Thanks to valued commentator Glenn for calling our attention to this ruling that the Lakin Article 32 IO, LTC Driscoll, issued yesterday emphatically rejecting defense requests to produce documents and witnesses concerning President Obama’s constitutional eligibility.  While the IO would have had no authority to compel the attendance of civilian witnesses who didn’t want to attend, the discussion accompanying R.C.M. 405(g) explains that an “investigating officer should initially determine whether a civilian witness is reasonably available without regard to whether the witness is willing to appear.  . . .   If the witness refuses to testify, the witness is not reasonably available.” 

LTC Driscoll wrote:

The Government does not charge that the President gave an order directly to LTC Lakin.  For the President’s credentials to have any bearing on the charges against LTC Lakin, the Defense proposition must be that military orders issued by superiors to juniors are all “invalidated” during the period the President improperly holds office.  This proposition fails to account for the law of lawfulness of orders, which in essence requires that a facially proper order be obeyed so long as it does not require the commission of a criminal act.  See, e.g., United States v. New, 55 M.J. 95, 107-108 (2001) (medic who doubted unlawfulness of order to deploy with United Nations uniform accoutrements unable to overcome presumption of lawfulness of superior’s orders to so deploy).  Moreover, the Defense proposition fails to account for the de facto officer doctrine, a military variant of apparent authority.  The Defense offers no legal support whatever for its position, which I find to be far from ‘axiomatic.’  As far as I have found, the proposition has no basis in law.

LTC Driscoll also observed that the defense “fails to assert a legal basis by which its request might be allowable under the law of political questions, whereby courts will refrain from inserting themselves in matters constitutionally relegated to coequal branches of Government.”

LTC Driscoll concluded:

In my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the President’s credentials on trial.  For this reason and the reasons stated . . . above, it is my opinion the discovery items pertaining to the President’s credentials are not relevant to the proof of any element of the charges and specifications set forth in the charge sheet.  Consequently, I will not examine the documents or witnesses pertinent to the President or his credentials to hold office.

LTC Driscoll’s ruling nonetheless virtually guarantees that next Friday’s Article 32 hearing will be a circus.  Despite finding that the defense has made no showing of relevance as to the testimony of retired Major General Paul Vallely and Alan Keyes, LTC Driscoll ruled that “I will hear testimony from these witnesses.”  (Major General Vallely engages in a guano crazy radio interview about the Lakin case here.  I wonder how he would have responded when he was on active duty if one of his subordinates had refused to obey one of his orders by questioning the President’s constitutional eligibility to serve.  Alan Keyes’ guano crazy analysis is available here.)  LTC Driscoll also ruled that he would hear testimony from two other witnesses with “first-hand knowledge of facts relating to LTC Lakin’s actions,” Colonel William Rice and Colonel Dale Block. He noted that a third witness with such purported “first-hand knowledge,” Mr. Loren Friedman, will be on government travel to the West Coast next Friday.  LTC Driscoll notified the parties that at the conclusion of evidence, he would consider any request to hold the proceeding open to allow for additional testimony.

If anyone has a copy of either the defense’s or government’s filings with the IO that preceded this ruling, please send us a copy at caaflog@caaflog.com.

140 Responses to “Lakin IO refuses defense requests to produce evidence concerning President Obama’s eligibility: “As far as I have found, [the Defense’s] position has no basis in law” (that’s IO-speak for “guano crazy”)”

  1. soonergrunt says:

    Oh, shit.
    Here we go in 5, 4, 3, 2…

  2. Alan Keyes says:

    IN UR COURT-MARTIAL RUNNING 4 PRESIDENT

    LOLOLOLOLOLOL

  3. Filo MD says:

    Come on obama show the damn thing. We need Lakin back.

  4. soonergrunt says:

    And we have a winner!!! The crowd goes wild!!!

  5. Dave says:

    “Jive-ass”? Whatever LTC Lakin has done recently, his service to this country has earned him more respect than that.

  6. Cheap Seats says:

    Thanks, soonergrunt. There is now coffee all over my desk. I appreciate the laugh first thing this morning!

  7. Phil Cave says:

    Actually, I think the comment is directed at us galactically stupid who think LTC Lakin’s case is guano-loco (the correct term according to the Urban Dictionary)?

    Further defined as:

    Bat**** Insane. Crazy, in fact probably totally insane. Acting in the manner of Tom Cruise jumping on Oprah’s sofa or Joaquin Phoenix on the Letterman show. Hearing voices and imagining things that haven’t happened or people saying things that they haven’t. Possibly caused by some recent trauma, however more than likely always present just brought to the surface in times of high emotion.

    Now, disrespectful to Mr. Olsen, a different matter.

  8. Late Bloomer says:

    Dave,

    I may have read incorrectly, but I think he was referring to POTUS.

  9. aarrgghh says:

    translation: curses! foiled again!

  10. Late Bloomer says:

    Yes, having visited Mr. Olsen’s website http://lysanderspoonerlawschool.com, I am certain that he refers to Mr. Obama.

    LTC Lakin looks quite reasonable in comparison.

  11. Anonymous says:

    President Obama is my client? Really? Where’s my OER Support form? I’ve got another bullet to add!

  12. Anonymous says:

    If Obama is our client, then who is our opposition?

  13. Anonymous says:

    Doesn’t an accused at an Article 32 have the right to present any and all matters in extenuation and mitigation?

  14. Anonymous says:

    Abstractly, any input on presentation of mistake of law as a issue of E&M at trial (and no I don’t think any of this comes in at trial nor should it). However, absent the fact that Lakin himself has already professed that he is merely uncertain of the president’s legitimacy, shouldn’t his state of mind during the commission of the offense come into play as a matter of E&M?

  15. Anonymous says:

    So we have the facts, and the law, but you don’t like the President soooo our conduct is unbecoming because we are following the facts and the law?

    That’s the fine quality of logic you are only likely to see in mental institutions, prisons, and 14 year olds trying to argue why they should be allowed to sleep over at their boyfriends house when his parents are away.

  16. Anonymous says:

    But they aren’t presenting it as E&M, they are presenting it as a legal defense.

  17. KyAtty says:

    Benedict Arnold served his country well, which meant diddly after he betrayed it. LTC Lakin has chosen to put his insane political cause ahead of his duty.

  18. Late Bloomer says:

    Not quite the same as betrayal. It’s not as if LTC Lakin is giving Kim Jong Il state secrets.

  19. soonergrunt says:

    Did Olsen post something and I missed it?

  20. soonergrunt says:

    @ Cheap Seats 0729, re the coffee’d desk:
    No need to thank me, I’m here to serve.

    Actually I’m retired and I don’t have anything better to do when my yard/house projects are on hold awaiting materials.

  21. KyAtty says:

    He did refuse to do his duty, which means that one of his comrades may die or suffer unnecessarily because Lakin wasn’t in Afghanistan to treat him. The point isn’t that he is as bad a traitor as Benedict Arnold, but rather that his past service doesn’t excuse his current refusal to do his duty.

