Thursday, January 26, 2012

A matter of jurisdiction and standing

So birthers in Georgia filed complaints with the Georgia Secretary of State that Obama wasn't eligible to be President because he wasn't natural-born (apparently he was born artificially in a test tube?), and the Secretary of State sighed and put the matter in the hands of an administrative law judge to decide. Now, administrative law judges aren't exactly criminal or civil judges. Really, they're not judges at all in the traditional sense of the word. Instead, they make decisions about whether state regulations are being properly applied or not. They are, in essence, clerks, not judges in the traditional sense of the word.

So anyhow, O'Really Taitz was one of the complainants, and promptly subpoena'ed Obama to testify at the hearing via filing service on Obama's Georgia lawyer. Said lawyer than complained that this was nonsense, you couldn't subpoena a sitting President into what's essentially an administrative proceeding internal to the Georgia state government that should simply review the last two dozen court rulings against Taitz and dismiss the complaint out of hand, there was no jurisdiction to subpoena Obama because Obama was not a citizen of the state of Georgia and thus not subject to the jurisdiction of the state of Georgia. The administrative law judge said "Oh yeah? Well I'm going to uphold the subpoena anyhow!"

So there it stands. Obama's lawyer basically said "Screw this, you have no jurisdiction and we will not participate, you've stamped your subpoena, now enforce it." Which is going to be problematic, because see, the Constitution sort of foresaw this problem, and made the President a citizen of the District of Columbia and thus subject only to Federal law for actions he takes as President. The only court with jurisdiction is the Federal District Court in D.C., not some podunk administrator in Atlanta. The only court that Obama must answer to as President is that court, not some clerk in Atlanta. And the lawyer for Obama *couldn't* participate, because participating would implicitly imply that this over-titled clerk had jurisdiction to issue a subpoena, which would open the flood gates to every clerk in every city hall who had a beef against the President issuing a subpoena to their own dog and pony fiasco.

Which, BTW, is an apt description of what actually happened when the hearing actually got underway. No lawyer for Obama. No Obama. Just a circus side-show of freaks and lunatics that were so ridiculous that even the administrative law judge, who is apparently a hard-core Republican but not an insane one, started cutting them off while rolling eyes and sighing heavily.

And no ruling, of course. I'm sure he wants to be well away from that collection of lunatics before he issues a ruling, probably via having a courier deliver it rather than announcing it in person. Because by this time it *has* to be obvious to him exactly what kind of people he's dealing with and that ruling any way other than the obvious (that a dude born in Hawaii is a natural-born citizen as defined by the Constitution) will result in the sort of circus that will consume his life.

-- Badtux the Law Penguin


  1. I just hope that when issues his ruling, that this over title clerk, as you put it, does not have a cat.

  2. A fluffy white Persian cat, I presume.

    But the fact of the matter is that under Georgia state law, the only thing that Judge Michael Malihi can issue is a "finding of fact". He can recommend what Secretary of State Kemp should do about the matter, but the decision will actually be SoS Kemp's, and while Kemp is a hard-core Republican the chances of him giving in to birther dreams and giving that circus sideshow of freaks and lunatics what they want is pretty slim. It would almost certainly result in a massive lawsuit in Federal court and an injunction against him requiring him to put the name back onto the ballot within hours, if not days, and he'd end up getting laughed out of politics as the guy who made a laughingstock out of Georgia.

    So anyhow, that's that. In any event, it should be clear from the legal blog I mentioned above that there was no subpoena power capable of pulling a sitting President to an administrative fact-finding hearing and no requirement that the President or his legal staff participate. If the Georgia state government wants to make a laughingstock of themselves by participating in the birther circus, they can do it without the President dignifying that nonsense with his presence.

    - Badtux the Law Penguin

  3. The ALJ wanted his 15 minutes of fame. Funny how that 15 minutes of fame often isn't worth the trouble.


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