No. 14-36444444444444444444444444444444444444444444

IN THESupreme Court of the United States____________________

CHRISTOPHER JOHN RUDY, Petitioner,v.

MICHELLE K. LEE, et al., Respondents.____________________On Petition for Writ of Certiorari to the

United States Court of Appealsfor the Federal Circuit____________________

Brief Amicus Curiae ofU.S. Justice Foundation,

Lincoln Institute for Research and Education,Abraham Lincoln Foundation, U.S. BorderControl, U.S. Border Control Foundation,

Institute on the Constitution, Policy AnalysisCenter, and Conservative Legal Defense and

Education Fund in Support of Petitioner____________________MICHAEL CONNELLY HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION WILLIAM J. OLSON932 D Street, Ste. 2 JOHN S. MILESRamona, CA 92065 JEREMIAH L. MORGANAttorney for Amicus Curiae ROBERT J. OLSONU.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4*Counsel of Record Vienna, VA 22180-5615Attorneys for Amici Curiae (703) 356-5070August 13, 2014 wjo@mindspring.com444444444444444444444444444444444444444444

iTABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 6

ARGUMENT

I. WHETHER RUDYS CLAIM DEPENDS UPON ANONJUSTICIABLE POLITICAL QUESTION IS AVITALLY IMPORTANT ISSUE FOR THIS COURT TOSETTLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. THE CONSTITUTION DOES NOT COMMIT THEPRESIDENTIAL ELIGIBILITY REQUIREMENT TOCONGRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. THERE IS NO LACK OF JUDICIALLYDISCOVERABLE AND MANAGEABLESTANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. IT IS IMPERATIVE THAT THIS COURTRECOGNIZE THAT THE QUESTION,WHETHER A PRESIDENT IS A NATURALBORN CITIZEN, IS JUSTICIABLE . . . . . . . . . . 18

II. MR. RUDY SEEKS A REMEDY WELL WITHIN THEJUDICIAL POWER VESTED IN THE COURTS . . . . . 22

ii

A. THE COURT BELOW BASED ITS RULINGON AN INCOMPLETE AND IMPROPERCHARACTERIZATION OF THE JUDICIALRELIEF SOUGHT BY MR. RUDY . . . . . . . . . . . 22

B. THE COURT BELOW UNNECESSARILY ANDIMPROPERLY DECIDED THAT THE QUESTION OFNATURAL BORN CITIZENSHIP IS A POLITICALQUESTION IN CONFLICT WITH THIS COURTSPRECEDENTS . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

Page

HOLY BIBLEDeuteronomy 17:15 . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. CONSTITUTIONArticle I, Section 2, Clause 2 . . . . . . . . . . . . . . . . . 19Article I, Section 3, Clause 3 . . . . . . . . . . . . . . . . . 19Article I, Section 4, Clause 1 . . . . . . . . . . . . . . . . . 19Article I, Section 7, Clause 2 . . . . . . . . . . . . . . . . . . 2Article I, Section 8, Clause 4 . . . . . . . . . . . . . . . . . 15Article II, Section 1, Clause 2 . . . . . . . . . . . . . . . . . 8Article II, Section 1, Clause 3 . . . . . . . . . . . . . . . . . 8Article II, Section 1, Clause 5 . . . . . . . . . 3, 4, 12, 15Article II, Section 1, Clause 8 . . . . . . . . . . . . . . . . 20Article II, Section 2, Clause 3 . . . . . . . . . . . . . . . 3, 4Article VI, Clause 3 . . . . . . . . . . . . . . . . . . . . . . . . 20Amendment XII . . . . . . . . . . . . . . . . . . . . . . 6, passimAmendment XX . . . . . . . . . . . . . . . . . . . . . . 6, 13, 14Amendment XXV . . . . . . . . . . . . . . . . . . . . . . . . 6, 14

STATUTES28 U.S.C. 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CASESBaker v. Carr, 369 U.S. 186 (1962) . . . . . . . 6, 7, 18Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . 24Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Miller v. Albright, 523 U.S. 420 (1998) . . . . . 15, 25

iv

Minor v. Happensett, 88 U.S. 162 (1874) . . . . 15, 16NLRB v. Canning, 573 U.S. ___, 134 S.Ct. 2550 (2014) . . . . . . . . . . . . . . . . . . . 2, passimPowell v. McCormack, 395 U.S. 486 (1969) . . . . . 12Rogers v. Bellei, 401 U.S. 815 (1971) . . . . . . . . . . 25Samuels v. Mackell, 401 U.S. 66 (1971) . . . . . . . . 24Schneider v. Rusk, 377 U.S. 163 (1964) . . . . . . . . 25Trop v. Dulles, 356 U.S. 86 (1958) . . . . . . . . . . . . 25United States v. Wong Kim Ark, 169 U.S. 649 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 25

