With 2020 Foresight! The Ted Cruz Birther Lawsuit

Hmmm, I see Mario Apuzzo, An Old Hat, And A Huge Stack Of . . . Bird Cage Liners???

NOTE: I originally published this article in June 2013, but since Ted Cruz announced his Presidency, I presume the Neo-Two Citizen Parent Birthers and some of the old crowd, too will be at it again. Sooo, I decided to dust it off and republish it. It provides my analysis of how a future Birther lawsuit challenging Ted Cruz will work out. So, without further ado:

Well, I have been working my tail off on this one! I got to asking myself what would happen if Sen. Ted Cruz, or some other person who was born outside the country, ran for the presidency. Surely if the parents weren’t both American citizens, the whole silly two citizen parents stuff would rear its goofy head again.

But exactly how would the Birthers frame the argument? And how would the Defendants respond? Reading the law review articles would help with spotting the issues, but there is nothing like getting your hands dirty to get a good handle on things. The standard responses to date would not apply across the board in this case. For example, the Wong Kim Ark decision was based on a person who was born inside the United States. This was Obama’s situation, also.

Sooo, I pretended it was the year 2020, and Sen. Ted Cruz was running for office. Cruz was born in Canada and became a citizen of the United States at birth. It is easy to imagine a Birther(s) signing up to run for President, as some did this last year, in an effort to pass the standing hurdle. It is also reasonable that an Emergency Petition for Injunctive Relief would be filed in an attempt to remove Cruz from the ballot. As a method to present the scenario, I chose to write a decision as a United States District Judge denying this Injunctive Relief to the Birther. This method would present the main points of both sides, and a possible result.

For purposes of illustration, I chose Mario Apuzzo, Esq. as the Imaginary Birther, representing himself pro se. This is because he is sooo predictable, and sooo old hat. The old hat idiom means, “seen or done many times and no longer interesting. Trite. Stale. Predictable.” There is another meaning for those who have vulgar tongues, but I will skip that because this is mostly a G rated place.

Below is a pdf of my decision. I left out some of the things you normally find in a decision such as the procedural stuff. This was done to keep it shorter and simpler to read. I hope from the decision the reader can get a feel for how the Birther argument would be structured, and how a Defendant would respond.

This is strictly my opinion, and there are certainly other legal strategies that could be utilized by the Birthers or Defendants. I invite my readers, Obot, Anti-Birther, and Birther to submit their own thoughts via email attachment. I will be glad to update this article with their work along with proper attribution.

While this may not seem like the height of fun, it has to be better than a surprise visit from the Secret Service such as experienced by the readers of other websites. Enjoy!

Apuzzo Order

UPDATE 1: June 26, 2013.,

Well, that was quick. Mario Apuzzo, Esq. burned the Midnight Oil and made a Motion for Reconsideration. Here is the link to his website. Go to comments #168-#170:

http://www.blogger.com/comment.g?blogID=7466841558189356289&postID=4091601506130883249

And here is the pdf:

Apuzzo Motion For Reconsideration

Squeeky Fromm
Girl Reporter

After Prof. Jacobson, The Birthers Need A Group Hug!!!

As Soon As He Replaced The Batteries In His Head-Cooling Propeller Beanie, Apuzzo Was Planning On Some Heavy Duty Thinking!

Well,  Cornell Law Prof. William Jacobson finally weighed in on Marco Rubio and Ted Cruz’s presidential eligibility and as expected, the Birthers are going to need a great big group hug. Because they are in some major emotional pain! Here are some excerpts from his long analysis:

The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.

There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth.  Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.

and significantly, he finds there is no two citizen parents requirement:

8. There Is No Requirement That Both Parents Be Citizens

One common phrasing of objections to Rubio, Jindal and Cruz being deemed “natural born Citizens” is that, regardless of where they were born, both parents would have had to be citizens.

