Berg v. Obama Update — Friday, September 12

Order Pending in California Eligibility Lawsuit Filed Against John McCain

Barack Obama is not the only presidential candidate to have his constitutional eligibility questioned.

By as soon as noon today, the Hon. William Alsup of the U.S. District Court of the Northern District of California should render a decision regarding the Motion to Dismiss filed by the Republican National Committee, the California Republican Party and Sen. John McCain on September 4, all connected with a lawsuit filed on August 11 by Markham Robinson, chairman of California’s American Independent Party.

As far as I know, this is at the very least the third such lawsuit challenging McCain’s eligibility for the presidency. According to the Washington Post, which questioned McCain’s citizenship back in May 2008–about two months after McCain’s citizenship was questioned by the New York Times–a U.S. State Department manual states holds that, because U.S. military installations across the globe cannot be deemed “part of the United States,” any children “born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.”

Congress actually intervened back in May, with leaders including Speaker of the House Nancy Pelosi and McCain rival Barack Obama uniting with GOP counterparts to eliminate any confusion with regard to the Arizona senator’s citizenship by proclaiming him a “natural-born citizen” of the United States. This reaffirmed a measure brought forth by Congress in 1937 which bestowed the status of “naturalized U.S. citizen” upon children of military, government and railroad personnel born in U.S. territories abroad.

Markham Robinson, the party chairman who filed suit against McCain in California, told me over the telephone that his suit hinges on, among other things, the difference between being “naturalized” and being “natural-born,” the latter being required for the presidency by Article 11, Section 1 of the U.S. Constitution.

“The term ‘natural-born citizen,’ Jeff, is a term undefined by the constitution,” said Robinson. “Being ‘naturalized’ means being as-if-natural, but understand that people are not natural-born when they are naturalized.”

Robinson, who described McCain as a “Panamanian anchor baby,” contests that the GOP nominee was actually born in Colon, a city in Panama which was not a part of the Panama Canal Zone, and not at the U.S. Naval Air Station in Coco Solo, where McCain’s 96-year-old mother, Roberta, has vivid memories of the sounds of celebration in a nearby officer’s club following her son’s birth. According to the aforementioned Washington Post article, however, no record of McCain’s birth in the Panama Canal Zone–then a U.S. territory–exists.

Regardless of the fuzziness of any details, Robinson’s motivation is fairly clear.

“If John McCain gets elected, and it looks like he could,” said Robinson, “we’ll still be in the process of appeals and he could see his eligibility denied by the Supreme Court, resulting in Sarah Palin assuming the presidency or, if his eligibility is denied before the electoral college selection [on December 15], we could see a compromise candidate.”

“And that candidate would be?” I asked.

“Alan Keyes.”

Now, even aside from the underlying issue regarding McCain’s citizenship, here’s how I look at Robinson’s challenge of John McCain: When New Hampshire resident Fred Hollander filed a similar suit against McCain in March of this year, the District Court dismissed the case on the grounds that, like many voters who take to the courts to challenge a certain candidate’s spot on a ballot, he lacked standing to sue. Candidates and political parties as a whole, see, have an easier time proving that they have standing because a candidate or party–rather than an individual voter–can show injury from the presence of such a possibly ineligible candidate on a shared ballot, can show that the injury in question is directly related to that ineligible candidate, and can argue that adjudication of the issue could provide relief.

Therein lies the rub, not only for Markham Robinson but for Philip Berg as well. The Motion to Dismiss filed by the GOP lawyers in San Francisco was relatively light on citizenship answers but heavy on language challenging Robinson’s standing. They maintained that McCain’s candidacy hasn’t caused him any injury and, with regard to possible relief, went as far as to propose that McCain’s removal from the ballot in California would only negligibly improve Alan Keyes’ chances in the state.

The question here in Philadelphia, therefore, is how Phil Berg plans to get around the standing issue. The District Court in New Hampshire, after all, left no question as to whether an individual citizen like Fred Hollander had standing to challenge McCain’s eligibility — what makes Berg’s case any different?

He argues that Obama’s candidacy has defrauded the American voting public out of hundreds of millions of dollars. He argues that the Obama’s eventual removal from office should his allegations of ineligibility eventually be proven correct and brought forth would lead to chaos and catastrophe within the Democratic Party and America as a whole. Is any of this enough to prove injury, to prove proximate cause, to show the feasibility of redress?

On the telephone this morning, Berg said that he has been questioned about the standing issue, that he is considering the best way to address it in the future, and will talk to me more about it later. On the Robinson case, though, he was quick to point out what he called a “very different situation.”

“Note that he filed suit and they responded,” Berg said, evidently an allusion to the motion filed by the Republican National Committee, the Republican Party of California and John McCain almost a week prior to the answer deadline. “I’ve filed suit, and they haven’t responded.”

I’ve made my position known over the past few weeks as the details surrounding Berg’s lawsuit presented themselves. Though I have freely admitted that I am skeptical of Berg’s allegations–much like I am skeptical of those raised by Markham Robinson–I have also maintained that I feel as though we, as Americans, are constitutionally obligated to vet our potential leaders to the best of our ability, regardless of their political ideology.

Even though I personally feel as though the controversy surrounding John McCain is more cut-and-dry than that surrounding Barack Obama, it will nonetheless be interesting to see how Judge Alsup comes down today on Robinson’s standing and on the rest of the GOP’s motion. Will the citizenship issue be addressed at all, or will it boil down to standing alone?

One person in particular should be watching as well — Philip Berg.



