[eDebate] no way out 4 the usurper: tick tock tick tock
Tue Dec 9 08:12:00 CST 2008
it looks good for the obamatrons. the mainstream media is trivializing the cases.here's the problem from harvard law graduate vieira. interested parties should make this a not-intrinsic on the president's DA to make a joke out of the president and challenge the debate community to explain why factcheck only is good enough to determine eligibility.once any obama enacted law is prosecuted, any criminal can challenge the law on the grounds of its enactment by an ineligible president. the current jury-rigging will produce a more sophisticated, elaborate judicial strategy and, finally, one day the usurper will be required to produce his birth certificate for the third party examination to maintain the enforceability of laws he has signed or step down unless, of course, his goal is to destroy the political system which seems like a distinct possibility given his legal strategy. if you don't think relevant parties will sue, you're smoking crack in obamaland. not the entire article but vieira's got quals:(Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.)http://www.newswithviews.com/Vieira/edwin186.htmAssume, however, that no inquiry, or only a perfunctory inquiry, or only an obviously tainted inquiry takes place at the stage of counting the Electors? votes. Is the issue then forever foreclosed? Not at all. For a extensive class of litigants who absolutely do have ?standing? to challenge Obama?s eligibility will come into existence, and demand relief as a matter of undeniable constitutional right and practical necessity, as soon as Obama?s Department of Justice attempts to enforce through criminal prosecutions some of the controversial legislation that the new Congress will enact and Obama will sign?such as statutes aimed at stripping common Americans of the firearms to which (in Obama?s derisive terminology) they ?cling.?For example, in a criminal prosecution under a new statute that reinstates the Clinton ?assault-weapons ban? (or some equally obnoxious affront to Article I, Section 8, Clauses 15 and 16 and the Second Amendment), the defendant will undeniably have ?standing? to challenge the indictment on the grounds that no statute imposing such a ban even exists, because the original ?Bill which * * * passed the House of Representatives and the Senate? was never ?presented to the President of the United States?, and therefore could never ?become a Law,? inasmuch as the supposed ?President,? Barack Obama, being constitutionally ineligible for that office, was then and remains thereafter nothing but an usurper. [See Article I, Section 7, Clause 2 and Article II, Section 1, 4]Plainly, a criminal trial arising under a supposed law of the United States is a ?Case? to which ?the judicial Power [of the United States] shall extend?; and the defense as well will raise a specific issue ?arising under th[e] Constitution, [and] the Laws of the United States.? [Article III, Section 2, Clause 1] The defendant will be suffering serious ?injury in fact:? namely, a criminal indictment and a compulsory trial, with the possibility of a conviction, imprisonment, and, if the infraction is called a ?felony,? the forfeiture of many civil rights even after his release from incarceration. The prosecutor on one side and the defendant on the other will be adversaries espousing diametrically opposed and irreconcilable positions?so the ?Case? cannot be deemed in any way collusive. The purported statute?s invalidity by virtue of its legal nonexistence will be ?ripe? for decision, because the statute is the basis for the indictment, and its invalidity the foundation of the defense to the charge. And, unless and until the prosecutor importunes the court to dismiss the indictment with prejudice, the issue of the putative statute?s legal nonexistence and inapplicability to the defendant will be anything but moot.In addition, the entire matter certainly does not raise a nonjusticiable ?political question.? As Chief Justice John Marshall explained, ?[t]he province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.? [Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)] That definition excludes the hypothetical criminal case under consideration here:First, ?the rights of individuals? will most assuredly and palpably be involved: namely, the right not to be deprived of liberty without due process of law. [Amendment V]Second, the question at issue will not be ?political,? in the sense that it asks ?how the executive, or executive officers perform duties in which they have a discretion.? Rather, the question will be whether Obama is or even could be ?the executive? at all. Self-evidently, Barack Obama (or anyone else, for that matter) can enjoy no ?discretion? to pretend to be the President if he is not even eligible for that office in the first place.Third, the question at issue will not have been ?by the constitution and laws, submitted to the executive.? It is not for Obama (or anyone else in his position) unilaterally to determine that he is eligible for the Office of President, with everyone else in the country required to take his unsubstantiated word for it. ?[T]he constitution and laws? do not extend to an usurper a license to perpetuate his usurpation simply by denying?indeed, falsely denying?that he is such. And if Obama honestly believes that he can prove his eligibility to We the People?s reasonable satisfaction, the Constitution actually requires him to do so when challenged: For the President must ?take Care that the Laws be faithfully executed.? [Article II, Section 3] ?Th[e] Constitution * * * shall be the supreme Law of the Land.? [Article VI, Clause 2] The Constitution declares that ?