That argument is devoid of almost any support.  The text does not say so.  There is no demonstrable evidence that is what the Framer’s intended, or that’s how the term was commonly understood at the time of drafting.  Such a requirement also is not found in the almost contemporaneous, or even in British law which (as described in the section above) was confused and changed over time, but typically followed the father’s lineage for children born abroad.  See also discussion of Supreme Court cases below.

and, in his conclusion at 14:

A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth.  There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution.  The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.

The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified.  That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen.

The ultimate arbiter on the issue likely is to be voters, not Supreme Court Justices.

It is for these reasons that I believe Marco Rubio, Bobby Jindal and Ted Cruz are eligible to be President.

Here is the link to his findings:

http://legalinsurrection.com/2013/09/natural-born-citizens-marco-rubio-bobby-jindal-ted-cruz/

One thing I disagree with Jacobson about is his treatment of the Wong Kim Ark case. I do not think he read the case enough to realize that the Court made separate findings throughout the seven part decision which takes its statements on natural born citizenship out of the “dicta” category. I will do a separate article on that. However, he did dispose of the Emer de Vattel nonsense. He also speared Leo Donofrio a few times.

It’s a good read!

Squeeky Fromm
Girl Reporter

Note 1. The Image. This is from, The Ghost Busters TV show, about which Wiki says:

The Ghost Busters was a live-action children’s television series that ran in 1975, about a team of bumbling detectives who would investigate ghostly occurrences. Only 15 episodes were created.

This series reunited Forrest Tucker and Larry Storch in roles similar to their characters in F Troop. Tucker played Jake Kong (his first name is never actually given in this series), and Storch played zoot suit-wearing Eddie Spencer. The third member of the trio was Tracy the Gorilla, played by actor Bob Burns (credited as Tracy’s “trainer”).

The series was unrelated to the 1984 film Ghostbusters (though Columbia Pictures did pay Filmation for a license to use the name).

Each episode would always begin with Spencer and Tracy stopping at a convenience store to pick up the tape recording (recorded by co-executive producer Lou Scheimer) that explained their mission for the episode, in a parody of Mission: Impossible. It would be hidden inside a common object such as a bicycle, typewriter or painting. The message would always end by saying, “This message will self destruct in five seconds.” It would then explode in Tracy’s face for comic effect. Their investigation would take them to the same “old castle” on the outskirts of the city, and after a series of chases and pratfalls the Ghost Busters would corner the ghost (and his/her “sidekick”), which they would dispatch back to the afterlife with their Ghost Dematerializer.

Time Enough At Last??? (Or, Prof. Jacobson Enters The Birther Zone!!!)

Prof. Jacobson Wins His Place In The Guinness Book Of World Records After Successfully Dodging 1,749 Copies Of  Vattel’s The Law Of Nations!

There is a fifth dimension beyond that which is known to man. It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man’s fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call the Birther Zone.

Professor William Jacobson, a Cornell law professor, is finally ready to take on the question of whether Mark Rubio and Ted Cruz are eligible for the Presidency. Here are a few excerpts from an August 13, 2013 article:

Ted and Marco Eligibility – I Can’t Put It Off Any Longer

The analysis of the Natural Born Citizen clause in the Constitution as it applies to Ted Cruz and Marco Rubio.

I promised to do this long ago, and did the research with the assistance of a former student, but couldn’t bring myself to actually write it up for multiple reasons:

(1) it’s a subject which brings out the most vitriolic commenters and e-mailers (hey, why don’t we talk about a non-controversial subject instead, like Islam or Gay Marriage?) and I haven’t been in the mood;
(2) views on the subject have become like religion, incapable of disproving;
(3) I’ve generally been distracted, with each week bringing some new “crisis” to write about;
(4) I’m lazy by nature;
(5) the process of relocating from RI to NY started in March and continued through July, and sapped what little free time I had;
(6) this isn’t actually my job,
(7) I’m lazy by nature (but I repeat myself); and
(8) bullet-proofing the analysis against the inevitable criticisms requires more painstaking drafting than normally takes place on the internet.

