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Establishing eligibility

Submitted by Simon on Wed, 01/26/2011 - 8:18pm

When Phillip Berg filed his seminal lawsuit challenging Barack Obama's eligibility to be President, Obama's legal team had the case jettisoned on jurisdictional grounds. Responding in October of 2008, I observed that it was "interesting that while the Obama campaign could have sunk the case simply by filing the birth certificate with the court, they instead spent months filing procedural motions to forestall discovery and have the case dismissed. ¶ That was a mistake on their part," I opined, "because they have guaranteed that this question will come back to haunt them." I was right. See, e.g., Kerchner v. Obama, 612 F.3d 204 (3d Cir. 2010); Cohen v. Obama, 332 F.App'x 640 (D.C. Cir. 2009); Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009); Taitz v. Obama, 707 F.Supp. 2d 1 (D. D.C. 2010); Barnett v. Obama, 2009 WL 3861788, 2009 U.S. Dist. LEXIS 101206 (C.D. Cal. 2009); Rhodes v. MacDonald, 2009 WL 2997605, 2009 U.S. Dist. LEXIS 84743 (M.D. Ga. 2009), Cook v. Good, 2009 WL 2163535, 2009 U.S. Dist. LEXIS 126144 (M.D. Ga. 2009); and a whole mess more (Drake v. Obama, Keyes v. Bowen, and Allen v. Soetoro in California; Hollister v. Soetoro in D.C; etc. ad nauseum). Cf. United States v. Cheek, 882 F.2d 1263 n.2 (7th Cir. 1989).

A cynic might think that Obama's litigation strategy was genius. There will always be a few crazies, but much of the "birther" movement would have been (and would now be) stymied had Obama at any point defended his position on the merits and filed his birth certificate with any federal court. So why didn't he? Let's adjourn to a darkened parking garage for a moment and observe that the toxic undercurrent of birtherism is a handy cudgel for Obama supporters: via guilt-by-association, it detracts from legitimate criticism of the President. And in any event, after eight years of many on the left vocally disputing the legitimacy of the Bush administration, the last thing we need is a small number on the right vocally disputing the legitimacy of the Obama administration. Who will rid us of this turbulent movement?

Maybe Arizona will. In December of 2008, I approvingly noted Roxanna de Luca's proposal that states require candidates to file relevant documents establishing their eligibility as a prerequisite to getting on the ballot. The Grand Canyon state is reportedly considering it. (Take the source with several grains of salt.) Stipulating its constitutionality, I think this is a positive move. If a handful of key states require Obama to file his birth certificate before seeking reelection, then, one way or the other, we are done with "birtherism" on January 20th, 2013. Either Obama will no longer be President, or he will have rebuffed the eligibility claim—as he should have done, to tell the truth, in Berg.

Related:
Eligibility returns to the courts (11/15/2008)

are you implying

Are you implying that the birther movement was a harmful negative controversy for Obama?

A bunch of kooks who would never ever ever have voted for him all waved their nutjob flags loudly for months while comparatively sane Obama opponents were forced to apologize for them.

Not saying it was a brilliant scheme by Obama's team. [Liberals know that only Karl Rove is that smart, right? LOL]. But I don't think this "controversy" harmed Obama one bit.

No, just the opposite. It was

No, just the opposite. It was harmful for the country as a whole, and to the extent anyone benefited, it was Obama.

Not really the point.

"Birtherism" represents several issues over and above just the "birth certificate" issue. Among them is one which I consider the most salient.

The idea that someone running for President should be permitted to withhold such an important piece of information by claiming secrecy under "Privacy" laws.

The positions of EVERYBODY should not only have been "No", but "Hell No!" What shocked and surprised me was the fact that so many people were okay with the idea that someone asking for the most powerful job on the planet would be permitted to hide his qualifications behind a trivial state "privacy" law.

It is my contention that 50 state election boards committed malfeasance by accepting the DNC (and Nancy Pelosi's word) that the man was a "Natural born citizen" under Article II of the US Constitution. Everyone of them should have demanded independent proof.

Of course that overlooks the fact (which I have discovered much to my amazement) The vast majority of people, let alone Nancy Pelosi and 50 state election boards, DO NOT EVEN KNOW WHAT "Natural born citizen" MEANS! Everyone in the Nation seems to be equating 14th amendment citizenship with Article II Natural born citizenship. The 14th amendment did not repeal article II.

"Ignorance triumphs!" Ought to be the motto of the 2008 election.

