9th Circuit asked: Do courts enforce Constitution?

The stage is being set for a major ruling from the 9th Circuit Court of Appeals on whether the U.S. judiciary actually can enforce the provisions of the Constitution.

The basic question is being raised in an appeal of a district judge's decision to dismiss a legal challenge to Barack Obama's constitutional eligibility to be president.

WND previously reported U.S. District Judge David Carter's decision to dismiss the complaint that listed several dozen plaintiffs.

Gary Kreep of the United States Justice Foundation has filed a notice of appeal to the 9th Circuit in the case. Because of the unusual circumstances in which some of the plaintiffs are represented by another lawyer, attorney Orly Taitz also has filed a motion for reconsideration.

Kreep, who represents plaintiffs Wiley Drake and Markham Robinson, posed the question at the center of the case: "Whether the court may make a determination of whether the president has met the eligibility requirements for office, whether the 'natural born citizen' clause of the United States Constitution may be enforced by the courts, whether the 'natural born citizen' clause of the U.S. Constitution is a nonpolitical question, whether the court may remove from office a president that was not elected in accordance with the U.S. Constitution."

Carter's dismissal centered on his opinion the plaintiffs lacked "standing" to bring the complaint, including plaintiffs who were third-party candidates in the 2008 presidential election, although he worried about the full impact of the ruling.

"The court is troubled by the idea that a third party candidate would not have standing to challenge a major party candidate's qualifications, while the opposing major party candidate may be able to establish standing because he or she has a better chance of winning the election," he said.

The judge warned, "Defendants' argument encourages the marginalization of the voice of a third party in what is a dominantly two-party political system and would require the court to pass judgment that plaintiffs are such unlikely candidates that who they are running against would not make a difference.

"This argument also ignores the tremendous effect that a third-party candidate can
have on the presidential election. In 2000, many political commentators opined that should Green Party candidate Ralph Nader not have run for presidential office and received less than three percent of the popular vote, Al Gore would have won the election instead of President George W. Bush. Even when third-party candidates themselves may not have a chance of winning, which candidates they compete against can certainly have an effect on the election results," he said.

But Carter also said once Obama was sworn into office Jan. 20, the question no longer was over a potentially ineligible candidate but of the removal of a sitting president.

He also cited as proof of Obama's birth a document image that has been posted online.

However, Obama's long-form original birth certificate has remained under seal. The image posted by his campaign on the Internet is a different document, a "Certification of Live Birth" that apparently is computer-generated and has been challenged by a number of critics over its authenticity.

In fact, the authenticity of the "Certification of Live Birth" has been a focal point of numerous court challenges to Obama's eligibility. Taitz earlier submitted to Carter a copy of what purported to be a Kenyan birth certificate for Obama, asking for permission to verify its authenticity.

WND has reported dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.

Further, others question his citizenship by virtue of his attendance in Indonesian schools during his childhood and question on what passport did he travel to Pakistan three decades ago.

Adding fuel to the fire is Obama's persistent refusal to release documents that could provide answers and the appointment – at a cost confirmed to be at least $1.7 million – of myriad lawyers to defend against all requests for his documentation. While his supporters cite an online version of a "Certification of Live Birth" from Hawaii as his birth verification, critics point out such documents actually were issued for children not born in the state.

WND also has reported that among the documentation not yet available for Obama includes his 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, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.

The ultimate questions remain unaddressed to date: Is Obama a natural born citizen, and, if so, why hasn't documentation been provided? And, if he is not, what does it mean to the 2008 election or the U.S. Constitution if it is revealed that there has been a violation?

That's the question being raised to the 9th Circuit judges by Kreep.

In the same case but in a separate action, Taitz filed a motion for reconsideration to Carter. She has cited new evidence that she believes must be considered in the case, including the judge's decision to hire a new law clerk, Siddharth Velamoor, shortly before dismissing the complaint.

"Your Honor hired as your law clerk an attorney Siddharth Velamoor, who previously worked for Perkins Coie, a law firm representing the defendant in this case, Mr. Obama," she wrote. "As a matter of fact Perkins Coie was one of the firms opposing the plaintiffs in a prior legal action. …

"As it is a common knowledge that law clerks do most of the research and write most of the opinions for the judges, the order to dismiss this case was de facto written or largely influenced by an attorney who until recently worked for a firm representing the defendant in this case, and who currently is working as a clerk for the presiding judge, as such most of the order is tainted by bias."

She cited an opinion from the 9th Circuit itself, which said, "A reasonable person might be concerned whether a law clerk's advice to a judge would be biased in favor of the position taken by a firm, if the law clerk had worked there before his clerkship, was on a leave of absence, and planned to work there after his clerkship."

A Wikipedia page has been cited by dozens of bloggers after it listed Siddharth Velamoor as one of the newest law clerks for Carter.

Velamoor is also listed in the Martindale lawyer database as an associate of international law firm Perkins Coie, the law firm of Robert Bauer – top lawyer for Obama, Obama's presidential campaign, the Democratic National Committee and Obama's Organizing for America – and the same Washington, D.C., lawyer who defended Obama in lawsuits challenging his eligibility.

Bauer recently was announced as Obama's pick to be White House counsel.

As WND has reported, Federal Election Commission records for "Obama for America" show that the lobby organization has paid Perkins Coie $1,666,397.01 since the 2008 election.

Because of the dearth of information about Obama's eligibility, WND founder Joseph Farah has launched a campaign to raise contributions to post billboards asking a simple question: "Where's the birth certificate?"

"Where's The Birth Certificate?" billboard at the Mandalay Bay resort on the Las Vegas Strip

The campaign followed a petition that has collected more than 475,000 signatures demanding proof of his eligibility, the availability of yard signs raising the question and the production of permanent, detachable magnetic bumper stickers asking the question.

The "certification of live birth" posted online and widely touted as "Obama's birth certificate" does not in any way prove he was born in Hawaii, since the same "short-form" document is easily obtainable for children not born in Hawaii. The true "long-form" birth certificate – which includes information such as the name of the birth hospital and attending physician – is the only document that can prove Obama was born in Hawaii, but to date he has not permitted its release for public or press scrutiny.

Oddly, though congressional hearings were held to determine whether Sen. John McCain was constitutionally eligible to be president as a "natural born citizen," no controlling legal authority ever sought to verify Obama's claim to a Hawaiian birth.

Carter's dismissal did recognize the validity of the concerns, however, citing Kreep's arguments that Obama never met the constitutional requirements to run for president.

"There may very well be a legitimate role for the judiciary to interpret whether the natural
born citizen requirement has been satisfied in the case of a presidential candidate who has not
already won the election and taken office. However, on the day that President Obama took the
presidential oath and was sworn in, he became president of the United States. Any removal of
him from the presidency must be accomplished through the Constitution’s mechanisms for the
removal of a president, either through impeachment or the succession process set forth in the
Twenty-Fifth Amendment."

The case was filed on Jan. 20, shortly after the public inauguration ceremony for Obama. However, Obama flubbed the words, and retook the oath of office the next day in private.