Wednesday, December 28, 2011

Ninth Circuit: Birthers Have No Standing to Challenge Obama's Presidency

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.


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All of these birther cases hinge on two ideas:

1.) President Obama was not born in the United States. This idea has lost considerable support since April 27th, 2011.

2.) That the Supreme Court in Minor v. Happersett 88 U.S. 162 defined the term "natural born Citizen" as being someone born in the United States to parents both of whom are United States Citizens. Under this definition President Obama, Senator McCain, Senator Rubio, and Governor Jindal are not eligible to be President.

The birthers raise statements in Minor v. Happersett that are clearly dicta to the level of holdings and binding precedent. They base that in part on selective readings from the Minor opinion and on the opinion in Ex Parte Lockwood 154 U.S. 116 (1894), where Chief Justice Fuller remarks:

"In Minor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizons of the United States was no violation of the federal constitution."

The Chief Justice's use of the word "held" in the first sentence, has birthers convinced that the holding in Minor v.Happersett was not just "that the Constitution of the United States does not confer the right of suffrage upon any one.", but also a clear definition of Federal Citizenship and the term "natural born Citizen".

They ignore the fact that in Minor v.Hhappersett, Justice Wait specifically said the only question before the court and the only question argued before the was voting rights under the Constitution.

On January 26th, 2012 there will be an administrative hearing in Atlanta, Georgia in a challenge to the Democratic Party’s selection of President Obama to be on the Georgia Presidential Preference Primmary. The challenge is being brought by several Georgia voters and they are being represented by several lawyer (one a Georgia State Representative).

The challenge is based on the fact that the President’s father was not a US citizen and they use Minor v. Happersett as their basis for the challenge.

Posted by: Ethan Greene | Jan 20, 2012 10:26:51 AM

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