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Arguments in a lawsuit on Barack Obama’s eligibility that has been percolating through the federal court system in California since the 2008 election will be heard at the appellate level in just a few weeks.
Officials with the 9th U.S. Circuit Court of Appeals today notified attorneys representing several dozen individuals – members of the military, members of state government and even a candidate for president – that oral arguments will be held May 2.
“I can’t believe it, but after two years of Obama litigation, for the first time the court of appeals scheduled oral argument in [the] Obama case,” wrote Orly Taitz, a California attorney who has litigated a number of challenges to Obama.
“This is [the] Judge Carter case, where I represent Ambassador Alan Keyes, 10 state representatives and 30 members of [the] U.S. military,” she wrote in her blog confirmation of the plans.
Attorney Gary Kreep of the United States Justice Foundation represents other clients in his case, which was joined with the Taitz case, and he said he’s “pleased we’re going to have a chance to argue this issue before the 9th Circuit. We hope they see the merit in the constitutional arguments.”
A team of U.S. attorneys based in California earlier argued in pleadings that there essentially is nothing the American public can do to determine if Obama is qualified under the U.S. Constitution’s demand for a “natural-born citizen” in the Oval Office, and if they are injured, at least they are all injured alike.
The case arguments were presented in a brief submitted by U.S. Attorney Andre Birotte Jr. and his assistants Roger West and David DeJute in defense of Obama.
The plaintiffs had warned that allowing the district court’s ruling to stand would strip minorities in the United States of “all political power” and leave laws to be based “upon the whims of the majority.”
That earlier brief was filed by Kreep, who is representing Wiley S. Drake, a vice-presidential candidate on the 2008 ballot in California, and Markham Robinson, an elector from the state.
The case challenges Obama’s eligibility to be president, citing a lack of documentation, and was the subject of hearings at the lower court level, where Judge David Carter heard arguments.
However, Carter dismissed the case, ruling that the plaintiffs suffered no injury – they didn’t have “standing” – and that the law left it to Congress to sort out eligibility issues instead of a court.
Government attorneys defending Obama’s position said those who brought the case cannot “demonstrate a particularized injury-in-fact traceable to defendants’ conduct as would be necessary to establish standing.”
The attorneys brushed off concerns that a violation of the Constitution was a serious matter and caused any injury to the plaintiffs, saying, “To put it another way, the relief sought by appellants, consisting of a determination by the court of the eligibility of the president to hold office, and, possibly, his removal from office, would have ‘no more directly and tangibly benefitted [them] than … the public at large.”
Further, the U.S. attorneys argued that a possible violation of the Constitution is a political issue, not judicial.
“Even assuming arguendo, that some of the purported ‘injuries’ alleged by appellants satisfied the Article III requirement of ‘injury-in-fact,’ the district court correctly held that no appellant could demonstrate that any injury complained of could be redressed by a court,” they continued. “The political question doctrine precludes redress to any appellant, because such redress would improperly arrogate to this court jurisdiction over political questions as to the eligibility of the president which the Constitution entrusts exclusively to the House and Senate.
“The political question doctrine serves to ‘restrain the judiciary from inappropriate interference in the business of the other branches of government’ by prohibiting the courts from deciding issues that properly rest within the province of the political branches,” they said.
The documentation from the government in the case was unresponsive to the issue raised by the plaintiffs that courts have authority to remove an elected chief executive officer should he be documented as ineligible.
The plaintiffs’ brief had cited the removal of Thomas H. Moodie from the office of governor in North Dakota in the 1930s as proof that a government’s chief officer can be removed from office by the courts – even after an election and inauguration. Moodie had failed to meet a state residency requirement to be governor. But he was elected anyway and installed, and ultimately removed from office by the court over that failure.
The plaintiffs also cite an earlier California case in which a candidate for president was removed from the ballot by state officials because he failed to qualify for the office under the Constitution’s age requirements.
But the tax-paid U.S. attorneys said in defense of Obama that “disputes involving political questions lie outside of the Article III jurisdiction of federal courts.”
“The issues sought to be raised by appellants herein, regarding both whether President Obama is a ‘natural born citizen of the United States’ and therefore eligible to be president as well as any purported claims raised by any criminal statutes … are to be judged, according to the text of the Constitution, by the legislative branch of the government, and not the judicial,” they said.
They argued it is “preposterous” for the plaintiffs to seek a ruling that Obama is not eligible and therefore “should be removed from office.”
The plaintiffs had argued that the Constitution was too important to ignore.
“A provision of the Constitution may not be disregarded by means of a popular vote of the people,” the plaintiffs’ earlier brief said, “as there are specific guidelines for amending the Constitution of the United States … Even if the people of the United States voted to elect as president a candidate who did not qualify for the position, that vote would not be sufficient to overcome the constitutional requirements for office and make that candidate eligible.
“Here, the underlying issue is one arising under the Art. 2, Paragraph 1 of the United States Constitution, whether Obama meets the eligibility requirements … As established above, plaintiffs have standing to bring this action as they have suffered a concrete injury in fact, caused by Obama’s ineligibility for the office of United States president, for which the court has a remedy.”
The issue stems from the constitutional demand that the president – unlike others in the federal government – must be a “natural born citizen.” WND has covered numerous challenges and lawsuits over Obama’s eligibility. Some have alleged that he was not born in Hawaii in 1961 as he has written, or that the framers of the Constitution specifically excluded dual citizens – Obama’s father was a subject of the British crown at Obama’s birth – from being eligible for the office.
Besides Obama’s actual birth documentation, still-withheld documentation for him includes kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, medical records, his files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.
Taitz told WND that more than 100 legal cases have been filed challenging Obama’s presidency, and most have been summarily dismissed without any arguments regarding the merits of their concerns.
Several other cases have worked their way up to the U.S. Supreme Court, which consistently has refused to hear evidence. In fact, that the justices are “avoiding” the Obama issue already apparently has been confirmed by one member of the court. Last year, Justice Clarence Thomas appeared before a U.S. House subcommittee when the issue arose. Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
“I’m still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States,” said Serrano, who was born in the island territory. “That’s another issue.”
Yet after Serrano questioned him on whether or not the land’s highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
“I’m glad to hear that you don’t think there has to be a judge on the court,” said Serrano, “because I’m not a judge; I’ve never been a judge.”
“And you don’t have to be born in the United States,” said Thomas, referring to the Constitution, which requires the president to be a natural-born citizen but has no such requirement for a Supreme Court justice, “so you never have to answer that question.”
“Oh really?” asked Serrano. “So you haven’t answered the one about whether I can serve as president, but you answer this one?”
“We’re evading that one,” answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. “We’re giving you another option.”
The most recent case to go to the high court was brought by attorney John Hemenway on behalf of retired Col. Greg Hollister.
When the justices refused to listen to the concerns, Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website and monitoring the case, said, “Their defiance of the court cases, their attitude they don’t really need to adhere to the law, is really unparalleled.
“The public is going to grow increasingly concerned about Obama and the failure of the courts to deal with these concerns,” he told WND.
When the appeal first was denied without comment in January, the attorneys submitted a petition for rehearing, because the two court members who owe their lifetime appointments and significant income to Obama’s appointments – Sonia Sotomayor and Elena Kagan – apparently participated.
The two justices apparently took part even though there was a pending motion for them to recuse themselves from the case. The Supreme Court then granted the request for a rehearing on the issue. But this month’s notice turning away the case again not only did not address the motion to recuse, it also did not include a notation – present in other cases when court members did not participate – on whether Sotomayor and Kagan sounded off on the eligibility of their benefactor.