I’ve had a few days to think about the transcript from the October 5, 2009, hearing in Barnett v. Obama. I am not the first to try to figure out where Judge David O. Carter is leaning based on his comments during the hearing.
The bulk of the Judge’s questions related to two issues: the standing of the plaintiffs and the political process for removing a president. It seems to me that these two questions focus on the criteria under which Judge Carter may dismiss the case.
Judge Carter seems to be concerned with the question: if the plaintiffs are right that President Obama is not eligible, what is the mechanism under the Constitution through which their complaint is redressed? In his view, there must be some avenue for a citizen to seek redress for a legitimate complaint.
Is it in the courts? Here the question of standing arises. Without standing, the plaintiffs cannot proceed in the court. Judge Carter wanted to address the standing of each of the classes of plaintiffs: voters, political candidates, reserve military personnel and active military personnel. (The decision in Berg v. Obama already addressed the voter plaintiff’s lack of standing.)
Is it through a political process? The second area reaches into the political question doctrine. If the Constitution places the removal of a president from office within the sole power of the Congress (either through impeachment or determination of incapacity), then the courts have no role. However, Judge Carter wanted to gain the assurance that those Constitutional mechanisms are actually in place and that there is a process through which they could be carried out. Congress may be petitioned to redress the grievance.
Judge Carter asked no questions related to Gary Kreep’s assertion that “impeachment” and “incapacity” do not apply because Obama is not really president. I read the lack of such questions as a sign that the Judge doesn’t consider this argument valid.
I think Judge Carter will address both standing and the political question in his order regarding the government’s motion to dismiss. I believe the care he will give each of the issues will insure that his decision will not be overturned on appeal.