What do you think about the actual case? The interpleader and the Colonel having standing, and having to follow the orders of a BOGUSPOTUS?
I’m not a lawyer, but it strikes me as a legitimate angle of attack. The Nuremburg Trials established that military can’t just hide behind an “I was given orders” defense. They have some positive duty to assure themselves that orders are lawful. For soldiers who might be called to combat duty in particular, killing people on grounds that a private citizen ordered them to do so would be completely contrary to international and U.S. Military Code of Justice. The identical orders issued by a president, in contrast, would have inherent legitimacy arising from the constitutional authority accorded our Commander-in-Chief.
That said, how seriously the SC actually would examine the actual evidence in this case remains to be seen. It seems trivial to demand that Obama’s lawyers arrive with a certified copy of the long form BC. But they also have to consider what would happen to military discipline if in theory every one of millions of soldiers were permitted to drag the CINC into court on this issue. For example, in light of the fabricated documents already posted on the Web, in theory Berg could insist that even a certified copy of long form be examined by forensic experts for evidence of forgery. If the SC then ruled that the BC was authentic because Berg’s forensic experts couldn’t convince them otherwise, what’s to stop another soldier from filing a new challenge using different experts/different methods that hypothetically might be more convincing to the Court? Moreover, while any such case were pending, could anyone in the military elect NOT to go into combat on grounds that there was uncertainty about CINC’s constitutional authority? In theory this could be an infinite regress even though as a practical matter, constraints on legal resources that challengers were willing to throw at the issue likely would limit such challenges to a handful.
Anyway, not being a lawyer (but I served as SC Chief Justice in a mock trial in college! :-)), I have no idea of how the Court actually might reason. But the foregoing is an example of how they might opt to again pass on a full hearing of the case due to concerns over the can of worms it might open. I am amazed we have gotten this far without a definitive resolution and will cross my fingers the SC takes this on (even if Obama wins), if for no other reason than to more clearly establish the meaning of natural born citizen. As the thousands of posts here attest, that definition is very far from being settled law.