Skip to comments.Ninth Circuit hears oral arguements in NBC Eligibility Cases
Posted on 05/03/2011 5:48:44 AM PDT by wtd
Uncharted WatersRamona Attorney Back in Court Over Obama Citizenship
Uncharted legal waters.
That's how Ramona attorney Gary Kreep summed up the judicial dilemma surrounding the question of whether President Barack Obama is eligible for his office and how Americans should generally deal with an eligibility issue once a president takes office.
On Monday, Kreep and lawyer Orly Taitz of Rancho Santa Margarita once again asked the courts to allow them to present their cases and bring evidence in their fight to show that Obama isn't a U.S. citizen.
It's not a simple request.
At this stage, the court isn't hearing details about what Kreep and Taitz may have found as evidence. This phase involves convincing the courts that judges have the right to rule on eligibility matters.
Taitz and Kreep's cases were dismissed by the U.S. District Court in Santa Ana in 2009 because the judge didn't believe the court had the jurisdiction to decide the eligibility of the president.
But if the courts don't, who does?
The answer, according to Deputy U.S. Attorney David Dejute, is Congress. Dejute represented Obama in Monday's oral arguments at the 9th U.S. Circuit Court of Appeals in Pasadena.
But that wasn't the final answer either.
Judge Marcia Berzon raised the 20th Amendment. If there's a difficulty regarding eligibility, Congress shall decide by law, she said.
By law, she repeated, which would seem to imply that the courts have to get involved. Or not.
The courts need to be involved to enforce the constitution, Kreep argued.
That's not the issue, Dejute told Berzon. The candidates don't have standing.
Kreep represents two members of a small, conservative Christian political party called the American Independent Party. His plaintiffs, Wiley Drake and Markham Robinson, feel that the playing field in the 2008 presidential election wasn't fair because Obama, they believe, won the race without having the requirements to hold the job. His candidacy eclipsed their effort because of the size of their party, but the election wasn't fair if he wasn't eligible, they claim.
Standing means eligibility to bring a case before the courts. Dejute and at least one judge questioned whether the general public can come into court and complain about another candidate's eligibility after that person has been sworn into office, just because they didn't get elected.
Kreep stood his ground. This is about the Constitution, he argued. The public has a right to enforce the Constitution.
Even if the public can go into court to argue these types of matters, sometimes that right may have limitations, such as timing, according to Berzon.
You did not file a claim at the time when relief might have been plausible, she told Kreep. Taitz filed the original case, which was split when two plaintiffs were removed and began working with Kreep instead. She filed the case on Inauguration Day before Obama did anything as president, she said. But the judges questioned whether that was too late.
There's no point arguing eligibility when someone hasn't been elected and if we wait until after the election, we're too late, Kreep contended. We don't know who's going to be elected.
One of the judges and the Deputy U.S. Attorney concurred that the judiciary is likely responsible for these types of matters until a person is elected and then the responsibility rests with Congress.
The judges asked Kreep what he would want as the ultimate relief.
Our expectation is that Obama would vacate the office and Vice President [Joe] Biden would become president, he replied.
Relief means the actions or awards that could be possible to remedy an injury. Kreep contends the injury is that his clients couldn't get elected.
The judges on Monday also questioned the "political question" involved in the cases.
It's a yes or no question, Kreep stated. Is the person eligible or not, based on evidence? We disagree with Judge Carter [of the federal court] that it's a political question.
All-in-all, the public got a lesson in U.S. Constitution 101 on Monday but no one knows where the discussion will lead because this exact type of case hasn't come up before.
There's a way to remove a president from office. Impeachment. However, Kreep argued, if the president was never eligible in the first place, then he isn't really president, so impeachment wouldn't apply.
Nobody is willing to take on this issue, Kreep told the three judges. John McCain was the subject of congressional hearings on whether he was eligible and a ruling was issued. Why McCain and not Obama? he asked.
Three attorneys flew in to help Kreep prepare for oral arguments. Phil Berg came from Philadelphia and Tom Smith flew in from Tennessee. Both attorneys have worked on similar cases. The third lawyer asked to remain anonymous.
Berg said it's always hard to know how judges will decide but he, like Kreep, hopes the appellate judges will remand the case back to the federal court for a judge to decide. He said the attorneys need a chance to do discovery and bring evidence.
Taitz represents 30 clients, some of whom are in the military and one is an ambassador. She said her case needs to be overturned due to errors made by the U.S. District Court judge. She also said that there has been undue influence from the U.S. Attorney's Office and the White House in the judicial proceedings so far, referencing a friend of the White House who she says was placed as a clerk for the federal court judge.
I'm from the Soviet Union, she said. I would expect that there but not in the United States.
As she wrapped up, Taitz said, We went to Congress and the Joint Chiefs of the military. We exhausted all our avenues. Mr. Kreep is right. The courts need to decide.
Dejute told the judges that the U.S. Attorney's Office was basing its case on two issues: They need to show injury and they don't have standing. No one from the office would offer comments following the arguments.
After the hearing, a group of people surrounded Taitz as she displayed copies of several personal documents that she said Obama has provided the public. She talked about what she believes are discrepancies.
