Friday, April 18, 2014

Is that Bruce Springsteen Song Enough?

Paige v. Condos, 2013 VT 105

By Andrew Delaney

Though there’s still some debate in certain circles, it’s generally accepted that Barack Obama was born in Hawaii—or as Springsteen put it Born in the U.S.A. President Obama’s mother was a U.S. citizen and his father was Kenyan. Nobody really disputes that. I even checked Wikipedia to be sure. The consensus is that if you’re born in the United States, you are a U.S. citizen.

But this case is about whether President Obama qualifies as a natural-born citizen. I guess we’ll never find out because the SCOV just dismisses the case as moot.

The August before the presidential election, plaintiff filed suit in the Washington Civil Division against the State of Vermont, the Vermont Secretary of State, and the President himself. Plaintiff’s argument, in a nutshell, was that President Obama is not a natural-born citizen because he wasn’t “born to two parents who were citizens of the United States at the time of the person’s birth.” Plaintiff relied on “treatises and other writings preceding and contemporaneous to the Constitution’s founding” for this definition. Accordingly, plaintiff argued that the President’s filings for the primary and general election were no good as the President wasn’t constitutionally qualified to hold office. Plaintiff asked for an injunction to keep President Obama off the Vermont ballot. Good times.

Defendants filed a motion to dismiss, arguing that plaintiff lacked standing—because the alleged injury was “generalized and speculative”—and that the court was the wrong forum to seek relief. On the merits, defendants argued that the Secretary of State doesn’t have authority to determine a presidential candidate’s eligibility, and that “natural born citizen” doesn’t require a presidential candidate to be born of two citizen parents.

Before the general election, plaintiff filed a letter with the trial court requesting a pretrial conference and expedited hearing. The general election came and went.

Six days after the general election, the trial court granted the motion to dismiss, reasoning that plaintiff’s complaint was “an impermissible generalized grievance.” Plaintiff appealed. There was a motion for expedited hearing at the SCOV—before the January-6th-vote-countin’ Joint Session of Congress, but the SCOV denied it.

For the SCOV, the central question “is whether the mootness doctrine bars review of plaintiff’s case.” Plaintiff argues that two exceptions to mootness apply: (1) the capable-of-repetition-yet-evading-review exception applies because Congress might repeal the Twenty-Second Amendment, and then President Obama could run for a third term, plus other presidential candidates without two citizen parents are likely to run in the future; and (2) plaintiff suffers negative impacts on his life, liberty, and property as collateral consequences of Barack Obama’s presidency.

How does the SCOV put it? “The case is moot.” Neither exception applies, nor is the SCOV going to mess around with standing or merits.

The standard of review on a dismissal for lack of subject-matter jurisdiction is de novo.

The SCOV notes that Barack Obama is in fact President of the United States and can’t seek reelection. The SCOV reasons that it can’t render an advisory opinion about the meaning of “natural born citizen” because that exceeds the SCOV’s “constitutional prerogative.”

The SCOV first addresses the capable-of-repetition-yet-evading-review argument. The SCOV explains that there are two requirements for this doctrine to apply: first, the controversy has to be too short in duration by nature to be fully litigated; second, it has to be reasonably likely that the same complainant will be subjected to the same action again. Here, the SCOV reiterates that Barack Obama is President, and can’t be president again. Accordingly, even if the first prong could be satisfied, the second can’t. That’s that.

The SCOV explains that the so-called negative-collateral-consequences exception applies to situations where there’s a good chance of an impact on parties—for example, like when the social stigma associated with an involuntary commitment comes into play. Here, plaintiff has simply made a generalized grievance, shared by those who agree with plaintiff’s interpretation of Article II.

The SCOV reasons that plaintiff fails to identify any negative result specific to him. The SCOV concludes by noting that it has no ability to bind any other state or federal presidential-election authority, even if it were to entertain plaintiff’s request that the SCOV define “natural born citizen.”

The appeal is dismissed as moot.

That’s really too bad because the merits on this one might’ve been really fun. C’est la vie.


  1. The meaning of Natural Born Citizen comes from the common law and refers to the place of birth, and as you have noted Obama's birth in Hawaii has been confirmed overwhelmingly.

    “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)--Senator Orrin G. Hatch (R-UT).

    “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."---- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

    "Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning."---The Wall Street Journal (

    "Every child born in the United States is a natural-born United States citizen except for the children of diplomats.”---Senator Lindsay Graham (December 11, 2008 letter to constituents)

    And so far TEN appeals courts have all ruled on the matter of Obama's presidential eligibility and every single one of them said that the US Supreme Court had already ruled on the definition of Natural Born Citizen in the Wong Ki Ark case (which BTW was AFTER Minor v. Happersett, which does not say what birthers think in any case), and the ten appeals courts all said that the Wong Kim Ark ruling said that the meaning of Natural Born Citizen comes from the common law (as does the Heritage Foundation) and that it includes EVERY child born on US soil except for the children of foreign diplomats and enemy invaders.

    1. Continuing:

      Here are SOME of the rulings:

      Ankeny v. Governor of Indiana (Indiana 2008 – Appellate Court) ruling: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”

      Tisdale v. Obama (Virginia federal court 2012) ruling: “It is well settled that those born in the United States are considered natural born citizens.”

      Purpura v. Obama (New Jersey 2012) ruling: “No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born Citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here. … The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.”

      Voeltz v. Obama (Florida 2012) ruling: “However, the United States Supreme Court has concluded that ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States. ‘Other courts that have considered the issue in the context of challenges to the qualifications of candidates for the office of President of the United States have come to the same conclusion. [The judge cites Hollander and Ankeny]

      Allen v. Obama (Arizona 2012) ruling: “Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co. , 39 Ariz. 45, 54, 3 P.2d 983, 986(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise”

      Farrar (et al.) v. Obama (Georgia 2012) ruling: “In 2009, the Indiana Court of Appeals (“Indiana Court”) addressed facts and issues similar to those before this court. [Ankeny] v. Governor, 916 N.E.2d (Ind. Ct. App. 2009). … The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. … This Court finds the decision and analysis of [Ankeny] persuasive.”

      And, on October 1, 2012, the US Supreme Court turned down two birther appeals of the last of the Georgia ruling, Farrar, which had ruled that "children born within the United States are natural born citizens, regardless of the citizenship of their parents." By rejecting the appeal, the US Supreme Court allowed the ruling of the lower court---and the other NINE courts---to STAND.

  2. Thanks for the comments; your point is well taken. Just to be clear, the "I guess we'll never know" was said tongue-planted-firmly-in cheek.

  3. We have plenty of cases where the merits have been entertainingly discussed.

    But I, too, lamented the dismissal because I was really looking forward to something pithy about Vattel...