Wednesday, October 29, 2008

A mere citizen does not have legal standing to sue

U.S. Judge R. Barclay Surrick granted a motion by Barack Obama and the Democratic National Committee to dismiss a challenge to Obama's constitutional qualifications to run for President on grounds that a mere citizen does not have legal standing to sue.

Philip Berg, a Democrat and former Assistant Attorney General for Pennsylvania, brought suit alleging that under the Natural Born Citizen Clause of the U.S. Constitution, Obama is ineligible to be President.

Judge Surrick states that citizens may not sue to enforce the Constitution without statutory authorization from Congress. One question is, was Barack Hussein Obama born in Kenya, then his birth registered by his mother, a resident of Hawaii, when she returned home with him? He would still be an American citizen if born of an American mother in Kenya, but he would be ineligible to be President because his father was not a citizen. Or, is he a natural born citizen if he was adopted by his Indonesian step-father? Or if he has dual citizenship, can he be President? John McCain was not born in the United States, but both of his parents were/are U.S. citizens. His right was questioned on this basis, also. His father was in the military. However, other questions are about Obama's mother's residency, and because Hawaii wasn't yet a state (Barry Goldwater's eligibility was also a question because Arizona wasn't a state when he was born there). See Snopes. Also a 2nd law suit.

Mark Fitzgibbons writes a legal critique of Judge Surrick's ruling at
    The enumerated powers of the respective branches of government are set forth in the first three articles of the Constitution. Article III states that the judicial power is vested in the courts, and "shall extend to all Cases, in Law and Equity, arising under this Constitution . . ."

    A case about whether a candidate is a natural born citizen seems quite clearly to arise under the Constitution, and thus within the exclusive domain of the courts. Under the language of the Constitution itself, there appears to be no need for Congress to pass a law authorizing individuals to file suit, or for courts to hear such challenges. In fact, there may be a separation of powers issue if Congress were to attempt to legislate broader or narrower access to the courts to hear constitutional challenges. That could infringe on the jurisdiction of the courts "to all Cases . . . arising under this Constitution."

    Secondly, the enumerated powers of Congress under Article I do not extend to dictating who may have standing to sue under the Constitution. One may argue that Judge Surrick relied on what some believe to be the catch-all "Necessary and Proper Clause" in Article I, Section 8[18]. That authorizes Congress:

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Judge Surrick, however, never cites to that clause as his reason. Indeed, it would be inherently dangerous to our freedoms if Congress could dictate who can and cannot sue to enforce the Constitution.
I think the NYT questioned McCain's status as "natural born" which would certainly put all military, business and missionary children born abroad with a problem; I can't seem to find the Obama case or questions (there are several in his case) in NYT.
    "A February NYT article raised the question as to whether McCain, who was born in 1936 on a U.S. military installation in the Panama Canal Zone, satisfied the constitutional prerequisites to become president. Article II, Section 1 of the Constitution requires a president to be a “natural born Citizen.”

    “There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively, told the NYT. “It is not a slam-dunk situation.”

    Maybe not. But it appears lawmakers are doing all they can to try to put the issue to rest. “It is silly for anyone to argue that Senator McCain is not eligible to become president,” said McCaskill in a written statement. “I would hope that this is something we can all agree on, for goodness sakes.”" WSJ Law Blog

Maybe the New York Times only questions the military's right to be natural born?

Via Conservative HQ


Anonymous said...

Rather than provide proof that he is a citizen, the Obama legal team chooses instead to attack Berg on the grounds that he is a citizen, not the government. I guess Obama forgot to read the preamble, but then again I didn't graduate from Harvard Law School and not part of the elite class.

Yet the easiest thing Obama could do to stifle the Hillary PUMAs is to provide the proof. But this isn't going to happen because the MSM is so biased they are shirking their very position the represent in a free and democrat country, as a result there is no pressure to validate his status.

Anonymous said...

Murray sez:
The politics in our country never ceases to amaze. My daughter decided to further her education and upon enrollment she needed provide a valid birth certificate. But... it appears that a Presidential candidate does not have to meet the same requirements nor do the voters.

d. said...

