SCOTUS - Not About Honor or Duty Anymore

Supreme Court Denies Certiorari in Primary Lawsuit Challenging Obama's Constitutional Eligibility to Serve as President

By Jeff Schreiber, America's Right

Nearly a week before his inauguration, President-elect Barack Obama likely has one less burden on his shoulders, as the United States Supreme Court denied certiorari today in the first lawsuit which called into question his constitutional eligibility to serve as president of the United States.

A motion filed by a third party seeking permission to file a amicus curiae--"friend of the court"--brief was granted, but with certiorari denied in Berg's case, it is unclear whether granting the amicus curiae motion is anything more than a formality, and whether the conference scheduled for Friday, January 16 in order to weigh an underlying injunction filed by Berg is necessary at this point. That the denial of certiorari was made "before judgment" is merely an acknowledgment that Berg's case is technically still active at the Third Circuit Court of Appeals, but changes nothing.

Philip Berg's lawsuit against Obama and the Democratic National Committee, filed on August 21, 2008 and first reported here at America's Right, questioned Obama's eligibility to serve under Article II, Section 1 of the United States Constitution--which requires in part that the president be a "natural born Citizen" of the United States--and was previously dismissed by the Hon. R. Barclay Surrick from District Court in Philadelphia. While the Supreme Court's denial of Berg's petition for certiorari today was not accompanied by explanation, the mere result shows on its face that at least six Justices agreed with Surrick's determination that Berg lacked standing to sue.

"Of course, I cannot help but be disappointed because the Supreme Court Justices are the ultimate protectors of our Constitution, and in this case they really let us down," Berg said. "They let America down. They let all of us down. This is the biggest hoax ever perpetrated against this country. Forget politics for a minute and just think of the Constitution -- next week, we'll be swearing in a president without even knowing for sure whether or not he's qualified constitutionally to serve in that office. There are so many unanswered questions about Barack Obama and, today, the Court just told us that we're not even permitted to ask."

Berg, a former Pennsylvania gubernatorial and senatorial candidate, former chair of the Democratic Party in Montgomery (PA) County, former member of the Democratic State Committee, and former Deputy Attorney General of Pennsylvania, asserted in his suit that Obama was indeed born in Kenya and not Hawaii as the president-elect maintains, and that if he did have U.S. citizenship, he relinquished it during childhood when he moved to Indonesia with his mother and was adopted by Indonesian stepfather Lolo Soetoro, never reinstating that citizenship upon his return.

From the beginning, Berg sought access to documentation offering proof of Obama's citizenship and past, including but not limited to the long-form, "vault" copy of his Hawaiian birth certificate, and considered the president-elect's failure to produce such documents as a sign that Obama had something to hide. He cited everything from mere Internet rumors to actual Associated Press-confirmed registration forms from Obama's childhood school in Indonesia showing that he was registered under the name "Barry Soetoro," that his religion was listed as "Islam," and that his citizenship was listed as "Indonesia." For Berg, though, it came down to the documentation he didn't have.

"At this point in time, Obama owes it to people to produce the documents," Berg told America's Right just two days after filing suit. "If I’m wrong, even if he doesn’t want to handle it himself and has the person in charge of his campaign communications come out and say, 'here is the vault copy of the birth certificate, here is the certified copy of his Oath of Allegiance from when he came back from Indonesia, this issue should be put to bed and Mr. Berg should withdraw his suit immediately or we’ll sue him to high heaven,' then I’m wrong. If they do not do that within the next day or so, then I know we’re right. If they let the case linger, then I believe we’re right. The challenge I’ve made to them is that, if they don’t produce these documents, then we know they’re wrong."

Berg's case was dismissed at the district court level by Judge Surrick primarily for lack of standing, a procedural check required by the Case or Controversy Clause in Article III, Section 2 of the Constitution as an effort to foster judicial efficacy and limit access to a court of law to those plaintiffs who can show a sufficient "stake" in a particular controversy. To prove standing and thus be eligible to bring suit, a plaintiff must show (1) a particularized--rather than generalized--injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiff’s particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress. Surrick argued that Berg had not adequately showed a particularized injury-in-fact, noting in his memorandum that "regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters."

Following the October 24, 2008 dismissal, Berg filed a Petition for Writ of Certiorari with the Supreme Court, arguing that while there is indeed the aforementioned three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury-in-fact. Instead, Berg argued in his petition, whether or not a plaintiff has sustained an injury-in-fact depends upon how that plaintiff's factual claims are perceived by the judge on what has been described as a "sliding scale" of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff's allegations is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.

Though the order list released by the Supreme Court today provides no reason for its denial of certiorari, such a denial inevitably is an affirmation of the district court judge's assertion that Berg's claim, as a mere voter, was far too generalized to satisfy the Case and Controversy Clause of the same Constitution he was attempting to uphold. Whether or not the Justices considered the factual elements of Berg's allegations, without insight gleaned from a rare dissent to a denial of certiorari, is indeed another question left unanswered.