[n]o Person except a natural born Citizen * * * shall be eligible to the Office of President.? [Article II, Section 1, Clause 4] And if the latter provision is to ?be faithfully executed? by Obama as ?President,? and the objective evidence necessary for that execution is in Obama?s own hands or subject to his control, then Obama, as the?President? whom he claims to be, must bring forth that evidence sine die in order to fulfill the very duty that he has taken an ?Oath or Affirmation? to ?faithfully execute.? [Article II, Section 1, Clause 7]Fourth, (as explained above) the Twelfth Amendment and the relevant Congressional statute purporting to implement it do not render the question closed (and therefore arguably ?political?)?unless Congress has actually performed a constitutionally sufficient inquiry, based upon all of the available evidence, that is at least as searching, thorough, and politically neutral as might be conducted in a proper court of law by actual adversaries.Fifth, notwithstanding whatever may have happened when the Electors? votes were counted, thereafter the political branches of the General Government have affirmatively committed this issue to the final determination of the courts. The hypothetical ?assault-weapons? statute was enacted by Congress and signed by Obama, with the intention that it be enforced through criminal prosecutions. The statute?s enforcement is actually before the court, at the insistence of the Legislative and Executive Branches. The statute?s constitutionality is being challenged by an individual directly injured through its application to him. ?It is emphatically the province and duty of the judicial department to say what the law is.? [Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)] And if there is no true ?President?, because Obama is not ?eligible to the Office of President?, then the statute is not simply ?unconstitutional? but even is nonexistent, and the indictment an absolute nullity.Sixth, the question of whether Obama is ?eligible to the Office of President? is eminently within the jurisdiction, competence, experience, and workaday procedures of the judiciary to answer. Courts are thoroughly familiar with how to subpoena witnesses, compel the production of documents, establish the authenticity of documents through objective forensic analyses and the testimony of disinterested experts, and otherwise ascertain facts through application of the rules of evidence in adversarial litigation. Conversely, this is not what ordinary voters or Electors do, or are competent to do. And if it may be what the Constitution authorizes Congress to do in some circumstances, as hypothesized in this situation Congress has not done and will not do so to a constitutionally sufficient degree.Moreover, Congress cannot perform a simulacrum of this procedure by ?remov[ing Obama] from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.? [Article II, Section IV] For, if he is not ?eligible to the Office of President? at all, then Obama is not ?the President,? and therefore cannot be removed from an office that he does not, and cannot, even occupy?and has never occupied. In addition, even if ?Impeachment? of a plain usurper were constitutionally possible, Congress could not ?waive? its duty in that regard, do nothing, and collude with the pretender in order to enable him to continue his imposture indefinitely.Seventh, the defendant in this hypothetical criminal prosecution can invoke the Sixth Amendment: namely, ?In all criminal prosecutions the accused shall enjoy the right * * * to have compulsory process for obtaining Witnesses in his favor * * * .? Presumably, a properly represented defendant would subpoena Obama himself as the indispensable witness, requiring him to bring into court whatever records were in his possession or subject to his control that in any way evidenced, related to, or referred to the time, place, and circumstances of his birth, or to his citizenship, application for citizenship, renunciation of citizenship, or oath of allegiance in or to any country. This would include the original of his supposed Hawaiian birth certificate; every subsequent Hawaiian ?certification of live birth? or like document created by public authorities; every other ?birth certificate? or equivalent document whenever, wherever, and by whomever generated in the name of ?Barack Obama? or any of his several other names; every document submitted to an educational institution that contained information or representations concerning his place of birth or citizenship; and so on. In the interest of expediting the process, the custodians of records in Hawaii would also be subpoenaed to testify and to produce all relevant documents subject to their control. To be sure, Obama himself might invoke a privilege against self-incrimination under the Fifth Amendment as the grounds for refusing to testify or to disgorge inculpatory papers. But custodians of public records in Hawaii or elsewhere throughout the United States have no such privilege. And no Hawaiian or other law of the States or the General Government purporting to make those records ?confidential? can frustrate the Sixth Amendment.So much for the legalities of the situation. Personally, I find this whole controversy?although it is of great constitutional significance?to be a monumental distraction from what is desperately needed for this country?s security. The problems now confronting America cannot be solved simply by ensconcing in the President?s chair one charismatic ?Leader? as opposed to another?be he Barack Obama or the Archangel