John Florance from Simi Valley was among the general public at the hearing. The 61 year old took a day off work in the wholesale produce industry. He said, I'm just a frustrated witness. Government employees aren't saying anything. The silence is deafening. Why don't they just bring it out in the open and deal with it?
A Rancho Mirage woman, Pat Levy, turned out in support of Taitz. She described herself as a retired business owner.
The panel of three judges will take an indeterminate time to issue a ruling.
Tom Smith, the attorney who flew in from Tennessee, said there have been about 100 lawsuits filed nationwide over the question of the president's eligibility. According to Phil Berg and Kreep, these two cases in California are the only ones to make it as far as oral arguments. If the appellate court sends the cases back to the federal court, Kreep anticipates that the U.S. Department of Justice will file a writ with the Supreme Court to block them.
Just a guess ... Mark Levin.
Ninth Circus. Does anyone have any doubts about how this is going to come down?
Impeachment. Duh ! The idea that a federal judge can remove a president because someone claims he is not really the president is ridiculous.
It’s over. Deal with it.
I doubt Mark Levin has anything to do with this case.
I think I must have missed something. Saturday morning filler?
Watching the three branches of government play 'hot potato' with this issue has gotten ridiculous.
Congress and the electors had their chance before the election.
Now, it's the judiciaries turn.
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions
The judiciary at this point is the only one capable of stating the current pResident is not a legitimate authority.
what about fraud...don’t the courts have an obligation to hear cases concerning fraud...if this isn’t a case that borders on fraud then what does?
As a matter of fact, when zero was inaugurated, "My hero zero" (from Multiplication Rock) wouldn't stop running around my head.
Mark Levin believes that birthers are the absolute scourge of the conservative movement. He's embarrassed about it to such a degree that he hangs up on anyone who brings it up.
Unless I am mistaken the Court does have power to determine
Constitutionality. The written Constitution(not the straw man you suggest) speaks of Natural born citizen” as qualification for the Office. The term had a specific meaning when adopted and ought be understood by that meaning even today. The motivation for the use of that specific term seems to be criterion of allegiance. And as there is ample evidence that the only “allegiance” manifest by Obama thus far has been to the forces intent upon the destruction of America.I can only conclude he remains ineligible. It seems to me the Courts very well have power to decide if Congress acted appropriately -and vetted the eligibility before he was sworn in.The lower Courts that dismissed the issue as decided by the tweets and twits posted during the campaign clearly have resolved Nothing.
pResident. Love it.
Subtle point. IMHO, The SCOTUS can find him ineligible to have run for the office. Period. After that, he is within Congress' jurisdiction. Congress may use the SCOTUS ruling to remove him. Or not.
The main effect of such a ruling would be to force the Democrats NOT to offer him as a candidate, and if somehow they were to do that, give AG's a powerful reason to keep him off the ballots in the states.
BTW, read both briefs. Kreep's appears sound. Orly's much less so. But again, the issue in this hearing was about whether or not the court should consider having a hearing.
But it does not mention ‘birth certificate’ anyplace and so far no states have passed specific eligibility requirements into law that would stop him from running in 2012. Something that like would have worked before he was sworn in, Once he or any president is sworn in there is one option only to remove him:Impeachment. No shortcuts. The official acceptance of Obama as president came from congress. No judge can overturn that.
I doubt Mr. Levin would be involved even anonymously.
I think I understand the birther strategy: while claiming constitutional purity shop around for a lone wolf judge that will make a decision that will get in the papers and media they way CA marriage amendment was by the liberals and other challenges to laws with single judge rulings. I had a few tell me :'It only takes one judge'.
But a serious attempt to defend 'the constitution' would be to work it through congress. Or changing state election laws before 2012.
...The SCOTUS can find him ineligible to have run for the office. Period. After that, he is within Congress' jurisdiction. Congress may use the SCOTUS ruling to remove him. Or not. The main effect of such a ruling would be to force the Democrats NOT to offer him as a candidate, and if somehow they were to do that, give AG's a powerful reason to keep him off the ballots in the states.
I agree with your assessment, above. However, would it be the state AG or the state Secretary of State who would be primarily responsible for disallowing a candidate's name from being on a presidential ballot in said state?
Courts make "determinations of fact" when they are hearing a case for which there are justiciable issues. What does that mean? Well, it means that there are plaintiffs before the court that have a particularized injury, and it's an injury for which the court can provide a remedy.
Thus far, there has not been a single case brought in US federal district court where the plaintiff reached the threshold of standing, or that the court could provide some remediation of the problem. As a matter of law, it's actually pretty elementary.
"It seems to me the Courts very well have power to decide if Congress acted appropriately -and vetted the eligibility before he was sworn in."
No, they don't. Courts here challenges to the work product of Congress - we cal that work product legislation. However, in over 230+ years, there has NEVER been a case heard in a court that endeavored to examine the other functions of Congress, the non-legislative functions of Congress - things like seating a President or impeaching a president, for instance.
If Congress seats or unseats a president, the court looks at that function as a purely political process. The court has long refused to engage in these kinds of political debates. There is no principle of judicial review for the seating or removal of a president.