  22. soonergrunt says:

    Isn’t the principle the same, though? Benedict Arnold was a brilliant officer who served ably and well, but we don’t remember him for that. We remember his crime, and that is how posterity will treat Lakin, if he’s remembered at all in five years.

  23. Anon says:

    Yes, and it was later deleted. Not sure why.

  24. yguy says:

    (Major General Vallely engages in a guano crazy radio interview…Alan Keyes’ guano crazy analysis…)

    I don’t know that anyone who thinks military personnel would be legally obligated to take orders from a CiC who had publicly announced his ineligibility for office has any business questioning the sanity of others.

  25. glenn says:

    LOL!

    But Filo is a birther. In other words, he won’t understand the joke.

  26. Cheap Seats says:

    Crap…coffee on the desk again!

  27. Bridget says:

    Given the IO ruling, I can only think that his counsel is trying to make certain LTC Lakin has an IAC claim.

  28. Dwight Sullivan says:

    Yguy, you misstate what I wrote. Using myself as an example, I pointed out that servicemembers don’t usually receive orders directly from the President. I noted, consistent with the de facto officer doctrine, that in the situation you posit, servicemembers would continue to obey orders from their military superiors.

    As to those few military officers who directly receive orders from the President, I didn’t say that they would be “legally obligated” to obey orders from a President who publicly states that he’s constitutionally ineligible. I didn’t render a legal opinion about that issue at all. Nor would I, since I haven’t done the extensive legal research that would be necessary to form such an opinion. Rather, I made a statement about what I believed would happen (not what would be legally required), but noted that such a decision is “above my pay grade.”

    If the situation you posited were to occur, I have no doubt that our senior military leadership would receive sage advice from their senior legal advisors, including the Judge Advocates General and the legal advisor to the Chairman of the Joint Chiefs of Staff.

  29. soonergrunt says:

    OK. Thanks!

  30. Mike "No Man" Navarre says:

    Just to clear up confusion, Kenneth Olsen posted a comment earlier. Kenneth Olsen’s comment was removed due to inappropriate content.
    –CAAFlog Staff

  31. soonergrunt says:

    Thanks!

  32. Phil Cave says:

    The deletion was unwise? Derogatory to the President, yes.

    But now Mr. Olsen is bragging about it. Sad.

    http://lysanderspoonerlawschool.com/censored/censored.html

  33. soonergrunt says:

    Does that idiot realize that if his cherished theory that F.M. Davis is President Obama’s real father, it completely and utterly invalidates any and all claims that Obama is ineligible to serve (because Barack Obama Sr. wasn’t a US citizen)?
    I mean, not that any of that is needed anyway?

  34. Late Bloomer says:

    Ahhh…but doesn’t it produce a delicious new conspiracy?

  35. BigGuy says:

    I haven’t seen Lakin’s pleadings. But as far as his public statements go, I believe that they concentrated on the Birth Certificate arguments and did not raise the two-citizen-parent claim — to the chagrin of some birthers, who want to throw everything against the wall in the hope that something sticks.

  36. yguy says:

    As to those few military officers who directly receive orders from the President, I didn’t say that they would be “legally obligated” to obey orders from a President who publicly states that he’s constitutionally ineligible.

    […]

    Rather, I made a statement about what I believed would happen…

    OK, but since officers are obligated to act only according to law, you’re implying either that they have a legal basis for continued obedience or that most such officers can be counted on to break the law.

    If the situation you posited were to occur, I have no doubt that our senior military leadership would receive sage advice from their senior legal advisors, including the Judge Advocates General and the legal advisor to the Chairman of the Joint Chiefs of Staff.

    I invite you, or anyone, to construct a prima facie case in favor of those hypothetical officers continuing to respect the authority of an admittedly ineligible CiC. Until then, I cannot help but liken your pronouncements regarding the obligations of lower ranking officers to those of a mathematician who holds forth eloquently on the subject of tensor calculus but finds himself incapable of determining whether or not 1+1=3.

  37. BigGuy says:

    …the authority of an admittedly ineligible CiC.

    Needless to say, you’ve got a problem there. Obama has publicly admitted that his father was not a U.S. citizen; that only becomes an admission of ineligibility if and when the courts so rule.

    That’s why the IO uses the legal term “facially proper order.” The purported invalidity of the order must be clear on it’s face; it’s not sufficient to disobey it in the belief that a hypothetical subsequent court ruling will render it invalid.

  38. soonergrunt says:

    The problem with your idea is (and I’m just a dumb grunt, but even I can see it) is that whether or not Lakin had any responsibility WRT President Obama, he most certainly has a responsibility to the ranking officers of his chain of command, who are known to him to be persons who can give him orders which he has a duty to obey. Their authority to do this does not derive from the person of Barack H. Obama. It derives from the state. Col. Sullivan and the other lawyers here can (and I’m sure already have) describe exactly where their authority to order LTC Lakin to Afghanistan comes from. Something about ‘de-facto officer doctrine’ but, and I could be mistaken, I understand that there are other doctrines under military law that have no reference to the President. Even if the office of POTUS/CinC were completely unoccupied, LTC Lakin’s Chain of Command could still order him to deploy and expect him to carry out such order.

  39. soonergrunt says:

    When I was ordered to go to Iraq in 2004, I thought it was illegal under international law, and didn’t want to go. A friend suggested that maybe I could get out of it on those grounds. I asked two lawyers, one of whom was a JAG of my acquaintance. The long and short of what they both told me was that the course of action I was considering was a one-way ticket to a Bad Conduct or Dishonorable discharge with a possible term in confinement.
    So I went to Iraq and did my job. I took the fight to the enemy, led my Soldiers as best I could, and through no small amount of luck and the support of better men than I, brought all my boys and our toys home, along with my honor, intact.
    I have no use personally for the LTC Lakins of the world. He will almost certainly be found to have broken the law and sacrificed his career and his honor for a cheap political stunt. In that respect, he’s no better than any of the anti-Iraq deserters that I also despise.
    I’m so sick and tired of people suggesting that members of the military should refuse to do their duty because they don’t like the outcome of the last election. There are plenty of places in the world where the local military has the power and the history of ‘review’ over decisions of the government, and it never works. Our way is best by a long margin, and that way has guys like me going to war under Bush and guys like Lakin going to war under Obama or being severely punished when we refuse, because that is the way it must be if our system of government is to work.
    At the end of the day, it is nothing less than the demand of Honor itself that compells us to obey lawful orders we don’t like from political leadership we don’t want.

  40. Anonymous says:

    With all due respect to MAJ Kemkes, who I am willing to bet is a terrific officer and attorney, there has to be a point where his ethical duties to his client will be tested against what would seem to be an obviously invalid defense. I hate to consider self-preservation, however, I would not feel comfortable walking into a courtroom and presenting this defense.

  41. KyAtty says:

    I’m not sure why yguy is going on about an admittedly ineligible president, since it has no relevance to Lakin. Obama was elected by the Electors in accordance with the Constitution, and there has been no admission of ineligibility.

