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Thursday, October 30, 2008

Berg v. Obama: Finding the proper defendants

One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let's assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commentators have derided the use of standing as a dodge by Obama and the courts). It is worth thinking about how one could go about bringing such a lawsuit--whom to sue for what claims and what relief. Berg's initial strategy was to sue Obama, the DNC, and the FEC--and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen--it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let's have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

The obvious target should have been the Pennsylvania Secretary of the Commonwealth, the executive-branch official responsible for overseeing state elections, including determining ballot eligibility. An injunction could prevent the Secretary from allowing Obama on the ballot or, given the late date, from certifying Obama as the winner of the state popular vote, because doing so would violate the Eligibility Clause, thus violating Berg's right. Actually, Berg named the Secretary, Pedro Cortes, in the Amended Complaint, but Cortes had not been served as of the date of the dismissal.

Of course, that only makes Obama unable to run or win in Pennsylvania. And the electoral map is such that Obama could become President even without winning Pennsylvania. So Berg would have to bring suits in all 50 states and the District of Columbia against the Secretary of State in each state. But Berg would lack standing in any state other than Pennsylvania; he cannot vote in any other state, thus he has not been deprived of his right to vote for an eligible candidate in any other state. So Berg would need to find a voter in every other state who would be willing to sue the Secretary of State in each of these other states. And perhaps the Pennsylvania decision would have a persuasive effect, if not an outright preclusive effect, in the later cases.

Well, OK. What if Berg wants to assert not his right to vote for an eligible candidate in the Pennsylvania election, but his right not have an ineligible person become President, assuming, of course, that Obama wins 270 EC votes-worth of state popular elections (and still putting standing to one side)? Now Berg must enjoin the people in the federal government who would make Obama President. It seems to me Berg might have three options. First, he could try suing the 538 electors (or at least those committed to Obama/Biden) who will "meet" and vote on December 15. But I simply cannot imagine a judge enjoining electors from voting a certain way. It seems like that would create a massive separation-of-powers problem, akin to ordering legislators to vote a certain way, something courts generally are not willing or able to do. Second, he could try enjoining the House of Representatives from certifying the Electoral College results. But this unquestionably would be barred by Speech or Debate Clause immunity. Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.

And just to add three more wrinkles. First, none of the actions described in the previous paragraph would be ripe at this point The need to stop the federal apparatus from recognizing Obama as President and allowing him to take the Oath of Office (or, put another way, Berg's right to have the apparatus not recognize an Obama victory or allow Obama to take office) is not triggered prior to Election Day and Obama actually winning 270 EC votes-worth of popular elections. Second, the political question doctrine would block any injunction from issuing, since the question of eligibility seems to be textually committed to Congress. Of course, if we are going to recognize citizen.ideological standing, we may as well eliminate the political question doctrine.

Third, what would happen if, say, Rice were enjoined from recognizing a House certification of Obama as President? Come January 20, we would have a President who has failed to "qualify," and Joe Biden would become acting president under the Twenty-second Amendment.

All this is my way of saying that, even if Berg did not lack standing, a combination of the limits of the judicial process and our byzantine, multi-layered system for selecting a President makes judicial resolution of this matter virtually unworkable.

Did I miss any other steps that Berg might have taken? Any other bizarre twists that I missed?

Posted by Howard Wasserman on October 30, 2008 at 07:03 AM | Permalink


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AndyK, you seem to be making the point that since I have not posted on other cases that means I support them. If I were to accept this logic then I could rattle off a list of things you be your not commenting against them support.

But this logic is flawed if it is intended as persuasion as anybody who has posted on anything has not posted on everything. That is to say I could use the same ad hominem against Wasserman, Dodd, 2burmdad, AzAttorney, diane, JohnA. or even yourself.

And if you wish to give me credit for making Obama controversial you flatter me too much.

However, Lets say point of argument that I was OK with Hollander v. McCain and lets say that I am a hypocrite for the sake of argument. Does that mean it is right now? Are we condemned because at one point we were OK with something that may not be correct? I think not, slavery was wrong and people changed their mind. Making blacks sit in the back of the bus was wrong and people realized they were wrong.

Now to answer the accusation that I am a hypocrite. I will say

Jesus used the argumentum ad hominem. He healed a sorely afflicted woman on the Sabbath. The ruler of the synagogue became very indignant. Jesus replied: "Ye hypocrites, doth not each one of you on the Sabbath loose his ox or his ass from the stall, and lead him away to watering? And ought not this woman, being a daughter of Abraham, whom Satan has bound, lo, these eighteen years, to have been loosed from this bond on the day of the Sabbath?"

If I am a hypocrite I am less of a hypocrite than others who have made no issue of it after watching it happen over and over again.

