Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

October 25, 2008

Federal Judge Tosses Obama Citizenship Lawsuit

by Doug Mataconis

A Federal Judge in Pennsylvania has, not surprisingly, dismissed a lawsuit attempting to remove Barack Obama from the ballot on the ground that he is not a natural born citizen:

A federal judge in Philadelphia last night threw out a complaint by a Montgomery County lawyer who claimed that Democratic presidential candidate Barack Obama was not qualified to be president and that his name should be removed from the Nov. 4 ballot.

Philip J. Berg alleged in a complaint filed in federal district court on Aug. 21 against Obama, the Democratic National Committee and the Federal Election Commission, that Obama was born in Mombasa, Kenya.

Berg claimed that the Democratic presidential standardbearer is not even an American citizen but a citizen of Indonesia and therefore ineligible to be president.

He alleged that if Obama was permitted to run for president and subsequently found to be ineligible, he and other voters would be disenfranchised.

(…)

In a 34-page memorandum and opinion, the judge said Berg’s allegations of harm were “too vague and too attenuated” to confer standing on him or any other voters.

Surrick ruled that Berg’s attempts to use certain laws to gain standing to pursue his claim that Obama was not a natural-born citizen were “frivolous and not worthy of discussion.”

The judge also said the harm Berg alleged did “not constitute an injury in fact” and Berg’s arguments to the contrary “ventured into the unreasonable.”

Again, this isn’t a surprise. Berg’s claims had no legal or factual merit.

Hopefully, there will be a Rule 11 motion coming in the mail to him soon.

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  • thomasblair

    Again, had it been true that Obama is not an American citizen, if a voter doesn’t have standing, who would?

    Would a voter have standing after the election of a non-citizen to the presidency?

    I understand the concept of standing and present harm, but don’t we have restraining orders to prevent expected future harms?

  • commonsense engineer

    Lawsuit has not been dismissed or ruled on. You probably saw an unsigned ruling that both Plaintiffs and Defendants provide as a standard for the judge, but are not valid until signed and dated.

    Fact and paperwork available here http://dockets.justia.com/docket/court-paedce/case_no-2:2008cv04083/case_id-281573/

    Makes no sense that Obama doesn’t just release everything to the public. It is the most important and powerful job. We need to know all about him.

  • Rockmelon

    That’s disappointing.

    Obama is not a patriotic American. He sat for 20 yrs listening to sermons by his mentor-pastor that defiled everything in the world except black people. Most importantly, he has far too many ties to Islam and radical Muslims.

    He will not defend America against terrorism because it represents the religion of his father, brothers and his own religion at birth.

    The man is virtuallay waving red flags but his followers are blinded by his charisma. The same thing happened in Germany in the 30’s and you see where that got them! Think it can’t happen here? Think again!

  • http://anarchangel.blogspot.com Chris

    Doug,

    I’m not sure where they got the ruling, because it’s not up in PACER yet. I’ve checked twice this morning.

  • http://www.kipesquire.net KipEsquire

    In a 34-page memorandum and opinion, the judge said Berg’s allegations of harm were “too vague and too attenuated” to confer standing on him or any other voters.

    Told you so.

  • http://anarchangel.blogspot.com Chris

    Kip,

    I agreed with you that it would be dismissed on standing, though I still think the argument the campaign is using is weak.

    I keep saying that until a ruling is made on the substance of the allegations, this is going to keep coming back.

    Now, as of Friday, there are state cases against all 50 state democractic parties, and federal cases filed in every district.

    Christ, when I went into PACER this morning and did a search for litigation VS. Obama there was page after page of it.

    We need to get a finding of fact on the merits, or we’ll be seeing this BS over and over again until Obama is out of whatever office he’s serving in.

  • http://willnevergiveup.wordpress.com Willnevergiveup

    Wouldn’t the throngs of people shut up if the documents were produced? What point does it serve to suppress the rights of Americans by not producing proof of eligibility for the office of Presidency?

    An interesting bit of trivia…

    I haven’t heard people talking about the legislation that has been popping up every six months on “The Hill” (for years) to change the Constitution to read a president doesn’t have to be born in this country.

    I, too, have not heard the case was tossed.