  42. Anonymous says:

    I’d like to hear one person ask Lakin and his crew why he thinks the military has valid authority to pay him, and why he accepts his paycheck, but doesn’t have authority to order his assignment overseas.

  43. BigGuy says:

    It’s true that eligibility questions are irrelevant to the Lakin case for all the reasons that LTC Driscoll listed.

    But that doesn’t stop the birfers from harping on their latest theory. Since it’s clear that the “Photoshopped COLB” and the “Authentic Kenyan Birth Certificate” and the “Pakistani travel ban” and the “Indonesian adoption” and all the other BS is going nowhere, the current nonsense is that, since Obama has made no secret of the fact that his father was not a U.S. citizen, he has admitted that he is not a Natural Born Citizen.

    Of course, legally that is nonsense, but so’s the rest of birferism, so I guess we shouldn’t be surprised.

  44. soonergrunt says:

    I’d like to hear one person ask Lakin and his crew why he thinks the military has valid authority to pay him, and why he accepts his paycheck, but doesn’t have authority to order his assignment overseas.

    A great question for the prosecutor to ask him if he takes the stand at court-martial, but I’d love to hear that in an interview. I don’t think that Faux News or WingNut Daily will ever pose such a question to him or his counsel though.

  45. KyAtty says:

    As anyone who has read US v. Wong Kim Ark knows, the citizenship of the President’s father is irrelevant to his citizenship status. The President was born in the US, ergo he is a natural born citizen. Even more to the point, the Electoral College and the Congress have both found him eligible, and the courts have no authority under the Constitution to reverse their determination.

  46. KyAtty says:

    As anyone who has read US v. Wong Kim Ark knows, a person born in the US is a natural-born citizen regardless of the citizenship status of his parents.

  47. DC Steve says:

    Concur. And, if LTC Lakin is willing to put his money where his mouth is, I will gladly hold onto his pay in the interim…

    Vegas Baby Vegas!

  48. BigGuy says:

    That’s right. And while WKA didn’t speak directly to Presidential eligibility, Ankeny v. Governor did. In November, in a case specifically addressing Obama’s eligibility, the Indiana Court of Appeals ruled unanimously that

    “[b]ased upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”

    Oh, and the Indiana Supreme Court refused to hear an appeal.

  49. soonergrunt says:

    But that doesn’t have any value outside Indiana, does it, or am I wrong?

  50. Bovril says:

    For thoes of you confused by Yguys bizarre little tirades a little background.

    He is a practicing member of one of the sub-sects of Birferstan, specifically a De-Vatellist.

    In this bizarre little world of non reality he presumes he knows better than the Founding Fathers, the Supreme Court, two centuries plus of case law etc.

    In the echoing wilderness that passes for his mind he believes that an obscure Swiss philosopher (De-Vatell) from the 1700’s actually was the prime influence and arbiter of the Constitution and definer of citizenship in the US.

    More specifically he is of the (mistaken) certainty that merely being born in the environs of the US (Hawai’i) is insufficient to make said individual eligible for the office of POTUS.

    He makes up some bizarre third type of citizenship other than Natural/Native and Naturalized.

    Expect him to launch into a tortured defence of the (legally) non existemt difference between Natural and Native Born. This will usually be followed by drivel about his warped comprehension failure of Hawai’i statues followed by varying ad-hominem attacks.

    Beware, no matter what the cites, demonstrable proof, case law etc you provoide he will simply babble on incessently.

    For this who relish the inanity of this particular Troll feel free to watch the pantomime over at http://www.obamaconspiracy.org

  51. BigGuy says:

    It’s not binding outside Indiana. But it’s a pertinent reminder that current legal opinion in the U.S. is virtually unanimous in holding that anyone born on U.S. soil (with very narrow exceptions) is a Natural Born Citizen. The fact that there was no dissent in the decision, no interest by the Indiana Supreme Court in hearing the appeal, and (perhaps most important) not a single indication that the decision raised any eyebrows in the reputable legal community — no dissenting law journal articles, for example — is a strong showing that the law at this point is clear.

    Now, SCOTUS could conceivably overturn WKA in the future. But that would have no bearing on Obama’s election and accession to power, which were fully compliant with current law.

  52. BigGuy says:

    “But that doesn’t have any value outside Indiana, does it, or am I wrong?”
    ___

    It’s not binding outside Indiana. But it’s a pertinent reminder that current legal opinion in the U.S. is virtually unanimous in holding that anyone born on U.S. soil (with very narrow exceptions) is a Natural Born Citizen. The fact that there was no dissent in the decision, no interest by the Indiana Supreme Court in hearing the appeal, and (perhaps most important) not a single indication that the decision raised any eyebrows in the reputable legal community — no dissenting law journal articles, for example — is a strong showing that the law at this point is clear.

    Now, SCOTUS could conceivably overturn WKA in the future. But that would have no bearing on Obama’s election and accession to power, which were fully compliant with current law.

  53. DC Steve says:

    Come on.

    Aren’t we done discussing the merits of this case yet? All relevant issues were settled when LTC Lakin’s foot failed to step onto a plane.

    I’m all for continued updates by the “snarky legal geniuses” of CAAFlog (and I hope someday to be included in that number), but COL Sullivan has now posted several oeuvres debunking the birthers – to which no one, ever, has even attempted to address on their merits.

    And yes, I said “oeuvre” in a direct attempt to achieve snarkiness.

  54. KyAtty says:

    I would also say that SCOTUS has no business interpreting Article 2 Section 1, Clause 5 of the Constitution since the Constitution invests the power to elect or remove a President solely in the Electors and Congress.

  55. soonergrunt says:

    Now, SCOTUS could conceivably overturn WKA in the future. But that would have no bearing on Obama’s election and accession to power, which were fully compliant with current law.

    But such a decision could, if I understand your correctly, prevent Obama from being re-elected, at least theoretically?

  56. soonergrunt says:

    “And yes, I said ‘oeuvre’ in a direct attempt to achieve snarkiness”
    You might need to have that checked. Turn your head and cough…

  57. BigGuy says:

    “But such a decision could, if I understand your correctly, prevent Obama from being re-elected, at least theoretically?”
    ___

    IMO, the answer to your question is yes. Just as we accept WKA with its determination of who is a citizen at birth, we would be equally compelled to accept a change in course at SCOTUS.

    But if others disagree, I’d be interested to hear why.

  58. yguy says:

    The problem with your idea is (and I’m just a dumb grunt, but even I can see it) is that whether or not Lakin had any responsibility WRT President Obama, he most certainly has a responsibility to the ranking officers of his chain of command, who are known to him to be persons who can give him orders which he has a duty to obey.Their authority to do this does not derive from the person of Barack H. Obama.It derives from the state.

    More precisely, it drives from the people, the paramount expression of whose will is the Constitution, which is crystal clear about whom the most senior officers may take orders from. They may not, e.g., consent to be commanded by Nancy Pelosi or Harry Reid or John Roberts even though all presumably hold their offices legally; and neither may they obey the orders of anyone else not authorized to command the armed forces, which in my scenario would clearly include the President.