MISCELLANEOUSJ. Kent, Commentaries on American Law (Claytors, Baton Rouge: 1826) . . . . . . . . . . . . . . 5J. Nowak, R. Rotunda & J. Young, Constitutional Law (West, 3d ed. 1986) . . . . . . 24J. Story, Commentaries on the Constitution (Little, Brown, 5th ed., 1891) . . . . . . . . . . . . 20, 21L. Tribe, American Constitutional Law (2d ed., 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25St. George Tucker, View of the Constitution of the United States (Liberty Fund: 1999) . . . . . 5T. Neale, Election of the President and Vice President by Congress: Contingent Election (CRS Report: Aug. 16, 1999) . . . . . . . 13The Federalist (G. Carey & J. McClellan, eds., Liberty Fund: 2001) . . . . . . . . . . . . . . . . 9, 21The Founders Constitution (P. Kurland & R. Lerner, eds., Univ. of Chi. Press: 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 10, 20

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that counsel of record for all partiesreceived notice of the intention to file this brief at least 10 daysprior to its filing; that no counsel for a party authored this brief inwhole or in part; and that no person other than these amici curiae,their members, or their counsel made a monetary contribution toits preparation or submission.

INTEREST OF AMICI CURIAE1

U.S. Justice Foundation, Lincoln Institute forResearch and Education, U.S. Border ControlFoundation, Policy Analysis Center, and ConservativeLegal Defense and Education Fund, are nonprofiteducational organizations, exempt from federal incometax under section 501(c)(3) of the Internal RevenueCode (IRC). Abraham Lincoln Foundation for PublicPolicy Research and U.S. Border Control are nonprofitsocial welfare organizations exempt from federalincome tax under IRC section 501(c)(4). Institute onthe Constitution is an educational organization.

These organizations were established, inter alia, foreducational purposes related to participation in thepublic policy process, including programs to conductresearch and to inform and educate the public onimportant issues of national concern, the properconstruction of state and federal constitutions andstatutes, questions related to human and civil rightssecured by law, and related issues. Each organizationhas filed numerous amicus curiae briefs in this Courtand other federal courts.

STATEMENT

On January 25 and April 27, 2012, ChristopherJohn Rudy, a registered patent attorney, paid to the

22 NLRB v. Canning, 573 U.S. ___, 134 S.Ct. 2550, 2557 (2014).

Patent and Trademark Office (PTO) fee increasestotaling $90, as required by the America Invents Act(AIA), purportedly enacted into law in September2011 by Congress and the President in accordancewith Article I, Section 7, Clause 2 of the U.S.Constitution. See Petition for a Writ of Certiorari(Pet.) at 4. Mr. Rudy then requested and petitionedthe PTO for a refund of the fee increases on the groundthat the AIA was invalid, having been signed into lawby Barack Obama, a person who, Mr. Rudy claimed,was not a natural born Citizen, and thus, wasineligible to hold the office of President of the UnitedStates. Id. PTO denied Mr. Rudys request, advisingMr. Rudy that it had no authority to look into Mr.Obamas citizenship status. Id. at 5.

Mr. Rudy filed suit in the U.S. District Court forthe Eastern District of Virginia. In response to PTOsmotion to dismiss on the ground that whetherPresident Obama was a natural born Citizen was apolitical question, the district court agreed,dismissing Mr. Rudys complaint for lack ofjurisdiction. See Pet. at App. 4 -11. The U.S. Court ofAppeals for the Federal Circuit summarily affirmed.Id. at App. 1-2.

During the same time period that Mr. Rudy wasbeing rebuffed by the courts, Noel Canning, a PepsiCola distributor,2 found the courts open to address themerits of his claim against the National LaborRelations Board (NLRB). Like Mr. Rudys complaint,Mr. Canning complained that the action taken against

3him by the NLRB was invalid because a majority ofthe Board was ineligible to serve. Further, like Mr.Rudys claim that President Obama did not meet theconstitutionally required natural born citizenshipunder Article II, Section 1, Mr. Canning asserted thatthree members of the Board neither met theconstitutionally required advice and consent of theSenate, nor were properly appointed under Article II,Section 2, Clause 3.

Unlike the courts below, which quickly dispatchedMr. Rudys claim as nonjusticiable, the U.S. Court ofAppeals for the District of Columbia and this Courtunhesitatingly addressed the merits of Mr. Canningsclaim, without even a tip of the hat to the politicalquestion doctrine.

