Berg v Obama – Headed for SCOTUS! By Doug Edelman
The lawsuit against Barack Obama challenging his citizenship eligibility to serve as President of the United States has been dismissed with the ruling that Philip Berg, the plaintiff, had no standing as a US voting citizen to bring the suit. Dismissal on these grounds means the judge as decided that the MERITS of the suit don’t have to be weighed or decided (so he won’t be on the hook for such a decision either way!) The FACTS of the case never get presented in open court, and the documents don’t have to be produced. A very clean getaway for Obama.
The judge’s ruling was based on precedents where voters were not found to have standing because they could not demonstrate direct harm to them or made vague generalities about wrong done to the general population. Lower courts have tended to avoid granting standing, seemingly preventing David from causing Goliath any great annoyance.
The Berg case is different, however. If Obama is elected President, and is later found to be ineligible to hold that office, the entire nation will suffer through a constitutional crisis. Berg simply sought to have an examination of the facts to determine the validity of Obama’s candidacy. Those facts have not yet been vetted by a court! If a voting citizen of the United States does not have standing to prevent a national crisis of such a magnitude by raising the question of eligibility, to be decided on the evidence in open court, WHO DOES?
Philip J. Berg, Esquire, the Attorney who filed suit against Barack H. Obama challenging Senator Obama’s lack of “qualifications” to serve as President of the United States, announced that he is immediately appealing the dismissal of his case to the United States Supreme Court. The case is Berg v. Obama, No. 08-cv-04083.
Berg said, “I am totally disappointed by Judge Surrick’s decision and, for all citizens of the United States, I am immediately appealing to the U.S. Supreme Court.”
There are even questions on whether the judge was “influenced” or had the decision written for him by some tied to Obama: http://james4america.wordpress.com/2008/10/25/judge-surrick-received-the-decision-he-issued/
It remains to be seen whether SCOTUS will hear the case, and even if so, it would appear the election will take place before the matter is legally settled.
Berg’s suit sought to present evidence that Obama may have been born in Kenya, where under the law at the time, his mother (a US citizen) would have had to have been 19 years old to have conferred her citizenship to him. (Obama ACKNOWLEDGES dual citizenship with Kenya on his website). Berg also sought to produce evidence that Obama later held Indonesian citizenship when he was adopted by Lolo Soetoro and moved with him to Indonesia. Indonesia and the US did not recognize dual citizenship at the time, so the only valid citizenship he would have held in that case is Indonesian. He would have expatriated any US or other citizenship held.
Even if he subsequently regained US citizenship, it would be thru naturalization, which is expressly ineligible to serve as POTUS under Article II of the Constitution.
These facts have not been decided or ruled invalid. They have not been heard in court. The case was dismissed on the basis of WHO was bringing it, and not on its merits. The question of Obama’s eligibility to serve REMAINS an open question.
There are other lawsuits pending on the issue. Marquis v Reed in the state of WA names the Secretary of State in Washington as the defendant rather than Obama – so it’s possible a citizen of the state may be found to have “standing”. This suit seeks to present the same facts as evidence that the Secretary of State has failed to verify Obama’s eligibility before placing his name on the ballot. Marquis says similar suits are in progress in 10 other states.
In the end, this question will, in all likelihood, remain unanswered until after the election. Voters should be aware that it is still an open question as they head to the polls.
Copyright © 2008 by Doug Edelman
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Last 3 posts by Doug Edelman
- Final Thoughts on the Bush Presidency – Hail and Farewell to the Chief! - January 1st, 2009
- An Open Letter to the Electors of the Electoral College - December 13th, 2008
- The Fairness (?) Doctrine and the Constitution - November 19th, 2008
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Comment by Editor on 22 November 2008:
William J. Russonello » Thank you very much for that most insightful comment on this issue. I’d like to publish this as an article in order to present this important information to more readers.
Hans Gruen, Publisher
Comment by William J. Russonello on 22 November 2008:
Ignore the Constitution?
The Constitution of the United States, Article II, sets down three requirements for eligibility to the Office of President.
“No Person except a natural born Citizen,…, shall be eligible to the Office 0f President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty-five years, and been fourteen Years a Resident within the United States.”
The (un-amended) Constitution makes no reference to the eligibility requirements for Vice-President. The original method of electing the President and Vice-President apparently assumed that as both were candidates for President, and the Vice-President was to be the individual receiving the second highest number of votes for President, these requirements automatically applied to the office of Vice-President.
With the Twelfth Amendment, ratified June 15, 1804, the method of electing President and Vice-President was changed , and the Article II requirements were formally applied to the office of Vice-President. The last line of the Twelfth Amendment states “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
For the purpose of the continuation of this discussion it is necessary to ask when an individual becomes the “President-elect.” The immediate reply by most Americans would be “When the results of the General Election are known or the opponent concedes.”