    Even if the office of POTUS/CinC were completely unoccupied, LTC Lakin’s Chain of Command could still order him to deploy and expect him to carry out such order.

    A Presidential vacancy is a far less dangerous possibility than that of a deliberately illegal occupancy.

  59. KyAtty says:

    BigGuy,

    See my post above. SCOTUS has no constitutional authority to review the determination made by the Electors and Congress as to who is eligible to be President. Its a political question and the remedy for that is not the courts but elections. God help us if SCOTUS ever does take it upon itself to try to reverse a presidential election*-then we would have a constitutional crisis!

    * In Bush v. Gore SCOTUS didn’t go that far-they merely stopped a recount being conducted by Florida.

  60. DC Steve says:

    (Quote) Come on obama show the damn thing. We need Lakin back.

    Yep, just what we need. An officer who takes the pay, tells medics, nurses and support staff what to do (ie gives orders), but becomes deaf when ordered to get on a plane. Just what we need. We need more just like him. Sure would make all this war fighting stuff a lot easier.

    Question: any takers on whether LTC Lakin will obey the order to show up at the 32? Will he be in uniform? I’m guessing he will choose to obey that order.

  61. BigGuy says:

    But aren’t those two separate questions? I was not speaking of “try[ing] to reverse a presidential election” — that’s clearly not the place of SCOTUS.

    I was addressing a different issue. Should SCOTUS reverse WKA and rule that two citizen parents are required for NBCship, wouldn’t that rule out unqualified candidates in the future, including (if the timing were right) Obama’s reelection bid?

  62. BigGuy says:

    But aren’t those two separate questions? I was not speaking of “try[ing] to reverse a presidential election” — that’s clearly not the place of SCOTUS.

    I was addressing a different issue. Should SCOTUS reverse WKA and rule that two citizen parents are required for NBCship, wouldn’t that rule out unqualified candidates in the future, including (if the timing were right) Obama’s reelection bid?

  63. KyAtty says:

    IMHO, the Electors can vote for whoever they want to-its up to them to interpret the meaning of “natural born citizenship” in Article 2. The buck doesn’t always stop with SCOTUS on interpreting the Constitution. Sometimes its the Electors or Congress who have the final, nonreviewable word. And that’s ok.

  64. BigGuy says:

    Again, your use of “nonreviewable” suggests that we are dealing with an election that has already taken place.

    And that’s just the reason that such a case would have to be brought before the election. An opponent could sue, for example, to have a candidate’s name removed from the ballot. If that case made it to SCOTUS and the Court ruled that the challenge was valid and the candidate ineligible on Constitutional grounds, I believe that the name of the disqualified candidate would have to be removed from the ballot, even if it were a sitting President trying to run for reelection.

    But we agree on one thing: Once the Electoral College has voted and the Congress has accepted their tally, it’s a done deal.

  65. John Harwood says:

    Here, here! SoonerDude, you made this Airman’s day with that rant. Very, very well said. When you’re in the military, you don’t get to pick and choose which president you like, and which one you don’t. Because ultimately, you’re not serving the president. You’re serving his boss – The People. So stop whining … if you want to resign your commission, Lakin, go ahead. That, my comrade in arms, is how an honorable officer protests an order.

  66. John Harwood says:

    Nice use of “oeuvre.” But you didn’t use juxtaposition, banality, bailiwick or milieu. Try harder next time.

  67. JimmyMac says:

    I have a solution to the current CAAFLOG conundrum – Invite LTC Lakin and his band of merry supporters to join the McSweeney Family (Posting entitled “Sexual Assualt Provisions in House Version of FY11 DoD Authorization Act” of 31 May) in a blog all their own. They were made for each other.

  68. yguy says:

    SCOTUS has no constitutional authority to review the determination made by the Electors and Congress as to who is eligible to be President.

    Where in the Constitution do you find any authority specifically vested in either of those entities to make a conclusive determination as to eligibility per A2S1C5?

  69. Anonymous says:

    Where in the Constitution do you find any authority specifically invested in the Supreme Court or the Judicial Branch to determine the eligibility of the President to hold or run for office?

    And you nor anyone else have answered the question, if all orders are invalid, then why is LTC Lakin ok with the orders authorizing his pay? Is he accepting his pay? Spending it? If so, isn’t that hypocritical?

    Why would he accept the order to show up to the Article 32? Isn’t that order invalid too? Heck, why follow the order to show up the office? To wear his uniform?

    Isn’t the court-martial he clearly wants also based on an invalid order and also completely invalid? The Article 32 is also completely invalid, right?

    Even if the court rules in his favor, it draws it’s authority from the commander-in-chief right, and he’s illegitimate, so unfortunately even if he wins, it can’t stand, because it’s based on an illegitimate c-i-c.

    I’m just curious the adherence to some orders and the rejection of others, not because some oreders are valid and others aren’t but because some he wants to do and others he doesnt.

  70. soonergrunt says:

    @ John Harwood, 1647;
    “So stop whining … if you want to resign your commission, Lakin, go ahead. That, my comrade in arms, is how an honorable officer protests an order.”
    Why didn’t LTC Lakin simply do this?

  71. soonergrunt says:

    Now that’s just mean.

  72. Cap'n Crunch says:

    Lakin is going to end up in the same boat as SPC New with the UN Beret. What all these Birthers fail to realize is that the military justice system is not about (and will not tolerate) furthering a political agenda or making a political statement by military members (especially commissioned officers) towards those in Command. You want to litigate whether or not the CinC lawfully holds the office, file a civil action.

    Military jurisprudence is clear that military members disobey orders at their peril. And in this case, there are a variety of factors that work against Lakin. First, as Dwight mentions, you have the de facto officer doctrine even if the President does not lawfully hold the office. Second, irrespective of the CinC’s ability to hold the post, the orders to deploy came from an officer who was properly constituted in his office — and Lakin is not charged with disobeying the POTUS, he is charged with disobeying his immediate superior.

    No matter how you skin this, Lakin ends up on the short end of the stick. And let me point out something else: politically, Lakin REALLY doesn’t have a shoe to stand on. The Press is extremely supportive (to a fault) of this administration as is the Democrat majority in the Senate and House. And the conservative’s view of this sort of thing is that we need an effective military and don’t need upstart officers questioning deployments and looking like a coward in the process by shirking a deployment.

    No matter how you skin this, Lakin gets fried. Maybe the birthers can hold a 365 day vigil outside the USDB in Kansas while Lakin is confined ;)

  73. Necro says:

    Obama will clearly be impeached soon for other reasons.
    Still very interesting.

  74. soonergrunt says:

    Not that such would have ANY bearing on whether or not LTC Lakin violated UCMJ, but what pray, would those reasons be?

  75. BigGuy says:

    LOL, are you’re talking to me? I’m no fan of Lakin’s or of any of the other birthers.