Explaining this Courts readiness to reach themerits in Canning, Justice Breyer prefaced themajoritys decision with a quotation from AlexanderHamiltons Federalist Paper No. 76:

The Federalist Papers make clear that theFounders intended th[e] method of appointment,requiring Senate approval, to be the norm ...because ... the need to secure Senate approvalprovides an excellent check upon a spirit offavoritism in the President, and would tendgreatly to preventing the appointment of unfitcharacters from State prejudice, from familyconnection, from personal attachment, or from aview to popularity. [Canning, 134 S.Ct. at2558-59.]

4[C]oncurring in the judgment, Justice Scaliaobserved that when questions involving theConstitutions government-structuring provisions arepresented in a justiciable case, it is the solemnresponsibility of the Judicial Branch to say what thelaw is. Id. at 2593 (Scalia, J., concurring) (citationsomitted). Indeed, as Justice Scalia emphasized,policing the enduring structure of constitutionalgovernment when the political branches fail to do so isone of the most vital functions of this Court. Id.(citations omitted).

Like the executive appointments clause of ArticleII, Section 2, the presidential eligibility provision ofArticle II, Section 1 especially its natural bornCitizen requirement is part of the enduringstructure of the federal government established by theU.S. Constitution. As Joseph Story observed in hisacclaimed Commentaries on the Constitution:

It is indispensable ... that the president shouldbe a natural born citizen of the United States....It cuts off all chances for ambitious foreigners,who might otherwise be intriguing for the office;and interposes a barrier against those corruptinterferences of foreign governments inexecutive elections, which have inflicted themost serious evils upon the elective monarchiesof Europe.... [J. Story, Commentaries on theConstitution, 1473 (1833), reprinted in 3 TheFounders Constitution, Item 2, p. 564 (P.

53 See also 1 James Kent, Commentaries on American Law at 255(Lecture XIII) (Claytors, Baton Rouge: 1826). AccordDeuteronomy 17:15.

Kurland & R. Lerner, eds., Univ. of Chi. Press:1987) (hereinafter Founders).3]

More vociferously, St. George Tucker declared [t]hat[the] provision in the constitution which requires thatthe president shall be a native-born citizen ... is ahappy means of security against foreign influence,which ... is to be dreaded more than the plague. St.George Tucker, View of the Constitution of the UnitedStates at 260 (Liberty Fund: 1999).

Strikingly, the Article II limit on presidentialeligibility parallels the Article II limit on thepresidential appointment power. Both are designed aschecks against corrupting influences in the executivebranch: (i) the limit on the presidential appointmentpower guarding against such influences arising fromwithin the country, and (ii) the limit on presidentialeligibility guarding against improper influencesarising from outside the country.

In Canning, this Court unanimously decided thatthere are judicially enforceable standards limiting thePresidents recess appointment power. In the instantcase, the question before the Court is whether thereare judicially enforceable limits governing the exerciseof the powers of the presidency by a person whoallegedly does not meet the eligibility requirement thathe be a natural born Citizen, or whether that

6question is nonjusticiable, enforceable only at thediscretion of the Congress.

SUMMARY OF ARGUMENT

The question in this case is whether a complaint formoney damages and a declaratory judgment is subjectto a motion to dismiss because the claims are basedupon a nonjusticiable political question whetherPresident Barack Obama is a natural born citizen and,thus, eligible to exercise the power vested in thePresident to sign a bill into law.

Purporting to apply this Courts political questioncriteria under Baker v. Carr, the courts belowerroneously assumed that Article II, and the Twelfth,Twentieth, and Twenty-Fifth Amendments(i) committed the determination of presidentialeligibility to Congress, (ii) that the citizenshipparticularly was not amenable to judicial resolution,and (iii) any order for the payment of damages or fordeclaratory relief would be tantamount to a removal ofPresident Obama from office.

First, Article II, even as modified by the Twelfth,Twentieth and Twenty-Fifth Amendments, prescribesa narrow role for Congress in the selection of thePresident, vesting primary control of the presidentialelection process in the legislatures of the several stateand in the Electoral College. None of these provisionscommit the question of eligibility to the discretion ofCongress.

7Second, this Courts case precedents are repletewith legal terminology and distinctions that confirmthat the issue of a persons birth citizenship isquintessentially a legal question, governed byjudicially discoverable and manageable standards.

Third, both the Government and the court belowhave vastly overstated the remedy actually beingsought. Nothing in the complaint calls for the removalof the President. Rather, it is foremost a claim formoney damages. While the complaint seeks adeclaratory judgment, it does so without asking for anyinjunctive relief, all of which is subject to thediscretion of the court.

Finally, this Court has never before refused toaddress on the merits claims of citizenship by birth.There is no justification to carve out an exception herejust because the issue involves the President of theUnited States.

ARGUMENT

I. WHETHER RUDYS CLAIM DEPENDS UPONA NONJUSTICIABLE POLITICAL QUESTIONIS A VITALLY IMPORTANT ISSUE FOR THISCOURT TO SETTLE.

