Lawsuits targeting Obama likely to be denied again

December 07, 2008|By David G. Savage | David G. Savage,Tribune Washington Bureau

WASHINGTON - Undaunted by election results on Nov. 4, several persistent plaintiffs have pursued lawsuits asserting that President-elect Barack Obama is ineligible to hold the office of president because he is not a "natural born citizen." Their claims were rejected in lower courts, but they have filed motions and appeals at the U.S. Supreme Court.

What do these suits say?

One filed by Philip Berg, a lawyer in Lafayette Hill, Pa., asserts that Obama was born in Kenya, even though he has a birth certificate from the state of Hawaii showing he was born there on August 4, 1961. Another, by Leo C. Donofrio of East Brunswick, N.J., asserts that neither Sens. John McCain nor Obama are natural born citizens.

"Even if it were proved [Obama] was born in Hawaii," he was not a "natural born citizen," Donofrio says, because Obama's father was born in Kenya. But under U.S. law, people born in the U.S. are natural-born citizens.

Berg sued Obama, and Donofrio sued New Jersey's secretary of state. Initially, the suits sought a court order to remove Obama's name from the ballot. Since early November, they have lodged appeals and motions saying courts should intervene to block Obama from becoming president.

How have these suits fared?

They have lost at every stage. Berg's suit was rejected by a federal judge in Philadelphia who ruled that Berg had no standing to sue. To bring a lawsuit, he would have to show he has suffered a personal injury of some sort. A general complaint will not do. For example, a taxpayer cannot bring a suit claiming the war in Iraq is unconstitutional, because this is a general complaint. This doctrine prevents the courts from deciding broad and abstract constitutional questions.

What will the Supreme Court do with these suits?

If these suits had gained traction early this year, it is possible a judge could have ordered a hearing to review the evidence on whether Obama and McCain are "natural born citizens," as required by the Constitution.

But these suits have very little chance of gaining a hearing now. The Supreme Court decides legal issues. It does not resolve factual disputes. In the suits over Obama's birth, the plaintiffs have not persuaded any judge that the president-elect was, in fact, not born in Hawaii. The Supreme Court would have no basis for reconsidering that basic fact.

In these cases, lower courts dismissed the suits without handing down major rulings. The Supreme Court receives about 150 appeals per week, and all but a small fraction are rejected without discussion among the justices. Donofrio's is likely to be denied without comment tomorrow morning. Berg's is likely to meet the same fate.

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