Saturday, August 15, 2020

A Response to Reginald Oh’s Newsweek Article: Born in the U.S.A.: Kamala Harris Is Eligible to Become Vice President

Eight Attempts to Eliminate 'Natural Born Citizen' Requirement Ahead of  Obama 2008 Presidential Run |

The political-driven and intellectually-vacant Newsweek Article by Reginald Oh demands a retort. Given my extensive litigation experience in this area, I am compelled by my civic duty to give that reply.  In sum, Mr. Oh conclude that: 

Is Kamala Harris ineligible to become vice president because she is not a natural born United States citizen? Can that possibly be true? The answer is no. An examination of the relevant constitutional provision and Supreme Court precedent tells us that Harris is indeed a natural born U.S. citizen and fully eligible to become vice president.

This of course begs the more important question: Can Senator Harris become President if , assuming he is elected, Mr. Biden cannot fulfill his term? As I will demonstrate below, the substantial legal precedent holds the opposite. What Mr. Oh sought to achieve in his Newsweek article, legitimizing an illegitimate candidate for Vice President who could potentially become President, has no basis in the Law of the United States.

First,  the facts: Mr. Oh states, and I have no reason to believe otherwise, that: "[Kamala Harris’] immigrant parents were not permanent resident aliens when she was born [in California]. Her parents were students, presumably in the U.S. on student visas at the time.”

Second, the law: The Constitutional provision at issue: Article II, Section 1, Clause 5 states:

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 thirty five Years, and been fourteen Years a Resident within the United States.

Plainly, Ms. Harris is a “citizen” of the United States and entitled to all the privileges and immunities that status entitles her.  However, the Constitution adds an additional requirement for those who would seek to be President.  They must be a “natural born Citizen.”  Tellingly, Mr. Oh fails to mention this requirement in his attempt to ignore the law of this land.

This brings into focus the seminal question: Who is a “natural born Citizen”?  As detailed below, any cogent analysis of this legal-term-of-art can only arrive at one conclusion: Senator Harris, while certainly qualified to be Vice-President, could not succeed to the Office of President as she is not qualified to be President of the United States as required by Article II, Section 1, Clause 5.

In the 18th Century when the Constitution was ratified by the States, the term “natural born Citizen” had a definite meaning well known to those schooled in the law.  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” (Emphasis added).  Senator Harris’ parents were not U.S. citizens at the time of her birth.

Importantly John Jay's July 25, 1787 letter to George Washington concluded that the Constitution should: “declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.”  Subsequent to John Jay's July 25, 1787, letter, on August 22, 1787, it was proposed  at the Constitutional Convention that the presidential qualifications were to be a “citizen of the United States.”  Upon objection to such a broad definition, the language was referred back to a Committee, and the Article II, Section 1 qualification clause was changed to read “natural born Citizen,” and was so reported out of Committee on September 4, 1787, and thereafter adopted in the Constitution.  Plainly, the drafters of the Constitution wanted the more limited scope of citizens who were “natural born Citizens” to be eligible to be President. 

Moreover, turning to the enactments of the First Congress for guidance, it is plain that “citizen” cannot be conflated to equate with “natural born Citizen”.  The Naturalization Act of 1790 which held: “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .” (Emphasis added). Of dispositive significance is the 1790 Act's employing of the plural noun “citizens” in defining who shall be “natural born citizens.” and the singular noun as to whom are only to gain “citizenship”.  

Therefore, either Mr. Oh is a sloppy legally researcher or more likely his vapid Newsweek article was presented as purposeful political dissimulation.

All this brings me to the most glaring omission in Mr. Oh’s Newsweek polemic: His failure to cite the relevant Supreme Court case on the term “natural born Citizen”.  The only Supreme Court decision which has directly construed the “natural-born citizen” clause from Article 2, §1, is Minor v. Happersett, 88 U.S. 162 (1874).  In that case, the Supreme Court held: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Minor v. Happersett at 168 (Emphasis added).   Again, the plural noun “parents” is dispositive of the issue of who is a “natural born Citizen”.

Chief Justice John Marshall said, in delivering the opinion of the Court in Marbury v. Madison (1803): “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.”  Notably, the phrase “natural born Citizen” appears just once in the Constitution and the phrase “citizen” appears twenty-one (21) times.  Plainly, something more than just “citizenship” is required in order to be President.