The district court below purported to apply the sixpolitical question guidelines set forth in Baker v. Carr,369 U.S. 186, 217 (1962), and agreed with theGovernments contention that the issue of thePresidents qualifications and his removal from officeare textually committed to the legislative branch and

8not the judicial branch. See Pet. at App. 6-8. Thus,the court concluded that Mr. Rudy had completelyfailed to establish that this Court has jurisdiction ....Id. at App. 10. By its summary affirmance, the courtof appeals below implicitly adopted the district courtsanalysis. These decisions are seriously flawed,conflicting with both the constitutional text andrelevant history.

A. The Constitution Does Not Commit thePresidential Eligibility Requirement toCongress.

Foremost among the factors underlying the politicalquestion doctrine is whether the resolution of thequestion has been textually committed to one or theother political branches of the federal government. SeePet. Br. at App. 6. The question of presidentialeligibility has not been so committed.

1. The Original Text

As originally adopted, Article II, Section 1, Clauses2 and 3, prescribed the procedure by which a personwas elected to the office of President of the UnitedStates. First, it vested in the legislatures of theseveral states, not Congress, the power to appoint, insuch Manner as the Legislature thereof may direct, aNumber of Electors equal to the whole Number ofSenators and Representatives to which the State maybe entitled. Second, the Constitution commanded theelectors, once selected, to meet in their respectivestates, and vote by ballot for two persons, and then totransmit their votes to the nations seat of government.

9Third, the Constitution commanded, upon receipt, thePresident of the Senate to open the ballots and countthe votes in the presence of the members of the Senateand the House of Representatives. Fourth, only in thecase of a tie, or the absence of a majority, did theConstitution allow Congress to choose the Presidentand Vice President.

Significantly, the Constitution did not vest anypower in Congress over the process by which thePresident and Vice President were normally to bechosen, other than the very limited one of determiningthe day on which the electors were to give theirvotes. Even then the Constitution dictated thatCongress choose the same day for all electors to casttheir votes which, as Joseph Story observed, wascalculated to repress political intrigues.... StorysCommentaries reprinted in 3 Founders, Item # 2 at562. Indeed, the Constitution decreed that no memberof Congress may serve as presidential electors, anadditional measure to minimize corruption of theprocess. See The Federalist No. 68 at 352-53 (G. Carey& J. McClellan, eds., Liberty Fund: 2001). Thus, theConstitutional design was to insulate the presidentialelection process from not to commit it to Congress.

This constitutional scheme to protect thepresidential selection process from Congressionalinterference was summarized in 1800 by CharlesPinckney, a delegate from South Carolina to theConstitutional Convention:

10

great care was used to provide for the election ofthe President of the United States,independently of Congress; to take the businessas far as possible out of their hands. The votesare to be given by Electors appointed for thatexpress purpose, the Electors are to beappointed by each State, and the whole directionas to the manner of their appointment is givento the State Legislatures. Nothing was moreclear ... than that Congress had no right tomeddle with it at all.... [10 Senate Annals,reprinted in 3 Founders, Item # 7 at 553.]

Thus, Congress was to have no authority to determinea persons presidential eligibility. Rather, its rolewould be ministerial, facilitating the votes of thepresidential electors of the several states. As JusticeStory observed:

The immediate election [of the president] shouldbe made by men, the most capable of analyzingthe qualities adapted to the station, and actingunder circumstances favourable to deliberation,and to judicious combination of all theinducements, which ought to govern theirchoice. A small number of persons, selected bytheir fellow citizens from the general mass forthis special object, would be most likely topossess the information, and discernment, andindependence, essential for the proper dischargeof the duty. [Storys Commentaries, 1451,reprinted in Founders, Item # 11, at p. 558.]

11

Not only did the Founders envision an electoral collegewell-suited to make such decisions as those concerningeligibility, but also the college would serve to ensurethat [t]he president ... thus appointed, would be farmore independent, than if chosen by a legislative body,to whom he might be expected to make correspondentsacrifices, to gratify their wishes, or reward theirservices. Id. at 558.

2. The Twelfth Amendment.

Lumping the Twelfth Amendment into its opinionwithout examining the actual text, the district courtfailed to note that the amendment changed onlyClause 3, leaving untouched (i) the power over themanner of the election of the President in the statelegislatures, and (ii) the narrow role of Congresssetting the day on which the electoral vote was tallied.Further, by not examining the language of the TwelfthAmendment, the court below failed to parse the text toascertain whether that Amendment vested any newpowers in Congress.

