by Joseph DeMaio, ©2021 

(Jun. 14, 2021) — As a brief addendum to your humble servant’s prior post on the “quo warranto” topic (prompted by the comments of “Luke” and “Wilson”), an additional problem for Mr. Lindell and his lawyers takes the form of the proceedings in Laity v. Harris, USSC Doc. No. 20-1503.  There, Mr. Laity pursued a “common law writ of quo warranto” seeking to oust Kamala Harris from office on the grounds that she is not a “natural born Citizen” as required by the Constitution. 

As your humble servant has frequently noted here, here, and here, as a substantive “originalist” matter, Mr. Laity is likely correct.  But being “correct” is not the same thing as getting the U.S. Supreme Court to concur.   

Mr. Laity proceeded through the U.S. District Court (lost), the U.S. Court of Appeals for the District of Columbia (lost), then finally on a certiorari petition to the U.S. Supreme Court, where the petition was denied – without comment or dissent – on June 1, 2021.  Mr. Laity has given assurances that he will be pursuing a motion for reconsideration, otherwise due before the end of next week, and failing relief on that path, a “Plan ‘B’” thereafter.  Your servant is monitoring that effort.

Insofar as Mr. Lindell’s efforts are concerned, the notion that the Court would now, less than two weeks later, arrive at a different conclusion in an original action – not an appellate or review action like that of Mr. Laity – brought by Mr. Lindell would be, to use clinical terminology, highly unlikely. 

And while a quo warranto action theoretically brought by one of the fifty sovereign states or their respective attorneys general might “get the ball rolling” for a live “case or controversy” coming before the Court in a subsequent term – the Court will likely end its current term (sorry, “Luke”) following its presently last-scheduled session June 28, 2021 – that action would also face the problem presented by the Johnson v. Manhattan Railway case regarding the nature of quo warranto, i.e., that it addresses only future illegality rather than retroactive correction of past usurpations.

These and related issues have been discussed here at the P&E for many years.  However, the foregoing does not mean that the effort to oust should not be attempted – one cannot succeed if one does not try – but only that a quo warranto attack might not be the one most likely to succeed. Long story made short – and whether pursued by Mr. Lindell, Mr. Laity or a state attorney general – attempting to dislodge the “Goofball-with-access-to-the-launch-codes” via quo warranto proceedings may prove to be something of a quixotic effort, at least before the current Supreme Court.  

Moreover, as the saying goes, be careful what you wish for, as you just might get it: under the Constitution, if the Goofball is removed, guess who replaces him? And if that person is shown to be constitutionally ineligible, who is next in line? Answer: the Speaker of the House. If such a cataclysmic event occurred, and the current Speaker became president, the Republic would cease to exist… by sundown… and the Wretch from San Crapcisco would welcome it.

Now on the other hand, if the Speaker of the House in 2023 (following his election to the House in 2022) were, say…, someone named Trump…

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  1. Today the U.S Supreme Court, in the challenge filed by Texas (and others), directed the lower courts to dismiss the suit because the plaintiffs’ challenge to the ACA lacked standing.

    The U.S. Supreme Court had agreed to hear the case to review the lower courts’ rulings that the plaintiffs had standing.

    The U.S. Supreme Court’s majority decision and concurring opinion make clear they take seriously the limited nature of the federal courts’ jurisdiction.

  2. Henry, A judge cannot make a statement that he is “evading” a duty that he is entrusted to perform and then hide behind a specious and spurious claim that he/she was “joking”. The situation in the hearing room was one where everyone was laughing. That just indicates that the people in that room don’t take the law seriously.

    As I said in previous statements/comments the DC Courts HAVE the lawful authority to hear quo warranto cases under the DC Code, a federal statute. That makes my claim NOT a “political question” only to be remedied by congress.

    Congress by legislating the DC Code DELEGATED authority TO the USDC in DC. Pursuant to Chapter 35, Subchapter 1, Sec. 16-3503 I had/have standing to request leave of the court to sue in the name of the US. That standing was denied without just cause.

    You, Luke and the errant Judges in such cases as Tisdale and Ankeny are conflating the term of art “Citizen” and the term of art “Natural born Citizen”. They are not now nor have ever been tantamount to each other.

    The Nationality Act of 1790 “Considered” those born overseas to US Citizens as NBCs. The use of the word “considered” as being an NBC is not the same as actually being one.

    Furthermore, that provision of the NA of 1790 was promptly repealed in the Nationality Act of 1795.

    An NBC is one born IN the United States to parents who are both US Citizens themselves. Settled law.

    1. “The use of the word “considered” as being an NBC is not the same as actually being one.”