Thus, I must maintain that the shoddy citations by Mr. OH to imply that Senator Harris is eligible to be President cannot stand.  The reference to de Vattel, The Naturalization Act of 1790 and the holding in Minor v. Happersett are all consistent: “natural born Citizen” is a privilege bestowed upon a special class of U.S. Citizen, to wit, a child born of two U.S. Citizen parents. Stated another way, Senator Harris is not a “natural born Citizen” and thus is ineligible to be President as her respective parents were not U.S. Citizens at the time of her birth.  Hence her presumed nomination by the Democratic Party to be Vice President is either ill-informed or a clever ruse to make the Speaker of the House, Nancy Pelosi, the next in line if Mr. Biden is elected and fails to fulfill his term in office.  Take your choice.

What is really at issue is the very fundamental question of whether We the People are to be governed by the rule of law as embodied in our organic document or instead, the whim and caprice of the ruling class which seeks to pervert the law to their desired ends.   I hold the former is the most important question of this election cycle and I will continue to raise the hue and cry as best I can.


Monday, August 3, 2020

Institutional Racism & Me

I thought I ought to add my voice to the cacophony being raised about systemic racism by providing documentation of it from my days as a criminal prosecutor in Rochester, New York. 

In the summer of 1987, a chance comment after church by the mother of my first girlfriend Sarah Zartman changed my life. Mrs. Zartman at the time was the chairwoman of the Republican Party for Rochester and had a problem. There was no one who wanted to run in the fall 1987 election against the Democratic incumbent District Attorney Howard Relin – my soon-to-be ex-boss as I was leaving the office after five years working there as an Assistant District Attorney. 

Though, I knew there was little chance of success, Ms. Zartman thought the election would be an excellent opportunity to introduce me to the electorate as a nice guy, homegrown candidate and would pave the way for the following year’s election to the State Senate, where a seat was to be vacated and up for grabs. The last thing anyone wanted was for me to leave a bad taste in the voters' mouths as first impressions are everlasting. 

However, that was not to be. My former boss and opponent in the race for District Attorney was Howard Relin. Mr. Relin had authored a “Selection of the Jury” memorandum for his 40 Assistant District Attorneys directing them to remove “women and minorities” from the jury whenever the defendant was of African descent. This appalling 1981-1986 policy of Mr. Relin’s office was not only morally repugnant, it had been unconstitutional since 1965 when the Supreme Court held in Swain v. Alabama, that: a “State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” 

After I publicly raised this issue in the campaign and released the Jury Selection Memo as proof, no present or former Assistant District Attorneys would collaborate the existence of Relin’s Jury Selection Memo. I was socially and professionally blackballed (not for the last time) for using unfair campaign tactics. I lost the election by the largest margin in the history of Rochester, New York, elections. 

However, three days after the election, the highest court in New York, in the case of People v. Knight, reversed a murder conviction obtained by Howard Relin’s office stating: “We find that defendant articulated facts sufficient to support the conclusion that the [Assistant District Attorney] exercised his peremptory challenges in a racially discriminatory manner, thereby shifting the burden to the prosecutor to provide neutral explanations for his peremptory challenges.” Subsequently, Relin’s Jury selection memo was introduced and its authenticity confirmed resulting in a new trial for Mr. Knight. 

I was, as usual, vindicated ex post facto which is fine with me. 1 Corinthians 4:3.


Thursday, June 25, 2020

Not a Supreme Court, but a Supreme Legislature

I think Edmund Burke only got it half right when he said: "Those who don't know history are doomed to repeat it." I would add: "and they will have no idea of why what is happening is happening." Case in point as Reuters recently reported: "The U.S. Supreme Court on Monday declined to take up a series of cases seeking to expand gun rights . . ." Thus the Supreme Court is no longer a Court, but instead a Super-Legislature made up of nine (9) unelected, tenured for life, justices. The Framers of our Constitution would be appalled that the Court had become a second, superior legislature. So, dear reader, come with me on a brief history lesson to understand how this fundamental change in the separation of powers came about that brought us to where we are today.

Since he first entered public life, William Howard Taft – the 27th President of the United States (1909–1913) – really
wanted to be Chief Justice of the United States Supreme Court.1 In 1921, courtesy of President Harding, Taft received that appointment.