But it can’t be ignored anymore.

http://legalinsurrection.com/2013/08/ted-and-marco-eligibility-i-cant-put-this-off-any-longer/#comments

The links there to a previous article in, February 2013,  reveal some of what he has been going through:

The nature of the hostility directed at me has changed over the years.

In 2008-2010, it was mostly Obama supporters upset that someone who taught at an Ivy League law school would dissent.  I guess they figured their love letters weren’t working, so that has mostly (but not completely) stopped.

The most unhinged of late are Elizabeth Warren supporters.  (More on that, perhaps, in a later post.)

But along that road, there has been a consistent allegation that I was part of some vast conspiracy to conceal Obama’s alleged lack of constitutional qualification, first on birth place grounds and then on “natural born citizen” grounds.

That, even though I was one of the few people to defend the right of anyone to question the constitutional qualifications of any presidential candidate, so long as the challenge was not based on conspiracy theories and making stuff up.  I never accepted the Barack Obama birthplace conspiracy theories any more than I accepted the Trig Palin birth mother conspiracy theories.

I, almost alone, delved into the history of constitutional challenges, dating back to Chester Arthur on through George Romney and John McCain, with others along the way, to show that challenging constitutional qualification was not inherently racist and did not begin with Barack Obama.  No one pushed back against the abuse of the “Birther Card” more than I did.  (On the flip side of the coin, some left-wingers accused me of being a “Birther” because I refused to buy into the race card use.)

He then goes on to discuss the hostility in more detail. There are a lot of good comments at both stories. I read his blog regularly, although I usually don’t comment very much. Two of his excuses for putting this off will strike a chord with both Obots and Anti-Birthers, to wit:

(2) views on the subject have become like religion, incapable of disproving;

(8) bullet-proofing the analysis against the inevitable criticisms requires more painstaking drafting than normally takes place on the internet.

Those two items lead me to suspect that he has had a whole lot more run-ins with the Birthers than I ever expected. Personally, I am curious what verbal canards the Birthers will lob at him and whether they will also chunk physical copies of The Law of Nations at him, in the manner of Arabs throwing shoes. I can hardly wait to read his analysis, which I suspect is not going to make Birthers very happy.

Squeeky Fromm
Girl Reporter

Note 1. The Image. This is from the TV series, The Twilight Zone. This episode is called “Time Enough At Last.” About which Wiki Says:

It was adapted from a short story by Lyn Venable (Marilyn Venable), which had been published in the January 1953 edition of the science fiction magazine If: Worlds of Science Fiction. “Time Enough at Last” became one of the most famous episodes of the original Twilight Zone, and has been frequently parodied since. It is “the story of a man who seeks salvation in the rubble of a ruined world” and tells of Henry Bemis /ˈbiːmɪs/, played by Burgess Meredith, who loves books, yet is surrounded by those who would prevent him from reading them. The episode follows Bemis through the post apocalyptic world, touching on such social issues as anti-intellectualism, the dangers of reliance upon technology, and the difference between aloneness (solitude) and loneliness.

There is more here:

http://en.wikipedia.org/wiki/Time_Enough_at_Last

The Natural Born Prince!!! (A Fairy Tale???)

Kermit Tried To Convince His Brother, Prince Hoppy, That Being A King Wasn’t All It Was Cracked Up To Be

Once upon a time, a long, long time ago, there was a wonderfully happy Kingdom known as Carmensita.  The land and people both were fertile. But next to, and a little to the South, of Carmensita lay another Kingdom, Lilypadonia, where things weren’t quite as good.  The land was swampy and full of witches and frogs.  Every time the witches gathered at night with their big cauldrons, shrimp, crawfish, and Abita on ice, the frogs would begin their incessant croaking and ruin the whole affair.

The witches, not wishing to be cruel, and usually attending stag,  discovered a pleasant way to kill two birds with one spell. They simply turned the frogs into Princes. For the most part they were pretty normal as Princes go.  They were easily distracted by flying insects and their tongues were all a little on the long side, but they were handsome enough.