However a plain reading of the Twelfth Amendment will reveal that may not be the case.
Apparently the “President-elect” is known, when, in the language of the Twelfth Amendment, “-The President of the Senate shall, in the presence of the Senate and House of Representatives , open all the certificates and the votes shall then be counted.”
The President-elect and the Vice-President-elect, begin their terms as President and Vice-President, respectively, at noon on the 20th day of January in the appropriate year. This date was established by the Twentieth Amendment, ratified January 23, 1933.
Further to the purpose of this discussion, the Twentieth Amendment, in Section 3, prescribes how the President is to be chosen in certain circumstances, one of which is in the event, “ … the President-elect shall have failed to qualify, …”.
That language compels understanding that at some point, the President-elect must qualify.
It should be appreciated that the Constitutional Convention of 1787, and the U.S. Congresses and ratifying State Legislatures of 1789, 1804 and 1933, all considered the three simple eligibility requirements set forth in Article II, to be absolute. However, nowhere does Article II, Amendment XII or Amendment XX command, instruct or even suggest that the Electors vote only for a “qualified” candidate.
Arguably then, the period during which the Constitution anticipates that the President-elect and the Vice-President-elect must qualify begins with the President of the Senate opening the certificates and counting the votes; and ends at noon on January 20th.
This is a very short window to address a very important question.
Surprisingly, there is no mention in the Constitution, its amendments or in any law I have been able to find, as to who is responsible for certifying that the individual, who by the votes of the Electors of the several States, counted by the President of the Senate is deemed President-elect, is in fact “qualified” in accordance with Article II of the Constitution, or “has qualified” within the meaning of the Twentieth Amendment.
Is it possible that we have had 43 Presidents and have never formally checked that any met the three simple Constitutional requirements? Have we just assumed that an individual would not seek the office if constitutionally unqualified?
Who’s obligation is it to determine and certify an individual person as “qualified” to be President of the United States within the meaning of Article II ? The Candidate? The sitting President? The Congress? The Supreme Court? The Federal Election Commission? The Electors of the several States? The Governors of the several States? ……Who?
Prior to the Primary Elections preceding the Presidential Election of 2000, the question as to whether Sen. John McCain, of Arizona, is constitutionally qualified due to his birth in Panama was researched at the candidate’s request and expense by scholars and lawyers who concluded that he was qualified. Is it enough that hirelings of the candidate merely pronounce him qualified?
Prior to the Presidential Election of 2008 the question as to whether Sen. Barack H. Obama, of Illinois, is constitutionally qualified to be elected President of the United States was posed to the United States District Court for the Eastern District of Pennsylvania, case # 2:2008cv04083, Berg v. Obama et al but dismissed October 24, 2008 for lack of subject matter jurisdiction and plaintiff’s lack of standing .
If, presumably, all U.S. District Courts lack subject matter jurisdiction, and all ordinary U.S. Citizens lack standing how do we ensure that our President is qualified as required by Article II of the Constitution?
I submit that:
a. The question of Presidential eligibility becomes litigable only upon the counting of the votes of the Electors of the several States by the President of the Senate.
b. The Attorney-General of the United States has standing.
c. The Supreme Court of the United States has subject matter jurisdiction.
I further submit that the Attorney-General of the United States, upon becoming aware that a serious question exists as to the constitutional eligibility of those individuals pronounced by the President of the Senate to be the President-elect or Vice-President-elect, is duty bound by his/her oath of office, to investigate the facts concerning the President-elect and Vice President-elect’s individual Constitutional qualifications, and to act in an appropriate apolitical manner.
You may be tempted to interpret the above as a desperate attempt by a McCain supporter to deny Sen. Obama his victory. I assure you that is not the case. Any official finding of “qualified” or “not-qualified” by the appropriate Federal Officer or the appropriate Federal Court would satisfy the Article II requirement.
If there is no mechanism to officially deem a candidate Constitutionally qualified, what is the point of those qualifications being spelled out in the Constitution?
Is California’s Governor Schwarzenegger bared from seeking election to President merely because he thinks his birth in Austria and subsequent Naturalization as an American does not qualify him as a “natural born citizen”? Is he bared because “everybody knows” that he is not a “natural born citizen”? Should he seek the office, and if elected, rely on the fact that there is no Federal Officer or Court authorized to pronounce him un-qualified?
We have inaugurated 43 Presidents who we assumed met the constitutional requirements. Presumably they all met those requirements as “nobody raised the issue.”
Now, in 2008, someone has raised the issue only to find that there is no one to decide it.
“THE CONSTITUTION……its only keepers, the people” - G. Washington