Patterico's Pontifications

3/13/2008

Lawsuit Seeks Ruling on McCain’s Citizenship

Filed under: 2008 Election,General — Patterico @ 6:18 am

I guess it was bound to happen. Someone has filed suit over McCain’s citizenship:

John McCain has been called an American hero. But is he a natural born citizen?

A federal judge in California has been asked to determine if the Republican presidential candidate, who was born in the Panama Canal Zone in 1936, meets the legal test to qualify for the nation’s highest office.

The complaint is here. Looking at the roster of Central District judges, I think the case number stamp, with the initials SGL and OPx, means that the judge is Hon. Stephen G. Larson, with the magistrate judge (probably for discovery disputes and such) being Hon. Oswald Parada. Judge Larson is a fairly recent Bush appointee.

The exact membership of the Ninth Circuit panel is to be determined, with the exception of Stephen Reinhardt, who will be assuming his customary place on every politically charged case that passes through the circuit. (Yes, I am kidding — I think.)

Thanks to Howard.

44 Comments

  1. Heh! Thanks for the giggle, Patterico. “Andrew Aames, et ux aka Inland Empire Voters” indeed. Ahh, that good medicinal marijuana.

    Comment by nk (8a8387) — 3/13/2008 @ 6:43 am

  2. What idiots! Why file this NOW instead of AFTER he’s been nominated?

    Comment by Rob Crawford (04f50f) — 3/13/2008 @ 7:27 am

  3. Bet you he’s a Ronulian.

    Comment by nk (8a8387) — 3/13/2008 @ 7:33 am

  4. I’d love to see this go all the way to the Supremes. Can you imagine McCain getting 99% of the military vote?

    Comment by Techie (ed20d9) — 3/13/2008 @ 7:46 am

  5. So, what would that make Mr McCain, if he isn’t a natural born American citizen? Since he was never naturalized, would that make him a Panamanian citizen, or stateless?

    Comment by Dana (3e4784) — 3/13/2008 @ 8:04 am

  6. The Naturalization Act of 1795 repealed the same act of 1790. Both acts are on wiki and the 1795 act has an external link to a copy of the orginal text which can be seen here:

    http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=537

    The relevant part seems to be Section 3 on the next page (page 415) which appears to make him a natural born citizen, but IANAL (I’m proud to say).

    Comment by Actual (9f223b) — 3/13/2008 @ 8:40 am

  7. Frivoulous

    Comment by Kevin Murphy (0b2493) — 3/13/2008 @ 8:45 am

  8. Or even frivolous.

    Comment by Kevin Murphy (0b2493) — 3/13/2008 @ 8:46 am

  9. mccain hasn’t been nominated yet, so the case will be dismissed for want of a “real case or controversy”. federal courts do not give advisory opinions, and they are picky about taking cases before there is any actual damages or restraint of a party’s actions or liberty.

    Comment by assistant devil's advocate (19089c) — 3/13/2008 @ 8:50 am

  10. so the case will be dismissed for want of a “real case or controversy

    Even though he’s clinched the nomination? If they dismiss, it will just resurface during the middle of the head-to-head campaign. Hopefully, they’ll dismiss with some type of statement that the suit is frivolous on its face so another can’t be filed.

    Not a lawyer myself of course, but you will have a bunch of ticked off military, retired/former military, and family members if this even remains a question much longer. My oldest was born overseas in a foreign hospital and there has never been a question before of whether he is a natural-born citizen. His U.S. passport stating such seems pretty conclusive to me.

    Comment by Stashiu3 (460dc1) — 3/13/2008 @ 9:03 am

  11. The interesting question is who is funding this lawsuit? All we have is this:

    The complaint was filed by Andrew Aames, 52, a Riverside lawyer who has dabbled in local politics, including volunteering for a Democratic congressional campaign. He said he is a registered Republican but previously was a Democrat.

    It seems this guy may be proceeding pro se, which would suggest a lack of organized backing.

    Comment by Crank (af4dca) — 3/13/2008 @ 9:07 am

  12. He said he is a registered Republican but previously was a Democrat.

    He’s as much a Republican as those “Rush Democrats” in Texas are really Democrats. That’s just out there because it’s probably easy to connect him with the Dems and he knows it. Now he can say, “I switched parties, but I don’t agree with them on this.”

