Birfers take it up the ass yet again

Sadly, I can’t seem to get enough of the birthers (“birfers,” to impart a needed and useful sense of derision), the lunatic fringers who insist that President Barack Obama should be removed from office because he isn’t a “natural born Citizen” (NBC) as Article II, Section 1 of the U.S. Constitution requires. Some birfers insist that Obama can’t be a NBC because he born in Kenya or Indonesia or anywhereelsebutHawaii. Others contend that it doesn’t really matter where Obama was born. Those birfers claim that Obama is not a NBC even if he was born in Hawaii; the Constitution requires that both parents be U.S. citizens, and Obama’s father was a British citizen.

These nutjobs have clogged state and federal courts alike with innumerable frivolous lawsuits aimed at ousting the president. All those cases have failed miserably. In the vast majority of cases, dismissal is based on the plaintiffs’ failure to establish standing and/or the fact that the lawsuits present issues that are non-justiciable under the “political question” doctrine.

That brings us to Ankeny v. Governor of Indiana (pdf, 19 pages), which the Indiana Court of Appeals decided yesterday. The case began with a couple of pro se litigants filing suit against Indiana’s governor and others in an Indiana state court. The complaint appeared to be based on the notion that the governor owed and breached a legal duty to ascertain whether or not candidates for President of the U.S. met the constitutional criteria for office. The plaintiffs averred that neither Obama, the Democratic nominee, nor John “WALNUTS!” McCain, the Republican nominee, qualified as a NBC.

(The plaintiffs also evidenced a rather amusing inability to distinguish between presidential electors and presidential candidates, but that’s neither here nor there for present purposes.)

Yes, it does indeed sound batshit insane. Yes, the “argument” did indeed fail in a big way. However, the two buffoons who brought this case managed to pull off something that’s proven to be far beyond the grasp of illustrious birfer lawyers such as Leo Donofrio, Phil Berg, Mario Apuzzo, Orly Taitz and thrice-disbarred Charles Lincoln III (currently serving as Taitz’s “law clerk” and alleged fuck buddy): they got a ruling on the merits.

The defendants in Ankeny didn’t rely on standing-based arguments. The governor moved to dismiss on the ground that, even assuming that all the facts alleged in the complaint were true, the plaintiffs’ claims nonetheless failed as a matter of substantive law. The trial court agreed, and the court of appeal affirmed in the opinion linked above.

The Ankeny plaintiffs are among birfers who believe that only someone born of two citizen parents can be a NBC for presidential qualification purposes. That contention is based in part on Le Droit des Gens ou Principes de la Loi Naturelle, appliques a la conduite & aux affaires des Nations & des Souverains, a treatise on natural law completed in 1758 by Swiss philosopher and bureaucrat Emmerich de Vattel. In Book I, Chapter 19, Section 212 of his treatise Vattel allegedly wrote that “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” That, the argument goes, is the definition of NBC the framers of the U.S. Constitution had in mind.

Relying on U.S. Supreme Court case law, the Indiana Court of Appeals rejected the Vattel argument on the merits. Per the well established rule of English common and positive law — a rule that was entirely familiar to the framers — a person born in country is “natural born” regardless of the citizenship of his parents. There’s no support at all for the remarkable contention that the framers cast aside that familiar understanding in favor of the Vattel definition.

Moreover, although the Ankeny court didn’t actually address the issue, the Vattel definition that birfers rely on doesn’t really exist. Vattel never defined or purported to define the term “natural born citizen.” Being Swiss, Vattel wrote exclusively in French, so the term at issue never appears in Les Droit des Gens.

The initial appearance of “natural born citizen” in an English translation of Vattel’s book came in a edition first published in 1797, a full decade after the Constitutional Convention. The wildly speculative conclusion that the framers got their understanding of NBC from the original French edition of Vattel’s book is belied by the fact that nothing in the original Section 212 fairly and accurately translates to “natural born citizen.”

All in all, Ankeny is pretty tame stuff compared to the multiple spectacular legal train wrecks wrought by soon-to-be-former-attorney Orly Taitz. But a victory for sanity is still a victory, even if unaccompanied by $20,000 in monetary sanctions for frivolous conduct.

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