First, the Twelfth Amendment changed theelectoral colleges voting procedure, requiring eachelector to cast two ballots, one expressly for Presidentand the other distinctly for Vice-President. Second,that Amendment reaffirmed Congresss role incounting the ballots, merely revising the procedure tobe followed in case no one of the candidates obtaineda majority of electoral votes. Third, and mostimportantly in this case, the Amendment added: Butno person constitutionally ineligible to the office ofPresident shall be eligible to that of Vice-President of

12

the United States. None of these provisions evidencesa textually demonstrable constitutional commitmentof the issue [of presidential eligibility] to a coordinatepolitical department here the Congress asargued by the government, and found by the districtcourt below. See Pet. Br. at App. 6-7.

To the contrary, the first two provisionsdemonstrably impose (i) upon the electoral college theballoting procedure governing its casting andtransmitting of votes and (ii) upon Congress theprocedure by which it is to count the votes and toresolve any presidential contest in which no personhas received a majority. The third provision concerning presidential eligibility reads not as agrant of power, but as a prohibition on the modifiedpowers conferred on the electoral college and theCongress in the Twelfth Amendments revised votecounting process. While the prohibition imposes thepresidential eligibility requirements expressly oncandidates for Vice President, it would be anomalousto contend that the prohibition would not extend to thePresident, himself. Rather, by expressly applying theprohibition to the office of the Vice President, theTwelfth Amendment imported the presidentialeligibility requirements stated in Article II, Section 1,Clause 5, as a limit on both the power of the electoralcollege and, in the case of a tie or lack of a majority, onthe power of Congress to elect the President. As such,Article II, Section 1, Clause 5 is judicially enforceable.See Powell v. McCormack, 395 U.S. 486, 518-22 (1969).

13

3. The Twentieth Amendment.

Like the Twelfth Amendment, the TwentiethAmendment was neither designed to change theeligibility requirements for election to the office ofPresident, nor vest new powers in Congress. Rather,like the Twelfth, the Twentieth was primarily aremedial measure. Responding to changes incommunication and transportation technology, Section1 of the Twentieth Amendment shortened the lengthof time between the November election of thePresident and the beginning of his term of office,moving the date forward from March 4 to January 20.By that same section, the Amendment fixed thebeginning of the terms of Senators andRepresentatives to January 5, ostensibly to prevent alame duck Congress from electing the President andor Vice-President should no candidate for either orboth offices have received a majority vote of theelectoral college. See Thomas Neale, Election of thePresident and Vice President by Congress: ContingentElection at 5 (CRS Report: Aug. 16, 1999).

Section 3 of the Twentieth Amendment detailed aprocedure to govern the transition of power from thePresident Elect to the Vice President Elect in theextraordinary event that the President Elect died orotherwise failed to qualify. In the event that the VicePresident Elect shall also have failed to qualify,Congress was empowered by law to provide for anActing President, but only until either the President orVice President shall have qualified. In the furtherevent that neither the President or Vice Presidentqualified, Congress was empowered to enact a

14

governing law of presidential succession, which it hasdone. See Annotated Constitution, TwentiethAmendment, p. 2.

The Twentieth Amendment left intact (i) theauthority of the state legislatures to establish themanner by which the President and Vice Presidentwere to be elected, and (ii) the role of the electoralcollege in the process. Importantly, no new powerswere assigned to Congress under the TwentiethAmendment to change the qualifications for electionto either office, including the constitutionalrequirement that both the President and the VicePresident be natural born Citizens.

4. The Twenty-Fifth Amendment.

In the court below, the Government contended thatthe Twenty-Fifth Amendment explicitly directs thatdisagreements regarding presidential succession shallbe decided by Congress. See Pet. Br. at App. 8. On itsface, that Amendment is limited to cases of removalof the President from office or of his death orresignation, providing for Congressional action tightlytailored to replace him if he is unable to discharge thepowers and duties of his office. The Amendment hasnothing to do with presidential eligibility, but onlywith presidential ability.

In sum, by failing to address the text and history ofeither Article II, the Twelfth Amendment, theTwentieth Amendment, or the Twenty-FifthAmendment, the court below erred in concluding thatthe citizenship eligibility question was committed to

15

Congress. To the contrary, as the Twelfth Amendmentexpressly attests, Congress has strictly limited powerswith respect to the selection of the President, and theexclusive vetting of whether a person meets thepresidential eligibility requirements, including thenature of his citizenship, is not one of them.

B. There Is No Lack of JudiciallyDiscoverable and Manageable Standards.

The issue of presidential eligibility is not beyondjudicial competence due to a lack of standards to apply.

