Obama's Eligibility Challenged

U.S. Associate Supreme Court Justice Clarence Thomas

(December 4, 2008) - 

U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney, who has filed a lawsuit challenging President-elect Barack Obama’s eligibility to be president.

Thomas’s action took place after Justice David Souter had already rejected a petition for the stay of a writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.

The court has scheduled a Dec. 5 conference on the writ—just 10 days before the Electoral College meets.

The high court’s only African American is bringing the matter to his colleagues as a result of an emergency stay request filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the state’s presidential ballot because of Donofrio’s own questions about Obama’s status as a natural born U.S. citizen.

Donofrio is a retired lawyer who identifies himself as a “citizen’s advocate.” The {AFRO} learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obama’s citizenship.

Calls made to Donofrio’s residence were not returned to the {AFRO} by press time.

Donofrio is questioning Obama’s eligibility because the former Illinois senator, whose mom was from Kansas, was born in Hawaii and his father was a Kenyan national. Therefore, Donofrio argues that Obama’s supposed dual citizenship—in Kenya because of his father’s citizenship there and the United States because he was born in Hawaii—does not make Obama “a natural born citizen” as required by Article II, Section I of the U.S. Constitution. It states: “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.”

Donofrio had initially tried to remove the names not only of Obama, but also the names of Republican Party presidential nominee John McCain and Socialist Workers’ Party candidate Roger Calero from appearing on the Nov. 4 general election ballot in his home state of New Jersey.

McCain was born in the Panama Canal Zone when it was a U.S. possession. Calero would be ineligible to be president because he was born in Nicaragua.
After his efforts were unsuccessful in the New Jersey court system, he decided to take his case to a higher level.

According to Supreme Court documents, on Nov. 3, Donofrio submitted his application for a stay pending the filing and disposition of a petition for a writ of certiorari questioning Obama’s citizenship to Justice Souter. Souter received the documents because he is the presiding justice of the Third U.S. Circuit Court of Appeals, which includes New Jersey.

On Nov. 6, Souter denied the stay. Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.  Donofrio’s choice was Thomas. He submitted the emergency stay to Thomas’s office on Nov. 14.

Thomas took the application on Nov. 19 and on that day submitted it for consideration by his eight colleagues - known as a conference - and scheduled it for Dec. 5.

On Nov. 26, a supplemental brief was filed by Donofrio to the clerk’s office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerk’s office.

Filing the application with Thomas was unusual, experts say, because by custom, when a justice rejects a petition from his own circuit, the matter is dead.

Thomas’ referral of the petition, however, was less extraordinary.
“It is not common, but it does happen,” said Susan Bloch, a Georgetown University Law professor and author of {Supreme Court Politics: The Institution and its Procedures}. “Generally, the justices do what the first justice does.”

Conjecture has arisen over Thomas’ action, however, since he could have denied Donofrio’s request.

Trevor Morrison, a constitutional law professor at Columbia University School of Law, suggested that Thomas may have been seeking an end to the matter.
"My guess would be that Thomas referred the case to the conference so that the full Court can deny it. If Thomas denied the application on his own, then Donofrio would be free to go to the other justices for their consideration,” Morrison said.
“This way,” the law professor continued, “the matter would be done with. Applications of this sort are hardly ever granted."

The AFRO reached out to Justice Thomas, but, traditionally, justices do not respond to media queries, according to a spokesman from the Supreme Court Public Information Office.

To put Donofrio’s emergency stay on the oral argument docket takes a simple majority of five justices. Because it is an emergency by design, the argument would take place within days.

Donofrio wants the court to order the Electoral College to postpone its Dec. 15 proceedings until it rules on Obama’s eligibility. He is using the 2000 case {Bush vs. Gore} case as precedent, arguing that it is of such compelling national interest that it should be given priority over other cases on the court’s docket.

“The same conditions apply here,” Donofrio said in his letter to the court, “as the clock is ticking down to Dec. 15, the day for the Electoral College to meet.”
Audrey Singer, a senior fellow at Washington’s Brookings Institution, who is an expert on immigration, said that the Donofrio matter is “going nowhere.”

“There is no way that anyone can argue about whether Barack Obama is a citizen,” Singer said. “In this country, we have a system known as jus soli or birthright by citizenship. You are a citizen by being born on American soil and he (Obama) was born in Hawaii.”

Singer said that Donofrio’s argument that Obama’s father was a Kenyan national does not matter because citizenship is not based on parentage, but on where someone was born.  “This is the issue that some people have with illegal aliens in our country,” she said. “Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.”

“You are a citizen by being born on American soil and he (Obama) was born in Hawaii.”

Jerome Barron, a law professor at the George Washington University Law School, said in his mind, the issue is clear what a natural born citizen is.
“A natural born citizen is one who was born within the United States and its territories and possessions,” Barron said. “It is someone who is born under the American flag. I have raised three kids in the District and it is not a state, but I can assume they can run for president.”

Bloch, who teaches a seminar on the Supreme Court, said that to the best of her knowledge, the Supreme Court has not ruled on what is “a natural-born citizen.”
Donofrio’s suit is one of many challenges to Obama’s eligibility.

Last spring, the Obama campaign sought to end the controversy when it released his actual Hawaii birth certificate. In an Oct. 31 statement, the director of Hawaii’s Department of Health further buttressed Obama’s claim, saying he had personally seen and verified that the state has “Obama’s original birth certificate on record,” which shows that he was born there.