      The 1790 Act uses the word “considered” to mean “is”. Here are other examples from the Act:

      “and thereupon such person [alien going through naturalization process] shall be considered as a Citizen of the United States.”

      “And the children of such person so naturalized, …shall also be considered as citizens of the United States.”

      Aliens who went through the naturalization process were actually citizens.

      “repealed in the Nationality Act of 1795.”

      In the Congressional debates over the 1795 Act Congressman Hillhouse said that children born in the US to an alien were natural born citizens.

      1. Doesn’t matter what one Congressman says. What matters is that in the 1795 Act the provision on NBC was REPEALED. Persons born out of the US, even to two Citizen parents are NOT NBCs.

        1. Unlike you that one Congressman knew James Madison.

          Neither James Madison nor any of the other members of Congress disputed his statement.

    2. The fact that everyone in the room was laughing is a very clear indicator that Thomas was joking. The hearing wasn’t even about the natural born citizen clause. That the joke was an aside from the hearing’s main topic is further evidence it was conveyed and received as a joke. Justices even make jokes during oral arguments at the U.S. Supreme Court. Even if jokes aren’t proper, they’re still jokes.

      And as I have said in my previous comments, no judge agrees with Laity’s beliefs, as evidenced by his quick dismissals. And will be furthered evidenced by the inevitable denial in October of the pointless petition for rehearing.

      Citizen and natural born citizen are not synonymous, so the accusation on conflation is yet another error.

      1. You are right about Citizen and Natural Born Citizen not being synonymous. I used the same words but used Tantamount. YOU made my point. It is precisely what many people are doing. They are basing their arguments that a “Citizen” who was not born to two US Parents in the US can be President because if the law makes one a “citizen” then it also makes one an NBC. That is simply a grave error.

        1. No one is saying that all citizens are also natural born citizens as some citizens are naturalized citizens.

          But every judge who has considered the matter has concluded that someone who acquires citizenship at birth is a natural born citizen.

          No judge has concluded that both birth in the United States and birth to two citizen parents is required to be a natural born citizen.

    1. Supreme Court Rule 44 covers Petitions for rehearing:

      “Rule 44. Rehearing
      Primary tabs

      1. Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.
      2. Any petition for the rehearing of an order denying a petition for a writ of certiorari or extraordinary writ shall be filed within 25 days after the date of the order of denial and shall comply with all the form and filing requirements of paragraph 1 of this Rule, including the payment of the filing fee if required, but its grounds shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented. The time for filing a petition for the rehearing of an order denying a petition for a writ of certiorari or extraordinary writ will not be extended. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is restricted to the grounds specified in this paragraph and that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). The certificate shall be bound with each copy of the petition. The Clerk will not file a petition without a certificate. The petition is not subject to oral argument.
      3. The Clerk will not file any response to a petition for rehearing unless the Court requests a response. In the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response.
      4. The Clerk will not file consecutive petitions and petitions that are out of time under this Rule.
      5. The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.
      6. If the Clerk determines that a petition for rehearing submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. A corrected petition for rehearing submitted in accordance with Rule 29.2 no more than 15 days after the date of the Clerk’s letter will be deemed timely.”

      Pay particular attention to (2) and you will know why this is futile. I challenge Mr. Laity to explain how he will succeed.

  3. Very nice article. It’s nice to see we agree and thank you for the kind mentions. Was referring, of course, to SCOTUS being out of session in July, when you wrote Lindell will bring his case “…sometime during the month of July, 2021, a case based on a “writ of quo warranto” will be brought directly in the U.S. Supreme Court (“USSC”) which will result in a 9-0 (i.e., unanimous) decision overturning the 2020 general election and reinstalling President Trump into office.”

    SCOTUS isn’t scheduled to be in session in July, so it doesn’t seem likely they’ll be ruling by August (or even September, as Lindell just hedged in a recent profile). Although if they return for Laity’s rehearing, they could take up the Lindell case too.

    At the MyPillow headquarters, Lindell hedged on the exact month, suggesting he “might be off by, maybe it’s September.” Regardless, he offered another firm deadline he’s certain of: “I will tell you this. The election is coming down, 100 percent, and there will be no machines in 2022.”

  4. When every court, including the U.S. Supreme Court, denies your request, “correct” is not a very apt word to describe those efforts.

      1. “Avoid” would be a very poor choice because every district court and circuit court provided written decisions explaining their rulings.

        That’s the opposite of avoiding.

