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05/26/2010

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Richard

LTC Lakin's attempts to challenge Obama's orders will fail under the political question doctrine.

The judge in LTC Lakin's court martial will not allow the defendant to go on a fishing expedition through discovery to find out if Obama is constitutionally eligible to be president. The judge will denied his request as being immaterial and irrelevant to his violation of Article 92 (FAILURE TO OBEY ORDER OR REGULATION) and furthermore, the judge will ruled as a matter of law that the deployment order was lawful. See Manual of Court Martial (2008 Edition) Paragraph 14 (2)(a) page IV-19

Upon his conviction for violating Article 92 and after exhausting his administrative remedies in the military court system, LTC Lakin will file a petition
for Habeas Corpus in the federal district court arguing that court martial judge violated his Fifth Amendment rights in refusing to permit him to discover whether or not Obama is constitutionally eligible to be president .

The federal district court will affirm LTC Lakin’s conviction and following established Supreme Court precedent in Baker v. Carr (Political Question doctrine) it will also hold that LTC Lakin’s discovery of Obama’s eligibility is barred by the Political Question doctrine.

The federal district court will rely on the language in the United States v. New, 448 F.3d 403 (D.C. Cir. 2006) decision in which the New court observed:

"[N]othing gives a soldier "authority for a self-help remedy of disobedience." 55 M.J. at 108 (quoting United States v. Johnson, 45 M.J. 88, 92 (C.A.A.F.1996)). Two of the canonical factors from Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), "an unusual need for unquestioning adherence to a political decision already made," 369 U.S. at 217, 82 S.Ct. 691, and "the potentiality of embarrassment from multifarious pronouncements by various departments on one question," id., are uniquely powerful when the context is a soldier's use of the "self-help remedy of disobedience." Also supporting a broader sweep to the political question doctrine in military trials is the point made by Judge Effron in his concurring opinion — that the doctrine "ensur[es] that courts-martial do not become a vehicle for altering the traditional relationship between the armed forces and the civilian policymaking branches of government" by adjudicating the legality of political decisions. Id. at 110. Thus we find no defect in the Court of Appeals' application of the political question doctrine, even though that application might be highly contestable in another context. Compare Campbell v. Clinton, 203 F.3d 19, 24-28 (D.C.Cir.2000) (Silberman, J., concurring) (finding that no "judicially discoverable and manageable standards" exist for application of the Constitution's war powers clause or the War Powers Resolution, 50 U.S.C. § 1541 et seq.), with id. at 37-41 (Tatel, J., concurring) (concluding that such standards do exist). Given the threat to military discipline, we have no difficulty accepting the military courts' reliance on the doctrine. Id.

As such, the judge of LTC Lakin’s court martial will ruled as a matter of law that the deployment orders were lawful and under the Political Question doctrine, LTC Lakin’s attempts to disprove Obama’s eligibility is immaterial and irrelevant.

Richard


Obama was born with a dual citizenship. He was a natural born citizen by the fact he was born on United States soil (Hawaii) and he was a British subject by being born to his father who was born in Kenya which was a colony of England.

The fact that Obama's father was an alien who paid no income taxes, wasn't a registered to vote is of no legal significance since a person born in the United States regardless as to the status of his or her parents is a natural born citizen.

This concept that a child who was born to alien parents can be a natural born citizen/subject dates as far back as Chief Justice Coke's opinion in the English court case in Calvin's Case in 1608, that Justice Grey in the United States Supreme Court decision in Wong Kim Ark v. United States,169 U.S. 649 (1898) observed:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. CHILDREN, BORN IN ENGLAND, OF SUCH ALIENS WERE THEREFORE NATURAL-BORN SUBJECTS. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King."

"This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679. Id at 655-656

As such, the drafters of the United States constitution, of whom many were lawyers who would have through their legal education read about Calvin's Case in their required reading of Blackstone's Commentaries of the Laws of England (1765) and would have an understanding of the term "natural born citizen/subject" in reference to Calvin's case that established that a child born of alien parents is a natural born citizen/subject"

Richard

As one federal judge has stated, “the question is not completely free from doubt.”

This statement is from Chief Justice Waite in
Minor v. Happersett, 88 U.S. 162 (1875). The Minor case had nothing to do with the term "Natural Born Citizen" in the Constitution. In fact, the issue in the case was whether a woman who was a citizen of the United States had a right to vote under the privilege clause of the 14th Amendment.

Chief Justice Waite, speaking for the court, held that the "Constitution of the United States does not confer the right of suffrage upon any one, (Id. at 178)" unless specifically mentioned in the 15th Amendment where it provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude."

In his opinion, Chief Justice Waite mentioned in passing the following language that was not germane to the case by noting:

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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. Id 167-168

The above language is a typical example what is refer to as Obiter Dictum or in other words “words of an opinion entirely unnecessary for the decision of the case.” Black’s Law Dictionary, p. 967 (Fifth Ed. 1979). When there is Obiter Dictum language in an opinion that part of the opinion that contained Obiter Dictum language has no precedent value since it was unnecessary in the court’s decision.

In the Minor case, nowhere in the opinion is the status of Virginia Minor citizenship discussed. Moreover, there was no discussion as to the citizenship status of Minor’s PARENTS. In fact, the court noted “She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship.” Id. at 170.

Therefore, Chief Justice Waite’s gratuitous comment about “natural born citizenship” had absolutely nothing to do with the decision of the court. In fact,
he himself remarked “For the purposes of this case it is not necessary to solve these doubts [citizens children born without reference to citizenship of their parents].” Id at 168 (emphasis added).

As such, the holding the Minor case is that citizenship does not itself confer the right to vote under the Privilege Clause of the 14th
and had nothing to do with the definition of a natural born citizen.

Richard

"The term NBC meant, and still means, someone who was not only born in a country but someone who had both of his parents as citizens of the country at the time of his or her birth."

There has never been a case which held that a NBC is someone born in the United States to parents who are United States citizens.

In fact, cases before and after the 14th Amendment was ratified that held that persons born in the United States regardless as to the citizenship status of of his or her parents were natural born citizens.

The language in the case of Lynch v. Clarke, 1 Sanf. Ch. 583 is instructive regarding the status of a child born of alien parents in the United States. The Lynch court noted: “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,” The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen. Lynch v. Clarke, 1 Sandf.Ch. 583 (1844)

In Look Tin Sing, 21 F. 905 (C.C.D. 1884), forty years after the Lynch’s decision, Justice Field in Look Tin Sing approved the court’s analysis in Lynch by observing:
In that case one Julia Lynch, born in York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind. Id at 909


Numerous cases that call native-born children of aliens a "natural born citizen" or simply use the term "natural born citizen" solely in reference to place of birth without explanation. See, e.g., Jacksons v. Sanders, 2 Leigh 109 (1830), Nyman v. Erickson, 170 P. 546 (Wash. 1918), State ex rel. Carroll v. Sup. Ct. of Washington, 193 P. 226 (Wash. 1920), Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961), Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983), DeTomaso v. McGinnis, 970 F2d 211 (7th Cir. 1992), Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999), Sumiye Umeki Yamauchi v. Rogers, 181 F. Supp. 934 (D.C. Cir. Dist. 1960), Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir., 2009).

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