    All I’ve been saying is that, just as we rely on Wong Kim Ark to make the case that Obama is eligible, we would be comparably bound in the highly unlikely event that the decision were overturned.

  76. BigGuy says:

    LOL, are you’re talking to me? I’m no fan of Lakin’s or of any of the other birthers.

    All I’ve been saying is that, just as we rely on Wong Kim Ark to make the case that Obama is eligible, we would be comparably bound in the highly unlikely event that the decision were overturned.

  77. soonergrunt says:

    Right up there with Brown v. Board of Education, Lawrence v. Texas, and other rulings that changed everything overnight…
    Talk about playing with live ammo…Wow.
    Thanks for the class, Sir.

  78. Georgetown says:

    Appeal the Ruling to the IO”s Superior!

  79. yguy says:

    Where in the Constitution do you find any authority specifically invested in the Supreme Court or the Judicial Branch to determine the eligibility of the President to hold or run for office?

    Nothing specific to A2S1C5, but the judicial power extends “to all Cases, in Law and Equity, arising under this Constitution…”, which means it has prima facie* jurisdiction where any constitutional provision has bearing in a case or controversy.

    *The qualifier is meant to allow for nonjusticiability in such cases as Nixon v. United States (91-740), 506 U.S. 224 (1993).

    And you nor anyone else have answered the question, if all orders are invalid,

    Again, I don’t accept the premise, so I won’t bother with the question.

  80. Christopher Mathews says:

    You did notice the limiting modifier in “an honorable officer,” yes?

  81. Rob M says:

    Sir, you have more patience for this issue than anyone else I know.

  82. soonergrunt says:

    You did notice the limiting modifier in “an honorable officer,” yes?

    I see what you did there. Therein lies the problem. LTC Lakin’s prior behavior and comportment (to use a word not in a typical grunt’s vocabulary) certainly gave the impression of an honorable man. I wonder what changed. I understand that it’s a matter of mitigation anyway, and not a fact for trial.

  83. soonergrunt says:

    “Again, I don’t accept the premise, so I won’t bother with the question.”
    That’s pretty cheesy. I don’t think anyone here accepts any of your premise and yet they engage your questions. Seems churlish to not reciprocate. My son has autism, and when confronted with having to acknowledge a flaw in his thinking or behavior, he also refuses to continue the discussion. I’m just sayin’. Anyway, if you don’t accept that all orders are invalid because the CinC is not eligible to serve, then you must accept that someone has the authority to decide which orders are valid and which are not. I’ll give you a little hint. That duty will NEVER fall on a lowly Medical Corps O-5 when there are all sorts of Full Colonels and Captains and Generals and Admirals who are eminently better qualified.

  84. Dwight Sullivan says:

    Rob M, I don’t know whether that’s a compliment or a put down. :-) In all seriousness, I value and enjoy your comments. Keep ’em coming!

  85. Phil Cave says:

    LTC Lakin’s belief’s might be mitigation or extenuation, technically under 1001. But are they in practice or reality?
    Rockwood disobeyed orders. And based on his input he had a case for extentuation and mitigation on why he violated the orders. He ended up with a Dismissal and TF. I suppose it could be said that but for his defense to the orders violation he might have received confinement, or it might be said that his violations got him the Dismissal.

  86. Anonymous says:

    Nothing specific to A2S1C5, but the judicial power extends “to all Cases, in Law and Equity, arising under this Constitution…”, which means it has prima facie* jurisdiction where any constitutional provision has bearing in a case or controversy.*The qualifier is meant to allow for nonjusticiability in such cases as Nixon v. United States (91-740), 506 U.S. 224 (1993).
    Again, I don’t accept the premise, so I won’t bother with the question.

    What premise don’t you accept? So all orders aren’t invalid? So which ones come straight from the president and thus are invalid, and which ones don’t and thus aren’t?

    You’ve already said orders to deploy come straight from the president (even though they don’t) so why would the analysis or premise be any different for orders to report to work, wear a uniform (prescribed by a regulation promulgated by the Sec Army, a presidential appointment), pay, or the legitimacy of a court-martial?

    I eagerly await your response.

  87. Anonymous says:

    “which means it has prima facie* jurisdiction where any constitutional provision has bearing in a case or controversy.

    *The qualifier is meant to allow for nonjusticiability in such cases as Nixon v. United States (91-740), 506 U.S. 224 (1993).”

    Or other nonjusticiable issues like say, oh, I don’t know, political questions or separation of powers issues.

  88. KyAtty says:

    Again, your use of “nonreviewable” suggests that we are dealing with an election that has already taken place.And that’s just the reason that such a case would have to be brought before the election. An opponent could sue, for example, to have a candidate’s name removed from the ballot. If that case made it to SCOTUS and the Court ruled that the challenge was valid and the candidate ineligible on Constitutional grounds, I believe that the name of the disqualified candidate would have to be removed from the ballot, even if it were a sitting President trying to run for reelection.But we agree on one thing: Once the Electoral College has voted and the Congress has accepted their tally, it’s a done deal.

    The Democrats could put the names of favorite sons on the ballot, then tell the electors to vote for Obama.

  89. yguy says:

    So all orders aren’t invalid? So which ones come [] from the president and thus are invalid, and which ones don’t and thus aren’t?

    I’d say it has to be determined case by case – which of course is an insane but inevitable consequence of having a CiC whose eligibility is subject to reasonable doubt.

    You’ve already said orders to deploy come straight from the president

    Where have I said that?

  90. KyAtty says:

    Where in the Constitution do you find any authority specifically vested in either of those entities to make a conclusive determination as to eligibility per A2S1C5?

    That would be the 12th Amendment, which replaced Article 2, Section 1, Clause 3.

  91. yguy says:

    Or other nonjusticiable issues like say, oh, I don’t know, political questions or separation of powers issues.

    Neither of which is the case WRT Obama’s eligibility.

  92. KyAtty says:

    I’d say it has to be determined case by case – which of course is an insane but inevitable consequence of having a CiC whose eligibility is subject to reasonable doubt.

    However, Obama’s eligibility is not subject to reasonable doubt-he was conclusively elected President by the Electors as determined by Congress in accordance with the 12th Amendment. Your suggestion that soldiers can decide for themselves which orders they are going to obey based on their opinion of how well the Electors and Congress did their jobs is what’s insane.

  93. KyAtty says:

    Neither of which is the case WRT Obama’s eligibility.

    Both of which are the case WRT the President’s eligibility.

  94. yguy says:

    “Again, I don’t accept the premise, so I won’t bother with the question.”
    That’s pretty cheesy.I don’t think anyone here accepts any of your premise and yet they engage your questions.Seems churlish to not reciprocate.My son has autism, and when confronted with having to acknowledge a flaw in his thinking or behavior, he also refuses to continue the discussion.

    Answering that question wouldn’t expose a flaw in my thinking, only the thinking of those who believe all orders given while an ineligible CiC remains in office are illegal.

  95. Anonymous says:

    I’d say it has to be determined case by case – which of course is an insane but inevitable consequence of having a CiC whose eligibility is subject to reasonable doubt.
    Where have I said that?