Unquestionably, there are two distinct classes ofcitizenship, first, by birth, and second, bynaturalization. Minor v. Happensett, 88 U.S. 162,167 (1874). See also Miller v. Albright, 523 U.S. 420,423 (1998) (There are two sources of citizenship, andtwo only: birth and naturalization. United States v.Wong Kim Ark, 169 U.S. 649, 702 ... (1898)). Thesetwo classes are distinguished both politically andlegally in (i) the natural born Citizen requirement ofArticle II, Section 1, Clause 5, and (ii) the grant ofpower to Congress to establish a uniform rule ofnaturalization in Article I, Section 8, Clause 4. SeeMinor at 167.

It is well-established that there are two kinds ofbirth citizenships, one acquired by parentage of birthand the other by place of birth. As for the first kind,this Court stated assuredly in the 1875 case of Minorv. Happersett that:

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At common-law, with the nomenclature of whichthe framers of the Constitution were familiar, itwas never doubted that all children born in acountry of parents who were its citizens becamethemselves, upon their birth, citizens also.These were natives, or natural-born citizens, asdistinguished from aliens or foreigners. [Id.(emphasis added).]

Less confidently, this Court opined in that same casethat:

Some authorities go further and include ascitizens children born within the jurisdictionwithout reference to the citizenship of theirparents. [Id. at 167-68 (emphasis added).]

However, 23 years later, this Court appeared toelevate this second view, asserting that citizenshipacquired by birth was governed by the Englishcommon law rule that citizenship at birth was definedby place of birth, except in those cases where theparents owed an official allegiance to a foreigngovernment. See Wong Kim Ark, 169 U.S. 649, at 655(1898). In a cogent dissent, Chief Justice Fullerrefuted the claim that the English common law ofcitizenry by place of birth applied in the United States,given its origin in feudalism between the individualand the soil on which he lived, and the allegiance duewas that of liegemen to their liege lord. Id. at 707(Fuller, C.J., dissenting). In the English monarchicalrules stead, the Chief Justice drew on theinternational law of nations which held that natives,

17

or natural-born citizens, are those born ... [of] parentswho are citizens. Id. at 708.

Whatever the merits of the two views of citizenshipby birth, Wong Kim Ark settles the question of itsjusticiability. Without hesitation, Justice Grayaddressed the merits of the claim of a Chinese man born in America to a father and mother, both of whomwere Chinese citizens, although domiciled in theUnited States that he was a citizen by birth, notsubject to the Chinese exclusion laws. Beginning withan exposition of the English common law, Justice Graysurveyed the cases and legal treatises addressing thesubject. Id. at 655-58. He then reviewed earlyAmerican authorities which, he concluded, supportedthe view that Americas judges, federal and state, hadapplied the English rule. Id. at 658-66. Thus, JusticeGray concluded:

there are none that can constrain or permit thejudiciary to refuse to give full effect to theperemptory and explicit language of thefourteenth Amendment, which declares andordains that All persons born or naturalized inthe United States, and subject to the jurisdictionthereof, are citizens of the United States. [Id.at 694.]

Equally thorough, Chief Justice Fuller began hisanalysis citing the international legal authority, deVattel, extensively surveying domestic legalauthorities to support the view that a natural borncitizen was defined by the parents to whom a person

18

4 The district court also discussed the third factor in Baker v.Carr, which was addressed by petitioner. See Pet. at 17, 25.

5 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

was born, not by the place of birth. See id. at 708-29.Thus, the Chief Justice concluded:

citizenship of the United States ... differed fromthe English common law rule in vitalparticulars, and, among others, in that it did notrecognize allegiance as indelible, and in that itdid recognize an essential difference betweenbirth during temporary, and birth duringpermanent, residence. [Id. at 729 (Fuller, C.J.dissenting).4]

C. It Is Imperative That This Court RecognizeThat the Question, Whether a President Isa Natural Born Citizen, Is Justiciable.

It is not necessary at this point to decide whetherPresident Obama is a natural born citizen. Nor is itnecessary now to endorse Justice Grays views overthose of dissenting Chief Justice Fuller, or vice versa.Indeed, Mr. Rudys case against President Obamascitizenship is based upon both views that he is nota natural born citizen based either on his place ofbirth, or on the citizenship of his parents.

Designed as a limit on power, as expressly stated inthe Twelfth Amendment, it is the duty of this Court tosay what the law is,5 not to defer to the other twobranches of the federal government.

19

6 Article I, Section 4, Clause1.

As previously demonstrated, once the electoralvotes are counted and a candidate for President haswon a majority of the electoral vote, the Constitutiondoes not expressly vest any political organ of thefederal government with the power to ensure that onlypersons who are constitutionally eligible will exercisethe vital executive power vested in the President.Furthermore, unlike the legislative power, which isvested in two separate bodies, the Senate and theHouse, there is no internal check upon the Presidentsexercise of the legislative veto power vested in him.Additionally, there is no internal check upon a person,once elected to the presidency, to assume the fullpowers of that office, such powers having been vestedin the President, himself alone.