In the morning, the Princes would leave and find their way to the surrounding kingdoms.  There was no sadness at the parting. Like the witches were fond of saying, “There’s always more frogs in the swamp!”  Plus, for some inexplicable reason, the princes were in very big demand by the damsels of the neighboring kingdoms.  Maybe it was their bug zapping skills, or maybe it was because they were so very easy on the “Ayes”???

Anyway, because of the constant influx of Frog Princes, the Kingdom of Carmensita had a very strict, and very old law,  that only a “natural born Prince” could ever be King. This law came about when John Jay, a prominent member of the Carmensita Council wrote this in a letter:

Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Frog Princes into the administration of our national Government, and to declare expressly that the Kingship shall not be given to, nor devolve on, any but a natural born Prince. Heaven help us all if a Frog King became distracted by a swarm of Betsy Bugs during battle!

Shortly thereafter, John Jay flew south for the winter with his special friend, Cock Robin.  And so, the King signed the Natural Born Prince Decree.

Now, something still had to be done with all the Frog Princes making their way to Carmensita.  The Kingdom was over run with Prince Hoppys and Prince Green Legs, and the whole bunch was totally lacking in the simplest accoutrements of royalty. So the Council and the King got together and enacted the Prince Naturalization Decree.  The College of Heraldry was tasked to naturalize all Frog Princes, and provide them with Belated Letters Patent Of Nobility.  They would design a Coat of Arms for the new Princes, and help them find names to replace their Frog names. I mean, who is going to respect a Prince Croaky??? (Non-Frog Princes were simply enrolled with the College at birth by the Royal Doctor and their Letters Patent were not Belated.)

To get their Letters, the Frog Princes were physically examined for any throwback genetic issues, like webbed feet, or evidence of Swamp Whomp Syndrome from jumping around without wings. (see Note 4 below) They had to learn new skills like, eating with a knife and fork, not eating bugs in public, and not jumping into public fountains at every noise. After passing tests on these types of things, there would be a ceremony, a big feast, the singing of the National Anthem of Carmensita, and the presentation of Belated Letters Patent with the notation, Quondam Rana. Afterwards, there would be a Royal Ball.  From this point forward, the Frog Princes were just like every other Prince of the Kingdom, with that one little exception about being able to become King.

Now next to, and a little to the North, of Carmensita lay the Queendom of Connubia.  Connubia, founded by Queen Bodicea, was famous for two things;  its beautiful Princesses, and the Fulsome Bodice Mfg. Co.  As expected, many natural born Princes of Carmensita found numerous reasons to travel northward and often found Connubian bliss there. Sometimes this bliss would continue beyond nine months, and many Princes were born a little to the North of Carmensita.

These Princes wanted their sons to be able to achieve the throne of Carmensita, and to be entitled to all the other benefits of Carmensitan citizenship.  But, there was no Carmensitan Royal Doctor in attendance in Connubia, or any other neighboring Kingdom, to automatically enroll them with The College of Heraldry. So, the Carmensitan Coucil recommended a law which would invest the children of Carmensitan Princes born outside Carmensita, with the same rights as if they had been born inside Carmensita.  And this was added to the Royal Naturalization Decree. If a Prince had issue outside Carmensita, he would simply apply for Belated Letters Patent from the Heraldry College. These Princes did not have to take any tests, or have their tongues or bottoms examined. They were considered Princes of Carmensita at the time of their birth.

Now it so happened one day that Good King Cussworth of Carmensita keeled over dead as door knob after a particularly invective filled rant over a proposed decree to register all the swords in the Kingdom, and to completely ban assault swords. His daughter, the sweet and virginal Princess Squeeky, became Regent pending a marriage to a Prince.  Princess Squeeky was very smart and very good looking. She was also very humble, and you would never find any Pea in her bed!

There were two contenders for the hand of Princess Squeeky. One was Prince Stoutrod, who had been born in Connubia while his father Prince Klaxonhund was there performing quality control studies at the Fulsome Bodice Mfg. Co. Klaxonhund was a natural born Prince of Carmensita, and Prince Stoutrod had been issued Belated Letters Patent after his birth.

