Posted on 07/02/2010 1:23:04 PM PDT by BuckeyeTexan
You're making an excuse and not following what the judges are saying in this decision, who called the plaintiffs ability to sue "unique." You don't need to make excuses for the judges. The rational behind their decision is infirm.
So the scope of the issue then falls under the political question doctrine.
The Supreme Court has accepted cases that fall under the political doctrine question. If it is motivated to take such a case, it can usually justify a reason for doing so. In this case, the court is not dismissing the case over political question doctrine, so much as they trying to claim that the greivance is too general or abstract for a petitioner to claim standing. IIUC, political doctrine questions aren't about standing.
All such issues should be addressed by the legislative branch. Congress could hold hearings to investigate or even remove the president.
If this is so, then the remedy isn't solely based on the plaintiffs votes as the decision states. This is an entirely different remedy altogether and is NOT specified in this decision. But, from a legal standpoint, it doesn't ring true. A remedy for repealing law exists within the legislative branch, yet courts have never had a problem with declaring laws to be invalid. So for this court to suggest it is powerless to provide a remedy is complete and abject nonsense. They certainly have no problem in other situations with telling the legislative branch it has done too much or not enough.
The Court acknowledges that the plaintiffs are frustrated by a perception that Congress has failed to act on this issue. The Court takes no position on whether or not Congress failed to act.
Neither did I. Not sure what your point is.
They essentially tell the plaintiffs that if they are not satisfied with how the legislative branch has handled this matter, then the remedy to their frustration is to vote the b@st@rds out!
This same 'remedy' would exist for overturning unconstitutional laws, yet the courts have no problem stepping in to do it themselves. It's a poor excuse for this court not to do more when it obviously could. Second, this so-called unique, but generalized grievance needs a one-time only action to resolve the practical question ... it's not just a political question as there is a concrete and particularized situation of a person holding office who may or may not be Constitutionally eligible to do so. Either his appointment and election is validated or invalidated he is removed from office. There are no other necessary remedies nor would there be an onslaught of continous, so-called frivolous, but generalized lawsuits against the defendant after the situation is resolved. It doesn't create a situation where every president will be removed from office because someone doesn't like him or her.
In one sense, the court's inaction does have an impact on the political-question doctrine, because the court's inaction serves to validate the usurper's occupation of the White House. Again, the reasoning of the court is poor and more than a little bizarre.
and a whole lot of others.
If President Obama or the Congress for that matter passed a law that homes were a threat to the environment and ordered all homes to be burned down or condemed, we couldn’t do anything because we all suffered the same injury?
yes, according to the myth of "standing" that the legal system uses to dismiss cases that they don't want to rule on.
To what extent does standing go? Didn’t ALL Chicago residents suffer the same injury when they banned guns there? Didn’t the Supreme Court just rule that it was unconstitutional?
Ahhh -- you just punched a hole in the myth of "standing".
Believing in the myth of "standing" is like believing in the myth that Obama is an Article II natural born citizen. It takes FAITH -- you have to believe in spite of the fact that there is no evidence, no definition, no fixed rules -- merely the pronouncement of someone in a blackrobe saying so.
Before I address the rest of your post, let me ask you one question. What remedy do you think the Court can provide to this problem? They cannot remove a sitting president. And Obamao is the sitting POTUS.
You are promoting the worst kind of judicial activism.
You’re demanding that a few judges and lawyers overturn an election.
The Florida Supreme Court in the 2000 election kept manufacturing mulligans for Gore to help him win the electoral votes.
The courts need to stay out of the elections.
All roads lead to impeachment. Make your best case and good luck.
They can find him ineligible to hold office. If you want to be technical,it would probably still be up to Congress to remove the president, but they would certainly have cause to do so at that point, no??
Wrong. I'm asking them to review Obama's eligiblity. If he turns out to be ineligible, they aren't overturning the election, but upholding the Constitution.
The time for the courts to review Obama's eligibility would have been before the election.
Now that he is POTUS, "upholding the Constitution" means impeachment.
