Berg: Injunction Dismissed, Case "Alive and Well"

Yesterday’s update on the U.S. Supreme Court docket for Philip Berg’s case against Barack Obama and the DNC caused confusion, due to the entry of what looks like an outright denial below the entry notating that the case has been distributed to conference.

Even the Atlanta Journal-Constitution was caught up in the confusion, writing yesterday afternoon that Justice Anthony Kennedy had in fact dismissed Berg’s action. From the AJC:

Supreme Court Justice Anthony Kennedy has rejected two more efforts to get the court to consider whether President-elect Barack Obama is eligible to take office.

Kennedy on Wednesday denied without comment an appeal by Philip J. Berg, a Pennsylvania attorney, that claims Obama is either a citizen of Kenya or Indonesia and is ineligible to be president because he is not a “natural-born citizen” of the U.S. as required by the Constitution. Another appeal from California, based on Berg’s claims, also was denied.

Upon seeing the docket yesterday after receiving news of the distribution for conference, my first instinct was that one of Berg’s attempts to enjoin the presidential electors from voting had been denied by Justice Kennedy, and that his petition for certiorari went on as planned. I was right.

“Justice Kennedy dismissed our injunction yesterday,” Berg told America’s Right this afternoon. “Our case is alive and well.”

Alive? Yes. Whether it could be considered “well” is to be determined, as the Supreme Court has already denied a pair of eligibility-related cases which reached full conference, like Berg’s action will do on Friday, January 9, 2009.

There are, however, a few differences between those cases and the one filed by Philip Berg. First, the previous two actions made inroads at the Supreme Court through an application for an emergency stay, and the hope that the actions would be heard turned first on the Court’s consideration of the stay as a petition for writ of certiorari, then the agreement by four Justices to hear the case on its merits. This was how Bush v. Gore reached the Supreme Court in 2000. Berg’s case, however, was filed in the more typical way, and while application after injunction after application has been denied, it is a petition for writ of certiorari which will be discussed on January 9. Second, the two previous cases turned on the definition of the Natural Born Citizen Clause in the U.S. Constitution, while Berg’s action is more rooted in speculation that Obama was born abroad or, if he was born in the States, he lost his citizenship during childhood. Furthermore, both of the previous cases were denied prior to the electors having cast their votes; while Berg’s case will be discussed at conference before Obama takes office, the electors have already rendered him the official president-elect. Whether any of these differences makes a difference is yet to be determined and, as I have written before, highly unlikely.

A little bit more than a week ago, I included some likely scenarios for the future of Berg’s action, the first such case challenging Obama’s constitutional eligibility to be president. Just for clarification, I want to reiterate those possibilities here, with applicable changes having been made now that the electors have cast their votes:

  • (1) Berg’s certiorari petition could be denied, without comment or dissent (a dissent by one or more Justices to a denial of a certiorari petition, while rare, is not unprecedented). This would end Berg’s case, but likely not jurisdictionally end the others;
  • (2) Berg’s certiorari petition could be granted and the matter set for oral argument following the filing of additional briefs, with the Court directing (a) that the issues be confined to arguments on Berg’s standing, or (b) that the issues of standing and, assuming standing, the merits of the case be addressed;
  • (3) If option 2(a) occurs, at some future date, the Court could determine that Berg had standing in USDC and could vacate that decision–and naturally the Third Circuit decision as well–and remand to the U.S. District Court here in Philadelphia with instructions to proceed with “further proceedings consistent with this opinion.” At that point, as extremely unlikely as it is, who knows what would happen?
  • (4) If option 2(b) occurs, the Court could actually reach the merits of Berg’s case and, sometime well after Jan. 20, 2009, render a decision. Considering the nature of the Court, the most likely result under this scenario would likely be a 6-3 or, at best, a 5-4 decision against Berg holding that, because Berg failed to prove his case at the district court level, he loses. This would make the matter res judicata, at least with regard to Philip Berg and Barack Obama, and would for all practical purposes severely undermine if not foreclose all other pending and future challenges to Obama’s eligibility under the Natural Born Citizen clause. While I’m not certain that it would necessarily work, I would expect Obama’s team of attorneys to argue that the stampede of other suits would be foreclosed under collateral estoppel theory.
  • (5) While unlikely but certainly not unprecedented, the Court could simply wait until after Jan. 20, 2009 to do anything and then, after the inauguration, simply dismiss whatever action was then pending on the grounds of it being a “political question” and separation of powers, or on the grounds of mootness. The issue, of course, implicates neither of these excuses, but the Court could say so — and, at that point, what other court would intercede?


  1. Let us move forward says:


    The framers of the Constitution recognized that “natural born” was different from “native born” and chose the requirement of “natural born” only for the President. We have not had to examine the difference for many years because all the Presidents for the last 100 years have been both “native born” and “natural born”.

    All previous elected Presidents have been “natural born” or grandfathered in by the Constitution. One Vice President who became President upon the death of the President had a British father who was not a US citizen at his birth. He burned his papers and did everything he could to hide the fact. He knew what a “natural born” citizen was and he knew that he wasn’t one. He was the only person to serve as President to date who was not a “natural born” citizen.