    In the meantime, while I still have rights, I will continue to write about Obama’s background, legislation and obscurely published info while being respectful of those that choose to research him on his own website.

    http://willnevergiveup.wordpress.com

  • http://www.no-treason.com Joshua Holmes

    Obama is a natural born citizen of the United States and fully eligible to be President. He’ll just be lousy, albeit probably moderately less lousy than McCain.

    Let’s say that Schwarzenegger wanted to run in the 2012 election and entered the Republican primaries. Obviously, being born an Austrian citizen, he’s ineligible to be President. The Republicans persist in nominating him. Who can sue, at what time, and what can the courts compel? Should Schwarzenegger win, could the Supreme Court force him to step down, or nullify every one of his acts? It’s an interesting – albeit unlikely – question.

  • thomasblair

    Joshua,

    Thanks for the question. I’ve been trying to get this information from the contributors myself. Perhaps I should have cloaked the question as you did.

    Doug/Kip/any other lawyers,

    Who would have standing and when would such a person have standing to challenge a candidate’s citizenship?

  • http://www.belowthebeltway.com Doug Mataconis

    wilnevergup,

    The documents have been produced for those willing to admit that A is A.

  • http://www.belowthebeltway.com Doug Mataconis

    Joshua,

    In Schwarzenegger’s case, it would be so obvious that he wouldn’t even put his name on the ballot.

  • http://www.belowthebeltway.com Doug Mataconis

    Chris,

    We need to get a finding of fact on the merits, or we’ll be seeing this BS over and over again until Obama is out of whatever office he’s serving in.

    With all due respect, one could say the same thing about 9/11.

    Until we absolutely prove that George W. Bush didn’t conspire with the Illuminati and aliens from Mars to implicate Osama bin Laden in the murder of 3,000 Americans, we’ll just never be sure, will we ?

    Not everything needs to be decided in a court of law to be determined to be true.

  • http://www.belowthebeltway.com Doug Mataconis

    Rockmelon,

    He will not defend America against terrorism because it represents the religion of his father, brothers and his own religion at birth.

    I will likely disagree with many things President Barack Obama will do over the next 4-8 years, but so long as there are people like you spreading crap like this, I’ll defend him against it.

  • http://www.orderhotlunch.com Jeff Molby

    In Schwarzenegger’s case, it would be so obvious that he wouldn’t even put his name on the ballot.

    That’s probably true, but you managed to avoid the point of his question. If the citizenship requirement is too hard for you to fathom, what should happen if a 30 year old manages to get elected?

    I understand that “standing” plays an important role in the legal system, but this stuff just makes my blood boil:

    “If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint.”

    Is he seriously suggesting that such a simple and important clause is not enforceable unless and until congress elaborates on it? What good is a Constitution that can’t be accepted at face value???

  • thomasblair

    Thank you Jeff. I’ve asked this question at least twice now and been ignored as well. It’s not really a big deal but I really am curious.

    Who would have standing and when would they have said standing to challenge a presidential candidate’s eligibility (for whatever reason – citizenship, age, or residency)?

  • http://publiusendures.blogspot.com Mark

    thomasblair, et al: I tried to answer your question on the previous thread. Presumably, anyone whose name appeared on the ballot (or any political party who met that requirement) with Obama would have standing since they could point to a discrete injury. Others with standing would possibly include FEC commissioners (who have a statutory duty), members of the Electoral College (who have a Constitutional duty to ensure that the President is Constitutionally eligible). I somewhat doubt it, but it’s also possible that members of Congress would have standing.

    Also, you could conceive of a state-level election official refusing to put someone on the ballot on grounds of ineligibility, which would quickly lead to the allegedly ineligible candidate suing the election official.

  • SC

    Sigh…whatever your opinions are of either candidate for good or ill, at least base them on facts instead of conspiracy theories, folks.

    http://www.politifact.com/truth-o-meter/article/2008/jun/27/obamas-birth-certificate-part-ii/

    http://www.factcheck.org/elections-2008/born_in_the_usa.html

  • http://publiusendures.blogspot.com Mark

    I just noticed that you asked when standing would attach as well. A rival candidate/political party would have standing to challenge eligibility at any time after the possibly ineligible candidate was placed on the ballot. A member of the Electoral College would probably only have standing, if at all, after the EC formally voted since there’s probably no “harm” until the President is formally elected.