  1. Larry Walker says:

    I heard about this suit but did not know about the others. I dismissed it because of the Senate’s action on McCain. The only difference I see is that McCain is challenging and Obama is silent. If it was Larry’s court I would give them both the boot and go with Palin v Biden.

  2. Jet says:

    The NY Times article did note that “Charles Curtis, who was vice president during the Hoover administration, was born in Kansas when it was a territory. Since the 12th Amendment requires that “no person constitutionally ineligible to the office of president shall be eligible to that of vice president,” they argue the precedent is already set for someone born within United States territory but outside the states to qualify for president.”

    In other words, McCain, whose parents were both US citizens and who was born in the Panama canal zone when it was US military territory at the time, already has a better argument to be considered a natural born citizen.

    In the case of Obama, the question of his citizenship status hinges on whether he became an Indonesian citizen when he was adopted by his stepfather Lolo Soetoro and whether he acted as one by using an Indonesian passport to Pakistan. Since Obama refuses to shed any details about his life, Berg will need to prove this with his motion for expedited discovery if he is to be successful in his lawsuit. So far, from your last update, it sounds like Judge Surrick is just as interested in finding out about Obama’s true citizenship status.

  3. Anonymous says:

    In a nutshell -

    “We, as Americans, are constitutionally obligated to vet our potential leaders to the best of our ability, regardless of their political ideology.”

    Yes, vet the candidates eligibility – but to what or whose standards?

    The current crisis indicates a need to narrow or refine existing guidelines to avoid future subjective interpretations which lead to these lawsuits.

  4. Anonymous says:

    My question is: Why were Hillary Clinton and Obama both instrumental in getting Congress to proclaim McCain “natural born.”

    What was there motivation for this?

  5. suek says:

    If an individual voter in the US lacks standing in the courts to ask that proof of eligibility for the office a person is seeking should be provided, then who _does_ have standing?

    In California, we have an Attorney General who, as I understand it, does not meet the statutory requirements for the office. If you’re a NY citizen, I’d understand why you would not have standing to challenge his investiture, but if I’m a California legal voter, shouldn’t I have standing? Or does only a political party have standing? (That said, I’m not sure why the RNC _didn’t_ challenge him)

  6. Anonymous says:

    How is a court going to usurp the obligation of the House of Representatives to qualify a President per Art 3? Isn’t it the House’s job when sitting as a committee of state delegations to do this?

  7. ipotter says:

    Obama has provided only forged birth records. Seems he has something to hide, and that very well could be citizenship issues.

    McCain has been open and honest about his birth and provided certified birth records.

    Children born of US citizens serving in the military abroad are considered natural born citizens and bases are considered US soil. Arguing otherwise is totally ridiculous and a slap in the face to each and every brave man and woman who protect and serve our country abroad. They used to teach the basics of citizenship and the definition of a natural born citizen in elementary school civics class. Apparently they don’t do that anymore.

  8. CelticSweetie says:

    How did Obama ever become a State or US Senator if he isn’t a Natural Born citizen? The fact that he has a copy of the forged birth certificate means his birth had been called into question before.

    I have two cousins who were both born in Germany to parents who lived on an Army base and then off base. The father was in the Army and both are US citizens. The one was born in German hospital but has US birth certificate. I heard that the one born in a German hospital could become a German citizen at age 18 if he wanted to but I’m not exactly sure about that.

  9. Anonymous says:

    Can you imagine the humiliation the United States will face if we elect a man who isn’t even a citizen? Our standing in the world will decrease even more than it already has.

  10. Anonymous says:

    In answer to why Obama would support a resolution for McCain’s citizenship, see:

    Sen. Claire McCaskill (D-MO) tried to get McCain’s name taken off the resolution so that it applied generically to ALL foreign born candidates. She wasn’t able to. However to avoid looking foolish afterward, she and Obama had to continue supporting the resolution. I think their original goal was to clear Obama with the resolution without drawing attention to the need for Obama to be cleared.

    It is particularly interesting in that at that time, McCaskill was being seriously considered for VP spot.

  11. Anonymous says:

    His mother’s parents joined a communist church in Washington State while she was a young girl in
    school there. If he was born in Kenya and at three weeks old Hawaii who the papers when filled out should say what hospital in Hawaii! Then why did she take him at three month to Cananda and get a bith certificate there. should be records where his mother did all this and then papers where he was adopted by stepfather.Something isn’t right with all these names, records of schools. Where did he get all the monies to go to such expensive colleges as his mother and he was so poor?

  12. Jeff Schreiber says:


    I cannot attest to the Communist church thing, or to the Canadian history, but the last part of your argument doesn’t seem to hold water.

    Student loans. There’s your answer.

    They’re the same things which will allow me to gain a law degree, despite not being able to rub two nickels together right now. Granted, the $140k I’ll be in debt after four years of night school won’t be fun to deal with, but it’s an investment…

  13. Anonymous says:

    I’ve read the entire complaint on and the evidence offered seems overwhelming he is not eligible. I am scratching my head to understand why this isn’t a HUGE story in the news everyday. Why does a U.S. citizen have to file a lawsuit to get it before the courts? Why doesn’t the U.S. government verify eligibility before someone can even run for President? Talk about the system being broken…

  14. Tesibria says:

    To Anonymous:
    What evidence did you find in the complaint? There is almost NO evidence in the complaint. The complaint is a listing of allegations – with little evidence. Many (at least) of the allegations have been debunked (at least a few right here at America’s Right). That may be why it’s not getting news – except, of course for the two CONSERVATIVE papers (Washington Times and World Net Daily) who have referred to it as full of errors.

  15. Anonymous says:

    Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 USC 1401

    It seems ok for McCain ;-)

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