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Though Georgia Administrative Judge Michael Malihi claimed to have issued a decision based upon “the law as well as the evidence,” we now know he made proper use of neither. For the Judge had no evidence in the Court record upon which to base his assertion of “fact” that Obama “was born in the United States.” And the Indiana Appeals Court decision to which Judge Malihi looked for his ONLY guidance made a thoroughly incorrect interpretation of existing case law.

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In short, Judge Malihi’s decision wouldn’t pass muster in a first year law school classroom.

“The court can only rest its finding of fact on evidence that is part of the court record.” This is a rule of evidence of the superior court as stated by Attorney Mario Apuzzo.  Yet only plaintiff’s evidence was contained in Malihi’s Court record and the Judge concluded that their claims were “not persuasive.”  As Apuzzo puts it, “surely the court did not use those “insufficient” documents as evidence of Obama’s place of birth.”

So how exactly was Judge Malihi permitted, in a proper legal manner, to state in his decision “the following facts are considered: 1) Mr. Obama was born in the United States…”?

But just as disturbing as basing “fact” on evidence he didn’t have is the Judge’s choice of an incorrectly reasoned and decided Indiana case as the basis of his decision.

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As in the case before Malihi, the 2009 Indiana case “Ankeny v Governor” involved a suit by plaintiffs who claimed Obama did not meet the Article ll, “natural born citizen” requirement of the United States Constitution.

Although there is no definition of “natural born citizen” in the Constitution, there is a  Supreme Court case in which the term “natural born citizen” is clearly defined.

Writing for the unanimous majority in the 1875 SC case Minor v Happersett, Chief Justice Waite stated:

At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

Minor goes on to state:

Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

So Minor made it clear that “natural born citizens” are born in the United States to parents who are US citizens. And those born in the US to parents who may not be citizens, may or may not be citizens themselves. Note there is NO question of “natural born” status in this second example, but merely citizenship.

However, the Ankeny Court decided that Minor did not really define “whether a person who is born within the United States of alien parents is considered a natural born citizen,” claiming that the SC “left the issue open.”

The Indiana Court then went on to conflate Article ll of the Constitution with the 14th Amendment which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

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