“The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II ‘natural born Citizen’… Mario Apuzzo, Constitutional attorney
Constitutional Attorney Mario Apuzzo has written an analysis of Georgia Administrative Judge Michael Malihi’s ruling released on Friday.
All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen”
By Mario Apuzzo, Esq.
February 3, 2012
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 President Barack Obama was born in the United States. Therefore, as discussed in Arkeny [sic meant 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…
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.” …
…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…
Apart from the Ankeny decision not being binding on the national issue of what is a “natural born Citizen,” the decision itself should be rejected on its merits…
Ankeny misread Minor v. Happersett, 88 U.S. 162 (1875), saying that the Minor Court read Article II and the Fourteenth Amendment “in tandem,” suggesting without any support that the latter somehow amended the former.
It also erred when it said that Minor “left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.” The Court did no such thing.
Rather, the Court left open that question as it applies to a Fourteenth Amendment born “citizen of the United States,” not an Article II “natural born Citizen.”
…Also, Ankeny relied strictly upon U.S. v. Wong Kim Ark and its historical sources for its decision on what a “natural born Citizen” is. They made a monumental declaration as to the meaning of the clause based solely upon a 1898 U.S. Supreme Court case that did not even involve any dispute regarding the meaning of a “natural born Citizen” and which ironically confirmed Vattel’s definition of a “natural born Citizen” as stated by Minor v. Happersett in 1875…
Ankeny incorrectly took the Wong Kim Ark holding that Wong was a Fourteenth Amendment born “citizen of the United States,” and even though Wong itself provides a different definition for an Article II “natural born Citizen,” and even though Wong cites and accepts Minor’s definition of a “natural born Citizen,” the Ankeny court equated the Wong “citizen of the United States” with an Article II “natural born Citizen” and said that the Wong decision stands for such a proposition when it does not.
Hence, it erroneously relied upon Wong Kim Ark, stating that the Court there declared Wong a “natural born citizen” when it only declared him a “citizen” of the United States…
Judge Malihi finds that Obama “became a citizen at birth and is a natural born citizen.” What he is saying is that by the mere fact that Obama was a citizen at birth, he is a “natural born Citizen.” But this is not the definition of a “natural born citizen.” Judge Malihi’s definition must fail just on a textual basis. The clause is “natural born Citizen,” not “born Citizen.” The “natural” must also be given meaning. And when we do give “natural” meaning, we see that it cannot be separated from the word of art and idiom, “natural born Citizen” which means a child born in the country to citizen parents…
Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue…
Judge Malihi said that he “considered” that Obama was born in the United States. We do not know what this means and it appears that Judge Malihi attempts to avoid the issue of whether he found that Obama was born in the United States. Clearly, “considered” does not mean found. Since Obama failed to carry his burden of proof as to his place of birth and Judge Malihi’s decision actually confirms that fact, the Georgia Secretary of State should reject Judge Malihi’s decision and rule on his own that Obama not be placed on the primary ballot.
Should the Georgia Secretary of State find that there is sufficient evidence in the record which conclusively shows that Obama was born in the United States, then he can still find that Obama is still not a “natural born Citizen.” We have seen that Judge Malihi relies on Ankeny which is bad law when it comes to the definition of an Article II “natural born Citizen.” He fails in not giving controlling effect to the U.S. Supreme Court case of Minor which clearly defined a “natural born citizen.”
Finally, Judge Malihi incorrectly reads Wong Kim Ark and gives controlling effect to that incorrect reading. The time-honored American common law definition of the clause is a child born in the country to citizen parents. There is no dispute that Obama was born to a non-U.S. citizen father (his father was a British citizen) and U.S. citizen mother. Being born to an alien father, Obama also inherited his father’s British citizenship under the British Nationality Act 1948.
All this demonstrates that Obama was not born in the full and complete legal, political, and military allegiance and jurisdiction of the United States. He is therefore not an Article II “natural born Citizen” and cannot be placed on the Georgia primary ballot.
Mario Apuzzo, Esq.
February 3, 2012
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Mario Apuzzo, Esq.
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