Wednesday, December 28, 2011
The Ninth Circuit ruled last week in Drake v. Obama that a group of plaintiffs lacked standing to challenge President Obama's qualifications to be President under Article II, Section 1, on the ground that he is not a "natural born Citizen." The ruling affirms the earlier district court ruling, although for somewhat different reasons.
The case involves six categories of plaintiffs. Here's what the court said, one group at a time:
Active Military Personnel. The court ruled that an active duty officer failed to allege sufficiently concrete harm when he claimed that his failure to obey orders from President Obama, his Commander in Chief, would result in disciplinary action against him. Instead, the court said, the alleged harm is speculative, and easily avoidable: "he can obey the orders of the Commander-in-Chief." Op. at 11.
Former Military Personnel. The court ruled that this group's claim--that it could be called back into duty and subject to orders of President Obama--was "far too speculative and conjectural." Op. at 12.
State Representatives. The court held that state representatives, who claimed that they could be harmed because "receipt of funds from any officer without legal authority [like President Obama, under their theory] would be complicity in theft or conversion," also claimed a far too speculative harm. Op. at 13.
Federal Taxpayers. The court ruled that taxpayers generally do not have standing.
Relatives of President Obama. The court ruled that plaintiff Kurt Fuqua failed to allege an injury in fact based only on his familial relationship to President Obama. The fact that he's family does not bolster his otherwise standing-less claims.
Political Candidates and Electors in the 2008 Election. The court ruled that plaintiffs Alan Keyes and Wiley Drake, the Presidential and Vice Presidential candidates, respectively, of the American Independent Party, a write-in candidate for President, and a certified California elector all lacked standing based on their allegation that they were denied a fair competition for the presidency. The court recognized that some courts, including the Ninth Circuit, have recognized something like "competitive standing." But here the plaintiffs' complaint came in only after President Obama was officially sworn in as President. The court said that after President Obama was sworn in, the plaintiffs were no longer candidates in the 2008 general election, and they have no alleged any interest in running against President Obama in the future. (In contrast, the district court assumed, without deciding, that political candidates had some form of "competitive standing," but that they lacked redressability, because the federal courts could not grant their requested remedy--ousting President Obama--without running afoul of the political question doctrine and separation of powers.)
The court also rejected the plaintiffs' quo warranto claims, ruling that those claims have to be brought in the D.C. district and by the Attorney General or the U.S. Attorney for D.C. It's no excuse that those officers have declined to bring a quo warranto case.
Finally, the court rejected the plaintiffs' novel FOIA and RICO claims.