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Obama citizenship gets a legal workout

Persistent plaintiffs file motions and appeals to the Supreme Court. They shouldn't hold their breath.

December 08, 2008|David G. Savage | Savage is a writer in our Washington bureau.

WASHINGTON — Undaunted by the Nov. 4 election results, several persistent plaintiffs have pursued lawsuits asserting that Barack Obama is constitutionally ineligible to hold the office of president because they say he is not a natural-born citizen. Their claims were rejected in lower courts, but they have filed motions and appeals to the Supreme Court.


What do these lawsuits say?

One filed by Philip J. Berg, a lawyer in Lafayette Hill, Pa., asserts that Obama was born in Kenya, even though the president-elect has a birth certificate from the state of Hawaii showing he was born there Aug. 4, 1961. A second, filed by Leo C. Donofrio of East Brunswick, N.J., asserts that neither Obama nor his vanquished opponent, Sen. John McCain, are natural-born citizens. (McCain was born Aug. 29, 1936, in what was then the U.S.-controlled Panama Canal Zone.)

"Even if it were proved [Obama] was born in Hawaii," he is not a natural-born citizen, Donofrio claims, because Obama's father was born in Kenya. But under U.S. law, people born in the U.S. are natural-born citizens.

Berg sued Obama, while Donofrio sued New Jersey's secretary of state. Initially, the lawsuits sought a court order to remove Obama's name from the ballot. Since early November, they have lodged appeals and motions saying that courts should intervene to block Obama from becoming president.

For The Record
Los Angeles Times Wednesday, December 10, 2008 Home Edition Main News Part A Page 2 National Desk 2 inches; 74 words Type of Material: Correction
Challenge to Obama: An article in Monday's Section A explaining lawsuits that have challenged Barack Obama's status as a natural-born citizen -- and therefore his constitutional qualifications to serve as president -- said the 12th Amendment says that the president and vice president "shall not be an inhabitant of the same state." That amendment says that if both candidates are from the same state, their state's electors can vote for only one of them.


How have these lawsuits fared?

They have lost at every stage. Berg's suit was rejected by a federal judge in Philadelphia who ruled that Berg had no standing to sue. To bring a lawsuit, someone must show he has suffered a personal injury of some sort -- a general complaint will not do.

For example, a taxpayer cannot bring a lawsuit claiming the war in Iraq is unconstitutional because this is a general complaint. This doctrine prevents the courts from deciding broad and abstract constitutional questions.

Having lost before U.S. District Judge R. Barclay Surrick on Oct. 24, Berg skipped the U.S. appeals court and filed an appeal with the Supreme Court on Oct. 30. Donofrio's suit was rejected by state judges in New Jersey.

On Nov. 6, Donofrio filed an "application for emergency stay" at the Supreme Court, first with Justice David H. Souter and then with Justice Clarence Thomas.


What will the Supreme Court do with these lawsuits?

If the lawsuits had gained traction early this year, it is possible a judge could have ordered a hearing to review the evidence on whether Obama or McCain were natural-born citizens, as required by the Constitution.

But the lawsuits have very little chance of gaining a hearing now. The Supreme Court decides legal issues; it does not resolve factual disputes. In the lawsuits over Obama's birth, the plaintiffs did not persuade any judge that the president-elect was, in fact, not born in Hawaii. The Supreme Court would have no basis for reconsidering that basic fact.

The justices also review rulings made by lower courts, usually when there is a disagreement about the law. In such cases, lower courts dismissed the lawsuits without handing down major rulings. In 2000, the same fate befell three Texas plaintiffs who sued George W. Bush and Dick Cheney on the grounds that both were Texans and that the 12th Amendment says the president and vice president "shall not be an inhabitant of the same state." The lawsuit was thrown out for lack of standing.

In Donofrio's case, he did not file a full appeal but instead an emergency stay motion with two justices. When persistent litigants file motions with more than one justice, the court's normal practice is to refer the matter to the full court. In Donofrio's bid for an emergency stay, the court's computer said it was "distributed for conference of Dec. 5." This routine referral was treated on some blogs as though the justices had agreed to debate or deliberate on the matter.

If the justices think an emergency stay raises an important point, they ask the other side to respond. They did not bother to ask for a response to Donofrio's motion.

The court receives about 150 appeals a week, and all but a fraction are rejected without discussion by the justices. Donofrio's is likely to be denied without comment today; Berg's will probably meet the same fate.


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