Who Enforces the Constitution's Natural Born Citizen Clause? (dismissal in Berg v. Obama et al.)

American Thinker ^ | October 29, 2008 | Mark J. Fitzgibbons

[neverdem]

If you believe in individual rights and the notion that our Constitution is a document granting enumerated but limited powers to the federal government, then you have reason to be troubled by the recent dismissal in Berg v. Obama et al.

Philip Berg, Democrat and former Assistant Attorney General for Pennsylvania, brought suit alleging that under the Natural Born Citizen Clause of the U.S. Constitution, Barack Obama is ineligible to be President.  Federal Judge R. Barclay Surrick recently granted the motion to dismiss filed by Senator Obama and other defendants, including the Democratic National Committee, on grounds that Berg lacked standing to sue as a mere voter.

The judicial doctrine of standing is important.  It is a requirement that plaintiffs have a real stake in the outcome of a real controversy.  This prevents, among other problems, persons bringing lawsuits simply to harass defendants.  The judicial doctrine of standing is one of many judicial doctrines designed to limit the courts from being overloaded with cases that aren't properly resolvable by the courts, such as ripeness (case brought too soon), mootness (case brought too late), lack of jurisdiction, etc.

When constitutional rights are at stake, courts have tended to give wider latitude to the standing of plaintiffs.  The theory is that another person's loss of constitutional rights may indeed affect one's own constitutional rights.

Judge Surrick's carefully worded opinion cites to cases where standing was at issue, including a similar case in which the eligibility of John McCain to be President was challenged.  In deciding that "a candidate's ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters," Judge Surrick writes in a footnote of potentially considerable consequence:

If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution's eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff.  Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring . . .

Here's where I believe Judge Surrick's decision breaks down from a constitutional perspective.

The enumerated powers of the respective branches of government are set forth in the first three articles of the Constitution.  Article III states that the judicial power is vested in the courts, and "shall extend to all Cases, in Law and Equity, arising under this Constitution . . ." 

A case about whether a candidate is a natural born citizen seems quite clearly to arise under the Constitution, and thus within the exclusive domain of the courts.  Under the language of the Constitution itself, there appears to be no need for Congress to pass a law authorizing individuals to file suit, or for courts to hear such challenges.  In fact, there may be a separation of powers issue if Congress were to attempt to legislate broader or narrower access to the courts to hear constitutional challenges.  That could infringe on the jurisdiction of the courts "to all Cases . . . arising under this Constitution."

Secondly, the enumerated powers of Congress under Article I do not extend to dictating who may have standing to sue under the Constitution.  One may argue that Judge Surrick relied on what some believe to be the catch-all "Necessary and Proper Clause" in Article I, Section 8[18].  That authorizes Congress:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Judge Surrick, however, never cites to that clause as his reason.  Indeed, it would be inherently dangerous to our freedoms if Congress could dictate who can and cannot sue to enforce the Constitution.

So if the Framers established that courts "shall" hear cases arising under the Constitution, and failed to authorize Congress to otherwise establish who may sue to enforce the document, then where might we find conclusively that Berg has standing to sue?

The 10^th Amendment to the Constitution states that the powers not delegated to the federal government, nor prohibited to the states, remain with the states or the people.  Therefore it seems that any state or any person has standing to sue to enforce not just the Natural Born Citizen Clause, but other constitutional requirements and rights, absent some expressly written bar within the Constitution itself.

Disputes under the Natural Born Citizen Clause are few and far between, so Judge Surrick couldn't have been worried about his court being flooded with new cases.  In this presidential election, however, both candidates of the two major parties were faced with similar challenges.  Both filed motions to dismiss for lack of standing.

It's a shame these cases didn't get more attention and scrutiny based simply on how the candidates handled them.  When faced with the potential for public reprobation before either acquired the ominous powers of the Presidency, both candidates chose a path indicating preference for their own power over the rights of individuals.

Although the merits of the Berg case weren't reached, Senator Obama has raised concerns in other contexts about his obscured and under-scrutinized views on "collective" rights as opposed to rights of individuals.  His motion to dismiss for lack of standing doesn't portend well for how he would view individual rights under the Constitution if he were elected President.

Chief Justice John Marshall, writing in Marbury v. Madison, said that judges have a duty to decide cases under our paramount law, the Constitution.  I have lamented previously about how some judges tend to evade their duty to decide constitutional matters by resorting to court-made doctrines.  Judge Surrick's reliance on case law to dismiss Berg's suit for lack of standing is reasoned from a lawyer's perspective, but not heroic and perhaps evasive of his larger duty. 

His decision to "punt" the matter to Congress creates, I suggest, a dangerous, longer and perhaps more painful constitutional quagmire than had he heard the evidence in the case.  Even had the case lacked merit, the Constitution would not have been harmed.

Mark J. Fitzgibbons is President of Corporate and Legal Affairs at American Target Advertising, Inc., Manassas, VA.

[lentulusgracchus]

[Article] "a candidate's ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters," Judge Surrick writes......

As a courageous conservative on a flaming-liberal BB once asked a swarm of attacking gaybots, "Just who do you have to be, to say 'should'?"

And just who do we have to be, to claim our rights?

The judge's order might better read: "You're not big enough. Get lost."

[Ann Archy]

There is NO JUSTICE in our Justice System anymore.......our country is a BANANA REPUBLIC....with NO Bananas.

[GingisK]

All it will take as one courageous judge.

All it will take is one Constitutional judge.