    The only word in there that makes sense is insane. So, what would be the case by case basis that would change things one way or the other? What standards would we use? What framework?

    Are you saying now that the orders to deploy don’t come from the president? If they don’t then why is Lakin doing this if that isn’t the argument? I thought that was the whole point, that at the end of the day the orders flow from the president who is, now apparently possibly, ineligible?

    The biggest question is, why am I bothering asking a person with a clear lack of understanding of the law, facts, logic and reason in this arena?

    You don’t have to answer the last one.

  96. Anonymous says:

    I’d say it has to be determined case by case – which of course is an insane but inevitable consequence of having a CiC whose eligibility is subject to reasonable doubt.
    Where have I said that?

    The only word in there that makes sense is insane. So, what would be the case by case basis that would change things one way or the other? What standards would we use? What framework?

    Are you saying now that the orders to deploy don’t come from the president? If they don’t then why is Lakin doing this if that isn’t the argument? I thought that was the whole point, that at the end of the day the orders flow from the president who is, now apparently possibly, ineligible?

    The biggest question is, why am I bothering asking a person with a clear lack of understanding of the law, facts, logic and reason in this arena?

    You don’t have to answer the last one.

    Neither of which is the case WRT Obama’s eligibility.

    Actually, both of which are the case WRT to the eligibility of the head of the executive branch, which has already been validated by the legislative branch.

    Which every single court this has been brought into, with republican judges and democratic judges both, has said.

    So all of those folks got it wrong, every last one of them. And now the military attorneys have all got it wrong too. Again, many of whom probably would never vote for the president if there was money in it for them.

    But of all those folks, only you and a select few other people TRULY understand the Constitution. That’s an amazing level of…confidence, you have there.

  97. Anonymous says:

    Answering that question wouldn’t expose a flaw in my thinking, only the thinking of those who believe all orders given while an ineligible CiC remains in office are illegal.

    And it’s been proven he is ineligible where please?
    Thanks.

    And you just said all orders given WEREN’T illegal, that which ones to be found illegal needed to be determined on a case-by-case basis.

    So which is it? And why is an order to deploy different then any other type of order?

  98. yguy says:

    However, Obama’s eligibility is not subject to reasonable doubt-he was conclusively elected President by the Electors as determined by Congress in accordance with the 12th Amendment.

    Not good enough. The President must also meet the requirements of A2S1C5, and exclusive constitutional authority to make that determination is not delegated to Congress, the EC or the two together.

  99. yguy says:

    Actually, both of which are the case WRT to the eligibility of the head of the executive branch, which has already been validated by the legislative branch.

    Which every single court this has been brought into, with republican judges and democratic judges both, has said.

    So you know of rulings that bear on the justiciability of A2S1C5 controversies.

    Cite one, if you please.

  100. soonergrunt says:

    I strongly suspect that it has a lot to do with things like the political orientation of the President, the color of the President’s skin, the President’s gender (you just KNOW the argument would’ve been that only masculine language was used in the constitution so the founders clearly intended…) but mainly it comes down to whether or not one likes the President’s politics.
    A President from the other side of the political spectrum doesn’t have the authority to order me to a war and neither do any officers between me and the President, but my pay is sacrosanct, by GOD!

  101. Anonymous says:

    You can’t be serious. Every ruling so far has had some element of why this is a political question and and a separation of powers issue and thus not the purview of the judicial branch.

    Every single one. So cite one? How about, all of them?

  102. yguy says:

    Where in the Constitution do you find any authority specifically vested in either of those entities to make a conclusive determination as to eligibility per A2S1C5?

    That would be the 12th Amendment

    Of the Nigerian Constitution, maybe?

  103. yguy says:

    So cite one?

    Yeah, one, with a spot quote that has bearing on the justiciability of A2S1C5 controversies.

  104. Anonymous says:

    And the ONLY Constitutional method for removing a president is what, controlled by whom?

  105. Anonymous says:

    Silly. Every one of them address the lack of justiciability of this case for the reasons stated above. Every one. You know it, I know it, everyone on here knows it. It is not required that they cite the specific provision that you require they cite.

    If I say this is a clear Miranda violation, I don’t have to quote the fourth amendment for folks to figure out I am talking about protection against search and seizure.

  106. KyAtty says:

    Not good enough. The President must also meet the requirements of A2S1C5, and exclusive constitutional authority to make that determination is not delegated to Congress, the EC or the two together.

    You are wrong. There is no provision of the Constitution which expressly delegates the authority to determine the A2S1C5 to any body, however, the 12th Amendment does provide that the person receiving the greatest number of electoral votes SHALL be President, if a majority, and if not then the House of Representatives SHALL immediately elect a President. “Shall” is mandatory language, whoever receives the majority of either the electoral votes or the House votes “shall” be President. There is no provision in the Constitution for SCOTUS to review that decision. The only constitutional authority for removal of the President before the end of his term is in A1S3C6-7, by trial for impeachment in the US Senate.

  107. Anonymous says:

    That would be the 12th Amendment

    Of the Nigerian Constitution, maybe?

    No, of the American one. I understand you aren’t familiar with that one very well.

    Add to it, who has sole power to impeach/remove the president. In both cases, the election of and removal of a president, the sole power rests in the legislative branch.

  108. KyAtty says:

    That would be the 12th Amendment

    Of the Nigerian Constitution, maybe?

    The US Constitution. You might want to read it sometime, since you birthers are such ardent constitutionalists.

  109. yguy says:

    You are wrong.There is no provision of the Constitution which expressly delegates the authority to determine the A2S1C5 to any body, however, the 12th Amendment does provide that the person receiving the greatest number of electoral votes SHALL be President, if a majority, and if not then the House of Representatives SHALL immediately elect a President. “Shall” is mandatory language, whoever receives the majority of either the electoral votes or the House votes “shall” be President.

    That interpretation certainly makes sense in isolation from A2S1C5; otherwise, not so much, to be absurdly charitable.

    The only constitutional authority for removal of the President before the end of his term is in A1S3C6-7, by trial for impeachment in the US Senate.

    That presumes he or she is legally in office to begin with.

  110. yguy says:

    Silly. Every one of them address the lack of justiciability of this case

    IOW, you have no idea what you’re talking about. Thanks for clearing that up.

  111. Greg says:

    That presumes he or she is legally in office to begin with.

    You see something there limiting it to persons legally in office?

    IOW, you have no idea what you’re talking about. Thanks for clearing that up.

    It really is amazing that it has taken more than 200 years to figure these things out which birthers with little more than a BA recognize in an instant.

    Really, yguy, you are wasting your time on this issue. Go solve the world’s energy crisis. I’m sure that with your intellect and ability to see things that professionals cannot (that the rules of standing are unconstitutional) you’ll figure out cold-fusion in a heartbeat!

  112. KyAtty says:

    That interpretation certainly makes sense in isolation from A2S1C5; otherwise, not so much, to be absurdly charitable.
    That presumes he or she is legally in office to begin with.

