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JUSTICES CONSISTENTLY “EVADE” ELIGIBILITY QUESTION
by Sharon Rondeau
A vacancy on the high court was announced last week with the impending retirement of Associate Justice Anthony Kennedy, 81.
As The Post & Email has reported, Third Circuit Court of Appeals Judge Thomas M. Hardiman is one of six “finalists” on Trump’s list. Eight years ago today, Hardiman and and two other judges labeled as “frivolous” an appeal arguing that the plaintiffs in a presidential eligibility case possessed standing to bring the challenge against then-White House occupant Barack Hussein Obama.
Further, the three-judge panel ordered plaintiffs’ attorney, Mario Apuzzo, “to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.”
What Apuzzo found surprising about the judges’ opinion, he said, was that neither the defendants nor the lower court had made the argument that the case was frivolous. On February 4, 2017, Apuzzo told The Post & Email of the panel’s response:
When we were in the trial court, there was no question about whether or not the suit was frivolous. The defendants didn’t even argue that there was anything frivolous about it. When the lower court dismissed it because of standing and political question, of course we wanted to take the matter to the Supreme Court. The only way to do that is to appeal.
A George W. Bush nominee, Hardiman served on the U.S. District Court for the Western District of Pennsylvania until Bush nominated him to serve on the Third Circuit Court of Appeals in 2007.
The three-judge panel further ordered Apuzzo to submit a brief arguing why he should not be sanctioned with “just damages and costs” to defendants. In response, Apuzzo submitted a 95-page brief in which he said he argued (paraphrased), “OK, Court, if you’re going to sanction me, then I want a hearing where I can come in to court and defend myself. I want to see what efforts the defendants made to mitigate their damages. They’re going to argue that they incurred legal expenses, but all they had to do on the issue of whether or not Obama was born in the United States was to show a birth certificate. From Day One, if they had submitted the birth certificate in to court, that argument would have been res judicata.”
On July 22, 2010, the three-judge panel “discharged” its Order to Show Cause “based on Mr. Apuzzo’s explanation of his efforts to research the applicable law on standing.”
At the time, an electronic image of a “short-form” “Certification of Live Birth” served to prove to the American public that Obama was “born in Hawaii” and not in Kenya or Indonesia, as had been reported by multiple credible sources before he sought the presidency.
It is well-known that Article II, Section 1, clause 5 of the U.S. Constitution requires the president to be a “natural born Citizen.” For at least a century, the exact definition of the term has been a topic of discussion and disagreement among lawmakers, politicos, partisans, legal scholars, government officials and citizen researchers.
As noted in the three-judge panel’s July 2, 2010 opinion, the operative “clause 5” is sometimes considered to be “clause 4.”
Despite dozens of lawsuits challenging Obama’s and Sen. John McCain’s presidential eligibility in 2008, no judge anywhere in the country has heard a case on its merits.
In 2016, representing Prof. Victor Williams, Apuzzo challenged Sen. Ted Cruz’s eligibility for the presidency given his birth in Canada to a non-U.S. citizen father at the time. As he had in a 2012 ballot challenge to Obama’s placement on the presidential ballot in New Jersey, Administrative Law Judge Jeffrey Masin determined that Cruz’s name would appear on the 2016 ballot because he was allegedly born to a U.S.-citizen mother.
In March 2015, Associate Justice Antonin Scalia told an Arizona citizen that regarding the meaning of “natural born Citizen,” he would “have to research that.”
On April 27, 2011, the White House uploaded an image said to represent Obama’s “long-form,” or more detailed, birth certificate to quell doubts that he was not born in Hawaii as he claimed. Donald Trump immediately took credit for the publication of the image following months of public pressure he placed on the Obama White House to prove his eligibility.
Within hours, however, graphics professionals declared the image suspect, with some concluding that it was a forgery. That spurred what became a 5+-year criminal investigation, conducted under the authority of the Maricopa County, AZ Sheriff’s Office (MCSO), which found the long-form image as well as Obama’s Selective Service registration form fraudulent beyond the standard of probable cause.
“We wee trying to clear the president,” then-Maricopa County Sheriff Joseph Arpaio said at a December 15, 2016 presser.
According to lead investigator Mike Zullo, although Trump has not raised the birth certificate issue since entering the White House, it “has never left his memory.”
Trump has said he will announce his nominee for the U.S. Supreme Court on Monday, July 9.