[The Mayor]

BS.......

[Alamo-Girl]

Thanks for the ping!

[Goat Doc]

We should all be glad that we have driven ridiculous attorneys like this Berg character out of the GOP. We don’t need feckless attorneys filing cases they can’t win to distract us from the election.

[CHICAGOFARMER]

One must consider the possibility that these stories are complete crap.

xxxxxxxxxxx

you may be an engineer, but I am also.

In this engineer know something that you don’t. Where there’s smoke there’s fire. He pushes under the rug you’re going to burn down the house.

http://michaelsavage.wnd.com/?pageId=2256

Is this democrat a lying bastard?

Respond to each Berg Point? Please

[deport]

I heard that interview, and I have also read that Berg does indeed claim to have such a tape, AND sworn affidavits, all of which he was going to release in the “next couple of days” or “next day or two”.

---

Berg Esq. is way past his “day or two” for releasing the tape. Wonder why? Certainly makes his position seem suspect at best.

[TXnMA]

"One must consider the possibility that these stories are complete crap."

Agreed. But one must also consider that the Obama campaign has reportedly offered $3 million to suppress one of those items...

The real difficulty is that none of us here would have a problem believing that the Obama campaign (and their media accomplices) would go to any length to keep us American voters from learning who the real Obama actually is...

[neverdem]

BS.......

Could you be more specific about what you consider to be BS? What is Biden Says, Bachelor of Science, etc.?

[Non-Sequitur]

Who Enforces the Constitution's Natural Born Citizen Clause?

Not nutcase Pennsylvania lawyers, that's for sure.

[Non-Sequitur]

Is Berg leading us on, or does he really have such a recording?

What do you think?

[rlferny]

Berg is the Ex- DEMOCRAT Attorney General of Pennsylvania

[The Mayor]

For that Judge to say Berg has no standing does not sit well with me. There is overwhelming proof that he was not born here, so who has standing??? Congress? We have to have Congress act on this? YA, when hell freezes over, especially right now.

McCain was born in a Military Family while on Active Duty in Panama..... Any child born to a person serving in the Military, no matter where in the world is an American citizen.

When will Congress act? After it’s too late and we are thrown into a Constitutional Crisis and there is riots in the streets? Pelosi, Reid, Kennedy and all the rino’s will kiss his a$$ when or if he gets elected.

This whole arguement is BS to me and I am sick to my stomach that we are even here. Show the birth certificate Barak, end the speculation. Instead this incompetent, socialist, Marxist, windbag, SOB has the governor of Hawaii seal the records? EXCUSE ME? Who the hell is this guy? What kind of memorizing power does he have?

Where are the Constitutionalists that are supposed to be watching out for the people of this country? Hiding up someones nether regions that’s for sure. It is time to lock and load because we are watching the destruction of our country.

[fretzer]

Take a look at this:

http://www.newswithviews.com/Vieira/edwin84.htm

[blake6900]

Am I wrong in thinking that a citizen would have standing after the election? In other words, once an individual becomes the president-elect wouldn't any citizen have standing to sue since the Constitution is the law of the land and anyone actually holding constitional office must meet those requirements? It seems to me this would be a legal matter for the court to decide and/or order the president-elect to show proof of eligibility, not the Electoral College.

At any rate, I wonder if one could sue the Electoral College for not enforcing constitutional requirements if it, of course, chose not to as was surmised by a previous poster.

[The Mayor]

Excellent writing, Thank you.

[Goat Doc]

Read my statements. Your statement makes nothing I have written more probable or less probable.

Berg is not now, nor was he ever, the Attorney General of the Commonwealth of Pennsylvania. Berg was a Deputy Attorney General of the Commonwealth of Pennsylvania. As now constituted, the Office of the Pennsylvania Attorney General provides for a series of six Deputy Attorney General class levels. Republican Tom Corbett is the Attorney General of the Commonwealth of Pennsylvania.

Berg is widely reported to be a Democrat. Show all of us the basis for your statement concerning Berg’s current party affiliation. If Berg is now an “Ex- DEMOCRAT” [sic], then contact him and tell him to let all of us know.

You have exercised the same habit I’ve seen repeatedly on Free Republic – correcting others. You posted your comment, not because it is relevant, or of some moment, or clever, or funny, but rather because it likely makes you “feel” better. Verb tenses matter – ensure you choose the right tense before you correct others. Facts also matter. In one sentence, you used the present tense, rather than the past tense, you misstated a fact, and it appears you clumsily attempted to use “Ex-“ to modify two nouns. You leave us wondering if Berg was a Democrat and when Berg was the "Attorney General of Pennsylvania". You made all of these mistakes in order to tell all of us you know Berg's party affiliation.

[rlferny]

You apprear inclined to correct people on Free Republic also.

Seems you should practice what you preach Goat Doc

[Goat Doc]

Berg Is Not the Attorney General of the Commonwealth of Pennsylvania

No, rlferny. I allow many mistakes to pass without comment because it is not my job to correct others, nor is it your job to try to correct others. You don't like having others point out your grammatical and factual mistakes.

Address the issues raised, rlferny. I do correct others who attack what I've written, particulary when what they write is irrelevant and incorrect. "Practice what I preach" is your inapt reply to my response?

Read my statements. Now, tell us how what you wrote in any way conflicts with what I wrote.

When did Berg become an "Ex- DEMOCRAT" [sic]? Please tell us, again, when Berg became the Attorney General of the Commonwealth of Pennsylvania.