Finally, [e]ach house [of Congress] shall be theJudge of the Elections, Returns, and Qualifications ofits own Members,6 including whether they have therequisite U.S. citizenship required for service in thehouse to which the person has been elected. SeeArticle I, Section 2, Clause 2; Article I, Section 3,Clause 3. No one, then, can serve in Congress withoutsatisfying its internally enforced membership rules.However, any one may serve as President so long hehas won a majority of the electoral vote, unlesschecked by the law of the Constitution as applied bythe judicial branch.

Not only is the office and power of the executivebranch vested in one person alone, that office is theonly office vested by the Constitution with the sworn

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duty to preserve, protect and defend the Constitutionof the United States. Article II, Section 1, Clause 8.All other civil government officers legislative,executive, and judicial, federal and state are onlybound by Oath or Affirmation, to support thisConstitution. See Article VI, Clause 3. As originallyproposed, the presidential oath read only that onewould faithfully execute the Office of President of theUnited States. By seven votes in favor, one against,and two abstentions, the oath was extended topreserve, protect and defend the Constitution of theUnited States. Records of the Convention reprintedin 3 Founders, Item # 1 at 574.

Had the presidential oath or affirmation beenadopted without modification, then the Presidentsfealty to the Constitution would have been no differentfrom that of any other government official, federal orstate, a guaranty ... that he will be conscientious inthe discharge of his duty. Storys Commentaries 1838 reprinted in 4 Founders, Item # 17 at 645. Butmore was to be required of the President. Byextending his oath or affirmation to include the duty topreserve, protect and defend, the President not onlyis constrained to act in accord with his specificconstitutional obligations, but also, as Joseph Story soeloquently wrote in his Commentaries:

It is a suitable pledge of his fidelity andresponsibility to his country; and creates uponhis conscience a deep sense of duty, by anappeal, at once in the presence of God and man,to the most sacred and solemn sanctions whichcan operate upon the human mind. [2 J. Story

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Commentaries at 1488 at 325-26 (Little,Brown, 5th ed., 1891.)]

In order for the President to discharge his duty todefend the Constitution, he must be vigilant, forexample, to drive back, to repel and to secureagainst attacks on the liberties of American citizens.In order to discharge his duty to preserve theConstitution, the president must, for example, keep orsave from injury, keep or defend from corruption,and save from decay the federal system of the rightsof the States. Finally, to be true to his oath toprotect the Constitution, the President must, forexample, cover or shield from danger, preserve insafety the separation of powers among the threebranches of the federal government. In contrast, theConstitution requires all other officers of the judicialand legislative branches of the federal government,and the Presidents subordinates in the executivebranch, simply to swear or affirm their support of theConstitution.

The vitality of the Presidents distinctive oath hasnot waned, for it is the President, and the Presidentalone, who wields the power of the sword. SeeFederalist Paper No. 78 at 402. It is he who decideswhether and how a law enacted by Congress isexecuted, or an order entered by this Court is enforced.Armed with all of the executive power vested in theoffice of the presidency, it is, as Justice Story stated inhis Commentaries, indispensable that the personwho is elected to that high office possess the singularnational loyalty of a natural born citizen. SeeStatement, supra at 4-5.

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II. MR. RUDY SEEKS A REMEDY WELLWITHIN THE JUDICIAL POWER VESTEDIN THE COURTS.

A. The Court Below Based its Ruling on anIncomplete and Improper Characterizationof the Judicial Relief Sought by Mr. Rudy.

Both the Government and the court below, havemistakenly characterized Mr. Rudys case as one forthe removal of the President in supporting theirconclusion that this lawsuit presents a nonjusticiablepolitical question. See Pet. Br. at App. 6-8, 10. But, asthe district court below admitted, the plaintiff doesnot literally seek removal of Mr. Obama from his officeas President. Id. at App. 10. Nevertheless, the courtasserted that, because Mr. Rudy seeks a declaration... that the President was and is unqualified to holdhis office, his complaint is the equivalent of seekingthe Presidents removal, in that it would require thisCourt to examine the Presidents qualifications. Id.Any such examination would then, the courtconcluded, intrude upon the authority of thelegislative department which alone has the power toconduct ... a removal proceeding or a determinationregarding presidential succession. Id. The courtsdecision is based upon an incomplete and impropercharacterization of Mr. Rudys complaint and the reliefthat he is seeking in this case.

