Metropolitan News-Enterprise


Friday, December 23, 2011


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Ninth Circuit Rejects ‘Birther’ Challenge to Obama’s Presidency


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S Circuit Court of Appeals yesterday rejected a lawsuit challenging President Barack Obama’s U.S. citizenship and his eligibility to serve as commander in chief.

Each of the six sets of plaintiffs—which included political rivals, taxpayers, military personnel and a purported Obama relative—lacked standing to pursue their claims, the panel said.

The so-called “birther” movement has filed multiple lawsuits based on Obama’s alleged ineligibility to serve as president, with no success to date. A similar action was previously filed in state court in Sacramento, but was rejected by the judge there and the Third District Court of Appeal, and the state Supreme Court denied review in February.

Other challenges to Obama’s eligibility have also been filed in North Carolina, Ohio, Pennsylvania, Hawaii, Connecticut, New Jersey, Texas and Washington. No such suit had resulted in the grant of any relief to the plaintiffs by any court, and three post-election suits were dismissed by the Supreme Court of the United States.

Defeated Candidates

This case involved claims by 40 plaintiffs—including conservatives Alan Keyes and Wiley Drake, who ran for president and vice president respectively as members of the American Independent Party in 2008, and Libertarian Party vice-presidential candidate Gail Lightfoot—that the Obama presidency is unconstitutional because the president is not a “natural born” citizen of the United States, an issue not resolved to the plaintiffs’ satisfaction by the release of the president’s “long-form” Hawaii birth certificate earlier this year.

During oral argument before the Ninth Circuit in May, attorney Orly Taitz—who represented Keyes and various active and inactive military personnel named a plaintiffs—accused the president and his administration of “fraud” by employing “very inventive computer art” to hide the fact of his purported birth in Africa.

In a 10-minute diatribe before the appellate panel, Taitz asserted Obama was employing “a psychological Kystallnacht” and “mass hysteria in the media” in order to deceive the American people into believing he was actually born here. (Krystallnacht, or the Night of the Broken Glass, refers to a wave of attacks on Jews throughout Germany and parts of Austria in November 1938, generally regarded as the beginning of the Holocaust.)

No Particularized Injury

Attorney Gary Kreep, who represented Drake, as well as the former American Independent Party state chairman Markham Robinson, also urged the court to reinstate the suit dismissed by U.S. District Judge David O. Carter of the Central District of California.

Carter ruled in 2009 that none of the plaintiffs had suffered any particularized injury for which the court could provide redress, and Ninth Circuit Judges Harry Pregerson, Raymond Fisher and Marsha Berzon yesterday said they agreed.

The opinion by Pregerson did not address the authenticity of Obama’s birth certificate, but focused instead on the absence of any “concrete injury” to the plaintiffs.

Pregerson explained that the oath taken by the military plaintiffs by which they swore to support and defend the Constitution of the United States and obey the orders of the officers appointed over them was insufficient to convey standing upon them since any harm they may suffer as a result of refusing to obey a directive issued by Obama in the interest of honoring their service pledge was “nothing more than an abstract constitutional grievance.”

The purported potential for injury to retired and inactive military personnel based on the possibility they could be returned to active duty and subjected to Obama’s orders was also “far too speculative and conjectural” to convey standing, Pregerson said.

He added that the claims that public officials could conceivable be exposed to civil liability for failing to verify Obama’s qualifications as president were “just as speculative and conjectural,” and therefore inadequate.

The taxpayers listed in the lawsuit, Pregerson reasoned, also lacked standing because they failed to show how the question of Obama’s citizenship affected any federal taxing and spending provisions.

Any harm to plaintiff Kurt Fuqua, a claimed relative of the president, was “too generalized to confer standing, Pregerson continued, since his claim of injury was “no more specific to him than to any other citizen,” regardless of his alleged family ties to the president.

As for the political candidates who had ran in the 2008 election, Pregerson acknowledged that they had an interest in having a fair competition for the positions they sought to obtain, but this interest had lapsed by the time the complaint was filed on Jan. 20, 2009, the day Obama took office.

“Once the 2008 election was over and the President sworn in, Keyes, Drake, and Lightfoot were no longer ‘candidates’ for the 2008 general election,” Pregerson said, so “none of the plaintiffs could claim that they would be injured by the ‘potential loss of an election’ ” to an allegedly unqualified candidate.

Taitz told the Associated Press yesterday that she plans to seek en banc review, and if that is denied, she will ask the Supreme Court to take the case.

The case is Drake v. Obama, 09-56827.


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