    In other words, a “Moby” in the courtroom instead of the blogosphere:

    An insidious and specialized type of left-wing troll who visits blogs and impersonates a conservative for the purpose of either spreading false rumors intended to sow dissension among conservative voters, or who purposely posts inflammatory and offensive comments for the purpose of discrediting the blog in question.

    Comment by Stashiu3 (460dc1) — 3/13/2008 @ 9:46 am

  13. It seems to me this helps McCain more than hurts him. Isn’t it better for McCain to resolve this issue now?

    As for ADA’s comment 9, I think Aames can argue it became a real case or controversy once McCain got enough delegates to secure the nomination.

    Comment by DRJ (a431ca) — 3/13/2008 @ 9:50 am

  14. Aames also apparently said he had no political stake in the outcome. A court ruling would clear up any confusion for voters, he added, and McCain has a “very, very good” chance of prevailing.

    Free advertising for his legal practice I guess.

    Comment by JayHub (0a6237) — 3/13/2008 @ 10:20 am

  15. Four words for you, Patterico:

    “Harriet Miers, Constitutional Litigator.”

    Comment by Beldar (433d17) — 3/13/2008 @ 10:28 am

  16. How does the plaintiff have standing at this time?

    Comment by Steven Den Beste (99cfa1) — 3/13/2008 @ 10:41 am

  17. There is a small subset of pseudo-Republicans who have a hobby of screwing up Republican politics. Bill Dougherty, attorney for Christopher Boyce the Soviet spy in the 60s, is an example. Bill was a reserve Marine colonel and a friend of my father-in-law, also an old Marine fighter pilot from WWII. Bill once ran for the Republican Central Committee in Orange County listing his occupation as “retired Marine colonel.” Once ensconced there, he supported nothing but Democrats and it was he who recruited Loretta Sanchez to run for Congress. He thought it a great joke.

    Comment by Mike K (f89cb3) — 3/13/2008 @ 10:45 am

  18. Mike K, Bill Press had a hand in Sanchez-Brixey changing her name and party. It started when Press had her on a remote broadcast from Big O tires in Anaheim. Press was CA Democrat party Chair at the time.

    Comment by PCD (5ebd0e) — 3/13/2008 @ 11:05 am

  19. I don’t doubt there were others but Dougherty credited himself with recruiting her and, I believe, was chair of her finance committee. Changing her name was brilliant and may have been Press’s contribution. My point was that he was on the Republican Central Committee, used a subterfuge to get himself elected and the committee could not expel him as it was an elected position.

    Comment by Mike K (6d4fc3) — 3/13/2008 @ 11:12 am

  20. I’m not sure what the current rule *is* for someone being a natural-born citizen.

    But ISTM that if it wasn’t an issue for Goldwater (who was born in Arizona when it was a Territory), then it shouldn’t be an issue for McCain (who was born in the Canal Zone when it was a Territory).

    Stashiu, I agree with you as a matter of policy that people born to US citizen parents on a US military base overseas ought to be considered natural born citizens, but I think it’s a seperate question. A US army base in Germany is not a US territory in the same way that Guam is, or the Canal Zone prior to 1979, or Arizona prior to 1912, were.

    Comment by aphrael (e0cdc9) — 3/13/2008 @ 11:16 am

  21. Steven Den Beste,

    I agree that standing may be a problem but I don’t know if it will be raised. If it is, I would argue this is similar to the situation of a woman who wanted an abortion when abortion was illegal. By the time she was pregnant and had standing, the lawsuit would take so long to complete that it became moot because she would have given birth before it could be decided. Maybe this will fall under a similar Roe v Wade-type exception.

    Beldar,

    I think Harriet Miers would be a good choice of counsel, too.

    Comment by DRJ (a431ca) — 3/13/2008 @ 11:18 am

  22. aphrael,

    My son is one step removed from even that… born in a foreign hospital, not on base. His “natural-born” citizenship has never been in question. As long as the child is born to at least one parent of American citizenship, the child is a citizen.

