Saturday, December 13, 2008

Questions About Obama's Citizenship: Part III

In Parts I and II of “Questions About Obama’s Citizenship” (see below) respectively, I’ve established that, and why, the President-elect’s citizenship is important, and the uncertain meaning of the constitutional requirement of “natural born citizen.”

Because of the controversy that’s been raging about Obama’s citizenship, and the lawsuits that have been brought (and failed) to shed light on it, the next question (III) is: “Who is entitled to litigate that question in a court of law?”

The answer involves the constitutional doctrine of “standing to sue,” whose textual origins are found in the Constitution’s Article III, Section 2, Clause 1: “The judicial Power [of the federal courts] shall extend to all Cases, in Law and Equity . . . .” (My emphasis.)

But, as Hamlet observed, “ay, there's the rub.”

What’s a “Case.”

We need to know, because it’s unacceptable if no one can sue about anything, and equally unacceptable if everyone can sue about everything. In order for judicial power to be exercised appropriately, someone must be able to sue about something.

But who and what?

For some two hundred years the Supreme Court has defined the concept and the term “Case” mostly by establishing what are non-“Cases.” For example, disputes raising hypothetical questions (“advisory opinions”), others where the matter has already been resolved (“mootness”), and still others where not enough has occurred between the parties to warrant judicial intervention (“unripeness”).

Sometimes there will be no “Case” because the party bringing the lawsuit lacks “standing to sue”; sometimes there will be a “Case.”

What are the Courts’ criteria?

To answer that question, we have to distinguish between non-Constitutional and Constitutional cases.

An example of a non-Constitutional “Case” is where vendors of data processing services were granted standing to sue the Comptroller of the Currency because he allowed, allegedly in violation of a federal statute, nationally chartered banks to make those same services available to other banks and their customers.

According to the Supreme Court, the vendors (1) suffered the requisite “injury in fact,” because the Comptroller’s ruling threatened their financial interests, and (2) because they possessed an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question,” because the Comptroller’s ruling was based in a statute regulating federally chartered banks—and also because there is a presumption of judicial review unless Congress expressly denies it, and regarding the subject of the Comptroller’s ruling Congress had not.

As to the question of Obama’s citizenship, “injury in fact” could have been legitimately asserted by any Democratic Party primary candidate claiming that he or she had a right to run against a candidate constitutionally eligible for the office, and the same argument could have been made by McCain and any other presidential candidate on the ballot anywhere. (More below about what theory they could have used.) The “zone of interest” requirement could arguably have been met by the recognition that the entire federal constitutional electoral structure is aimed at protecting the integrity of the process and Americans, voters, who are part of it.

A voter could have made similar arguments in support of his/her standing to sue.

If, however, a challenge to Obama’s “natural born” citizenship were to be considered a “constitutional” case, the standing to sue requirements are somewhat different. There are seven elements:

1. With specific concreteness . . . . .
2. The complaint must allege . . . . .
3. That the challenged practice . . . . .
4. Harmed them . . . . .
5. And the plaintiffs would benefit . . . . .
6. In a tangible way . . . . .
7. From judicial relief . . . . .

It is with a cold, unemotional mindset, focusing on these seven requisite elements, that a Case questioning Obama’s citizenship should have been brought.

Let’s take a look at the Twelfth Amendment to the Constitution of the United States, which was ratified June 15, 1804: “The Electors shall meet in their respective states, and vote by ballot for President and Vice President . . . and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate . . . .” (My emphasis.)

Now let’s revisit the seven elements.

1. With specific concreteness . . . . This means that the complaint’s allegations must be specific, not vaguely invoking tired generalities such as “everyone’s vote is supposed to count” and that “our democracy is at risk.”

2. The complaint must allege . . . . This means that every allegation to support the constitutional theory being asserted must be included in the complaint, with no holes to be filled in later. The entire case must be presented within the four corners of the complaint. Essentially, in the case I am positing, there would have to be factual allegations, later to be proved, showing that Obama was not a “natural born citizen,” followed by the legal conclusion that under the constitutional definition of those terms he is ineligible to be President of the United States.

3. That the challenged practice . . . . In this Twelfth Amendment example, the practice would been voters casting their ballots for a constitutionally ineligible candidate.

4. Harmed them . . . . The harm to a primary or general election candidate, and to a McCain voter, is that their man or woman had to run against a non-eligible candidate.

5. And the plaintiffs would benefit . . . . The benefit would be that with the non-eligible candidate (i.e., Obama) out of the primary or general election, the plaintiffs’ candidate would have had a better chance or would actually have won.

6. In a tangible way . . . . This is the same point as in 5 above. The tangible benefit would be that with the non-eligible candidate (i.e., Obama) out of the primary or general election, the plaintiffs’ candidate would have had a better chance or would actually have won.

7. From judicial relief . . . . . This is where it gets interesting. Assuming that the six elements above could be pleaded sufficiently—especially the factual allegations to support the legal conclusion that Obama is not a “natural born citizen”—the judicial relief sought would be to enjoin the appropriate state officials from transmitting to Washington the electors’ votes.

The usual criteria for obtaining a preliminary injunction are (1) irreparable injury, (2) likelihood of eventually winning the case, and (2) a balancing of equities—i.e., who will be hurt more and who less if the injunction is granted.

Obviously, given these criteria, judges to whom applications for preliminary injunctions are presented have almost unlimited discretion in evaluating them. But in the case I posit an injunction could be granted. If voting and having one’s vote count is a fundamental right, as the Supreme Court has held more than once, violation of that right is serious enough to warrant a preliminary injunction followed by a trial of the citizenship question.

As to the three most notorious cases that have been brought challenging Obama being a “natural born citizen” (Keyes, Beck, Donofrio), they and others have apparently failed to understand the complexities of the standing to sue doctrine and the need to present facts to support their claim that they have a right to sue—facts fit into the standing to sue analysis outlined above.

Indeed, for want of this approach, and for other reasons I will explain in the next Part of this series, Donofrio’s much heralded, now denied, motion in the Supreme Court was doomed form the start.

To be continued…………………

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