Michael (neither of whom, absent a proper birth certificate, is ?eligible to the Office of President?). For the Leader Principle at the very top demands the Follower Principle all the way down to the bottom. And both are anathema and inimical to the Constitution of the United States?especially the latter, because a nation of self-governing individuals cannot be a nation of blind, bleating followers.Intoxication with the Leader Principle over many decades has led America, staggering and slipping on her own political vomit, to this sorry pass. Even more than the drinkers, though, the purveyors of the political liquor are now going to pay the price with an industrial-strength hangover. They have, as it were, ?bet the farm? on Obama?either oblivious to the problem that he may not be ?eligible to the Office of President? at all, or confident that they are so powerful (and the American people such dopes, dupes, and cowards) that nothing will be done even if the truth should come out. But no one is that powerful. So, however this case turns out, the Establishment will suffer a reverse from which it likely can never recover.If the courts finally do their duty, and Obama is exposed as an usurper, the legitimacy of the rest of the political system will be eviscerated (and the legitimacy of even the courts will be in doubt, because their intervention was so reluctant and tardy). Whereas, if the courts cover up the matter in case after case on spurious grounds, incarcerating one after another American on the trumped-up charges of an usurper?and they will have to keep up the pretense in case after case if the whole house of cards is not to collapse?the legitimacy of the entire political system will utterly evaporate. (To be sure, Obama?s Department of Justice could refrain from prosecuting anyone under new statutes; but then all of that legislation would become unenforceable.) In any case, the only institutions of government that will escape condemnation will be ?the Militia of the several States?, because they will still not be in existence (unless Americans show a great deal more enthusiasm for the idea of revitalizing the Militia than they have to date) and therefore cannot be discredited.What will be the necessary consequence of the exposure of America?s political system as illegitimate in its entirety?Power will replace law. As Mao Tse-tung opined, political power grows out of the barrel of a gun. And, with an usurper posing as ?President,? someday soon someone will prove that aphorism true here.One scenario will suffice: On some Monday not so far in the future, ?President? Obama meets with the Joint Chiefs of Staff to announce that ?Operation Sandblaster,? for a massive nuclear attack on Iran?s supposed ?weapons of mass destruction," will be launched on the coming Friday. The Joint Chiefs remonstrate, pointing out that such aggression will trigger retaliation by Russia and China, almost surely plunging the whole world into a thermonuclear World War III. ?President? Obama, however, is adamant, and instructs the Joint Chiefs to have the necessary orders for ?Sandblaster??or their resignations?on his desk by Wednesday morning. Knowing that, if they resign, ?President? Obama will simply appoint some unprincipled uniformed ?yes men? to carry out his plan, the Joint Chiefs immediately order covert break-ins around the country to obtain his original birth certificate and other material evidence relating to his ineligibility for the Office of President. With these documents in hand, on Wednesday morning, accompanied by a contingent of heavily armed Marines, the Joint Chiefs confront ?President? Obama with the evidence, arrest him as an usurper and all the Members of Congress as his co-conspirators, and appoint themselves a Military Commission to function as a ?caretaker government? during the ensuing ?national emergency.?So, at that point, because the courts did not act, and Congress did not act, and We the People did not act, the Praetorians will see fit to act. And even if the Military Commission eventually returns power to civilians, the precedent will be set in steel for ?the Latin American solution??government by junta. That, surely, would be ?change we can believe in??with a capital ?C.?Not likely? If not, why not? If one man can get away with usurping the Presidency of the United States, even as the rest of the General Government, the States, and the people look the other way while mouthing legalistic mumbo jumbo to rationalize their inaction, why cannot a few men?backed up by the Armed Forces?imagine themselves justified in overthrowing and supplanting him in order to forefend a national calamity? Why cannot the bitter weeds of the fall of the Roman Republic be transplanted from the banks of the Tiber to the shores of the Potomac when the conditions conducive to their growth appear? No patriot?no reasonable American of any political persuasion?may want this to happen. But if wishes were horses, beggars would ride.So, what now? The simple solution, if Barack Obama believes that he truly is ?eligible to the Office of President,? is for him to repair to Hawaii in a burst of publicity and make his original birth certificate available for examination by each and every unbiased forensic document analyst who cares to scrutinize it. And if, on the other hand, he already knows that he is ineligible, he should step aside gracefully. Now, before it is too late.He has no other choice, because events will give him none. When one walks in the cold shadow of Nemesis, hubris is not enough of a cloak.? 2008 Edwin Vieira, Jr. - All Rights Reserve
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