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Tag Archives | Berg v. Obama et al.

Klayman: off to the Supreme Court


According to a new article at WorldNetDaily, attorney Larry Klayman says that he will likely appeal his recent 7-2 loss before the all-Republican Supreme Court of Alabama to the United States Supreme Court. Klayman wrote:

imageOver the last five years, many court challenges have been filed concerning Obama’s eligibility. Indeed, I have filed three in Florida and one in Alabama. In every instance, and I am not just referencing the cases that I filed, these court challenges have been dismissed. (They are currently on appeal.) But what is more troubling than the dismissals is that the judges presiding over these cases have generally refused to even explain the reasons for their dismissals. Apparently, they are so afraid of taking on this issue that they don’t want to go on record for their actions. That is because these dismissals are not legally justified.

That is not true; for example, the Farrar v. Obama case in Georgia was not dismissed, but rather had a hearing with witnesses. While I have not reviewed every case, a great many have detailed explanations of why they were dismissed. I remember one of the first cases, Berg v. Obama et al., accompanied by a lengthy and highly-educational opinion by judge Surrick and I have listed  almost a dozen cases where judges addressed the merits of to the argument that US Presidents most have citizen parents.

It is ironic that Klayman holds up for praise Judge Royce C. Lamberth, saying:

Few other judges in this nation have the courage of Chief Justice Moore. The Honorable Royce C. Lamberth, who held the Clintons to account in the late ’90s and early 2000s and ruled that Bill Clinton had committed a crime1….

Lamberth dismissed several birther cases (and explained why!):

Klayman wrote:

The imposter in the White House must be held accountable, and he should indeed be told to get up off his knees and come out with his hands up.

Klayman seems to be confusing civil and criminal cases.

1Lamberth ruled that Clinton had “committed a criminal violation” of the Privacy Act when he released letters from Kathleen Willey. (CNN Article)

Taitz v. Sebelius dismissed


Not a leg to stand on

Orly lost another lawsuit, Taitz v. Sebelius, dismissed for lack of standing. 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 and we see the same legal principles at play four years later in the November 20 ruling by federal district judge Jorge A. Solis. I mention the 2008 decision in Berg to point out that there is nothing whatever new after four years of birther litigation, and that birthers have every reason to know better than to file these frivolous actions.

In the instant case Orly Taitz alleges that she has been harmed by the Patient Protection and Affordable Care Act (ObamaCare), but never figures out exactly how the people she was suing actually harmed her as an individual. In addition, her complaint throws in everything but the kitchen sink in terms of unrelated causes and alleged injuries, none of which involve any specific act of a defendant that harmed Orly Taitz personally.

Orly’s caseload is dwindling. Her Indiana case was lost and all that remains is a possible slap on the wrist for her publishing a court reporter recording in contravention of what Judge Reid considered an order prohibiting it. The Mississippi case is winding down with the last round of briefs due Friday before the inevitable dismissal; the big issue there is the possibility of a demand for costs from the defendants. Orly’s Kansas case is lost. The Judd case was tossed in California Federal Court and her California election challenge in state court challenge was tossed.

Read the decision in Taitz v. Sebelius:

Continue Reading →

Two very different ballot challenges in Pennsylvania

Pennsylvania attorney Phil Berg and Charles Kerchner (Birthers call him CDR Kerchner) are no strangers to litigation against Barack Obama’s eligibility to be President of the United States.


The original Berg v. Obama et al. lawsuit codified much of the thinking of the “not born here” Birthers. I wrote about the foundational nature of this case in: “We all came out of Berg’s suit.” Further, much of what I know about the legal doctrine of standing came from Judge Surrick’s scholarly opinion dismissing the case. In addition to speculating that Obama was born in Kenya, Berg also alleges that President Obama became a citizen of Indonesia as a child and thereby lost his US citizenship (if any).

I wrote about Charles Kerchner’s first lawsuit against Obama in an article Kerchner v. Obama and the WHOLE COUNTRY. Charles Kerchner, aided by his attorney Mario Apuzzo, also filed a federal lawsuit seeking to unseat the President that included many of the ideas of Phil Berg, but in a much longer form, so long in fact that defense attorney compared responding to it to looking for “gold coins in a bucket of mud.” This lawsuit introduced one new element. While little more than a footnote, the Kerchner case suggested that Barack Obama wasn’t eligible even if he was born here.

In the time since 2009, very little has changed in Phil Berg’s approach, but in the case of Kerchner, the “not born here” aspect has been toned down and the question of Obama’s parentage and the definition of natural born citizen has come to the forefront.

In this, Kerchner may be responding to popular sentiment, particularly in the wake of the release of Barack Obama’s long-form birth certificate at a White House press conference last April, 20111. Republican leaders, most notably Senator Lindsey Graham of South Carolina, came out and said that people who believed that Barack Obama was born outside the United States or was a Muslim “are just crazy.” On the other hand a scholar, Lawrence Solum, said that while the opposing argument was “much stronger,” still those who believe in a two-parent citizenship qualification “aren’t crazy.”

This brings us to two Pennsylvania ballot challenges filed this month, one from Charles Kerchner and one from Phil Berg.

Continue Reading →

Judicial review of Obama’s eligibility

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: Continue Reading →

Obama’s legal fees

An argument in the form of a question

Central to the birther position is a question that is some variation of:

If Obama has nothing to hide, when why has he spent $81 Berjillion1 dollars on legal fees to seal his records?”

This question actually hides two assumptions:

  1. Obama has spent $81 Berjillion1 dollars on legal fees
  2. Obama is using lawyers to seal his records

Usually, since the argument is made in the form of a question, no one actually justifies the underlying claims in the question. Let’s look at them.

Obama has spent $81 Berjillion dollars on legal fees

Where does this number come from? I’ve seen two arguments. The first involves the fact that the same legal firm, Perkins Coie, represented both President Obama and his Presidential Campaign. Federal Election Commission filings reveal millions of dollars in legal fees spent by the Campaign. If one had the total of all the legal expenses and subtracted all the other campaign legal expenses, what would be left should be what was spent by the Campaign defending Obama eligibility lawsuits. However, since the “all other” number is not known, the answer is just a wild guess. Another approach is to assume that all other campaign legal expenses ended the moment Obama was elected and that every legal expense since them is for defending Obama eligibility lawsuits. However, one need only glance at the FEC page to see hundreds of campaign filings made since November of 2008 and add that to the cost of FEC post-election audits. To top that off, no one has shown (to my knowledge) that any Campaign dollars went to defend Obama eligibility lawsuits. Continue Reading →