    Obama was elected by a majority of the electors, therefor pursuant to the 12th Amendment he “shall” be President. That’s the law, so he is in office legally. If you have proof he lied about where he was born, show to your Congressman and ask him to initiate impeachment proceedings.

  113. Anonymous says:

    That interpretation certainly makes sense in isolation from A2S1C5; otherwise, not so much, to be absurdly charitable.
    That presumes he or she is legally in office to begin with.

    And if he ISNT there legally, then there is one and only one way to remove him, correct?

  114. Anonymous says:

    IOW, you have no idea what you’re talking about. Thanks for clearing that up.

    I know you believe that. That’s fine. It’s expected.

  115. soonergrunt says:

    Ahh, ignoring the actual substance of what people are saying-the internet version of “LA-LA-LA-LA I CAN’T HEAR YOU! LA-LA-LA-LA”
    It’s cute when my 4-year-old does it to my 10-year-old. Elsewhere, it’s just pathetic.

  116. yguy says:

    Obama was elected by a majority of the electors, therefor pursuant to the 12th Amendment he “shall” be President.That’s the law,

    No, that’s the part of the law you find it convenient to focus on. The law requires that the President meet the requirements of A2S1C5 and 12A. What you’re really contending for is the right of Congress and the EC to, e.g., elect a teenager to the Presidency, so that We the People speak in effect with forked tongue. We can’t maintain a republic like that, since the employees (public servants) can’t be expected to have more respect for the boss’s rules than the boss does.

  117. yguy says:

    I know you believe that. That’s fine.

    It’ll damn well have to be, since you leave me no alternative.

  118. Anonymous says:

    It’ll damn well have to be, since you leave me no alternative.

    Yes, I certainly understand you only have the ability to have one alternative.

  119. Anonymous says:

    No, that’s the part of the law you find it convenient to focus on. The law requires that the President meet the requirements of A2S1C5 and 12A. What you’re really contending for is the right of Congress and the EC to, e.g., elect a teenager to the Presidency, so that We the People speak in effect with forked tongue. We can’t maintain a republic like that, since the employees (public servants) can’t be expected to have more respect for the boss’s rules than the boss does.

    Of course, the other amendments? Like the one that changes the definition of who a citizen is? That one we should just ignore, right? You know I don’t believe I’ve ever seen another group of people so certain with so little reason to be.

  120. Christopher Mathews says:

    “There may very well be a legitimate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential candidate who has not already won the election and taken office. However, on the day that President Obama took the presidential oath and was sworn in, he became President of the United States. Any removal of him from the presidency must be accomplished through the Constitution’s mechanisms for the removal of a President, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of power to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president–removal for any reason–is within the province of Congress, not the courts.”

    Order re Defendants’ Motion to Dismiss, Barnett v. Obama, Case No. SACV 09-0082 DOC (C.D.Cal., Oct 29, 2009)

  121. James says:

    Barack Obama’s Electoral College votes were certified by Vice President Cheney in a joint session of Congress without objection (any two members of Congress could have submitted written objections and an investigation by both Houses would have ensued) and Obama was sworn in by the Chief Justice. He’s the president. He can be removed from office via a bill of impeachment passing in the House and trial and conviction by the Senate.

  122. KyAtty says:

    No, that’s the part of the law you find it convenient to focus on. The law requires that the President meet the requirements of A2S1C5 and 12A. What you’re really contending for is the right of Congress and the EC to, e.g., elect a teenager to the Presidency, so that We the People speak in effect with forked tongue. We can’t maintain a republic like that, since the employees (public servants) can’t be expected to have more respect for the boss’s rules than the boss does.

    And yet dozens of courts have disagreed with you and thrown out every birther suit filed. SCOTUS doesn’t have the final say on every issue of constitutional law.

  123. Brian the dog says:

    Ok, it has been said before, but it is probably worth repeating that the birthers real complaint does not come from the 12th Amendment, or even the 14th. Their beef is with the 13th.

  124. soonergrunt says:

    Of course you didn’t answer the actual question in that post, which was that if some orders are legal and others aren’t in the fictional situation you posit, that the President is ineligible, then who has the duty and authority to decide which orders are lawful and which are unlawful?
    You honestly think that everybody in the military from the CJS to the lowest Private E1 should be able to decide on a case by case basis which orders are lawful and which arent?
    So in light of the bullshit that was Bush v. Gore, I would’ve been within my rights and duties to disobey my Iraq orders?

  125. soonergrunt says:

    I don’t think they want slavery back, per se. I mean, nobody is stocking up chains and whips. I think they just want the darkies to know their place.–well, some people are stocking the whips and chains, but that’s a different issue entirely ;)

  126. yguy says:

    “There may very well be a legitimate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential candidate who has not already won the election and taken office. However, on the day that President Obama took the presidential oath and was sworn in, he became President of the United States. Any removal of him from the presidency must be accomplished through the Constitution’s mechanisms for the removal of a President, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of power to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president–removal for any reason–is within the province of Congress, not the courts.”

    Order re Defendants’ Motion to Dismiss, Barnett v. Obama, Case No. SACV 09-0082 DOC (C.D.Cal., Oct 29, 2009)

    The quote fails to explain how anyone can be President who fails – as does Obama, if he was born outside the US – to meet all the constitutional requirements for holding that office. It also fails to address the possibility of noninjunctive relief.

  127. Greg says:

    The quote fails to explain how anyone can be President who fails – as does Obama, if he was born outside the US – to meet all the constitutional requirements for holding that office.

    He’s sworn in on January 20, just like a President who meets all the Constitutional requirements. Actually, the court went through the entire process by which Obama became President:

    Plaintiffs thereby ask this Court to intervene and overthrow a president who was elected by “We the People”–oversixty- nine million of the people. President Obama was popularly elected. He received the requisite votes from the Electoral College, which were received and counted by Congress with no objections. President Obama took office at noon on January 20, 2009 pursuant to the Twentieth Amendment. He was sworn in on January 20, 2009, and re-sworn in on January 21, 2009, pledging the oath set forth in Article II, Section 1, cl. 8 of the Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    Your notion, I imagine, is that an ineligible Presidential candidate renders the Presidency a nullity. The law has never worked like that, however. If the office exists, and the office-holder is dressed in the trappings of the office, he binds the entity with his decisions, just as if he served without defect to his title to the office. It works this way in corporations, and it works this way in government.

    In the paragraph before the one you take issue with, the court notes the argument that Obama was never really President:

    At oral argument, Plaintiffs Drake and Robinson encouraged the Court to find that the
    redressability prong has been satisfied on the basis that President Obama’s removal from office
    would not require impeachment, which they agree is reserved by the Constitution for Congress.
    Because President Obama never met the constitutional requirements to run for President, they argue, he was never a valid candidate and could not be validly elected. Because he does not validly hold the office of President, he would not be subject to the Constitution’s requirements
    regarding the removal of a president from office through impeachment. Finally, they reasoned that, because whatever alternative process would be required to remove the President is not set forth in the Constitution, it is not clearly reserved for another branch and is therefore within the province of this Court.