Posted by: Wayne | Nov 12, 2008 2:54:24 AM

Al, the Twenty-Fifth Amendment answers your questions. Prior to the adoption of that Amendment, there were questions (unanswered) whether the Vice President stepped into the position of President, or whether he merely served in the office. Also, there was a question of what to do with the vacancy in the office of the Vice President. So .... these were resolved by the Twenty-Fifth Amendment, which clarifies that the Vice President BECOMES the President, and then the President nominates his choice to fill the vacant spot in the Vice Presidency, which is approved by Congress. (As happened when Agnew resigned, and Ford was voted to serve the remainder of Agnew's term; then Nixon resigned, and Ford moved up to President and nominated Rockefeller to complete the term as Vice President.)

Thus, Biden would become President and he would nominate the person he chose to serve as his Vice President. After that, your guess is as good as anyone's.

Posted by: AzAttorney | Nov 11, 2008 5:04:32 PM

There are comments in this thread that say Obama has supplied a Birth Certificate. The certificate posted by the DailyKOS, reposted by Factcheck.org, and Obama's own Truth website is demonstrably a forgery.

When compared to known real documents issued by HI, there are differences even a layman can see easily.

To date, Obama hasn't actually produced a certified, verifiable Certificate of Live Birth, or a Birth Certificate of any kind.

His paternal Grandmother, half sister and half brother say he was born in Kenya and they were present at the birth.

So, there IS some evidence which needs to be further verified that he *may* not meet Constitutional requirements to assume the Presidency.

That aside, I found the discussion in this thread to be highly enlightening. I learned a lot from reading it.

Thanks to all who posted.

But one question... If Obama is somehow found to be ineligible to be President, isn't the remedy to go to the candidate with the next highest number of votes?

The 20th Amendment says that the Vice President elect shall hold the position temporarily until a President is qualified. Other than another election, how would anyone else become qualified to be President?

Wouldn't it fall to the next candidate, which would be John McCain? People don't vote for political parties, they vote for candidates. If the Democrat Candidate is ineligible, wouldn't the whole ticket be invalid?

Posted by: Al | Nov 11, 2008 3:42:27 AM

JohnA: The problem with Fitzgibbons' analysis is that it concludes that standing is not an Article I requirement and therefore the power to bring constitutional challenges is reserved via the Tenth Amendment, but the issue of standing -- as the Supreme Court has stated numerous times over decades -- arises under Article III, which vests in Congress the power to create lesser federal courts. Take a look at the Wikipedia article on "Standing (Law)" for a discussion. It explains the SUPREME COURT'S tests for determining whether any plaintiff has suffered a cognizable injury, and pay particular attention to the prudential requirements that limit standing. Then re-read Judge Surrick's decision and read (really, go read them)the cases that he cites. Surrick is right on point. That is why legal professionals have placed their bets that the Supreme Court will deny certiorari on Berg's case.

Posted by: AzAttorney | Nov 7, 2008 11:48:40 AM


A strategic issue..it was mentioned above in the issue of standing that Berg would have to find a voter in 50 states to file against their own state. In actuality based on last nights election results, he would only have to find a citizen in approximately 27 states, still difficult but a more manageable scenario. I volunteer for NJ.

Posted by: mattc | Nov 5, 2008 8:55:26 AM

On Nov. 18th, in HI District Court, Andy Martin will move to unseal Obama's original, typed and true record of birth, and whether or not it proves via witnesses he was or was not born on U.S. soil. That may be the day a roar was heard around the world. If the record shows Obama was not natural born, then I am sure all 50 Sec. of States, the U.S. Secretary of State, and the DOJ will all bring justice to bear. See Mark J. Fitzgibbons remarks of 10/29/08 "Who Enforces the Constitution's Natural Born Citizen Clause?" at:
"The 10th Amendment to the Constitution states that: "the powers not delegated to the federal government, nor prohibited to the states, remain with the states or the people"
"Therefore it seems that any state or any person has standing to sue to enforce not just the Natural Born Citizen Clause, but other constitutional requirements and rights, absent some expressly written bar within the Constitution itself."(!)
Chief Justice John Marshall, writing in Marbury v. Madison, said:
"---judges have a duty to decide cases under our paramount law, the Constitution."(!) For an authoritative review of the role DOJ is well precedented to undertake see:http://mitchell-langbert.blogspot.com/2008/11/enforcement-of-election-fraud-and-birth.html

Posted by: JohnA | Nov 4, 2008 1:11:12 AM

A simple question...If Obama is elected, can laws be put into place within the next 4 years forcing the presidential candidates to provide proof positive certification by the government of their natural born status???? And.....If this was enacted and he was illegitimate, would he then be unable to run for re-election?