I don’t have a problem with impeachment. Obama has most likely committed criminal fraud over his eligibiity. A court finding would help expedite the matter.
Two quo warranto cases have been filed in the D.C. District Court, and both were rejected (by a Reagan-appointed judge).
Sorry, but this issue is going to be pursued by Congress or not at all.
Judges have judicial immunity-- they cannot be sued for their official acts.
Are they the only branch of government that cannot be held accountable for shirking their responsibility that would not rise to the level of impeachment?
Yes. The Constitution deliberately created a judicial branch that would be immune to popular pressure-- hence life tenure, the inability of Congress to cut their pay, etc. Impeachment is the only remedy.
Justice Clarence Thomas testified under oath that they were “avoiding” the issue of who is eligible to be President.
I listened to that tape, and I thought he sounded like he was joking, but YMMV.
If a guy that may die if ordered to go to war doesn’t have standing, I don’t know who does. If that is not a particular injury, I don’t know what is. Perhaps the estate of a fallen soldier may have standing??
During the Vietnam War, the courts held that no one had standing to challenge the constitutionality of the war in court, because it was an issue solely for Congress and the voters.
There is one avenue of judicial review that is available, but not until 2012: many states have provisions in their state election laws permitting a voter to sue to remove an ineligible candidate from the ballot. But such a suit can be brought only during a very narrow window of time-- in most states, between the time a candidate files to get on the ballot and the time the ballots are printed. In 2008, no one brought such a suit against Obama during the right time period. I expect that someone will in 2012, if Obama runs for re-election.
“I don’t have a problem with impeachment. Obama has most likely committed criminal fraud over his eligibiity. A court finding would help expedite the matter.”
___
The Supreme Court, like any other Article III court, is a court of limited jurisdiction. It is not authorized to issue “court findings”; all it can do is resolve “cases and controversies.” It cannot simply render a judgment over questions on which it has no power to act.
And SCOTUS has defined “cases and controversies” to include the requirement that the party bringing the suit have standing.
Also, by the way, if “Obama has most likely committed criminal fraud,” why are civil suits being brought anyway? It’s like bringing suit against someone because you saw him rob a post office. The suit would be thrown out for lack of standing, which simply means that you should take your evidence of criminality to a prosecutor rather than trying to enforce criminal law through a civil suit.
There is a controversy here for which the SCOTUS has previously given a definition of natural born citizen. The court has also acted before in regard to the seating of elected representatives. The power to act appears to be present.
And SCOTUS has defined “cases and controversies” to include the requirement that the party bringing the suit have standing.
Yes, there's no question that standing is at issue. What I noted previously is that the recent decision in this appeal undermined its own rationale on standing by admitting the plaintiffs had what it called a "unique ability" to sue. As such, that should have given Kerchner standing.
Also, by the way, if “Obama has most likely committed criminal fraud,” why are civil suits being brought anyway?
Oh, I agree to a point that it would more sense to charge Obama with criminal fraud, but IIUC, the only body that can do this is Congress. The partisan nature of our Congress currently prevents this from happening, no??
It’s like bringing suit against someone because you saw him rob a post office.
Not really. Maybe you remember OJ Simpson was sued for wrongful death despite being acquitted of murder charges?? But if you want to use the post office analogy, the person you saw robbing the post office may have stolen your mail, including checks and other property. You certainly would have standing to sue the robber.
“Oh, I agree to a point that it would more sense to charge Obama with criminal fraud, but IIUC, the only body that can do this is Congress.”
Nope, that’s not true. Only Congress can impeach; but any prosecutor in a jurisdiction in which Obama committed crimes before taking office can bring charges. For example, if he used a purported Hawaiian document fraudulently, that is a crime in Hawaii and probably a federal crime as well. There are plenty of prosecutors, both state and federal, who are opposed to Obama politically; all it takes is one to bring criminal charges, if they believe they have sufficient evidence.
“Maybe you remember OJ Simpson was sued for wrongful death despite being acquitted of murder charges?”
