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COA: Obama, McCain eligible to be president

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More than a year after the 2008 presidential election, the Indiana Court of Appeals ruled that Sens. John McCain and Barack Obama were eligible to run for the office.

Steve Ankeny and Bill Kruse pro se filed the suit against Gov. Mitch Daniels, Ankeny and Kruse v. Governor of the State of Indiana, No. 49A02-0904-CV-353, claiming the governor had a duty to determine a person's eligibility to become president because he issues a "certificate of ascertainment," which lists the electors chosen, other candidates, number of votes received, and other information; and because he appoints members of Indiana's electoral college. They argued the governor didn't comply with this duty because Obama and McCain weren't eligible under the federal Constitution's clause that says no U.S. senator currently holding that office shall be appointed elector for any state. They also believed neither candidate was eligible for the office because they weren't "born naturally within any Article IV State of the 50 United States of America."

The Marion Superior Court granted the governor's motion to dismiss the suit under Indiana Trial Rule 12(B)(6).

"Initially, we note that the Plaintiffs do not cite to any authority recognizing that the Governor has a duty to determine the eligibility of a party's nominee for the presidency," wrote Judge Elaine Brown. "The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates."

The plaintiffs argued because Obama and McCain were U.S. senators on Election Day, they were constitutionally ineligible to be appointed as presidential elector.

"The fact that the names 'Barack Obama' and 'John McCain' are the ones that appeared on the ballot does not change the fact that they were in fact candidates for the presidency, not any of Indiana's electors," she wrote.

The appellate court then used centuries-old caselaw to rule Obama is a "natural born citizen" as required to qualify to be president. Ankeny and Kruse complained that the senators weren't natural born citizens and the governor shouldn't have been able to issue any certificate of ascertainment. The Court of Appeals focused on Obama because the plaintiffs didn't develop a cogent legal argument pertaining to McCain. Ankeny and Kruse claimed because Obama's father was a citizen of the United Kingdom, he is constitutionally ineligible to be president.

Based on the language of Article II, Section 1, Clause 4 and the guidance provided in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the Court of Appeals ruled that people born within the borders of the U.S. are "natural born citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents.

Judge Brown noted in a footnote that nothing in the opinion today should be understood to hold that being born within the 50 states is the only way one can receive natural born citizen status. She also noted that the 21st president, Chester A. Arthur, also was born of parents with different citizenships; his mother was a U.S. citizen and his father was Irish.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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