March 21, 2011
In an interview last week, Donald Trump became the latest high-profile figure to question whether President Barack Obama was born in the United States.
The view has been common among Obama’s ideological opponents before he even started campaigning for president.
This view, specifically, holds that Obama was not born in Hawaii as claimed, but in Kenya, and thus is not a U.S. citizen and ineligible to hold the office of U.S. President under Article Two of the Constitution.
While Obama has released his birth certificate and the theory has already been repeatedly debunked, even by several prominent conservatives, let’s assume that these claims have some legitimacy.
Are there any legal remedies?
Unsurprisingly, there have already been several lawsuits filed claiming Obama is ineligible. Depending on when they were filed, the suits sought anything from having Obama’s name removed from the presidential ballot, enjoining certification of the 2008 election results, or voiding Obama’s actions and appointments as President.
While there have been somewhere around 17 of these lawsuits filed, all but one were dismissed because the plaintiff lacked standing.
The standing that these plaintiffs claimed as voters was something akin to taxpayer standing, which has been strongly disfavored by the Supreme Court.
The Supreme Court has made it clear from as early as 1923’s Frothingham v. Mellon through as recently as 2007’s Hein v. Freedom From Religion Foundation: a federal taxpayer’s interest in seeing funds spent in a constitutional way is not enough in itself to gain standing.
As the Supreme Court has held on taxpayer standing, these courts did with voter standing. Berg v. Obama, one of the more prominent cases, is a good example since it addressed seven different arguments the plaintiff had for standing.
The one suit that wasn’t decided on standing grounds, Keyes v. Bowen, still ultimately failed.
This case was brought in California state court by Alan Keyes, a 2008 Republican presidential contender.
While Keyes’ suit apparently passed the standing test, it was barking up the wrong tree.
That is, the suit was directed at the wrong parties: the California Secretary of State and California’s presidential electors of 2008. The court ruled that it was not their responsibility, as the suit claimed, to investigate and determine a candidate’s eligibility before placing his or her name on the ballot.
So if someone with standing (such as a presidential candidate) sued the right party (the Federal Election Commission as a start), and the suit was actually argued on the merits, what are its chances of success?
In short, not good.
Besides all of the state documentation corroborating Obama’s citizenship, the facts just don’t add up. It is unlikely the plaintiff would be able to meet any existing burden of proof.
On the other hand, the success of these lawsuits is beside the point.
The point of publicizing claims is to undermine Obama’s legitimacy, not to actually drive him out of office through the courts. In the end, the people who really believe the claims don’t know or care about legal standards; they do, however, vote.