Eligibility returns to the courts

As I said when Rafique noted the Berg case, which had sought to challenge Barack Obama's eligibility to the Presidency, the Obama campaign made a tactical error by resisting on procedural grounds. They could have sunk that case -- and, more to the point, other similar cases -- by filing the birth certificate with the court. While the district court's decision with respect to Berg's standing was correct (amusing that a case challenging someone's credentials failed because the plaintiff lacked the credentials to bring the suit, so to speak!), it was entirely predictable that the issue would find its way back into court with better plaintiffs. Berg's problem was standing, but Presidents do stuff, and doing stuff has a propensity to cause concrete and particularized injuries that are actual or imminent. That being so, and given the stakes, it seems inevitable that we will get a similar case filed by plaintiffs who have standing. (Set aside redressability for now, which seems to be on the death list after Massachusetts v. EPA anyway.)

I also submit that the question of a President's qualifications may well be justiciable, even after they assume office. If someone is elected to Congress despite not meeting the prescribed qualifications, the courts are sidelined: Art. 1 § 5 contains a textually demonstrable constitutional commitment of the issue to a coordinate political department, i.e. the house to which that person was elected. Thus, a suit resting on their ineligibility would presumably be nonjusticiable under Nixon etc., even if the plaintiff had standing. There is no comparable directive applicable to Presidential candidates; the Twelfth Amendment says only that the electors will vote and after the House counts the ballots, the person with the most votes will be President. The only other potential commitment of the issue to another branch, the impeachment clause, doesn't seem applicable because it addresses malfeasance in office. This suggests to me that finding a President's eligibility justiciable would not be a reach, although there may be additional complications on the merits.

Alan Keyes' new suit challenging Obama's qualifications isn't the case I had in mind. It elides federal standing requirements by filing in California state court, and therefore limits the ambitions of the relief it seeks to an injunction against California certifying the results of its Presidential vote. Presumably, California standing requirements are looser than federal standards, and may well allow Keyes into court with what meager injury he can personally assert. But one would also think that California requires some kind of showing of redressability, and I can't think how the relief sought could remedy any asserted injury when Obama's margin of victory renders the disposition of California's electoral votes irrelevant. Still, the case demonstrates my earlier point: the issue isn't going away.