"The biggest question here is if I don't have standing, who does?" Berg asked. "I'm an American citizen, a voting American citizen, asking the Court to uphold our Constitution. If I'm not allowed to ask that, who is?"

Read the rest here.

I must admit. The fact that Mr. Philip J. Berg, an American citizen, a voting American citizen, who is asking the Court to uphold our Constitution does not have "standing" has me highly concerned. If this man is not allowed to ask these things, then who does have the right to ask them?

I thought that after the electoral college votes were in, that Mr. Berg would then have standing on this issue. When that didn't happen, I thought that perhaps after Congress certified the electoral college votes, then Mr. Berg would have standing. Now that his writ of certiorari has once again been denied, I must ask when would the man be deemed to have standing? Is it only after the inauguration of a usurper for POTUS has been done?

I'm not a lawyer and do not always understand the procedures that are transpiring around these lawsuits. However, I am very grieved that Mr. Berg has not been found to have standing to ask these questions and get them resolved through a full hearing of his lawsuit at SCOTUS. Maybe someone can come along and enlighten me.

At Jeff Schreiber's "America's Right" website (link above), one commenter wrote:

Anonymous said...
Jeff,
As someone pointed out above, what does "before judgement" mean?? When I read this on the orders list it seemed to me that there is still an opening here for SCOTUS to hear the case. It does not seem as definitive as "certoria denied".
Also, I am wondering if the Lightfoot case is a better case to go before SCOTUS anyway. Lightfoot covers all the issues - the birth certificate, the Indonesian citizenship and the dual citizenship at birth. What are your thoughts?
I am just having a hard time wrapping my mind around the possibility that SCOTUS is willing to overlook the constitution on something as important as this. I guess I need to become less idealistic and realize that our leaders do not care about honor or duty anymore. It is all above saving themselves politically.

January 12, 2009 11:03 AM

I agree with Anonymous. I am also having a hard time "wrapping my mind around the possibility that SCOTUS is willing to overlook the Constitution on something as important as this."

I also think that he/she answered his/her own concerns:

"I guess I need to become less idealistic and realize that our leaders do not care about honor or duty anymore. It is all above [perhaps meant "about"] saving themselves politically."

Yep...

Copied links to these articles over at Investigating Obama:

Further Obama Appraisals - some caught on quickly, others are discovering

"The night we waved goodbye to America... our last best hope on Earth" Peter Hitchens, Daily Mail

"What We Know About Obama" Stanley Kurtz, NRO

"Socialism in Disguise" Ian de Silva, Washington Times

"Obama's Socialist Background" Is2C, FreeRepublic.com

"Obama's Radicalism: Destroying the Constitution" Manchester Union Leader

"Barack Obama's Radical Positions on Abortion" Jill Stanek

"Pinch Yourself" (Marxist on the verge of U.S. Presidency) - Spectator

"The Comprehensive Argument Against Barack Obama" Morrisey, Benson, Ham

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Hat Tips:

America's Right

Investigating Obama

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Update:

Maybe there is still hope!

From a commenter at Obamacrimes.com -

Bill Anderson's motion for leave to file an amicus curiae brief
written by Ned, January 12, 2009

In today's SCOTUS order list, at the following site, I see that Bill Anderson's motion for leave to file an amicus curiae brief, on behalf of Phil's case was granted, even though the Writ of Certiorari was denied:

http://www.supremecourtus.
gov/...209zor.pdf

How does this affect the case? Can some useful information be submitted through Bill Anderson's brief of amicus curiae that will be helpful for the pending lawsuits like Lightfoot v Bowen and Phil's other lawsuits that are pending in the lower courts?
URGENT From Lisa regarding Today's SCOTUS ruling
written by Linda Starr, January 12, 2009

Here is a very brief explanation of what today's ruling means to us...

What today's ruling means is that WE'RE STILL ALIVE in the 3rd Circuit Court of Appeals. Phil filed a Petition for Writ of Cert BEFORE JUDGEMENT (in the 3rd Circuit) with SCOTUS. They denied the petition for Writ before judgement under Rule 11 because the case before the 3rd Circuit is still pending and there is still a legal remedy available to our case in the lower courts. If this case is denied at the 3rd Circuit Court of Appeals, THEN Phil can once again go back to SCOTUS for remedy. The SCOTUS may yet grant the motion for emergency injunction against counting the votes for Soetoro/Obama - in effect, preventing the Inauguration on the 20th. As I understand it, then Biden would serve until this is resolved in some fashion. And Roberts COULD REFUSE to swear in Soetoro/Obama if this isn't resolved.
If it comes to that, then Roberts could state that Barry needs to cough up the documents proving he is eligible, or he won't be sworn in. We jsut don't know what might happen next.

In the meantime, Bill Anderson's motion for "permission" to file his case as a friend of the court was granted.

WE ARE NOT DEAD YET!!!

Phil is putting together a press release to be posted today on obamacrimes.com.