    Comment by Stashiu3 (460dc1) — 3/13/2008 @ 11:27 am

  23. “MOBY”

    Rush correctly labeled this type of individual as a “Seminar Caller” years ago. They’re all POS’s.

    Comment by Another Drew (f9dd2c) — 3/13/2008 @ 12:09 pm

  24. Curiously, the State Bar of Calif. has no lawyer in its rolls by the name of “Andrew Aames”.

    http://members.calbar.ca.gov/search/member_search.aspx?ms=andrew+aames

    Comment by WLS (68fd1f) — 3/13/2008 @ 12:14 pm

  25. DRJ, I don’t agree. It strikes me that the “right” procedure would be to wait until McCain is elected — if he is.

    Then all citizens of the US have standing, and the objection could be raised in court. In case of an affirmative ruling, McCain would be disqualified, and his VP would become President in his stead. A replacement VP would be selected and confirmed according to the rules in the 25th Amendment.

    So there’s no need for a speculative, preemptive ruling at this time. And I still don’t see how the plaintiff has standing at this time.

    Comment by Steven Den Beste (99cfa1) — 3/13/2008 @ 12:26 pm

  26. Liberal demacrooks in KALIFORNIA are using the imperial court to again decise for us TAKE A WHIP TO THAT JACKASS

    Comment by krazy kagu (656fec) — 3/13/2008 @ 12:57 pm

  27. Here’s an old bio for Andrew Aames.

    Comment by DRJ (a431ca) — 3/13/2008 @ 1:03 pm

  28. According to this Ron Paul supporter’s blog, Mr. Aames has a history of bringing politically charged lawsuits. (Paul fans seem happy about this.)

    There is also a quote from a Loyola constitutional law scholar agreeing with ADA’s “case or controversy” point and Mr. Den Beste’s prematurity point, above.

    Comment by DRJ (a431ca) — 3/13/2008 @ 1:08 pm

  29. WLS:

    Curiously, the State Bar of Calif. has no lawyer in its rolls by the name of “Andrew Aames”.

    No, but it does list an A. Benjamin Aames who is a workers comp lawyer in Riverside, with an address and phone number matching those on the complaint. I’m sure it’s the same guy.

    He said he had no political stake in the outcome.

    In other words, he’s already conceded that he lacks standing, even if the issue is otherwise ripe for judgment. No need to bring in Harriet Miers; any lawyer worth a grain of his salt can handle this one.

    Comment by Xrlq (b71926) — 3/13/2008 @ 1:37 pm

  30. Xrlq, lets find a second year law student to oppose Aames and put some suspense into the question.

    Comment by SPQR (26be8b) — 3/13/2008 @ 4:06 pm

  31. Xrlq — yep, you found him. I didn’t try any variations, just the name in the article.

    Comment by WLS (68fd1f) — 3/13/2008 @ 4:46 pm

  32. SPQR,

    Please. I’ve taken a few community college classes involving the law. Put me against him.

    Can he get disbarred for losing to a layman? :)

    Comment by Scott Jacobs (d3a6ec) — 3/13/2008 @ 5:21 pm

  33. Man, it had to be the Ninth Circuit. Anything could happen.

    Comment by Steven Den Beste (99cfa1) — 3/13/2008 @ 5:24 pm

  34. Sec. 1401 says it pretty straight. Section 1402 etc. say pretty much the same thing regarding people born in specific parts of the world. Examples of the sort of unnecessary ordinances and regulations promulgated by fuss budgets and the anal retentive.

    In short, John McCain’s parents were both American citizens, both had lived in the United States, and his father was serving in the U. S. military at the time of Senator McCain’s birth. John McCain, assumptive Republican candidate for President of the United States is a natural born citizen of the United States of America. The suit has no basis in fact, is frivilous on the face of it, and is worthy only of dismissal with prejudice and the disbarment of the attorney who filed it. That’s my opinion, and I am sure the facts bear me out.

    Mr. Ames don’t like it, Mr. Ames can lump it; take it down the road and dump it.

    Comment by Alan Kellogg (c18e23) — 3/13/2008 @ 6:03 pm

  35. S. den Beste: DRJ, I don’t agree. It strikes me that the “right” procedure would be to wait until McCain is elected — if he is.