Posted by: diane d | Nov 3, 2008 5:17:30 PM

Wayne, the fact that Hollander v. McCain and Robinson v. Sec'y of State Debra Bowen are not, as you state, "controversial" is precisely the point. Both cases held, consistent with Judge Surrick's decision in Berg, that a citizen (in Hollander) and a third party candidate (in Robinson) could not demonstrate any injury-in-fact to grant them standing. The point of my post, which seems to have gone completely over your head, is that conservative bloggers have been quite happy to accept the several court determinations that citizens lack standing when their candidate's qualifications were at issue, nevertheless have got themselves whipped into a frenzy when P.J. (the 9-11 "truther") cannot demonstrate any different harm because he cannot vote for Hillary Clinton, his choice.

Your hypocrisy is blatant.

Posted by: AzAttorney | Nov 3, 2008 1:27:51 PM

I don't see any anger here. It's an interesting question. It's an interesting question whether the target is McCain or Obama. And it's uninformative to claim that "conservative" justices have "raised" the standing requirement and that it is now coming back to bite them.

It IS interesting as a public relations / court of public opinion issue why Obama hasn't produced documents independent of the litigation, but that's not relevant to the legal question.

Is there any case interpreting "eligible" for such purposes? The Dodd point above is interesting.

Posted by: AndyK | Nov 1, 2008 7:29:13 PM

Hollander v. mccain is not what I would call controversial only 1 out of 52 posts about it does not reference Obama vs berg. Robinson v. Sec'y of State Debra Bowen seems to only be of interest to other people in regards to berg Robinson v. "Debra Bowen". Does PrawfsBlawg have a post concerning them.

I don't generally, at least never intentionally, post about or comment off topic about everything and anything that angers me. I know perfectly well nobody who does not know me really cares. So I will get off that subject.


Judge Surrick's astute observation in a footnote appearing on page 16 of his opinion, that it is up to Congress to determine whether to amend the jurisdictional requirements of federal courts (set forth in Title 28 of the United States Code) to grant citizen/voters standing to litigate.

Great point, I am not as much critical of the court as I am concerning Obama's lack of openness. Why it may be legal, I find it less than moral. Nixon could of forced a trial, but instead he did a more honorable thing. If as many believe Obama is able to produce a Birth Certificate, with a state seal, than all of this time wasted in court is pure waste. Nixon would have never done that, Ironic he had everything to gain by doing so.

Posted by: Wayne | Nov 1, 2008 3:43:18 AM

tsk, tsk, dear Wayne --
You miss the point, and the purpose of this thread so far.

It appears that the Court was faced with the rambling filing of Berg. The knowledgeable and learned law professor who posted above discussed the issues of the appeal of the "standing" finding. The Court was faced with an either-or, and how to best keep Barnum and Bailey from dominating Sixth and Market Streets.

Another Court, having recently faced the same issue, had issued a "lack of standing" decision. Berg is a lawyer, putting aside his past and present abuse of the standards of litigation, and surely recognizes the concepts of precedents. Why aren't the zealots of this stupid cause clamoring over the Court that dealt with the McCain qualification. After all, the fact that your parents are US citizens and you were born outside of the United States does not make you a "natural born citizen" under the Constitution. It is an Act of Congress, which was not an amendment to the Constitution that is deemed to qualify McCain. For a Constitutional purist, it might not matter that McCain provided scads of documents of being born in the Canal Zone, when in fact he was not born in the United States. How might Scalia, Alito, Roberts, etal rule?

But, returning to the issues that Berg presents, and have been presented in the various other venues. What part of the Cert of Birth that has been presented that represents the reporting by Hawai'i that BHO was born in Hawai'i don't you understand. What part of "burden of proof" don't you understand.

It would be nice if the kind original poster would give us all some legal training on "burden of proof", but eventually, that is the way that the courts will need to rule. The Cert of Birth is the proof. Presumably, the Judge in Phila didn't want a circus of nutty opinions and witnesses parading thru the courtroom. Berg should be thrilled, since he now doesn't have to pay for transcripts of the trial. Eventually, the DNC and Obama would have filed a Motion for Summary Judgement, and presumably it would have been granted. What kind of Cert of Birth would you get from your state? Mine from PA looks very similar to BHO's from HI.

Posted by: 2burmdad | Oct 30, 2008 9:09:27 PM

Wayne, I have to wonder, where was your anger when citizens were denied standing in Hollander v. McCain and Robinson v. Sec'y of State Debra Bowen? I sense your anger has more to do with your disappoinment that Obama has not been prohibited from continuing his campaign than with any outrage over Judge Surrick's application of 35+ years of legal precedent.