  • TerryP

    While I think the merits of this case are a little ridiculous, I still don’t get, though, where a voter does not have standing in regard to a Presidential candidate. If elected he will be governing over each one of us. Even if he doesn’t get elected he may cause others to get elected that shouldn’t have or just have undue influence in a campaign that he never should have been allowed in. Are they saying that we don’t have standing until he becomes elected? That seems a little dumb. Or are they saying that we will never have standing even if he is elected, since we are just the we little people. That is just flat out un-American and wrong.

  • http://publiusendures.blogspot.com Mark

    TerryP:

    While I understand what you are saying, there is a certain level of necessity to imposing a standing requirement that someone suffer a particularized harm in order to bring suit. Otherwise, people could (and would) just keep bringing the same claims or types of claims and clog up the court system; principles of res judicata can’t apply to prevent different plaintiffs from bringing the same types of claims. As a general matter, government would not be able to function at all (not necessarily a bad thing, of course) if anyone could sue over any policy they didn’t like at any time.

    But the whole doctrine is derived from the requirement in Article III that courts only hear “cases and controversies.” This requirement generally means that you have to allege that you have (1) suffered an actual harm (2) due to the defendant’s actions AND (3) that a favorable decision by the court will actually redress your harm.

    Personally, I tend to think that the SCOTUS has gone a bit too far in prohibiting standing in various types of lawsuits, and the dividing line can often be extremely arbitrary. For instance, taxpayer suits are generally not allowed…. except when they are. The reasoning is that these types of general questions are best resolved through the elected branches of government – the courts are, perhaps rightly, extremely reluctant to get involved in issues that involve so-called “political questions.”

    But the general requirement that there be an actual, redressable harm of some sort makes a lot of sense, and has a pretty lengthy history in law. Again, I think the SCOTUS has gone a bit too far in limiting the situations where standing exists.

    But under no possible conception of “redressable harm caused by the alleged action” would “Obama’s eligibility for President prevents me from voting for Hillary Clinton” qualify. This is particularly true since: (a) nothing prevents Hillary Clinton from running as a third party candidate; (b) it is entirely speculative to conclude that Hillary Clinton would be the nominee were Obama ruled ineligible; and (c) the Democratic Party is a nominally private actor entitled to govern its own nomination process. Some other things worth noting (although I don’t want to give anyone the idea that questioning Obama’s eligibility is a valid use of the courts at this point):

    First, the appropriate body to sue would have been the State Election Board; the Obama campaign (and the Dem Party) are private actors who are not themselves subject to Constitutional requirements. Berg may as well have sued the telephone company for violation of his free speech rights by shutting off his service when he doesn’t pay his phone bill due to the sanctions he should have to pay. The State Election Board, however, is responsible for ensuring the eligibility of candidates. That Berg chose to sue the campaign directly only further proves that he was either grandstanding or is simply an incompetent attorney.

    Second, it would have been much wiser to sue the State Board of Elections in state court rather than federal court. State courts can sometimes have dramatically lower standing requirements, and voting in Presidential elections is entirely a function of state law. Also, there is no Constitutional right to vote in the Presidential election; instead, placement on the ballot is technically a function of state law, even though it may require the application of a federal Constitutional requirement.

    Third, even if there could be generalized taxpayer standing to challenge a President’s eligibility to serve in federal court (and I don’t think there could, or even should), that standing could only occur after the President was formally elected after the meeting of the Electoral College. Until that time, there is no conceivable Constitutional harm because all the Constitution cares about is how the Electoral College votes.

  • http://www.belowthebeltway.com Doug Mataconis

    Mark,

    even if there could be generalized taxpayer standing to challenge a President’s eligibility to serve in federal court (and I don’t think there could, or even should), that standing could only occur after the President was formally elected after the meeting of the Electoral College. Until that time, there is no conceivable Constitutional harm because all the Constitution cares about is how the Electoral College votes.

    An excellent point

    And here’s another thought — until an allegedly ineligible person is formally elected President by the Electoral College, I think you could also argue that the entire eligibility issue is a political question that shouldn’t be dealt with by the Courts at all.