As early as 1908, Taft was seeking a new and limited role for the Court he would ultimate guide into its present-day incarnation: a Supreme Court with: “jurisdictional limitations, either in amount in controversy or in the subject matter of suits,” or by “discretionary writ of certiorari.”2  Taft was in the minority calling for these radical changes in a court that was essentially the one envisioned by the founding fathers – a pedigree that few in Congress were willing to tamper with. “Congress was reluctant to reform many aspects of the federal judicial system because it viewed the Judiciary Act of 1789 as the implementation of the Framers' vision of an independent and robust judiciary.”3

Indeed, in 1910, then Chief Justice Edward White, whom Taft had appointed in 1910, refused to seek congressional action to change the jurisdiction of the Supreme Court recognizing that such change would: “break down the separation of the political branches of government from the judiciary.”4 As soon as Taft opened his first term as Chief Justice in 1921, he formed a committee of three other Justices to draft legislation to radically change the  Supreme Court’s jurisdiction.5   In February of the following year, Taft enlisted the support of the American Bar Association by publishing articles in support of his Committee’s proposed legislation.

No previous legislative proposal had proposed to make the Supreme Court a purely discretionary court of appeal.6  To Congress he promised that petitions to invoke such discretion would be given “the most careful consideration,” and that only petitions that were “frivolous” or addressed to principles of law that were “well settled.” would be summarily denied7.  In essence, Taft’s argument was similar to that of the scorpion in the fable of the scorpion and the frog: “Trust Me”.8

In testimony before Congress in support of what was now known as the “Judges’ Bill”, Taft rejected arguments that the bill gave the Supreme Court “too wide discretionary power” instead again promising that each petition received by the Supreme Court would be “carefully determined by each member of the Court” and “discussed and voted on.”9 Otto von Bismarck’s maxim that: “Laws are like sausages, it is better not to see them being made”, was never proven more true than by what happened next.  “Almost without discussion”, on February 2, 1925, the House passed the bill.10 The Senate passed the bill with only one vote in opposition and President Coolidge signed it into law on February 13, 1925.11 

William Howard Taft now had the prime seat on and the "discretionary jurisdiction" Supreme Court he had been seeking for twenty years.  The results would be a profound change from the judiciary envisioned by the Founding Fathers. In Article III, those Founding Fathers had spelled-out the appellate jurisdiction of the Supreme Court: “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.”  But was “discretionary jurisdiction” and “exception” or a “regulation” that Congress was empowered to make? In the Judiciary Act of 1925, Congress changed “shall” to “may”: “A final judgment or decree in any suit in the highest court of a State . . .may be reviewed by the Supreme Court upon a writ of error.”12 A similar section was made applicable to appeals from the federal district and circuit courts.

Chief Justice Marshall would be mortified for his vision – and that of the Founding Fathers – of the Supreme Court deemed it “treason”13 to fail to decide a case within the Court’s jurisdiction. No one would challenge the Constitutionality of this radical change from a court of mandatory jurisdiction to a court of discretionary jurisdiction – and hence a de facto super-legislature without electoral control – for over seventy five years.

But the story of that challenge, by me, must wait for another day.

1 Henry F. Pringle, The Life and Times of William Howard Taft, (2d ed. 1964), note 73, at 102.
2 Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Columbia Law Review. 1643, 1644 (Nov. 2000), note 12, at 1661 n.74.
3 Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 Indiana Law Journal 153, 171 (2003).
4 David H. Burton, Taft, Holmes, and the 1920s Court: An Appraisal (1998), note 92, at 117.
5 Hartnett, supra, at 1663.
6 Hartnett, supra, note 12, at 1666.
7 William Howard Taft, Three Needed Steps of Progress, 8 American Bar Association Journal 36 (Jan. 1922).
8 A scorpion and a frog meet on the bank of a stream and the scorpion asks the frog to carry him across on its back. The frog asks, “How do I know you won't sting me?” The scorpion says, “ Trust me, because if I do sting you, I will die too.” The frog is satisfied, and they set out, but in midstream, the scorpion stings the frog. The frog feels the onset of paralysis and starts to sink, knowing they both will drown, but has just enough time to gasp “Why?” Replies the scorpion: “Its my nature...”
9 William Howard Taft, Possible and Needed Reforms in the Administration of Justice in Federal Courts, 8 American Bar Association Journal 601, 603 (Sept. 1922).
10 Hartnett, supra, at 1695.
11 Hartnett, supra, at 1704.
12 43 Stat. 936, Chapter 229, §237.
13 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)