    I disagree. The result would be potentially a president who shouldn’t be in office, in office while his case is being litigated. That would be very unhealthy for our political system.

    Sometimes it may be unavoidable (if a foreigner fools everyone and the truth comes out once he’s already in office) but if it can be avoided, it should be.

    Bonus question: how long until someone forges a fake Kenyan birth certificate for Barack Obama, listing his religion as “Muslim,” and spreads it around the internet?

    Comment by Daryl Herbert (4ecd4c) — 3/13/2008 @ 8:45 pm

  36. My son, who is a trial lawyer, says workers comp is the absolute bottom rung of the legal ladder. No wonder the guy wants to do something else.

    Comment by Mike K (86bddb) — 3/13/2008 @ 10:14 pm

  37. Alan, at 34: ISTM that the appropriate rule is whatever the statute said when Sen. McCain was born, rather than whatever the statute says now.

    Could be they’re the same. But findlaw isn’t telling me that.

    Comment by aphrael (db0b5a) — 3/13/2008 @ 11:50 pm

  38. Mike K,

    I may have voted for the bum. I just knew the OC Central Committee and organization was riddled with RINOs. How else do you explain their support for Doris Allen’s deal with Willie Brown?

    I was one of those REAL Republicans who picketed Allen’s Speaker’s office next to John Wayne when it opened. Her goons tried to chase off the sidewalk. They backed off when I barked at them that it was a public sidewalk. I also gave them the look I give quarterbacks when I played defense.

    Comment by PCD (5ebd0e) — 3/14/2008 @ 8:42 am

  39. No, Aphrael,

    The place to look is the naturalization statutes. If McCain was not eligible for naturalization, he’s a natural born citizen.

    Comment by nk (8a8387) — 3/14/2008 @ 8:49 am

  40. For the tax-protesters, Ronulans and readers of Radley Balko, let me rephrase:

    *If McCain was not eligible for naturalization, but he is nonetheless a citizen, he’s a natural born citizen.*

    Comment by nk (8a8387) — 3/14/2008 @ 8:53 am

  41. History shows that this provision was crafted for the sole purpose of excluding Alexander Hamilton from the office. John McCain =/= Alexander Hamilton. John McCain can be President. QED.

    ;-)

    Comment by SPQR (26be8b) — 3/14/2008 @ 9:10 am

  42. I’ve quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/03/re-lawsuit-seeks-ruling-on-mccains.html

    I’ve also named Patterico “blog-of-the-day.”

    Comment by Consul-At-Arms (24ca24) — 3/15/2008 @ 11:39 pm

  43. @#22 Stashiu3:

    “My son is one step removed from even that… born in a foreign hospital, not on base. His “natural-born” citizenship has never been in question. As long as the child is born to at least one parent of American citizenship, the child is a citizen.”

    Actually that’s not the case. The U.S. citizen parent has to be able to transmit citizenship and not every U.S. citizen can do that to a child born overseas. There are differing requirements for at-birth U.S. citizenship depending upon whether one or both parents are U.S. citizens, whether it’s the mother or father, whether the birth is in wedlock.

    That being said, Sen. McCain is unquestionably a U.S. citizen, has been since his birth, and the only real legal/constitutional question is whether that meets the Art. II, Section 1 eligibility requirement for the office of the president.

    I think it does, and I look forward to a legal opinion that says so.

    Lastly, the business about being born on a U.S. base overseas rather than a foreign hospital is a “red herring.” Legally, there’s no difference in terms of U.S. citizenship; if birth isn’t in the U.S. or an “outlying possession,” than it’s a “birth abroad.” And “outlying possession” these days means only American Samoa and Swain Island (INA Sec. 101(a)(29), U.S.C.)

    Comment by Consul-At-Arms (24ca24) — 3/16/2008 @ 3:20 pm

  44. Actually that’s not the case.

    I defer to superior knowledge about the exceptions… but if someone says my son isn’t a citizen eligible to run for President, they’re gonna have a problem. (Not that I’d ever want him to run… just sayin’)

    :)

    Comment by Stashiu3 (460dc1) — 3/16/2008 @ 3:35 pm

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