    There is simply no support, in the Constitution, in legal history, or anywhere, that a sitting President who had a clouded title to the office did not, in fact, hold the office and was, therefore, outside the impeachment process.

    There’s a saying, “extraordinary claims require extraordinary proof.” Yguy, you turn this on its head. You offer no proof of any of your claims, and simply assert and question. (There’s nothing in Columbus’ record that proves the Earth is spherical as opposed to oval!)

    What proof do you have that a President who is elected despite an ineligibility is a Constitutional nullity outside the impeachment process? Show me the cases. Show me the Founders’ discussion of what would happen if this were the case.

  128. John Harwood says:

    Col Sullivan, No-Man, Judge Mathews: can we please do away with anonymous posts, and those made under noms de guerre?

  129. Anonymous says:

    He can’t because they don’t exist. He won’t both because they don’t exist and because even if he is deluded enough to think this is a possibility (impeachment by judicial decision) he isn’t likely deluded enough to think going the proper route which is impeachment by legislative process is going to go anywhere.

  130. Anonymous says:

    The quote fails to explain how anyone can be President who fails – as does Obama, if he was born outside the US – to meet all the constitutional requirements for holding that office. It also fails to address the possibility of noninjunctive relief.

    It does not fail to address anything. It is very, very clear. The removal of the president, for any reason, is in the province of the Congress not the Courts. Do you think they sub silencio added (unless it is noninjunctive relief) or (unless he really wasn’t supposed to be president)?

    It isn’t merely a quote, it is a citation to a case, which is what you asked for. The Founders could have set up the Supremes to be the arena for impeachment or they could have set up Congress. They choose Congress.

    So if you really want the President gone, your efforts would be much more fruitful speaking to your congresspeople to start impeachment proceedings in the House then trying to get judicial decisions of an issue they have no jurisdiction to hear.

  131. yguy says:

    If the office exists, and the office-holder is dressed in the trappings of the office, he binds the entity with his decisions, just as if he served without defect to his title to the office.

    Sure he does, if those under his command respect his authority. The question is whether they may do so in pursuance of their oaths of office.

    In the paragraph before the one you take issue with, the court notes the argument that Obama was never really President:

    Yes, it notes it, but does not address it.

    There is simply no support, in the Constitution, in legal history, or anywhere, that a sitting President who had a clouded title to the office did not, in fact, hold the office

    Where, in the Constitution, in legal history, or anywhere, is there any support for the idea that those who report to the nominal President are legally obligated to respect his authority if he is ineligible for the office?

    There’s a saying, “extraordinary claims require extraordinary proof.”

    […]

    What proof do you have that a President who is elected despite an ineligibility is a Constitutional nullity outside the impeachment process?

    Why is the claim that a person can legally wield presidential authority despite ineligibility not extraordinary?

    Show me the cases. Show me the Founders’ discussion of what would happen if this were the case.

    You first. 8)

  132. Anonymous says:

    yguy seems to believe there is some mystical 4th branch of government out there, known only to himself and a few birther illuminati, that rules on eligibility. There is not. For the purposes of deciding on Presidential eligibility there are only the 2 branches mentioned in the Constitution, the legislative and the judicial. Once the legislative branch certifies someone, they ARE eligible. If you don’t like it, you can file your court case, as the birthers have done. However, if the judicial branch declines to overrule, then the actions of the legislative branch stand. Their decision is the one that counts, not yours. President Obama is not merely a de facto president, he is the fully legitimate de jure President, not withstanding the objections of Lakin and yguy.

    In every process, some body has to be vested with the authority to definitively decide. Inevitably some will not like whatever decision that body makes from time to time. Too damn bad! The decision rests with Congress, not yguy, Taitz and Apuzzo.

  133. Anonymous says:

    Proof President Obama is ineligible please. Thanks.

    And if President Obama were proven tomorrow that he was/is ineligible, what would be the next step?

  134. Christopher Mathews says:

    You asked for a cite to a case with a quote concerning the justiciability of controversies surrounding the Constitutional qualifications for the Presidency. That was what you got.

    I’m sorry that it doesn’t say what you wish it said.

  135. Rob M says:

    If by some bizzare machination he’s found ineligible, we get President Biden. Or if for some reason the entire ticket is invalidated (since this scenario would require a first impression interpretation of the 12th amendment, I suppose it could go that way), we get President Pelosi. Pretty sure neither is the result they want. Maybe the birthers should read about the law of unintended consequences.

  136. BigGuy says:

    No, someone figured it out much better than that.

    See, all the Democrats were complicit in the fraud, so they’ll all be hauled off to jail and the Republicans will be declared victorious in the 2008 election.

    But — oops! — John McCain was born in Panama. Too bad, but I guess that means Sarah Palin is President!

    My bet: If you poke the right birfer in the right spot, you can hear that one again.

  137. jamese777 says:

    As Lieutenant Colonel Driscoll, the Investigating Officer for the Lieutenant Colonel Lakin Article 32 hearing noted in his Memorandum:
    The De Facto Officer Doctrine is well established in US law and under the Uniform Code of Military Justice.
    Here ONE MORE TIME is what LtC. Driscoll said: “The Government does not charge that the President gave an order directly to LTC Lakin. For the President’s credentials to have any bearing on the charges against LTC Lakin, the Defense proposition must be that military orders issued by superiors to juniors are all ‘invalidated’ during the period the President improperly holds office. This proposition fails to account for the law of lawfulness of orders, which in essence requires that a facially proper order be obeyed so long as it does not require the commission of a criminal act. See, e.g., United States v. New, 55 MJ. 95, 107 -108 (2001) (medic who doubted lawfulness of order to deploy with United Nations uniform accoutrements unable to overcome presumption of lawfulness of superior’s orders to so deploy). Moreover, the Defense proposition fails to account for the de facto officer doctrine, a military variant of apparent authority. The Defense offers no legal support whatever for its position, which I find to be far from ‘axiomatic.’ As far as I have found, the position has no basis in law.”

  138. msbetz says:

    What about REASONABLE DOUBT?
    Millions of Americans have ‘reasonable doubt” re/Obama.
    Millions of Americans have done considerable research re/Obama and his past, and his parents and his alleged grandparents and mother involved in banking.
    30 different social security numbers?, involvement with the CIA? and hundreds of other question while he leads America full steam ahead into COMMUNISUM! WHO IS OBAMA?
    Lakin is an American Hero (and there are many others) to stand up and QUESTION a possible USURPER and a possible COUP!

  139. msbetz says:

    Was it Nancy Pelosi’s dream of becoming America’s first woman president when she removed the line from the document that was presented to the electors that Obama was eligible stating that Obama was eligible but took out “CONSTITUTIONALLY ELIGIBLE”? She knew from the beginning that Obama was not constitutionally eligible. Check the document, it was altered by Pelosi’s office, and no one challenged it.