Time for Birthers to admit they are wrong and move on

While the headline yesterday was obviously the decision by Administrative Law Judge Michael Malihi in Georgia to leave President Obama on the primary ballot because he is a natural born citizen we learned that another more important decision was handed down in Federal court in Richmond, VA very recently.

The decision I speak of is the Fourth Circuit in the Eastern District of Virginia in a case filed by a crackpot named Charles Tisdale. Tisdale asked for an injunction to prevent the Virgina to Board of Elections from placing Barack Obama on the ballot in the November 2012 election.The case was dismissed for the usual reasons on  12(b)6 motion for failure to state a claim by District Judge John A. Gibney, Jr. on January 20 (ironically the day that President Obama began his fourth year as President). Judge Gibney issued his ruling very quickly a mere week after the defendant was granted leave to file pro se with pauper status. While we do not have copies of the initial pleading and response the decision makes it clear that Tisdale argued that Obama was not eligible because his father was not a citizen at the time he was born. Sound familiar? Judge Gibney rejected the premise and cites Wong Kim Ark as the defining case to determine who is a natural born citizen. Tisdale also argued that Mitt Romney was not eligible for the same reason. So we now have a ruling on record in federal district court that one needs look no further than  the Wong Kim ark case to figure out who is eligible to be president Until now the most significant on point ruling was the Ankeny v Daniels case in Indiana in 2008. Now a federal court has addressed the merits of the two citizen parent theory and found it lacking.

There will be much more written about the ruling in Georgia. It was certainly about everything an Obama supporter could have hoped to receive. Judge Malihi said the was ready to order a default had the plaintiffs not insisted on a  ruling on the merits. It was not clear exactly what that “default” would entail. The plaintiff David Farrar immediately said it meant “we have won or case” on January 26th. In the decision Judge Malihi rejected every argument made by the plaintiffs. He [mis]quoted the title of Ankeny v Daniels but said it was the case from which he took guidance to determine the definition of a natural born citizen. He rejected every one of Orly’s experts as not qualified. While he did chide Democratic Party attorney Mike Jablonski for not coming to the circus on January 26 he stopped short of pursuing a contempt charge. The chances that Secretary of State Kemp would not take the recommendation to keep the status quo and let Obama remain on the ballot are slim and none and slim left own. Both Attorneys Hatfield and Taitz said they will appeal and seem to agree that Kemp will not rule in their favor. The Birther accusations that Judge Malihi was threatened or bribed came quickly and predictably.

We discussed the decisions an and the aftermath on a special edition of RC Radio last night. Long time Birther watcher and foe Foggy said he thinks the Birthers will keep right on going. While he is probably right I believe yesterday was a significant blow to the Birther’s in battle for the public opinion. They had been able to push the two parent citizen requirement without having to buck adverse court decisions on the question. In the span of one week we now have three decisions in three venues declaring that President Obama a natural born citizen where the challenger was specifically arguing that Minor v Happersett said otherwise.  The third was a ballot challenge by a Michael Jackson from Illinois who wanted the President tossed from their PPP ballot based on the M v H nonsense. It was not only rejected by the hearing examiner and the full board it was labeled “nonsense”.

Some observations and predictions from this humble Birther observer:

  1. Orly Taitz’s influence in Birthistan will continue to decline.
  2. The two parent citizen theory that was always complete nonsense has been dealt a death blow.
  3. Politicians who actually have to face the voters will be more reluctant than ever to “Birf”.
  4. President Obama will appear on every ballot in every presidential preference primary and caucus.
  5. He will be on the ballot in every state and D. C. in November.
  6. Birthers will continue to be entertaining.
  7. Birthers will not heed my advice.

Judge Malihi’s decision in Georgia:

Judge Gibney’s decision in Tisdale v Obama in the 4th Circuit, ED VA:


This entry was posted in Birther Cases, Birthers, Natural Born Citizenship, Orly Taitz, RC Radio. Bookmark the permalink.

17 Responses to Time for Birthers to admit they are wrong and move on

  1. IceTrey says:

    Actually Gibney rejected the case on standing, not the merits. It says so right in the order. His citing of WKA is dicta, therefore meaningless.