    If there was any real evidence that Barack Obama was not an American citizen, then it would have come out by now. Hillary Clinton would have used it in the primaries, McCain would have used it by now.

    That’s why the example that someone posed in a comment above of who would be able to stop Arnold Schwarzenegger from running for President if nobody had standing to sue misses the point — if Arnold tried to run for President in 2012, then whoever else was running against him would bring up the citizenship issue and his campaign would be over.

    Not everything is meant to be decided in a court of law.

  • http://publiusendures.blogspot.com Mark

    Doug – at least with respect to the federal courts, I suspect that you’re 100% right.

    However, state election laws present a vastly different avenue and there are well-accepted procedures for challenging another candidate’s eligibility for the ballot before the election. There is usually no political question issue where someone who otherwise has standing challenges a ruling by an administrative agency such as an elections board. Of course, any challenges through that avenue would not technically be challenges under the federal Constitution but would instead be based on state law that theoretically incorporates federal Constitutional requirements into its decisions on ballot eligibility. So there would be no binding precedent if, say, West Virginia found a candidate ineligible that would require the candidate be removed in other states.

  • http://www.orderhotlunch.com Jeff Molby

    The reasoning is that these types of general questions are best resolved through the elected branches of government – the courts are, perhaps rightly, extremely reluctant to get involved in issues that involve so-called “political questions.”

    I think this is one of the world’s biggest lies. EVERYTHING is political. The Constitution defines the limits of fedgov. That’s true even if you happen to loosely interpret every clause in it. Thus, every single law is possibly in violation of it.

    Furthermore, every libertarian should understand that every law harms all of us. If it’s a spending bill, it costs us money through either taxation or inflation. If it’s a regulation, it costs us through a higher cost of living.

    Thus, every individual has legitimate cause to challenge every law. I don’t care that the harm is usually minute and remote. It’s no less real. The cumulative effect of the past two centuries makes that abundantly clear.

    As for “redressable”, that’s easy: strike down the offending portions of the law.

    I don’t buy the pragmatic argument, either. Standing is not the only legal principle that keeps the courts from clogging. It would be a rough adjustment, but eventually, a huge list of precedents would build up to the plug the gaps.

  • http://publiusendures.blogspot.com Mark

    Jeff:
    To a certain extent I agree with you, which is why I wrote that the SCOTUS has gone too far with the way in which it has restricted standing.

    But some limitation on standing is necessary. In this specific case, for instance, I don’t think many people can point to an actual (rather than merely theoretical) harm imposed by an ineligible President. Certainly I think a member of the Electoral College could point to a harm, as could a competing candidate.
    Similarly, and taking this outside of the realm of the Constitution, the standing doctrine is important as a means of preventing people from suing the government every time the government imposes a policy that they don’t like – regardless of its Constitutionality. On the political question issue, which is a sub-area of the standing issue, the problem is a little different – if there are two valid competing Constitutional interests, it’s appropriate for the courts to leave it up to the voters to decide because the courts really have nothing to go on.

    Again, though, I think the courts have gone too far in prohibiting standing, particularly taxpayer standing, because government expenditures are paid out of funds that are taken from individual taxpayers; if those funds are abused, I think individual taxpayers are clearly harmed. Even so, most taxpayer suits on Constitutional grounds would not survive a motion to dismiss because of the extensive precedent expanding the meaning of the interstate commerce and necessary and proper clauses.* Which makes the problems with the standing doctrine something of a non-issue in most areas.

    If it were up to me, I would replace the requirement of a particularized injury with a requirement only that the harm caused to the Plaintiff is the type of harm the allegedly violated provision or statute seeks to prevent. But this suggested change would have only minimal practical effects since most taxpayer suits would still get dismissed on res judicata grounds.

    *This is the principle of res judicata. I accidentally wrote in my previous comment that res judicata would not apply – in that comment, I should have said collateral estoppel instead of res judicata. That mistake is unforgivable since I’m currently defending against a collateral estoppel argument in one of my cases.

  • http://www.orderhotlunch.com Jeff Molby

    That mistake is unforgivable since I’m currently defending against a collateral estoppel argument in one of my cases.

    I’ll forgive you anyways, just to show you what a big heart I have. ;-)

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