IN THE SHADOW OF NEMESIS

By Dr. Edwin Vieira, Jr., Ph.D., J.D.
December 8, 2008

NewsWithViews.com

As this commentary is being written, the latest runaround in the judicial flim-flam of “who lacks ‘standing’ to demand production of Barack Obama’s original Hawaiian birth certificate (if one actually exists)” has just taken place. According to a newspaper report, Hawaiian Judge Bert Ayabe has dismissed a suit filed by one Andy Martin, on the ground that Martin “does not have a direct and tangible interest in the vital statistic records being sought, namely the birth certificate of President Obama.”

Perhaps one may gauge the circumspection and even-handedness with which Ayabe approached the case by recalling that Barack Obama is not yet “the President of the United States,” only the ostensible “President elect” once removed (because he has been purportedly “elected” only by the voters, but not yet by the Electoral College as certified by the President of the Senate under the Twelfth Amendment). And the underlying issue in Martin’s suit is whether Obama is even constitutionally eligible to hold the Office of President. So Ayabe’s decision exhibits a rather strong undercurrent of question-begging and special pleading.

In a like vein, Ayabe ruled that Martin was not among the set of individuals to whom Hawaiian law grants a right to inspect birth certificates. Of course, the more important inquiry is whether the restraints Hawaiian law imposes generally on public inspection of the State’s records must yield to an implied cause of action under the Constitution of the United States for any American citizen to establish whether or not Barack Obama in particular is even “eligible to the Office of President” now that his status as a “natural born Citizen” has been (and is being repeatedly) challenged. [See Article II, Section 1, Clause 4 and Article VI, Clause 2]

Worse yet, Ayabe scored Martin for failing to prove that “irreparable harm will occur if the records are not provided.” Perhaps neither Martin nor Ayabe has read my previous article, “Obama Must Stand Up Now or Step Down,” which outlines only some of the more obvious “irreparable harm” that must ensue if an usurper seizes control of the Presidency. But one would hope that a “judge” might have some independent familiarity with the Constitution sufficient to lead him on his own to the correct conclusion. For, as that article shows, substantial “irreparable harm” from such usurpation can be established beyond peradventure simply by reading the Constitution.

Not satisfied with this blunder, Ayabe ruled that Martin had provided “insufficient evidence to indicate that the public interest supports” disclosure of the supposed birth certificate. “There is a reasonable belief that the public would rather preserve confidentiality of vital health records,” Ayabe held. Although that “belief” might be arguably “reasonable” in the general case (yet not very persuasive even there), it is patently, even childishly, ridiculous in this particular case, where only the complete disclosure of the record (if such record exists) can answer the question of Obama’s eligibility, on which America’s future political stability may rise or fall. Can there be any public interest whatsoever in the “confidentiality of [a single] vital health record” relating to a single individual when such continued “confidentiality” plausibly threatens this whole country’s well-being?!

So much for Martin’s lawsuit. It would be laughable if its result did not hammer another twisted judicial nail into America’s coffin. Martin’s suit, moreover, is not the last of its type that will be dismissed on purported “standing” grounds, because the judge-contrived rules of “standing” applicable to this situation are sufficiently illogical, non-scientific, and even anti-intellectual—that is, contrived from question-begging and ultimately undefinable, unverifiable, and unfalsifiable legalistic mumbo jumbo—that they can rationalize whatever result judges desire to reach, howsoever illogical, perverse, and even dangerous to the national interest it may be. And, particularly in this situation, judges will desperately desire to escape having to take upon themselves the responsibility for the political consequences—let alone the odium whipped up by Obama’s touts in the big media—that will flow from the courts’ declaring Obama ineligible for the Office of President. Which responsibility and vilification wily judges can craftily evade by denying that voters, electors, candidates, and various other would-be litigants have “standing” to challenge his eligibility. For then the judges can claim both that, on the one hand, they have no authority to declare Obama ineligible because no litigant has “standing” to demand such relief, and that, on the other hand, by dismissing the cases solely on “standing” grounds they have not declared him eligible, either. Perhaps when each judge publishes these rulings, the statue of Justice holding the sword and scales should be replaced in his courtroom with one of Pontius Pilate washing his hands.

