It’s not a separation of powers issue. That’s just confusion in the mind of the judge talking. It is a right of long standing that we who purport to live under laws and not men may question the validity of any purported authority.
That right to challenge authority applies to our military as much as it does to any ordinary citizen confronted with a uniformed person armed with a taser banging on their door. We have a right to talk back, to demand to know “where is your badge, where is your warrant?”
The lawfulness of the deployment order can be disputed on other grounds, such as the de facto officer doctrine, but that does not eliminate the fact that this good soldier can prove he had justification for at least questioning and perhaps refusing the order if he can demonstrate, through evidence, that a reasonable soldier could legitimately doubt Obama’s eligibility.
Don’t buy into the judge’s confusion. This is about the Commander in Chief and a soldier purportedly under his command, not about the judiciary versus the executive. The court here is just sidestepping a routinely used method of getting the necessary evidence to let a man defend himself. That right of self-defense is fundamental to the nature of our Republic and trumps any amount of presidential “embarrassment” that might result.
Yes, it is a separation of powers issue. No law as of 2008 required a Presidential nominee to produce a birth certificate.