The only time a court can intervene is in the election process. However, once Congress has certified the results of the Electoral Collage and the president has been sworn in, it is not longer within the purview of the court's judicial review.
Hey, don't take my word for it - read every single decision that has come out on these cases so far - cases that have ALL been upheld on appeal.
A couple points. Except in incredibly rare and specific cases (of which this is not one) the Supreme Court does not issues "findings" as they are not a trial court. They are an appeals court. They review decisions reached by lower Courts, and specifically review those decisions to ensure that the trial court/lower appellate court correctly applied the law.
Now, for there to actually be a trial, the court must have before it a plaintiff that has a particularized injury, and that injury must be something for which the court can provide a remedy. These are known as the principles of justiciability and standing. Thus far, there hasn't been anyone come before the court with standing on this issue, and even if there were, the case would still be dismissed as a nonjusticiable political question.
The Supreme Court would then review the trial court's decision to dismiss the case on those grounds, and that decision would SURELY be upheld.
That's just how American jurisprudence works.
Yeterday's hearing is far from reaching a hearing on the issues, much less a decision that might be appealed to the SCOTUS, and I should have made that very clear. Call it wishful thinking, please.
We are a long, long way from the SCOTUS, and not really on the actual "playing field" in the 9th Circuit.
It is my feeling (based on not much of anything concrete but my own state's constitution,) that the individual Secretaries of the States ALREADY have the power to keep Obama from the ballot. There is certainly enough doubt! The State AG would become the key player if and when Obama brought suit against the State as a Plaintiff.
This is my "dream scenario" because it would automatically remove the question of "standing" from the issue, and fast-track the appeal to the SCOTUS.
We need a TRUE conservative to go “pit bull” on Obama’s record, and not let go of him until the election. Nobody is going to remove the first black TOTUS over a birth certificate.
Bingo, sad we have to state the obvious.
Is there a CONSERVATIVE Trump out there? If so, we will win. A RINO puzzie coward? We lose!
While I personally wouldn't describe him as conservative, I think Chris Christie is a more serious version of Donald Trump, and I think he's popular for some of the same reasons - He speaks forcefully and passionately about important issues - like taxes, government spending, public union excesses and federal government overreach.
Having said that, I just don't think Christie is running.
If this isn't true, then I guess the ACLU has no 'standing' to sue to take down all the crosses and Ten Commandments on public lands.
The idea that a lying usurper who committe crimes to get into the WH and the excuse "he's in and no one has standing nyah nyah nyah" is reasonable is ridiculous.
Obviously to anyone who is really "sick of libs" the judge would not be personally removing the usurper but issuing a ruling (if the judge/s were honest and had principles) that 0bama is not eligible to be president. Then others take it from there.
In a followup comment I suggested that the real plan was to shop around for a Republican judge to issue that symbolic ruling to get the story in the MSM, then it sounds like birthers would use that 'ruling' story to try to get congress to impeach him.
But the judges wont touch it because they interpret not being able to remove him as president as not having jurisdiction to decide that he is not president.
Bad news for you: we will have to beat him using a conventional method like winning an election. Isn't there some issues we can use to show he has not been a good president? It cant be hopeless, things are not that great out there.
Here’s the scenario:
Presidential Candidate A has a US Citizen mother and a father who was not a US citizen. Presidential Candidate A meets all other qualifications to serve as President.
A Secretary of State determines that Candidate A is not eligible to be on a presidential ballot, giving the reason the fact that Candidate A was not a “natural born citizen” in accordance with the qualifications provisions of the US Constitution, specifically due to the fact that he was not born to two US citizen parents.
Candidate A subsequently files suit asking the court to allow him on the ballot, arguing that he was, indeed, a “natural born citizen”, and that US citizenship of only one parent is required.
Candidate A would be the plaintiff and the SOS the defendant.
The lower courts rule in favor of the Plaintiff, basically ruling that Candidate A was eligible based on the fact that his mother was a US citizen with sole allegiance to the US.
Appeals are filed, and it eventually reaches the USSC.
Would not the USSC be inclined to issue a “ruling” on this issue, settling the issue one way or the other? Or, even if the USSC declines to hear the case that would, in effect, settle the question as well I would think.
Interesting question, and in light of current events, perhaps not a distant hypothetical. My gut says that they probably wouldn't weigh in unless someone was being kept off the ballot. It's likely they wouldn't grant cert if "candidate A" was granted ballot access. Speaking VERY generally, the Court normally doesn't weigh in until there are conflicting opinion in separate Circuits. Again, that's generally what happens, but there are always exceptions, usually in every session. This would be one of the more unusual cases of the session, to be sure - and as least as unusual as Bush v. Gore.
Or, even if the USSC declines to hear the case that would, in effect, settle the question as well I would think."
No, the Court has held on several occasions that the denial of certiorari "imports no expression of opinion upon the merits of the case". Put plainly, no precedent is established without a grant of cert and final decision by the court. But, it (a Circuit Court decision) would create a binding precedent in whatever Circuit heard the appeal, and persuasive precedent in other Circuits. Who knows, it might even go another 100-years (or more) before the Court ever took up the issue again.