Four Main Cases, One Tough Road
Wednesday, December 10, 2008
by Jeff Schreiber
A sobering look at Berg v. Obama, other cases questioning Obama's eligibility after Berg's emergency injunction attempts denied todayWhile others are certainly in the works or already in circulation in various lower courts across the country, four main cases challenging Barack Obama's constitutional eligibility to be president of the United States remain active and pending.
Wrotnowski v. Bysiewicz. Cort Wrotnowski's action, created much in the same mold of Leo Donofrio's unsuccessful try, is scheduled for conference on Friday. The question presented by that case, much like that presented by Donofrio's, is to me the most palatable and tempting for the Court, in that Wrotnowski asks the Justices to define the Natural Born Citizen clause rather than merely apply it. Still, considering the fate of Donofrio's attempt, I wonder if the sharpened approach in Wrotnowski will be enough.
Friday is December 12, 2008. Unless I'm wrong, take heart in knowing that the 2000 election coincidentially was not settled until December 12 of that year.
Keyes v. Bowen and Lightfoot v. Bowen. Southern California dentist and attorney Orly Taitz has two cases still working their way through the court. Her first one, featuring Ambassador and former Independent Party and GOP presidential candidate Alan Keyes as plaintiff, is still currently before the California Supreme Court. Her second case, featuring a number of electors and veterans as well as Ron Paul's former running mate Gail Lightfoot, was quickly disposed of by the Supreme Court of California, a expedient move which Taitz, at Monday's Washington, D.C. press conference, said was intended to move her along to the U.S. Supreme Court quicker.
I may be a mere law student, but it appears to me that Lightfoot was dismissed from the Supreme Court of California just like Fred Hollander's case was dismissed from New Hampshire District Court, just like Markham Robinson's earlier case was dismissed from the U.S. District Court for the Northern District of California, and just like Philip Berg's case was dismissed by the Hon. R. Barclay Surrick at the district court level here in Philadelphia. Absent some sort of contrary evidence in the Lightfoot judge's order and memorandum, I'm inclined to think that it is standard procedure rather that overt judicial concern which has permitted Taitz to move on to the U.S. Supreme Court. After all, Berg's case was before a Republican judge, and Markham Robinson's earlier case was before a judge in decidedly liberal northern California -- did those judges dismiss those cases out of concern, or perhaps because they wanted to give Phil Berg and Markham Robinson an opportunity to appeal? I'd say probably not.
Regardless, Lightfoot v. Bowen will likely soon be placed on Justice Anthony Kennedy's desk and, as it does feature a former vice presidential candidate and a few electors as plaintiffs, I will be curious to see how it moves along.
Berg v. Obama. Today was a busy day for Philip Berg's case against Barack Obama. First, Justice David Souter at the U.S. Supreme Court denied Berg's application for an emergency injunction pending the disposition of his petition for writ of certiorari and Judges Scirica and Ambro at the Third Circuit Court of Appeals denied his emergency motion for an immediate injunction pending the resolution of his appeal. Both were intended to stay the Electoral College vote scheduled for December 15, 2008 and the counting of said votes scheduled for January 8, 2009.
Also, however, the Third Circuit Court of Appeals set the Briefing and Scheduling Order for Berg's appeal in that court. Of all days, Berg's brief is due before the Third Circuit on January 20, 2009 -- Inauguration Day. The appellees' briefs are due by February 19, and Berg's response is due on March 4.
"The timing is certainly interesting," Berg said. "Regardless, it is truly a disgrace that, here it is December, we're days away from the Electoral College vote, and we're still talking about whether or not Obama is qualified to be president. It's even worse that we could be talking about this in January, on Inauguration Day of all days."
In terms of his action before the U.S. Supreme Court, it is still active and pending. As with the others, and really with any one petition for certiorari filed with the Court, the likelihood that Philip Berg will see the inside of a courtroom in Washington is slim. Still, here are some possibilities of what could theoretically, and realistically, happen next:
(1) Berg’s certiorari petition could be denied, without comment or dissent (a dissent by one or more Justices to a denial of a certiorari petition, while rare, is not unprecedented). This would end Berg’s case, but likely not jurisdictionally end the others;
(2) Berg’s certiorari petition could be granted and the matter set for oral argument following the filing of additional briefs, with the Court directing (a) that the issues be confined to arguments on Berg’s standing, or (b) that the issues of standing and, assuming standing, the merits of the case be addressed. In either event, neither of these scenarios would take place before Dec. 15, so because the Court denied Berg's application for emergency stay of the Electoral College vote, the vote will likely go ahead as planned;
(3) If option 2(a) occurs, at some future date, the Court could determine that Berg had standing in USDC and could vacate that decision--and naturally the Third Circuit decision as well--and remand to the U.S. District Court here in Philadelphia with instructions to proceed with “further proceedings consistent with this opinion.” At that point, as extremely unlikely as it is, who knows what would happen?
(4) If option 2(b) occurs, the Court could actually reach the merits of Berg's case and, sometime well after Dec. 15 of this year or Jan. 20 of the next, render a decision. Considering the nature of the Court, the most likely result under this scenario would likely be a 6-3 or, at best, a 5-4 decision against Berg holding that, because Berg failed to prove his case at the district court level, he loses. This would make the matter res judicata, at least with regard to Philip Berg and Barack Obama, and would for all practical purposes severely undermine if not foreclose all other pending and future challenges to Obama’s eligibility under the Natural Born Citizen clause. While I'm not certain that it would necessarily work, I would expect Obama's team of attorneys to argue that the stampede of other suits would be foreclosed under collateral estoppel theory.
(5) While unlikely but certainly not unprecedented, the Court could simply wait until after Jan. 20, 2009 to do anything and then, after the inauguration, simply dismiss whatever action was then pending on the grounds of it being a "political question" and separation of powers, or on the grounds of mootness. The issue, of course, implicates neither of these excuses, but the Court could say so -- and, at that point, what other court would intercede?
Unfortunately, it is and has always been a long-shot, despite what I believe to be a clear and vitally important constitutional question. Keep in mind that, under the second, third and fourth scenarios, significant public exposure would be given to the case and to Berg's allegations. Regardless, it is a tough road down which to travel, nearly any way you look at it.
Berg, however, still remains positive.
"Am I optimistic? Absolutely," he said. "One way or the other, we're going to get to the bottom of this. One way or the other, the truth will come out, and he will not take office as president of the United States."
Posted by Robert Stevens
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