Then . . . there was his younger brother, the small and asymmetric Prince Runtwick. He had been born in Carmensita a few years after Prince Klaxonhund returned to the Kingdom to recover from various diseases of a personal nature. Now, being the younger brother, he would normally not be in contention for the throne. But, Runtwick had registered a Challenge to the Carmensita Council based on the following argument:

Hear Ye! Hear Ye! My Brother Prince Stoutrod is NOT a natural born Prince because he was born in Connubia! No Royal Doctor enrolled him at birth, and yea verily, he had to apply to the College of Heraldry for Belated Letters Patent, to be naturalized, just as do the Frog Princes!!! And our laws demand a natural born Prince, not one who is naturalized and not one whose Letters Patent are Belated!!!

Princess Squeeky, who had a dog in this particular hunt, joined in as the Champion of Prince Stoutrod. responding:

Princess Squeeky doth say thee, “Nay!” For was not the whole point of the Decree to grant the same rights to those Princes born outside Carmensita as those born within? It may be through the provisions of the Prince Naturalization Decree, but not through any process of naturalization. There is no Quondam Rana on Prince Stoutrod’s Letters Patent. He clearly comes not from Frogs.  And whilst I would not know from a certainty, I have heard it from those maidens who should know, that his feet are not webbed, and that his nether regions are far from numb.

Further I say, that Prince Stoutrod was never given tests tempting him with flying insects, and verily that he never jumped and hid in a public fountain except that once when Bad Robert the Blacksmith suspected him of swiving his daughter, and did chase him with a forging hammer.

Also, I say that the mere act of obtaining Belated Letters Patent is but a clerical matter, necessitated by the fact that no Royal Doctor was there at the time of his birth to do so as a matter of course.  What should one so born do, come back to Carmensita and pretend to be born again, so that a Royal Doctor may enroll them at that time with the College???

Were that so, many are the Princesses who would go through the process several times over and thus lower their age by 15 to 20 years at a whack, so that a 40 year old Spinster Princess could advertise by mail that she is but 20 years of age, and have the papers to prove it!

Nay, Prince Stoutrod became a Prince at birth, with the recording of it taking place at a later date. And that is all that was contemplated by the Natural Born Prince Decree. That he be born a Prince, and not be from the Frogs.

Now, do your duty and give me my Prince. Pleeeeeaaassse!!!

The Carmensita Council members were moved by the wise words of Princess Squeeky, and made Prince Stoutrod the King.  And they all lived happily ever after!

Squeeky Fromm
Girl Reporter

Note 1. The Image. This is Frog Prince by Maxfield Parrish. Here is a website where you can see more of his illustrations.

http://parrish.artpassions.net/

Note 2. Gran-Pa Frog by Smiley Burnett. Speaking of Frog genealogy, I can’t believe I found this!!! I used to have this record when I was a little kid, and my father sang it to me a lot. It is a GREAT song, even for grown-ups, and easy to play on guitar:

http://www.smileyburnette.org/SBI/Smiley/KidSongs/Granddaddy_Frog.mp3

Here is a copy of the cover:

Here is a link to the whole website with other kid songs:

http://www.smileyburnette.org/SBI/Smiley/KidSongs/Classics.html

Note 3. The Kingdom of Carmensita National Anthem: There REALLY is such a kingdom, and here is a youtube  video which was shot on location there, with their National Anthem:

One may find a translation, or two, of the lyrics here:

http://ourelephantgun.wordpress.com/2008/07/25/carmensita-lyrics-translated-to-enlish/

Note 4. Swamp Whomp Syndrome. Everyone has surely heard the old adage , “If a Frog had wings, he wouldn’t whomp his ass every time he jumped.” But few people are aware that engaging in such activity causes severe callousing of the buttocks and eventual peripheral numbness in the nether regions. The numbness results in some people being unable to find their buttocks in the dark with both hands.

Note 5. The College of Heraldry. There really is just such a thing! Just like some law schools, you can get your Letters Patent online:

http://www.grandduchy.org/rch.htm