I’ve lost track of the number of lawsuits filed by birther plaintiffs claiming Barack Obama shouldn’t be President. They lost them all, most being dismissed on Constitutional grounds with the courts concluding that the birthers don’t have standing to bring such suits. Contrary to the birther imagination, whose who support Obama’s eligibility have no objection to judicial review of birther claims, only wanting to insure that such review be without suspending the Constitutional restrictions on the federal courts.
Federal district judge R. Barklay Surrick in Pennsylvania provided us with an excellent education in the problems with birther lawsuits in his scholarly ruling in Berg v Obama et al. Likewise federal district judge David O. Carter in California examined in detail the various classes of defendants in the case of Barnett v Obama and why the courts could not try their case or address their generalized grievances.
This is not to say that no court will ever hear an Obama eligibility case, nor that the Supreme Court will not tell us what “natural born citizen” means. The lack of judicial review is largely due to the timing of the lawsuits (for example, Barnett v Obama – then Keyes v Obama — was filed just hours after Obama was inaugurated and Donofrio v Wells sought a ballot challenge virtually on the eve of the election).
Professor Charles Gordon, writing for the Maryland Law Review in 1968 anticipated the question of judicial review in his article: Who Can Be President Of The United States: The Unresolved Enigma. After discussing some of the unresolved questions about presidential eligibility (he took for granted the eligibility of those born citizens in the United States proper), he examined possible roads by which the courts might resolve those questions. Gordon explains the problem birthers are having:
Under the Constitution, those courts exercise judicial power which extends “to all Cases, in Law and Equity, arising under this Constitution.” However, until an actual controversy develops there is no possibility of obtaining a ruling by the federal courts. Those courts have always interpreted their constitution mandate as precluding the rendering of advisory opinions… [internal footnotes omitted]
Gordon goes on to map out a scenario where the courts would have jurisdiction:
The election mechanisms established by the various states may provide the initial opportunity for obtaining a judicial ruling. Every state has an election board or officer to supervise the election process. Contests could develop at two stages in that process. In the first place, some states now provide for a presidential preference primary to select delegates to the national nominating conventions of the major political parties. Often, it is necessary to file petitions for delegates committed to a particular candidate. A state election board usually can pass on the eligibility of one who seeks to appear on the ballot. Its ruling for or against the qualifications of a particular candidate can be challenged in the state’s courts. The books are full of state cases involving disputes as to various aspects of primary elections. And in recent years the federal courts have underscored their interest in the federal constitutional aspects of state elections, even when they only concern party primaries. Indeed, a number of statutes implement the authority of federal courts to intervene in election disputes where deprivation of rights is alleged.
Since interpretation of the presidential qualification clause involves a federal constitutional question, such an issue would unquestionably wind up in the federal courts, either by an initial suit in such courts, by removal of actions commenced in state courts, or by Supreme Court review of a state court’s decision…. [internal footnotes omitted]
Gordon goes on to say that the earlier the challenge, the more likely it is that a court would be willing to intervene.
Of course birthers didn’t invent the two-citizen parent legal theory in time to bring a lawsuit based on that theory before the 2008 primaries. However, they are “loaded for bear” this time around. We can anticipate New Hampshire to be the first judicial battleground of the 2012 election cycle since Barack Obama has already been approved, over birther objections, to be on the ballot in New Hampshire.
“Be careful what you wish for” the aphorism says. That is certainly an apt warning for the birthers. If and when they get their day in court, they will surely lose.
- The Justiciabilty of Eligibility by Daniel P. Tokaji in the Michigan Law Review