Natural Born Citizen

By Mario Apuzzo, Esq.

Georgia State Administrative Law Judge, Michael M. Malihi, issued his decision on Friday, February 3, 2012, finding that putative President, Barack Obama, is eligible as a candidate for the presidential primary election under O.C.G.A. Sec. 21-2-5(b). The decision can be read here, .  I must enter my objection to this decision which is not supported by either fact or law.

The Court held: “For purposes of this analysis, this Court considered that [Alleged] President Barack Obama was born in the United States. Therefore, as discussed in Ankeny, he became a citizen at birth and is a natural born citizen.”

But there is no evidence before the Court that Obama was born in the United States. The court can only rest its finding of fact on evidence that is part of the court record. The judge tells us that he decided the merits of the plaintiffs’ claims. But he does not tell us in his decision what evidence he relied upon to “consider[]” that Obama was born in the United States. The judge “considered” that Obama was born in the United States. What does “considered” mean? Clearly, it is not enough for a court to consider evidence or law. It must make a finding after having considered facts and law. The judge simply does not commit to any finding as to where Obama was born. Using the word “considered” is a cop out from actually addressing the issue. Additionally, we know from his decision that neither Obama nor his attorney appeared at the hearing let alone introduced any evidence of Obama’s place of birth. We also know from the decision that the judge ruled that plaintiffs’ documents introduced into evidence were “of little, if any, probative value, and thus wholly insufficient to support Plaintiff’s allegations.” Surely, the court did not use those “insufficient” documents as evidence of Obama’s place of birth. Nor does the judge tell us that he used those documents for any such purpose. The judge also does not tell us that the court took any judicial notice of any evidence (not to imply that it could). The judge did find that Obama has been certified by the state executive committee of a political party. But with the rules of evidence of superior court applying, this finding does not establish anyone’s place of birth. Hence, what evidence did the judge have to rule that Obama is born in the United States? The answer is none.

The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen,” but rather relied only upon Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), a state-court decision which erred in how it defined a “natural born Citizen.”

The court says that Ankeny is persuasive. The court does not show us why Ankeny is persuasive other than to just provide some quotations from the decision. On the contrary, upon close analysis, we can see that Ankeny is far from persuasive on the definition of a “natural born Citizen.” The court’s decision can only be as sound as the Ankeny decision may be. But an analysis of that decision shows that it was incorrectly decided as to its definition of an Article II “natural born Citizen.”

Presidential eligibility is a national issue. Under our Constitution, like the States do not have power to naturalize citizens, they also do not have power to change, add, or diminish the meaning of an Article II “natural born Citizen.” See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (states have no authority to change, add, or diminish the eligibility requirements for members of Congress). Moreover, as naturalization needs uniformity, so does the citizenship standard needed to be met by those wishing to be eligible to be President. Hence, any state court decision on the meaning of a “natural born Citizen” is not binding on the nation in determining who is eligible to be President. Such a decision can only be ultimately made by the U.S. Supreme Court which would make its decision the law of the entire nation. The Ankeny case is a decision of the Indiana state court and not by the U.S. Supreme Court. For this reason, the Ankeny decision is not binding on any court deciding the question of what is a “natural born Citizen.” But not only is the decision not binding, it also needs to be rejected for diminishing the meaning of an Article II “natural born Citizen.” 

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