As the court below acknowledged, [i]n hisAmended Complaint, plaintiff alleges that herequested a refund of patent application fees from theUSPTO ... seeking to recover the difference between

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patent applications fees in effect before the September2011 enactment of the [AIA] and those he paid onJanuary 25, 2012 and that his request for refund wasdenied. Id. at App. 4. Further, the court stated that,by his amended complaint, Mr. Rudy seeks threethings: (i) a refund of $90.00 in patent applicationfees; (ii) a declaration that President Obama is not anatural born citizen of the United States and thereforeis not eligible to be the President; and (iii) adeclaration that the AIA is null and void because itwas signed by a person not authorized to do so underthe Constitution. Id. at App. 5. None of the reliefsought in the amended complaint asks for a mandatoryinjunction or other order to remove President Obamafrom office.

As to the claim for a $90.00 refund, Mr. Rudy seekswhat could best be characterized as money damages.An order awarding Mr. Rudy $90.00 in damages doesnot, itself, constitute an award of removal. True, tosustain Mr. Rudys claim for damages would requirethis Court to examine the Presidents eligibility to holdthe office of the presidency. That question standingalone, however, is not a political one, but rather is, asdiscussed above, a legal question for the court to decideon its merits. Furthermore, a court may decide Mr.Rudys damage claim without having also to enter adeclaratory judgment. As for the declaratory judgmentclaims themselves, a court is not obligated to addresseither one on the merits under the DeclaratoryJudgment Act, which confers upon the courtsdiscretion not to issue such a judgment even wherethere is a case or controversy. See 28 U.S.C. 2201.In short, under the Act, a court could address and

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7 Samuels v. Mackell, 401 U.S. 66, 70 (1971). See also Green v.Mansour, 474 U.S. 64, 72-74 (1985).

decide the question whether President Obama is anatural born citizen, and upon finding that he is not,award Mr. Rudy money damages, declining ontraditional equitable principles7 to render anydeclaratory judgment on the ground that the moneyaward of $90.00 is adequate.

B. The Court Below Unnecessarily andImproperly Decided that the Question ofNatural Born Citizenship is a PoliticalQuestion in Conflict with This CourtsPrecedents.

In their treatise on Constitutional Law, ProfessorsJohn Nowak, Ronald D. Rotunda, and J. Nelson Youngobserved:

An important consequence of the politicalquestion doctrine is that a holding of itsapplicability to a theory of a cause of actionrenders the government conduct immune fromjudicial review. [J. Nowak, R. Rotunda & J.Young, Constitutional Law, 2.15, p. 102 (West,3d ed. 1986).]

More fundamentally, Professor Laurence Tribe hascautioned against the invocation of the politicalquestion doctrine because one should not acceptlightly the proposition that there are provisions of theConstitution which the courts may not independentlyinterpret, since it is plainly inconsistent with Marbury

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v. Madisons basic assumption that the Constitution isjudicially declarable law. L. Tribe, AmericanConstitutional Law, 3-13, p. 97 (2d ed., 1988).

The issue of American citizenship, including that ofa natural born citizen, is not inextricably linked to thequestion of eligibility of the President, but has arisen,and will continue to rise, in cases involving ordinarypersons unconnected to any office. See, e.g., Wong KimArk, supra; Miller v. Albright, 523 U.S. 420, 423(1998). To date, this Court has never retreated behindthe political question doctrine to avoid resolving thequestion of citizenship before it, but has discharged itsduty to address the merits of a claim of citizenship.See, e.g., Rogers v. Bellei, 401 U.S. 815 (1971);Schneider v. Rusk, 377 U.S. 163 (1964). Most recently,this Court has acknowledged this fact, restatingemphatically the rule that the Eighth Amendmentprohibits certain punishments as a categorical matter.No natural born citizen may be denaturalized. Hallv. Florida, ___ U.S. ___, 134 S.Ct. 1986, 1992 (2014).Plainly, this rule could never be applied if the questionof natural born citizen were a nonjusticiable politicalquestion. See Trop v. Dulles, 356 U.S. 86 (1958).

By ruling that the question of natural borncitizenship as applied to the eligibility criterion forholding the office of the President is a politicalquestion the court below disregarded these numerousprecedents. A person who aspires to the presidency,like an ordinary person who aspires to Americancitizenship, must meet the legal requirements. Apresidential aspirant must not be considered immunefrom judicial review if justice is to be administered in

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the United States in accordance with the principle thatthe law is no respecter of persons.

CONCLUSION

The Petition should be granted.

Respectfully submitted,

MICHAEL CONNELLY HERBERT W. TITUS*U.S. JUSTICE FOUNDATION WILLIAM J. OLSON

932 D STREET, STE. 2 JOHN S. MILESRamona, CA 92065 JEREMIAH L. MORGANAttorney for Amicus Curiae ROBERT J. OLSON U.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4*Counsel of Record Vienna, VA 22180Attorneys for Amici Curiae (703) 356-5070August 13, 2014 wjo@mindspring.com