    I’ll bet that the Constitutional lawyer Mr. O knows the difference too. If he was born in Hawaii and his mother and Kenyan father were not legally married, he have a claim to “natural born” citizenship, but he would be the first to claim it under those circumstances. And, a fightthesmears post claimed that Mr. O had dual citizenship at birth, which would mean he was not “natural born” as the framers would have defined it.

    The Supreme Court really should clarify if Mr. O is a “natural born” citizen and what constitutes “natural born” citizenship in the 21st century. The Court has been given the opportunity twice and has avoided it both times, even (it is alleged) going to extreme measures to keep the challenges from being docketed.

  2. btw says:
  3. Koyaan says:

    Let us move on wrote:

    The framers of the Constitution recognized that “natural born” was different from “native born” and chose the requirement of “natural born” only for the President. We have not had to examine the difference for many years because all the Presidents for the last 100 years have been both “native born” and “natural born”.

    I’ve been looking into this quite extensively for the past couple of weeks.

    And I’ve not found any evidence indicating that there has been any but two forms of US citizenship.

    One was either considered a US citizen by birth and hence a “natural born citizen,” or one was considered a US citizen by naturalization, and decidedly not a “natural born citizen.”

    I find no evidence anywhere of there ever having been any third class of US citizenship, where one was considered a US citizen by birth but was not considered a “natural born citizen.”

    If you can point to any evidence that I may have overlooked, I would be happy to take a look at it.


  4. Let us move forward says:



    ‘John A. Bingham, chief architect of the 14th Amendments first section, considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” ‘

    The 14th amendment as written defines citizenship (not natural born citizenship specifically unless you read ‘subject to the jurisdiction thereof’ as ‘born not subject to any other jurisdiction or allegiance’):

    ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …’

    The definition of citizenship was modified by United States v. Wong Kim Ark, who was “native born” to Chinese parents.

    The link above discusses United States v. Wong Kim Ark and there is apparently a wide opinion on whether the Court’s decision in that case was legislation from the bench. Wong Kim Ark was the son of two long term legal residents of the United States that were prevented by treaty from becoming naturalized citizens. Compare that situation with Obama Sr. who probably had a student visa and returned to Kenya when he finished his education.

    The fightthesmears post claims only native born citizenship.

    There are additional discussions about the writings of the framers of the Constitution and their consideration of the requirement of citizenship vs. native born citizenship vs. natural born citizenship as the requirement for the President. See (some discussions will be in the comments)

    Allision, who is apparently a lawyer, posted on, that there is a lot of discussion about what is a “natural born” citizen in the legal community at this time. (She claims interest in the standing issue.)

    If Mr. O becomes President, the precedent for letting “native born” citizens become President could be set. It could also allow “naturalized” citizens to attempt to become President, changing the Constitution without an amendment.

    Thank you Mr. O for bringing this issue to light. Thank you also for pointing out that no one in the federal government is apparently required to certify the Presidential candidates’ qualifications before the candidates can be elected by the popular vote.

    Now, if the Supreme Court will just clarify the required citizenship status for the President of the United States, the Electors will not be making their own definitions of what constitutes “natural born” status. If the government will initiate and follow a certification process for Presidential candidates, we will not have to debate a similar question again.

  5. btw says:

    To [b]Let us move forward[/b]:

    Please show where in Constitution there is the term “native born

    My Constitution’s understanding (Amendment XIV, Section 1 and
    Article II, Section 1) is that there are only 2 groups of citizens:
    Natural Born and Naturalized.
    I understand that among “native born” persons (born on US soil) may be those who are however not US citizens (because they are subject not ONLY the US jurisdiction); so they are simply US residents. Those persons can become US citizens ONLY through
    the process of NATURALIZATION; they never would be “Natural Born

    [b]Straightforward reading of combination of only two fundamental documents
    - Constitution and The Oath of Allegiance – was enough to show that there is NO NEED TO GET OBAMA’S BC TO PROVE HIS INELEGIBILITY TO BE POTUS ACCORDING CONSTITUTION[/b];
    see my comments:
    1) of December 19, 2008 11:58 PM

    2) of December 20, 2008 11:30 PM
    (as I announced earlier, please use the link

    when you meet during reading the link ;

    the domain has changed its name).

  6. Let us move forward says:


    Thank you for the reference to

    with its interesting approach to the question of Mr. O’s citizenship with both strong and weak definitions of natural born citizen.
    (I noticed a few minor incorrect statements that don’t invalidate the general approach.)

    Leo’s case was based on the strongest definition, the definition that the framers intended and that was confirmed by the author of the XIV amendment.

    Berg is attacking the weakest definition, the federal law that allows one US citizen parent of a child born aboard to transfer natural born citizenship.

    The citizenship status granted to United States citizens born to two US parents abroad vary from natural born to naturalized (according to posts I have read). For the weakest definition, couldn’t babies conceived in foreign wars by United States servicemen and foreign women could be considered natural born US citizens at birth?

    Why don’t we have consistent legal definitions of citizenship status and the consistent application of the same? This inconsistent approach to citizenship is crazy and confusing. This question goes beyond Mr. O’s eligibility to be President. The definitions of natural born and naturalized and any other classes of citizenship need to to clarified.

    Where is the Court? Congress needs to get busy on this too.

  7. btw says:

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