Case dismissed, see below.
Robert Laity from Tonawanda, NY filed a complaint against Joe Biden’s running mate Kamala Harris in which he claims she is not eligible to serve because she is not a natural born citizen. I have written about Mr. Laity before. He had the last active Birther case in the 2016 election cycle. It was a ballot challenge filed against Ted Cruz in New York.
Laity filed his complaint in the US District Court for the District of Columbia. It was docketed on September 4th and assigned to Judge Emmet Sullivan. You might have read about Judge Sullivan in the news lately. He was the Judge in the Michael Flynn perjury case and is taking on the DoJ’s attempt to drop the case against Flynn even though he pleaded guilty twice.
Laity repeats the same debunked points that “two parent citizen” Birthers have espoused since Barack Obama was elected President in 2008. I discussed all of these in my article published on this blog last year when Birthers first noticed Kamala Harris was a contender for the Democratic presidential nomination titled, For the thousandth time: Anyone born on US soil under the jurisdiction of the United States is a natural born citizen, period.
There are other problems with this filing. First, Laity cites no statute in his petition. He claims he is filing whatever this is under his “First Amendment right to petition the government for a redress of grievances”. Does anyone wish to guess how far that will go with this court?
The title of Laity’s complaint is United States, ex rel, Robert C. Laity v US Senator Kamala Devi Harris. This implies Laity is filing a qui tam action under the federal False Claims Act. This is similar to the tactic that Phil Berg tried against Barack Obama. Under the False Claims Act. The False Claims Act was passed during the Civil War to allow whistle-blowers to report fraud being perpetrated on the government and be rewarded with a portion of the damages recovered by the government if fraud is eventually found to have occurred. The term “whistle-blower” was not in use at the time and instead the person reporting the fraud was called a “relator” in the law.
Laity does not seek damages in his action as Phil Berg did. Berg filed his qui tam action to attempt to recover a portion of President Obama’s salary as President. His case was of course dismissed. Instead Laity is asking for the court to issue an injunction prohibiting Kamala Harris from occupying the office of Vice President this election cycle and be permanently enjoined from ever occupying the office.
Federal courts may issue injunctive relief in two forms, a temporary restraining order (TRO), or a preliminary injunction. However, the plaintiff seeking such relief must satisfy a four factor test in either case:
- that he or she is likely to succeed on the merits of his claims;
- that he or she is likely to suffer irreparable harm without preliminary relief;
- the balance of equities between the parties support an injunction; and
- the injunction is in the public interest.
Laity meets none of the four requirements for an injunction. He must meet all four. Laity’s complaint fails to address any of these requirements.
The bottom line is that Laity’s complaint is either premature as a quo warranto action or is a request for a TRO without justifications and will be dismissed even if he follows the rules for service and other rules to get that far. The case will fail as has every other case Laity and every other Birther has filed.
Yesterday Attorney Benjamin J. Razi of the law firm Covington & Burlington, LLP, filed a motion to dismiss Laity’s lawsuit on behalf of defendant Kamala Harris. Thanks to commenter “tbfreeman” for posting a link to the Defendant’s Memorandum of Law in Support of the Motion to Dismiss. Here it is
The memorandum is well written and cites several Obama era Birther cases as precedents including Kerchner v Obama, Berg v Obama, Hollander v McCain, Tisdale v Obama, and Ankeny v. Governor of State of Ind.
Mr. Razi also cites Wong Kim Ark:
The seminal case is Wong Kim Ark. There, the Supreme Court addressed whether the U.S.-born child of Chinese parents was entitled to birthright citizenship under the Fourteenth Amendment’s Citizenship Clause, which provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” United States v. Wong Kim Ark, 169 U.S. 649, 653 (1898).3 The Court answered affirmatively, explaining that, subject to exceptions inapplicable to Senator Harris, “[t]he fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens . . . .” Id. at 693 (emphasis added). The Court held that “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization,” regardless of the person’s parents’ citizenship or immigration status. Id. at 704.
The memorandum also addresses Laity’s misreading of Minor v Happersett:
Laity’s citation to Minor v. Happersett is inapposite. That decision, handed down 25 years before Wong Kim Ark, stated in dictum that it was unsettled whether the U.S.-born children of foreign parents are natural born citizens. 88 U.S. 162, 167 (1874). The Court definitively answered that question in Wong Kim Ark; and it reaffirmed its holding in Plyler and Rios-Pineda. Because Laity’s Complaint acknowledges that Senator Harris was born in the United States (of parents who were neither foreign diplomats nor enemy soldiers), and because that is all that is required to be a “natural born citizen,” Laity’s Complaint fails to state a claim on which relief can be granted and should be dismissed.
What a wonderful and appropriate use of the word “inapposite”! Finally Harris’ attorney asks the court to dismiss the case with prejudice:
Dismissal should be with prejudice, which is warranted “when a trial court ‘determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (quoting Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985)). That is the case here. There are no other allegations Laity could add to save his claim. The Complaint acknowledges that Senator Harris was born in the United States and, as discussed above, nothing further is required to be a “natural born citizen.” The Court should not permit this frivolous case to proceed any further. See Tilsdale, 2012 WL 7856823, at *1 (dismissing claim that Barack Obama was ineligible for presidency with prejudice because “allowing leave to refile would yield the same result, given the underlying premise of [plaintiff’s] claim”).
I predict this request will be fulfilled fairly quickly.
Two additional documents were filed this week. Laity filed his own “Memorandum of Law in Support of Motion in Opposition to Defendant’s Motion to Dismiss”. Laity finally gets around to citing some actual cases, there are citations of Minor v Happersett and the Venus of course. It’s 12 pages. He also tries to pull a fast one and quote from the 1797 translation of de Vattel and then says Vattel was translated to English in 1760. While that’s technically correct the 1760 version never used the term natural born citizen. The translation available in 1760 left the French term indigenes untranslated.
Here is Laity’s motion, which was docketed on 11/2:
The attorney for Senator Harris filed a quick reply only three pages long on 11/5:
Laity’s case was dismissed due to lack of standing: