By Jeff Schreiber
Nearly a week before his inauguration, President-elect Barack Obama likely has one less burden on his shoulders, as the United States Supreme Court denied certiorari today in the first lawsuit which called into question his constitutional eligibility to serve as president of the United States.
A motion filed by a third party seeking permission to file a amicus curiae–”friend of the court”–brief was granted, but with certiorari denied in Berg’s case, it is unclear whether granting the amicus curiae motion is anything more than a formality, and whether the conference scheduled for Friday, January 16 in order to weigh an underlying injunction filed by Berg is necessary at this point. That the denial of certiorari was made “before judgment” is merely an acknowledgment that Berg’s case is technically still active at the Third Circuit Court of Appeals, but changes nothing.
Philip Berg’s lawsuit against Obama and the Democratic National Committee, filed on August 21, 2008 and first reported here at America’s Right, questioned Obama’s eligibility to serve under Article II, Section 1 of the United States Constitution–which requires in part that the president be a “natural born Citizen” of the United States–and was previously dismissed by the Hon. R. Barclay Surrick from District Court in Philadelphia. While the Supreme Court’s denial of Berg’s petition for certiorari today was not accompanied by explanation, the mere result shows on its face that at least six Justices agreed with Surrick’s determination that Berg lacked standing to sue.
“Of course, I cannot help but be disappointed because the Supreme Court Justices are the ultimate protectors of our Constitution, and in this case they really let us down,” Berg said. “They let America down. They let all of us down. This is the biggest hoax ever perpetrated against this country. Forget politics for a minute and just think of the Constitution — next week, we’ll be swearing in a president without even knowing for sure whether or not he’s qualified constitutionally to serve in that office. There are so many unanswered questions about Barack Obama and, today, the Court just told us that we’re not even permitted to ask.”
Berg, a former Pennsylvania gubernatorial and senatorial candidate, former chair of the Democratic Party in Montgomery (PA) County, former member of the Democratic State Committee, and former Deputy Attorney General of Pennsylvania, asserted in his suit that Obama was indeed born in Kenya and not Hawaii as the president-elect maintains, and that if he did have U.S. citizenship, he relinquished it during childhood when he moved to Indonesia with his mother and was adopted by Indonesian stepfather Lolo Soetoro, never reinstating that citizenship upon his return.
From the beginning, Berg sought access to documentation offering proof of Obama’s citizenship and past, including but not limited to the long-form, “vault” copy of his Hawaiian birth certificate, and considered the president-elect’s failure to produce such documents as a sign that Obama had something to hide. He cited everything from mere Internet rumors to actual Associated Press-confirmed registration forms from Obama’s childhood school in Indonesia showing that he was registered under the name “Barry Soetoro,” that his religion was listed as “Islam,” and that his citizenship was listed as “Indonesia.” For Berg, though, it came down to the documentation he didn’t have.
“At this point in time, Obama owes it to people to produce the documents,” Berg told America’s Right just two days after filing suit. “If I’m wrong, even if he doesn’t want to handle it himself and has the person in charge of his campaign communications come out and say, ‘here is the vault copy of the birth certificate, here is the certified copy of his Oath of Allegiance from when he came back from Indonesia, this issue should be put to bed and Mr. Berg should withdraw his suit immediately or we’ll sue him to high heaven,’ then I’m wrong. If they do not do that within the next day or so, then I know we’re right. If they let the case linger, then I believe we’re right. The challenge I’ve made to them is that, if they don’t produce these documents, then we know they’re wrong.”
Berg’s case was dismissed at the district court level by Judge Surrick primarily for lack of standing, a procedural check required by the Case or Controversy Clause in Article III, Section 2 of the Constitution as an effort to foster judicial efficacy and limit access to a court of law to those plaintiffs who can show a sufficient “stake” in a particular controversy. To prove standing and thus be eligible to bring suit, a plaintiff must show (1) a particularized–rather than generalized–injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiff’s particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress. Surrick argued that Berg had not adequately showed a particularized injury-in-fact, noting in his memorandum that “regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.”
Following the October 24, 2008 dismissal, Berg filed a Petition for Writ of Certiorari with the Supreme Court, arguing that while there is indeed the aforementioned three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury-in-fact. Instead, Berg argued in his petition, whether or not a plaintiff has sustained an injury-in-fact depends upon how that plaintiff’s factual claims are perceived by the judge on what has been described as a “sliding scale” of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff’s allegations is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.
Though the order list released by the Supreme Court today provides no reason for its denial of certiorari, such a denial inevitably is an affirmation of the district court judge’s assertion that Berg’s claim, as a mere voter, was far too generalized to satisfy the Case and Controversy Clause of the same Constitution he was attempting to uphold. Whether or not the Justices considered the factual elements of Berg’s allegations, without insight gleaned from a rare dissent to a denial of certiorari, is indeed another question left unanswered.
“The biggest question here is if I don’t have standing, who does?” Berg asked. “I’m an American citizen, a voting American citizen, asking the Court to uphold our Constitution. If I’m not allowed to ask that, who is?”
Regardless, Berg says that this isn’t a fight which he’ll give up easily. This issue, he maintains, transcends politics and even transcends individual political candidates. Yes, Barack Obama is the focal point, but it’s a matter of upholding the Constitution, he says, of taking into account the intentions of America’s founders, men who at the time were still licking their wounds from bitter warfare and were understandably intensely concerned with the need for the highest office in the country to be held by someone fiercely and unequivocally loyal to the fledgling nation. It is for this reason–along, of course, with the “brazen” perpetration of what he repeatedly calls an “enormous hoax”–that Berg says he is so disappointed with the today’s news from the Supreme Court; it is for this reason, Berg says, that he wants “to continue standing firm for 320 million Americans.”
That continued fight, Berg says, involves an active case currently under seal, as well as a case filed last month on behalf of a retired Air Force colonel, both questioning Obama’s eligbility to serve as president of the United States and both centering on the documentation sought in the original action. According to Berg, the plaintiff in the latter case–Col. Gregory S. Hollister, a 20-year veteran with his own litigious history– filed suit out of concern that, should he be returned from his reserve status to active duty in this tumultuous global climate, his own Oath of Enlistment could conflict with his duty to follow lawful orders.
“If he’s reactivated, Col. Hollister comes under a duty to obey lawful orders,” Berg said. “The thing is, he’s confused because he won’t know if the orders that make their way down the chain of command have come from a Commander-in-Chief who is constitutionally eligible to serve in that position and give orders in the first place.”
The two other lawsuits, the case filed under seal citing Obama’s violations of the False Claims Act as well as the interpleader action filed on behalf of Hollister, are part of what Berg calls a “commitment to finding the truth about Obama for the sake of our Constitution and country,” an effort which started with the “hope that the Democratic Party would have done the right thing at its convention in August” and reached its peak today with news from our nation’s highest court of law. Berg also has a quo warranto–”by what authority”–case in the works to be filed after Obama is sworn in as president.
“Today was a big setback,” Berg said, “but sooner or later, I’m confident that we can find the proper legal avenue to expose the truth about this unbelievable hoax, this circle of lies which has been thrust upon the American people. Barack Obama has lied to all of us, and he needs to be held responsible for doing so. More importantly, we all need to know that our Constitution still controls, that the president of the United States is constitutionally qualified to be there.”
For a full time-line of all related materials here at America’s Right, including the original article, click HERE.