        1. It’s the Supreme Court that Justice Thomas claimed to Congress is “Evading” the eligibility issue. An overt case of gross malfeasance by SCOTUS given that the USDC for DC Court is the sole arbiter of usurpation of DC Public offices per the DC Code and the SCOTUS its review authority.

        2. Response from Joseph DeMaio:

          *****************
          “… every district court and circuit court provided written decisions explaining their rulings.” It is one thing to decide and “explain” a ruling on why a case is “moot,” or why a plaintiff lacks “requisite standing” or why the case involves a “political question” claimed to be beyond the court’s jurisdiction.

          It is quite another to “avoid” (or, as some would contend, “evade”) producing a substantive decision explaining why, despite the plain language of the 14th Amendment and the fact that the decision in United States v. Wong Kim Ark addressed and limited its holding solely and exclusively to the question of whether one born here was a “citizen” thereunder – as opposed to a “natural born Citizen” under Art. 2 of the Constitution – a satisfactory answer to the “natural born Citizen” eligibility issue has purportedly been adduced, “settling” the matter. This is particularly true in light of the legislative history of the amendment. Recall that at one time, it was “settled” that the Earth was flat; that the sun orbited the Earth; and that Dred Scott was “property” rather than a “person.”

          Still waiting for a citation to that yet-to-be revealed district or circuit court case – much less a Supreme Court case – addressing and adjudicating these issues. Against that backdrop, the terms “avoid” (and even “evade”) seem less inapt.

        3. Thomas was joking when he made that comment, as shown by his and the witness’s laughing together. The D.C. district court, D.C. circuit court, and the U.S. Supreme Court all duly rejected Laity’s petition, with the first two courts giving reasoned explanations for their actions.

          It is a logical fallacy to suggest that, if others were wrong about the shape of the earth, then a court was wrong in any particular case.

          The reference to district and circuit courts’ decisions concerned, of course, decisions about standing in the federal courts. The federal courts repeatedly have explained that they have limited jurisdiction, and they repeatedly also have explained it would be unconstitutional for the federal courts to make rulings if they lacked jurisdiction to hear a case.

          It is therefore unsurprising the federal courts have had little to say about the natural-born-citizen clause because no party with standing has filed a suit in the federal courts. The federal courts cannot answer a question that has yet to be raised by a proper litigant.

          Some state courts have ruled on the meaning of natural-born citizen. Which is fine, as state courts may interpret the U.S. Constitution, provided their interpretations are not contrary to the U.S. Supreme Court’s interpretations. Still, if one desires federal authority, there is always Tisdale v. Obama, No. 12-00036 (E.D. Va. 2012), aff’d, 473 F. App’x 203 (4th Cir. 2012).

        4. Mr. DeMaio, sorry, did not know you were not familiar with Tisdale v. Obama. It was a Federal (US district court) case that was affirmed on appeal.

          As Mr. Wilson points out, Tisdale v. Obama was dismissed by a federal judge in the Eastern District of VA in 2012. The full Order is here: https://www.fec.gov/resources/legal-resources/litigation/tisdale_dc_order.pdf. The full case is at: https://www.fec.gov/legal-resources/court-cases/tisdale-v-obama/ Following the dismissal, Mr. Tisdale appealed to the Fourth Circuit, and the judgment of the district court was affirmed.

          From the dismissal:
          “Mr. Tisdale cites Barack Obama, Mitt Romney, and Ron Paul as ineligible to appear on the ballot, on the grounds that each had at least one parent who was not a citizen of the United States.

          The Court rules that the Complaint does not state a claim upon which relief may be granted. The eligibility requirements to be President of the United States are such that the individual must be a “natural born citizen” of the United States and at least thirty-five years of age. U.S. Const. art. II, § 1. It is well settled that those born in the United States are considered natural born citizens. See, e.g., United States v. Ark, 169 U.S. 649, 702 (1898) (“Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.”); Perkis v. Elg, 99 F.2d 408, 409 (1938). Moreover, “those born ‘in the United States, and subject to the jurisdiction thereof,’ … have been considered American citizens under American law in effect since the time of the founding . . . and thus eligible for the presidency.” Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H 2008). Thus, Mr. Tisdale’s contention that President Obama, Governor Romney, and Congressman Paul are not eligible to be President due to their nationalities is without merit.

          Accordingly, the Court dismisses the Complaint for failure to state a claim. This dismissal is with prejudice, as the Court finds that allowing leave to refile would yield the same result, given the underlying premise of Mr. Tisdale’s claim.”

          Hope this is helpful to you and Mr. Laity. Since Vice President Harris was born in California, it appears likely the decision in Laity v. Harris will yield the same result, given the underlying premise of Mr. Laity’s claim.