Norma, I suggest you do a little research on something we lawyers call "standing," and then revisit your analysis of the court's ruling. So should this idiot Fitzgibbons. There is a wealth of well-established jurisprudence regarding this legal concept, which is precisely why the judge's decision should come as no surprise to anyone passingly familiar with the courts.

You do realize, of course, that Hollander v. McCain, which similarly attempted to challenge McCain's citizenship, was dismissed for precisely the same issue of standing?

Cry conspiracy all you'd like, though, as it seems you have no appetite for the inconvenience of facts.

Norma said...

D.: questioning my intelligence and knowledge gets you nowhere on this blog. I stand by my criticism of the media for digging through McCain's past and Joe the Plumber's past and giving Obama a pass when he has so much more to hide.

d. said...

I am absolutely questioning the "knowledge" you offered up in this post. I am absolutely questioning your research. And I am further questioning your understanding of legal issues with which you are obviously unfamiliar.

I am certainly not questioning your intelligence. If I thought you were stupid, I wouldn't be commenting. Why would I waste my time?

Also, I'm sure you're aware that most network and newspaper coverage of McCain's "citizenship question" -- which was barely a blip on the radar -- dismissed it as silly and out of hand, at best little more than a theoretical point of academic interest. It did pose interesting scholarly questions into the legal framework existing at his birth, but you're grossly exaggerating the degree to which his citizenship was called into question. If some nutty liberal bloggers were going crazy over it, that's one thing, but to suggest a left-wing media conspiracy? C'mon, let's be serious.

I'm still very much interested to hear your opinion about the fact that the case against McCain was dismissed on the very same basis of standing, because in looking over your past entries, I haven't noticed any outrage over the fact that a "mere citizen" could not sue him.

Norma said...

I'm not going to argue with you about the silliness of the McCain suit or the validity of the Obama. I can't understand the goobledy gook in my own insurance policies. But even I knew why the child of 2 American citizens born on a military base is a citizen. It's not hard to question whether a man with a Kenyan father is a "natural born citizen" especially if his mother hadn't been residing in the U.S. And even I know that lawyers and judges can use exactly the same law and/or regulation to mean the exact opposite of its intent or the decision they made last week. Just because the only conservative on Boston Legal has Alzheimer's doesn't mean we're all impaired. Besides, I live in Ohio where a cow was once defined as a vehicle in one of our "golden turkey" auto accident suits. Lawyers are as trustworthy with their language games as used car salesmen.

Don Surber: "In 2008, when Arizona Senator John McCain ran for president on the Republican ticket, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it should be noted that section 1403 was written to apply to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(c): “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.”

d. said...

I'm not arguing about the silliness of the case against McCain, either. Although, because you apparently are by quoting Section 1403, I'll respond by pointing out the fact that Panama was not U.S. land, thus McCain was a naturalized citizen, not a natural-born citizen. To be a "natural-born citizen" is to be a citizen by birth. To be a "naturalized" citizen is to be a citizen by law -- here, by virtue of Section 1403. The distinction is minor, and largely irrelevant to every day experience, except that the Constitution specifically (and without much guidance) requires a candidate be "natural-born." Hence the ensuing discussion of the historical context and original intent of the Founders -- all made for fascinating stuff, but not a basis for a lawsuit.

The issue we're discussing is standing to sue. In both cases it was appropriate to dismiss the case -- because "standing" is considered a threshold matter, something that must be decided on before you can even look to the alleged facts in a case.

You should read Berg's motion. Most of his "evidence" consisted of articles from newspapers and blogs. He also presented as part of his case against Obama's citizenship, a document that was supposed to be a registration to an Indonesian school -- which, ironically, indicated that Obama was born on August 4, 1961 in Honolulu, Hawaii. He also said that Obama's stepsister and brother said they witnessed his birth in Kenya -- but there were no accompanying signed and notarized affidavits. There was nothing but rumor to suggest that Obama was not born in Hawaii.

Count your blessings our courts have higher evidentiary standards.

R. L. said...

Careful D, you're dangerously close to drowning in the details and you'll miss the Big Picture. ;)