Sorry, that one doesn’t work. First of all, those charges were brought in state court, which are not Article III courts and are subject to different rules. Second, those who brought suit against Simpson clearly had individualized grievances that did not apply to the population at large.
“the person you saw robbing the post office may have stolen your mail, including checks and other property. You certainly would have standing to sue the robber.”
No, not at all — you would lack standing just like the birther plaintiffs. “[M]ay have stolen your mail...” is not good enough. The Lujan precedent states very clearly that the injury must be “actual or imminent, not conjectural or hypothetical.” If you have evidence that that individual stole from you, that’s a different matter; but the hypothetical I raised simply specified that you had witnessed the crime, and that is not sufficient to confer standing.
You’re not wrong except that this case was dismissed for lack of standing, not based on the political question doctrine. Standing is more or less what you described here, though.
Standing and the political question doctrine are two separate doctrines governing the justiciability of cases before federal courts. They come from two different Constitutional principles: the standing doctrine comes from the “cases and controversies” language of Art. III, s. 2, while the political question doctrine comes primarily from separation of powers. Some of the confusion comes from the fact that separation of powers also forms part of the justification for the standing doctrine, as evidenced by the language in this opinion (which quoted another standing case).
Political question doctrine is kind of a catch-all used to refrain from hearing cases the court sees as inappropriate for judicial remedy, even when the parties have standing and the case is otherwise justiciable. It did not need to be invoked here because, in this case, the plaintiffs clearly lacked standing under any reasonable definition of the term.
I know this post is a few days old, but I figured it’s worth addressing the difference between these two easily confused doctrines.
I don’t know what anybody has responded to this, but the problem I would see with an injured soldier is that unless he’s suing to have his medical costs paid by the federal government, the courts would say there is no legal remedy.
The Michael New case doesn’t equate to Lakin’s. In Michael New’s case the decision was that it was a “political question” because it was up to Congress to decide what uniform the military was supposed to wear. A “political question” comes in when the courts are asked to decide an issue which the Constitution clearly gives to a different branch to deal with. I don’t know how far I agree with that, but that was the decision.
In Lakin’s case, though, they are charging him with disobeying a lawful order. According to the definitions in the “elements” part of Article 92, an order is lawful UNLESS it is contrary to the Constitution, US law, or lawful higher orders, or if the person who gives it is acting beyond their authority in giving it. (I hope I remembered all of that right).
So the military’s case against Lakin depends on whether he disobeyed a LAWFUL order, which depends on the Constitutionality of the order. The Constitution actually forbids a president-elect who has failed to qualify before Jan 20th from having the presidential powers, including the power to give orders as commander-in-chief.
Nowhere does the Constitution specifically give the power of enforcing that amendment to Congress. The system of checks and balances would actually not allow Congress to interpret the Constitution for itself, which would be required to determine who is a “natural born US citizen”. Congress was given the power and duty to determine and enforce eligibility issues for CONGRESSIONAL ELECTIONS, but the presidential elections were specifically left out of that. By contrast, the judiciary is to decide any controversies stemming from the Constitution or the laws. If a person is looking at the Constitution itself it seems clear to me that the judiciary is responsible for interpreting and making sure that the 20th Amendment is kept. If the courts say it is a “political issue” it’s only because they are weaseling out of their responsibility, as Clarence Thomas joked about them doing.
It is a FACT that Obama failed to qualify before January 20th. Because his birth certificate is amended, Hawaii law (HRS 338-17) says that the probative value is to be determined when the BC is presented as evidence to a judicial or administrative person or body. Until that happens, the BC has the same legal weight as Monopoly money. We know FOR A FACT right now that Obama’s birth facts are legally undetermined. They are in legal limbo until he allows one of these judges to actually see the BC - which he has spent lots of taxpayer money to prevent.
His birth facts were in legal limbo on Jan 20th (and still are). There is no way that he “qualified” by January 20th. Anybody who claims otherwise is just plain wrong.
