Skip to comments.Jeff Schreiber on Berg Suit Dismissal
Posted on 10/25/2008 7:58:24 AM PDT by Technical Editor
Saturday, October 25, 2008 Lawsuit Against Obama Dismissed from Philadelphia Federal Court
The order came down at approximately 6:15 p.m. on Friday. Philip Berg's lawsuit challenging Illinois Sen. Barack Obama's constitutional eligibility to serve as president of the United States had been dismissed by the Hon. R. Barclay Surrick on grounds that the Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania lacked standing.
Surrick, it seemed, was not satisfied with the nature of evidence provided by Berg to support his allegations.
Various accounts, details and ambiguities from Obamas childhood form the basis of Plaintiffs allegation that Obama is not a natural born citizen of the United States. To support his contention, Plaintiff cites sources as varied as the Rainbow Edition News Letter and the television news tabloid Inside Edition. These sources and others lead Plaintiff to conclude that Obama is either a citizen of his fathers native Kenya, by birth there or through operation of U.S. law; or that Obama became a citizen of Indonesia by relinquishing his prior citizenship (American or Kenyan) when he moved there with his mother in 1967. Either way, in Plaintiffs opinion, Obama does not have the requisite qualifications for the Presidency that the Natural Born Citizen Clause mandates. The Amended Complaint alleges that Obama has actively covered up this information and that the other named Defendants are complicit in Obamas cover-up. A judges attitude toward the factual foundation of a plaintiffs claims is an essential factor in understanding just who indeed has standing to sue. The question running to the heart of the standing doctrine is whether or not the plaintiff indeed has a personal stake in the outcome of the otherwise justiciable matter being adjudicated. As has been discussed before many times here at Americas Right, a plaintiff wishing to have standing to sue must show (1) a particularized injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiffs particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress.
In this case, Judge Surricks attitude toward the evidence presented by Berg to support his allegations figures in heavily because, while there is a three-pronged test to standing in itself, there is no definitive test by which the court can determine whether a certain harm is enough to satisfy the first element of that three-pronged test by showing true injury-in-fact. Traditionally, it hasnt taken much to satisfy the need for an injury-in-fact, but as the plaintiffs claimed injury is perceived as being more remote, more creative, or more speculative, the injury-in-fact requirement becomes more difficult to satisfy.
As it were, much of Bergs basis for injury-in-fact could be considered threatened injuryhe felt that the country was at risk for voter disenfranchisement and that America was certainly headed for a constitutional crisisand, while threatened injury can certainly be injury enough to satisfy the injury-in-fact element, such satisfaction depends upon the threat being perceived by the judge as being not too creative, speculative or remote.
When it came to Philip Bergs personal stake in the matter at hand, Judge Surrick compared his action with those of Fred Hollanderwho sued Sen. John McCain in New Hampshire on grounds that, born in the Panama Canal Zone, he was not a natural born citizenand held that Bergs stake is no greater and his status no more differentiated than that of millions of other voters. The harm cited by Berg, Judge Surrick wrote, is too vague and its effects too attenuated to confer standing on any and all voters.
So, who does have standing? According to the Hon. R. Barclay Surrick, that's completely up to Congress to decide.
If, through the political process, Congress determines that citizens, voters, or party members should police the Constitutions eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint. Judge Surrick not only dismissed Berg's case, but admonished the attorney in several spots in the 34-page memorandum. In one such instance, Judge Surrick noted that Berg had misinterpreted the Federal Rules of Civil Procedure in asking the court to permit him to amend his complaint. The first amended complaint was deemed admitted by Judge Surrick on grounds that, under FRCP 15(a), a party can amend once so long as its done before being served with a responsive pleading and that, just as I had not-so-confidently suggested, the motion to dismiss filed on Sept. 24 by Obama and the DNC was not a responsive pleading. Because Berg perceived the motion to dismiss as a responsive pleading and was waiting on the court to grant or deny the motion for leave to amend, he did not serve the additional defendants added in the amended complaint. This, too, was noted by Surrick.
Bergs attempts to distinguish his own case from Hollander were deemed by Judge Surrick to be [h]is most reasonable arguments, but his arguments citing statutory authority were said by the judge to be a venture into the unreasonable and were frivolous and not worthy of discussion. All in all, the judge wrote, it was the satisfaction of the injury-in-fact requirement which was the problem. Bergs harm was simply too intangible.
regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidates ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters. By extension, the theoretical constitutional harm experienced by voters does not change as the candidacy of an allegedly ineligible candidate progresses from the primaries to the general election.
