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'Birthers' Lose Again as Federal Judge Nixes Challenge to Obama Presidency
New Jersey Law Journal
October 22, 2009
The Obama administration has defeated another suit, this time in New Jersey, alleging the president isn't a natural-born citizen and so should be ousted from office.
U.S. District Judge Jerome Simandle in Camden, N.J., ruled Tuesday that four voters lacked standing to attack Barack Obama's eligibility or to claim their rights were violated by Congress' failure to investigate his place of birth.
Federal judges in Washington, D.C., Pennsylvania and Georgia have dismissed similar challenges.
Obama was born on Aug. 4, 1961, in Honolulu, according to Hawaiian state records, but a handful of opponents in what has been dubbed the "birther movement" are pursuing a theory that he was born in Kenya and is therefore not the natural-born citizen that presidents must be under the U.S. Constitution.
Simandle agreed with Assistant U.S. Attorney Elizabeth Pascal that because the plaintiffs couldn't prove they had suffered any harm that was particularized, imminent or concrete, they lacked standing to sue. A claim that alleges the entire public is threatened or raises a general grievance about government isn't a sustainable under the Article III of the constitution, Simandle ruled in Kerchner v. Obama, 09-253.
The plaintiffs tried to get around the standing issue by pointing out that lead plaintiff Charles Kerchner, Jr. is a U.S. Navy reservist subject to recall to active duty. He would then need to know if his orders were emanating from a legitimate commander in chief, argued plaintiffs' lawyer Mario Apuzzo of Jamesburg.
But such an assertion is impermissibly conjectural and not an "injury in fact," as required by the rules on standing, Simandle said.
Even if they could show an injury in fact, the plaintiffs' claim raised the kind of abstract issue the U.S. Supreme Court has viewed as a legislative question, Simandle said, adding, "The Court acknowledges plaintiffs' frustration with what they perceive as Congress' inaction in this area, but their remedy may be found through their vote."
That note of sympathy was a lot more than a plaintiff received in March from U.S. District Judge James Robertson in a "birther" case in Washington, D.C. There, a retired Air Force colonel filed an interpleader action alleging that his duty to serve his country was a property right that was in danger of being infringed.
"This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do," Robertson wrote in Hollister v Soetoro, 08-2254. Soetoro was the last name of Obama's late stepfather.
"Even in its relatively short life the case has excited the blogosphere and the conspiracy theorists," the judge added. "The right thing to do is to bring it to an early end." Then he reprimanded the lawyer who filed the complaint, John Hemenway of Washington, D.C., for filing frivolous pleadings.
The 3rd U.S. Circuit Court of Appeals in Philadelphia, meanwhile, is set to meet Monday to decide whether to hear oral argument in the appeal of another "birther" loss, Berg v. Obama, 574 F. Supp. 2d 590 (E.D. Pa. 1995). Philip Berg, a Philadelphia lawyer, is appealing the dismissal of his suit, filed just before the Democratic National Convention last year, seeking to enjoin Obama's nomination because of alleged uncertainty about the candidate's birth.
In a case in California, a federal judge has reserved decision on a dismissal motion by the government. And on Oct. 14, U.S. District Judge Clay Land in Columbus, Ga., levied a $20,000 sanction against Orly Taitz, a California leader of the "birther" movement, for filing pleadings after a suit against Obama had been dismissed.
