I decided – again – to post on this blog various comments I have submitted to other blogs, which were posted; or comments I would have submitted to other blogs that have stopped posting my comments; or comments I would have posted on other blogs in the past but which such posting has subjected me to responses based on the tone of which I would otherwise have prevented from appearing on my blog. Especially I have decided to post explanations that counter the ‘legal’ edicts issuing from some other blogs which, absent more reasoned and accurate explanation, is apt to be swallowed up whole by a voting public eager to increase their knowledge of our Constitutional republic so as to perfect it, and who are ill served by such sophomoric ‘legal’ discourse on those blogs.
For example, now that Leo Donofrio has come up with Quo Warranto – after Orly, and Berg, and David Allan Herndon in CA 5 (five) months ago http://www.freerepublic.com/focus/f-news/2121007/posts – he has decided to ‘explain’ that Quo Warranto is the “only” way to involve the court. Further, more than 2 (two) months after I posted my military Complaint, which is brought under the federal Declaratory Judgment Act, having fixed on Quo Warranto, he now opines that any Declaratory Judgment case is legally unsound because it requests an advisory opinion, only, which precludes hearing by a federal court. Of course, he is wrong; and I pointed this out to him in the following comment to his blog, which he has yet to publish.
Leo, you are miseducating your readers as to the scope of relief offered under the federal Declaratory Judgment Act. Basing a petition to the court on this Act does not ask the court to issue an advisory opinion which, while allowed in state court, is prohibited in the federal court. Rather, using this Act allows those who could face liability as Defendants in a future action to ‘reach the court, first’ as Plaintiffs in a Declaratory Judgment action. (See the Federal Practice Manual for Legal Aid Attorneys, http://ejustice.org/federal_practice_manual_2006/chapter_9/chap9sec3.htm.) And while ordering the removal from office of a ‘POTUS’ who is not a NBC, is outside of the scope of a Declaratory Judgment proceeding; once a federal court issues such a Declaratory ruling, I cannot conceive that he could remain in place, can you?
As for your statement that, “In order to protect the Constitution, we must not subvert the separation of powers,” this is precisely why your NJ suit failed. The court – judicial branch – will not order a state official – the executive branch – to carry out a ministerial function where no such function appears in the law – legislative branch. Absent a ministerial duty to vet the candidate for POTUS for Constitutional eligibility in NJ law, you asked the court to infer such a duty from an oath taken by the S of S to uphold the Constitution. The court, crediting counsel for the Defendant, rejected your argument. You say, you got “screwed.” I say, the court ruled to uphold the principle of governmental separation of powers.
Here’s something I posted on Pieter Nosworthy’s blog, http://thenaturalbornpresidency.blogspot.com/.
Pieter is an active duty military who signed Orly’s inflammatory Release consenting to become a named Plaintiff in her proposed military Complaint seeking to determine BO’s Constitutional eligibility for POTUS and then rescinded such consent. He posted this suggestion. Why not identify the top Constitutional law scholars in the country and pool our money to hire these experts to champion the ‘perfect’ case?
Here is my response.
Arguably, the top Constitutional law scholar in the country is Professor Laurence Tribe from Harvard Law School. He taught BO; here is a November 2008 quote from the Harvard Crimson, wherein the recognized legal intellect (Tribe) adeptly avoids any mention as to the caliber of legal scholarship displayed by his former student while simultaneously singing his laurels.
“There are those in whom challenge stirs greatness, those who rise to challenge rather than letting it break their stride or spin their compass,” said Tribe about Obama, the Democratic presidential candidate, whom he called “the most impressive and talented of the thousands of students I have been privileged to teach in nearly 40 years on the Harvard faculty.”
To put things into perspective, here is what Professor Tribe placed into the Congressional Record during the passage of non-binding Senate Resolution 511, declaring Senator John McCain is a NBC, in April 2008.
“[B]ased on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a “natural born Citizen” within the meaning of the Constitution.”
As we have already been taught by almost every other legal practitioner entered into this fray, even the product of great legal minds can be motivated by self-interest, like potential openings on the SCOTUS.
Here is my explanation as to why military Plaintiffs in federal court must be in jeopardy in order to satisfy Constitutional “case” or “controversy” requirements to survive a Motion to Dismiss for lack of jurisdiction, which I posted on Citizen Wells. http://citizenwells.wordpress.com/
Speedy and everyone else, in reference to your recollection that military Plaintiffs might have received guarantees in advance they would not be in jeopardy by becoming Plaintiffs in a military lawsuit… If military Plaintiffs in a Declaratory Judgment case face no liability in the future then, their case does not present a controversy that can be litigated and, therefore, becomes only a request for an advisory opinion. This means, the federal court has no jurisdiction to hear it. You might have gotten your idea of ‘exoneration before the fact’ for military Plaintiffs from Orly Taitz, who bragged on her blog that she was discussing with Pentagon officials how to free up from jeopardy any military Plaintiffs before she filed a military suit. But even assuming she was telling the truth and, in addition, could have obtained such guarantee from the military not to prosecute military Plaintiffs under the UCMJ; then she would have killed her chances of avoiding a motion to dismiss on this case, too, which motion would have been granted not for lack of standing but for lack of jurisdiction.
As for the cheering section whenever Orly posts another military Plaintiff has joined her suit – I have no idea which suit she is talking about – there is this caution, also on CW.
The South and everyone, the problem is, while individual military can be said to have the obligation to refuse to obey an order from a CIC they have a good faith belief is a threat to the Constitution; absent a ruling BO is not a NBC, from a deliberative body authorized to generate such a ruling, these military will not escape paying the legal consequences for disobeying the POTUS. Even Dr. King pronounced that those who in good faith defy unjust laws must be prepared to endure imprisonment.
“I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”