Berg, disappointed by the decision, plans to appeal to the Third Circuit Court of Appeals and then to the United States Supreme Court.
"This is a question of who has standing to stand up for our Constitution," Berg said. "If I don't have standing, if you don't have standing, if your neighbor doesn't have standing to ask whether or not the likely next president of the United States--the most powerful man in the entire world--is eligible to be in that office in the first place, then who does?"
Berg doesn’t need my money. He’s not exactly living hand to mouth.
Anyway...the Judge’s opinion is somewhat different than what the MSM described (Shocking!). The Judge did not say that the allegations were frivolous, he said that the arguments relying on statutory law that supposedly distinguished Berg from Holloman (the McCain case) were frivolous. That’s a big difference.
The lack of standing is expected. The fact of the opinion and the reiteration of the allegations is sufficient to sow further doubts about Obama’s claims to be a natural born citizen.
As for how one would challenge a candidate’s qualifications, I think you can’t do it as a mandamus action or injunction, as Berg did. That does require particular interest (injury in fact) and not just the generalized interest that all Americans would share. I don’t agree with the Court that only congress can create standing here—arguably, this is a self-executing clause in the Constitution. Possibly, a declaratory action on behalf of all citizens (e.g., pater patria) could be brought, but that would probably have to be brought by the AG or Solicitor General. I’d look into it more after the election—it’s certainly too late to do anything about it now.
The bottom line is that even if Obama were openly admitting that he did not have the qualifications, it isn’t clear that anyone has the ability to stop him. Contrary to what you might think, that’s true of quite a lot of constitutional issues.
Who are you? Sherlock Holmes?
Actually, Schreiber’s website does the best job by far of doing just what you want. It’s the site from whence this posting originated—see link at top.
During the discussion of the SCOTUS ruling on the 2nd it was mentioned that as Congress can raise an army, the Constitutional check and balance on the Congress was the militia.
Obama the Kenyan coup ping!
Cite your evidence for that statement (and "Berg is a wacko" is not evidence.)
THE WHITE HOUSE
Office of the Press Secretary
The President today nominated Berle M. Schiller and R. Barclay
Surrick to the U.S. District Court for the Eastern District of Pennsylvania.
Big f’in surprise.
Do you think it might be possible to provide a vehicle which would allow multi state submission by various people in many communities with the same information - just laying out the facts and arguments on both sides in a clear-cut way. I can put it into my local paper, but we are in such a conservative area it might not do any good. I would sure like to see someone on Free Republic just post a possible argument-counterargument which is newspaper ready so anyone who wanted to could submit it to their local paper.
This issue, and the way Joe W. had his privacy invaded are both huge issues for me. Joe and his story are certainly out there, but this seems like it should come down to a local issue.
Sadly, it seems a tangled affair.
Let the voters decide with good information.
I totally agree. ALL CANDIDATES must provide their hard copies of birth certificates and post for the public. After all, there are only 2 Constitutional requirements for President and Vice-President: age and birth. These should be proven at the start of an election. You can be a Senator/Legislator (state and federal) or a Governor and not be natural born. We take for granted that these people are qualified for President or Vice President simply because they have already been holding an office.
(No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.)
Ah yes - the tactic of the 9-11 truther.
Name ONE respectable person who is pushing this story.
Perhaps when Governor Palin submits her medical records for examination, she could include her birth certificate, and challange everyone else to do the same.
A public challange for openness seems like a good way to go.
Sorry, Noob, that guy's been here longer than you, has an anti-O tagline, and only linked to something that is probably germane to this discussion.
So, Noob, think I oughta urge the mod squad to toss YOUR butt?
The high level McCain campaign is full of idiots.
And if I were you, I would be very careful who I call names.
You’re not me - so screw.
Somewher there has to be a secretary of state, registrar of voters, or judge that will stand up on their hind legs and say “no votes will be counted in my jusridiction for this candidate until he proves that he is qualified. It is my sworn duty to enforce this requirement.”
He’s an Obama troll. Nothing more, nothing less.
It is not the responsibility of the accuser to prove they are respectible. It is the responsibility of the candidates to prove they are qualified. You have a twisted sense of where the problem is.
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