    • IceTrey

      You should go back and read the decision again. Judge Gibney did not dismiss the case on “standing”. He dismissed the case because Tisdale failed to state a claim for which the court could grant relief. He then goes on to dismiss with the claim with prejudice because the he says the underlying claim that President is not a natural born citizen is flawed and that Wong Kim Ark establishes that someone in President Obama’s circumstances is a natural born citizen. Therefore, even if Tisdale were to fix the technical part of failure to state a claim for which the court could grant relief the case will still be denied because the underlying premise is flawed. Therefore, the part about WKA is not obiter dicta but is clearly on point and significant for anyone filing a similar suit.

      Don’t feel bad that you missed this point IceTrey. Even the great attorney Mario Apuzzo missed why Judge Gibney commented on the merits also.

  2. IceTrey says:

    You should go back and learn what “standing” means in a court of law. It means “failed to state a claim for which the court could grant relief”. If you don’t understand that it’s no wonder you don’t understand what “natural born citizen” means either. I do however love how in a case in which the merits are never argued you state that what the judge wrote is precedent, while in Minor you guys say the definition given for NBC is dicta. You make me laugh.


  3. If the case were dismissed merely on standing why did the judge dismiss with prejudice? If it were without prejudice Tisdale could rewrite his pleading to attempt to state a claim.

    Of course since you say it was not dismissed on the merits you could always help Mr. Tisdale on appeal. Why don’t you put up or shut up?

    • IceTrey says:

      Maybe it has something to do with the fact the Gibney was appointed to the bench by, wait for it ….Obama? It’s called protecting his job. Gibney should have recused himself from the case. It’s just par for the course. An Obama appointee defending his master.

      • Now your true bias comes through. Again, where are the “Constitutionalists” [LMAO] to take up the appeal?

        • IceTrey says:

          So I’m biased, but a judge appointed by the man who’s job validity he is asked to rule on, which will effect him directly, is not biased?

          BTW, you know that Gibney also stated in his order that “It is well settled that those born in the United States are considered natural born citizens.” Which is completely false since the children of foriegn ambassadors, diplomats and invading armies, born in the US, are not give US citizenship. If he is wrong on a simple thing like that he’s probably wrong on a lot of things.

        • @IceTrey
          I am sure Judge Gibney is well aware of the exceptions in the Fourteenth Amendment. He was ruling on a particular situation. Do you agree now that he was ruling “on the merits” when he dismissed with prejudice?

      • Northland10 says:

        Protecting his job? Obama nominates federal judges but cannot remove them. I am sure I read that somewhere. Oh yeah, the Constitition.

  4. Janice says:

    Wong Kim Ark was just for citizenship standing, not “natural born citizenship” standing–read Vattal

    • I am sorry Janice but you are wrong. I have read both de Vattel (whose name you can’t even spell correctly) and the US v Wong Kim Ark. de Vattel said that citizenship in countries like England (and by inference the USA) is primarily based on jus soli (by the soil) and not jus sanguinis (by blood).

      In the Wong Kim Ark case the majority concluded that there were only two types of citizenship (they actually cited Minor v Happersett on that) naturalized and natural born. Since it was in fact against the law for a Chinese person to be naturalized in 1898 the court painstakingly analyzed who were natural born citizens and concluded that the definition in the Constitution came from English common law. Therefore Wong was a citizen by way of being natural born.

      If you are really interested in this subject and not doing a fly by I suggest that you read the very fine and well researched series of articles that John Woodman did on this subject at his blog starting with this article. There is also a great deal of information at other blogs like Obama Conspiracy Theories and NBC’s Natural and Native Born Citizenship Explored, both of which I have in my links bar on the right.

      Finally, the courts have actually ruled on this. The Ankeny case in Indiana directly addressed this question as did a federal judge in Virginia in the Tisdale case just to name a couple. There are more.

      Now if you want to discuss the specifics go read up and come back. I doubt I will ever see you again however.

    • By the way Janice I owe you a thank you for resurrecting this old article. I just looked at my predictions I made over two years ago and every one of them came true. How about that!

    • Lol you mean the section of vattel that birthers have misread and tried to apply to the US Constitution when there is nothing showing that the founders looked to vattel on citizenship. How much of Vattel have you actually read since they pretty much ignored him when it came to the bill of rights.

    • I guess you missed the part of US V Wong Kim Ark where the losing side used Vattel.

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