What you fail to understand is that the the line of cases that shut the courthouse doors to citizens/taxpayers/voters to challenge the constitutionality of certain conduct goes back a long way, but was refined during the 1970’s when the Supreme Court was under the stewardship of a conservative Republican Chief Justice appointed by President Nixon, Warren E. Burger. The Court, attempting to foreclose suits by anti-war protesters, developed the standards for determining standing upon which Judge Surrick relied.

The blogs are ablaze about Judge Surrick's astute observation in a footnote appearing on page 16 of his opinion, that it is up to Congress to determine whether to amend the jurisdictional requirements of federal courts (set forth in Title 28 of the United States Code) to grant citizen/voters standing to litigate. Judge Surrick's observation follows a quote that substantively says the same thing — go to Congress if you want standing to be broadened to include citizens — and that quote is from Chief Justice Warren Burger’s majority opinion in the 1974 case, United States v. Richardson.

To quote from an astute comment that was posted on another blog, "conservative Supreme Court justices are the ones who made the standing doctrine so difficult to meet. They did it as a way of getting rid of civil rights plaintiffs and plaintiffs bringing regulatory and other types of cases. The liberals have always fought for a looser standing doctrine. Now, it’s biting the conservatives. ... These developments were all a part of the anti-litigation conservative mantra. Now people can see that litigation and judicial review aren’t that bad."

Posted by: AzAttorney | Oct 30, 2008 8:44:17 PM

I have linked to your post from Obama vs Constitution via Berg vs Obama

I digress again because it angers me when the constitution is trampled on and violated by the Government and courts. The constituion has the requirements as to who may be president, it is not a suggestion to political parties that most of the time they should meet these standards so people will see the party as an American organization.


If there exists no standing then that portion of the constitution is meaningless as nobody can insist that it is enforced. If a court can not request proof of citizenship, then anybody who is not a citizen can claim they were born in Hawaii.

Posted by: Wayne | Oct 30, 2008 6:13:09 PM

Howard - excellent, and what a difference compared to the lack of knowledge-driven spewing found on most other threads.

But, as a lawyer/law professor, looking at Berg's initial complaint/filing, etc., isn't there something to really be considered here? I mean the concept of "burden of proof". I thought that the person bringing an action had a "burden of proof" hurdle. Fail it, you lose.

Berg asserts that Obama was not born in Hawai'i. Obama has produced and widely publicized a Cert of Birth issued at some later date, like most of us get when as adults or later, we need such a document. A HI Dept of Health spokesperson has gone on record that this is a legitimate document.

Isn't the burden of proof now on Berg, etc to prove that this is not correct? Can a moving party ask the other party to produce something not in, and possibly not ever in their possession (like his parents had it), or if in the possession at one time, no longer? I suppose that Berg, etc. can subpeona the HI Dept of Health to produce more records, and if HI refuses, to get a court order. If they refuse, where is Berg?

But if they comply, and the HI Cert of Birth is not contradicted, then what is Berg, etc's next step? To try to prove that BHO lost citizenship. That appears to be impossible since that depends on actions while an adult, and BHO never took those actions.

If you could, please discuss this. Thank you

Posted by: 2burmdad | Oct 30, 2008 12:54:15 PM

Howard, perhaps a follow-up question: is the issue now dead or will it be back to haunt us?

Berg's problem was standing. But Presidents do stuff, and doing stuff has a propensity to cause concrete and particularized injuries that are actual or imminent. The question of the line item veto didn't go away just because the Raines plaintiffs lacked standing, it just went dormant until its use created a plaintiffs who did have standing. In the depressingly likely event that Obama becomes President, it seems inevitable that we will get a plaintiff who would have standing to challenge Obama's qualifications. (Set aside redressability for now, which seems to be on the death list after Massachusetts v. EPA anyway.)

If someone is elected to Congress despite being unqualified, the courts are sidelined: Art. 1 § 5 contains a "textually demonstrable constitutional commitment of the issue to a coordinate political department," i.e. the house to which that person was elected. A suit resting on their ineligibility would presumably be nonjusticiable under Nixon etc., even if the plaintiff had standing. There isn't a comparable directive applicable to Presidential candidates, however; the Twelfth Amendment says only that the electors will vote and after the House counts the ballots, the person with the most votes will be President. The only other potential commitment of the issue to another branch, the impeachment clause, doesn't seem applicable. This seems to suggest that a question of a President's eligibility to hold office might be justiciable, does it not?

Article II says that a person without certain qualifications will not be "eligible to the office of President." Does that mean eligible to assume office, or does it mean eligible to hold office? If the latter, what relief if any could a court order (we're back to redressability), and how would it shape who one sued? Could one sue, say, an agency on the theory that it was operating under a directive from a President who lacks authority to promulgate it? Assert it as a defense? Or just go for the jugular and sue the President asking the court to order resignation?

A few thoughts, at any rate.

Posted by: Simon Dodd | Oct 30, 2008 9:37:53 AM

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