
The case was upheld upon appeal by Judge Elaine B. Brown (former elementary school teacher),  Judge Terry A. Crone and Judge ? May of the Indiana Court of Appeals.  (Full text)
The sole issue is whether the trial court erred when it dismissed Plaintiffs' complaint. A motion to dismiss [**4] for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. [...]

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of theUnited States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States natural-born citizens.”

The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States

Supreme Court's interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs' arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120. Thus, we cannot say that the trial court erred when it dismissed the Plaintiffs' case.
...(noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”)
For the foregoing reasons, we affirm the trial court‟s grant of the Governor's motion to dismiss. Affirmed.
CRONE, J., and MAY, J., concur.

14
We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution's Article II language is immaterial. For all but forty-four people in our nation's history (the forty -four Presidents), the dichotomy between who is a natural borncitizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478

15
We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the  fact that they were born abroad. That question was not properly presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the  only way one can receive natural born citizen status.

16
We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS C. REEVES,GENTLEMAN BOSS THE LIFE OF CHESTER ALAN ARTHUR 3-4  (1975).

During the election of 1880, there arose a rumor “that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible to become the Chief Executive.” Id. at 3. Although President Arthur‟s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur‟s father was an Irish citizen he was constitutionally ineligible to be President.
The Indiana Court of Appeals based "natural-born citizen" upon English Common Law's "natural-born subject":

WRONG

This is flawed reasoning because a subject and a citizen are not the same. A citizen is a sovereign where as a subject is not party to decisions of the sovereign, much like a slave or serf.

America is founded on the tenant that all people have rights from God. Only natural-born citizens of the United States of America are entrusted with protecting those rights and enforcing our laws by the citizenry. How can a citizen lawmaker create laws over other sovereign citizens? Because the enforcement of those laws is entrusted to a natural born citizen, a patriot with no other allegiance but to fellow Americans and our Constitution.

When was the last time an American Congressman or President referred to constituents as subjects? Never, because they would no longer be trusted with the duty of creating or enforcing laws in the interest of We The People. In America only partisan judges make such pronouncements.

Except for this report from the Congressional Research Service (April 3, 2009 p.4) which interchanges the terms natural-born subject and natural-born citizen.

Legal Analysis of Natural Born Citizenship Requirement

Background/Summary

Because the term "natural born Citizen" is not defined within the Constitution, nor has the Supreme Court ever needed to rule specifically on the terms in this clause, there have been questions raised from time-to-time as to the precise meaning of the qualifications clause.

As explained by the Supreme Court of the United States over the course of a number of years, it is well settled from common law Principles of jus soli ("law of the soil") extant in England and the Colonies at the time of Independence,23 as well as from subsequent constitutional provisions, as well as subsequent 'statutory law, that all persons born "in" the United States and subject to its jurisdiction are citizens of the United States "at birth.",24 As such, any person physically born "in" the United States, regardless of the citizenship of one's parents (unless such parents are foreign diplomatic personnel not subject to the jurisdiction of the United States), would appear to be a "natural born" citizen eligible to be President of the United States.
This CRS document has muted debate in Congress. Many of our elected congress people and their staffs are ignorant of the difference between the terms. The document (p.7-9) relies upon Charles Gordon, "known as a liberal and someone in favor of a more open, fairer immigration policy,'' according to Maurice A. Roberts, retired chairman of the Board of Immigration Appeals at the Justice Department.

Moreover, one cannot base legal matters on foreign laws when John Jay was the man who presented the idea of natural-born citizen to George Washington during the drafting of the Constitution. Direction should be taken from the intent of those Americans who wrote the document. Direction on the meaning of the term natural-born citizen cannot be gained from similar wording in English Common Law of which the founders were expressly revolting against.

Conclusion

The Indiana State Court is wrong. 

Either the Judges involved are incompetent or politically biased.  Citizen Wells News, a "birther" blog goes into excruciating detail on this aspect of the case.

Mario Apuzzo, legal expert and attorney, also dissected the Indiana Appeal Court ruling and the improper references to English Common Law.
“Ankeny used English common law to define an Article II “natural born Citizen” when all U.S. Supreme Court cases, including Minor and Wong Kim Ark, have used American common law to do so.”

3 comments:

Jeff Brodhead said...

Most every time a politician refers to We the People, as "citizens", s/he means "property" of the 14th Amendment UNITED STATES.

Eva smith said...

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Boznos Law Office

Elen Desouza said...

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