Although this poltroonish judicial strategy has succeeded in some areas in the past, it will prove bootless, as well as myopic, in this case. The next steps in the process of selecting a President are: (i) for the Electoral College to vote, and then (ii) for Congress to count those votes. The Twelfth Amendment provides (in pertinent part) as follows:

The electors shall meet in their respective states and vote by ballot for President * * * ; they shall name in their ballots the person voted for as President * * * and they shall make distinct lists of all persons voted for as President, * * * and of the number of votes for each, which lists they shall sign and certify, and transmit sealed * * * to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. * * *

The Amendment specifies no grounds, procedure, or standards on or by which any elector’s vote may be challenged for any cause, by either the Electors or Members of Congress. But Congress has enacted a statute that partially addresses this matter:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States * * * ; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted * * *, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified * * * from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. * * * [Title 3, United States Code, Section 15 (emphasis added)]

Even if this legislation is itself a constitutional implementation of the Twelfth Amendment under the Necessary and Proper Clause (Article I, Section 8, Clause 18), it does not purport to provide for, let alone guarantee, a correct result:

First, without an objection “signed by at least one Senator and one Member of the House of Representatives” no inquiry at all can go forward. Yet the mere absence of an objection—particularly without any explanation—cannot preclude the possibility that an Elector’s vote ought to be the subject of an objection and may prove on examination to be objectionable. Indeed, in these times, the very absence of an objection may indicate only that “the good old boys” in Congress—Democrats certainly, and Republicans most likely, too—have “cut a deal” among themselves behind the scenes in order to suppress an investigation the inevitable and unavoidable results of which would demonstrate the utter bankruptcy, if not criminality, of the present electoral process—in that an individual possibly not “eligible to the Office of President” and his handlers may have managed to bamboozle, bribe, blackmail, or otherwise subvert, suborn, or silence both of the “two” major political parties, the big media, the pundits, and every public official with civil or criminal jurisdiction over elections throughout both the General Government and the States.

Second, although a correct result requires a complete inquiry into an objection, with appropriate findings of fact and law supported by competent evidence, the statute merely requires “a decision” each from the Senate and the House of Representatives. On what basis and with what formality and content these “decision[s]” are to be made the statute does not specify. For instance, are the Senate and the House to hold hearings, to and at which witnesses will be subpoenaed and documents will be required to be produced for inspection and analysis? What rules of evidence will apply at these hearings? Who will have the ultimate burden of proof? What will be the standard of proof—a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt? The queries are legion, the answers unknown.

Yet the Constitution demands that, if such an inquiry is held, it should arrive at the correct conclusion with sufficient evidence in support. After all, the question of Obama’s eligibility vel non is not within the discretion of Congress to skirt or to decide as its Members may deem politically or personally expedient. Even by unanimous vote, Congress cannot constitutionally dispense with the requirement that Obama must be “a natural born Citizen,” by simply assuming that he is such, or by accepting something other than what lawyers call “the best evidence” (in this case, his supposed original Hawaiian birth certificate, as opposed to some purported “certification of live birth” computer-generated only decades later).

Therefore, if no objection at all is made to any Elector’s vote for Obama—or if no objection to an Elector’s vote on the specific basis that Obama is not a “natural born Citizen” (and therefore the Elector cannot constitutionally vote for him) is allowed—or if such an objection is allowed, but no searching and complete inquiry, or no inquiry at all, is had—or if partisan Senators and Representatives jury rig “decision[s]” that whitewash Obama on the facts or the law—or some other gross irregularities appear in the process—then thereafter the matter cannot be said to have been settled to a constitutional sufficiency. Congress simply cannot “waive,” or simply flub, the Constitution’s eligibility requirement “to the Office of President” by inaction, or incompetent action, or collusive action

In sum, if the statute does not guarantee (within human competence) that a correct answer to the question be had, then it cannot be deemed to be the exclusive remedy in the premises if (as will be discussed below) a better remedy is available. Moreover, even if the statute is employed to hear and decide challenges to Obama’s eligibility, the resulting “decision[s]” must provide assurances to a moral certainty that the correct answer has indeed been obtained in both fact and law—otherwise, further inquiry needs to be had in other fora. For the consequences of an incorrect answer on the ultimate issue, later exposed as such, are far too serious to allow for any lesser degree of surety. Never were the stakes from a game of “truth or consequences” higher than they are now.

Assume, 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.