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Thursday, October 29, 2009

Lots of birther action

A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.

First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.

Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.

Some thoughts after the break.

The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.

Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.

Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.

Posted by Howard Wasserman on October 29, 2009 at 08:37 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink

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Comments

For a good piece on the birther movement and other political conspiracy theories and Cass Sunstein's "cyberpolarization" theory, see this great New Yorker piece: http://www.newyorker.com/arts/critics/books/2009/11/02/091102crbo_books_kolbert. Best pull quote: "Several decades ago, a detachment of the American right cut itself loose from reason, and it has been drifting along happily ever since."

Posted by: Vickie Pynchon | Oct 29, 2009 11:41:25 PM

With respect, I'd say it's a good piece *until* Kolbert argues that this is just about a crazy segment of the American right. Sunstein's arguments about group polarization, as Kolbert acknowledges, are quite clear that under experimental settings and elsewhere, there is no political valence to this phenomenon. One may argue about whether there are more people like this on the right than the left, or more accurately I think whether national figures in the GOP are being too accommodating to people who hold nutso views, but of course this kind of thing happens on both sides. There are still people who, years later, read a photographic image as proving conclusively that President Bush must have been taking his instructions from on high during a presidential debate. The anti-vaccine movement has proponents on left and right. And so on. Kolbert is making a point, but it is decidedly her own, not Sunstein's.

Posted by: Paul Horwitz | Oct 30, 2009 9:37:41 AM

"whether national figures in the GOP are being too accommodating to people who hold nutso views"

Thanks.

That's the best laugh I've had in a month.

Posted by: Stella Baskomb | Oct 31, 2009 4:06:04 PM

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