Even if Pelosi or other members of Congress HAD looked at Obama’s BC (neither Pelosi nor any of the dem leadership even asked to see it), if they gave full faith and credit to Hawaii’s documents and laws as required in Article IV of the Constitution they could not conclude anything about the facts of his birth without first making Obama present it as evidence to a judicial or administrative (NOT LEGISLATIVE) person or body.
The fact that Obama’s BC is amended changes everything from a legal standpoint because we now KNOW that he could not have qualified. His birth facts are legally undetermined. There is a legal process that has to be completed before anybody can LEGALLY say where Obama was born, how old he is, and who his parents were. He made sure that process COULDN’T happen. His deadline to qualify was Jan 20th. He obviously missed that deadline, on purpose.
The 20th Amendment requires Joe Biden to have the presidential powers - regardless of who is called the president, who has been sworn in, etc. Everything Obama has done to exercise the presidential powers is unconstitutional - including giving orders as the Commander-in-Chief.
Without a valid general order from the CIC to increase the troop levels for OEF, Lakin’s brigade commanders were acting beyond their authority in ordering him to support OEF, beginning by reporting to location Y and Z. The orders to move were always connected to the order to support OEF, and the increase in troop levels could only be authorized by the CIC. Even McChrystal couldn’t just decide on his own to order deployment for the extra 60,000 troops he wanted without authorization from a CIC - much less some brigade commander. So the general order was not lawful because it was unconstitutional. And the specific orders in support of that general order were given by someone acting beyond their authority, and thus unlawful.
If the military wants to argue that Lakin disobeyed an UNLAWFUL order that he was required to obey anyway because of the de facto officer doctrine, then that is what they need to charge him with. That is not the charge that is before Lakin right now. He has a right to defend himself from the specific charge against him. He did NOT disobey a lawful order, as is charged against him. He disobeyed an UNLAWFUL order.
And according to those standards Roe v Wade should have been rejected by the court for lack of standing. By the time any woman with standing could get the case through the courts to SCOTUS she would already have given birth and would no longer have standing. SCOTUS took up Roe v Wade because they wanted to rule in behalf of POTENTIAL people with standing. None of them having any great grievous harm above and beyond every other pregnant woman, who were all treated equally under the existing laws.
Nebraska voted to have a ban on partial-birth abortion. The courts overturned it.
How long do you think they labored over the question of whether anybody had “standing” to bring that suit?
How long do you think they labored over whether the judiciary could actually overturn an election?
It happens all the time. Forget this crap about it being judicial activism. The courts do this ALL THE TIME. It is their job to overturn a decision of the people which is against the US Constitution.
The people can elect whoever they want as president. But the Constitution says that if the person they elect has still failed to qualify by Jan 20th, that person is NOT to have the presidential powers. The person they elected to be vice-president is to have the presidential powers in that case - unless he too has failed to qualify, in which case Congress has to decide what to do about it.
Where does the Constitution ever give Congress the authority to interpret the meaning of “natural born US citizen”?
Where does the Constitution ever give Congress the authority to determine eligibility of PRESIDENTIAL (not legislative) candidates?
Where does the Constitution ever give Congress the authority to determine that a president-elect has “failed to qualify” by Jan 20th and thus give the presidential powers to the vice-president elect instead?
If the Constitution does not specifically give that authority, power, and responsibility to one of the other branches, then they CANNOT claim the “political question” reason to refuse to hear the case.
They can determine that Obama has “failed to qualify” by January 20th and that he is thus forbidden by the 20th Amendment from having the presidential powers. Joe Biden is to be given the presidential powers and Congress has to decide how to deal with Obama - a president with an “inability to discharge the powers and duties of” the presidency.
That is an action that only a court can take and they should have done it on Jan 20, 2009.
Now that he is POTUS upholding the 20th Amendment of the Constitution means the courts should declare that Joe Biden should have the presidential powers and Congress should be deciding what to do with Obama, who is a president with the Constitutional “inability to discharge the powers and duties of the” presidency.
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