It was harmful to the country, and to the extent that Obama

benefited, he only did so because the birthers continued to press the issue, and will continue to do so, regardless of what Obama does. You see, certain people continue to advance the idea that the reason birtherism persists is somehow Obama's fault--that he has not acted honorably, and is basically keeping this issue to undermine his critics (as if they weren't doing that job quite well themselves). Obama, every time he's been asked, has released valid proof of his birth, a short-form birth certficate. All the relevant authorities say that this is enough, so if this document isn't enough to sway the birthers, what convinces you that after all this, birtherism will end, on January 2013? The birthers appear to be as impervious to facts as the 9/11 truthers, so I don't see things changing, unless enough people rise up and say, enough, or we just ignore them.

I think that's Obama's strategy--to ignore them. He does after all, have a job to do, and if the birthers want to dig themselves deeper into a hole, then he's not going to tell them to stop.

Why do you think...

Rafique, why do you think that President Obama's old family friend, the new governor of Hawaii, reignited the controversy last week by commenting on the birth certificate matter, especially by promising to find the original birth certificate? To me, there are only two possible answers. One, the governor is incompetent and a complete political dolt who had no idea that the governor of Hawaii talking about the President's long-lost long-form original birth certificate would reignite the controversy which had, finally, nearly subsided. Or two, the governor knew exactly what he was doing, probably with the knowledge of the White House, and wanted to stoke the fires, because the accusation of birtherism against conservatives is perceived as a political boon to the President.

I agree that what's been released is legally sufficient. But all it truly proves is that there's a database maintained by the state of Hawaii that has an entry in it reflecting that the President was born on such-and-such a day in Hawaii. Do you know when that database was created? How the information was entered? What physical original records were relied upon to enter that data? What errors could have been made between a technician reading the original record and transcribing that information into the computer?

To the question about Abercrombie, I'm more than willing to

believe option one. As to your second question, I fail to see how there is any more error involved than in any other case.

I think a combination of one

I think a combination of one and two. I think he is too dense to see that its not an issue unless high profile politicians make one of it, but at the same time thought it would be politically helpful for Democrats and embarassing for Republicans for him act like he's taking a stand on it.

Leading up to the SOTU, the

Leading up to the SOTU, the media criticized the conservative justices absenting themselves from the speech; it created the appearence of a partisan divide among the justices, complained the media. Interestingly, no one pushing the meme bothered to mention that the supposed appearence of division could just as easily be resolved by the liberal justices absence as by the conservatives' presence. Although the ability to fix the "problem" was symmetrical, the blame ladeled out by the media was distinctly lopsided.

It's much the same here, with the claim that the issue continues to fester "because the birthers continued to press the issue." The implication is that this is entirely one way, that the birthers do their thing and the whole mess will persist "regardless of what Obama does." But the thing is, Raf, there's a grain of truth in the notion that "the reason birtherism persists is somehow Obama's fault…." The President has spent inordinate amounts of time and effort trying to prevent anyone getting hold of his birth certificate—so much so that it's hard to make sense of it if you take it at face value. Something else is going on here. It seems to me that he doesn't have it, or there's something fishy on it, or his persistent refusal to simply file it can only be explained by his accruing some advantage from refusing to file it. Otherwise, why not just file it, a fortiori after his call for civility? I think the last is the most likely explanation.

To be sure, Obama can do nothing to appease the hardcore birthers. But it's mistaken to think that everyone with doubts about his eligibility must be hardcore birthers, and that inability to convince all = ability to convince none. As I said in the post, Obama could have acted in a way that would have strangled the movement at birth. And he still could; he could file his original birth certificate in any of the ongoing birther lawsuits and their inevitable successors. Doing so won't convince the hardcore birthers, but it would detach all but the truly loony from the movement. What has he done instead? He could hardly have acted in a way more likely to fan the flames, to attach more people to the fringe. As Nixon learned, when it looks like you're trying to hide something, people tend to look harder.

The birthers are nuts, but quite frankly, the President is complicit in the movement's ongoing vitality. For no good reason, and with ample opportunity, he has freely chosen to take the path most likely to incite conspiracy theorists and attach people to the movement.

any politician worth his salt

The birthers are nuts, but quite frankly, the President is complicit in the movement's ongoing vitality. For no good reason, and with ample opportunity, he has freely chosen to take the path most likely to incite conspiracy theorists and attach people to the movement.

Even if that's true, it really doesn't bother me at all. Any politician worth his salt would likely do the same. It's not any democratic politician's responsibility to pacify small groups of extremist conservative whackos. Any more than it would be a republican politician's responsibility to pacify small groups of of extremist liberal whackos.

The whole thing is quite comical to me at this point. I keep getting this vision of someone throwing a rock at a hornet's nest in the backyard of a neighbor who's been kind of a jerk. It's a prank that keeps on giving. I am sure sooner or later the shoe will be on the other foot. Maybe some drunk Republicans can go egg on Cindy Sheehan or something.

One more point...

Conservatives are generally more on the side of not wanting to be tracked by the government, not requiring formal government recognition to do certain things, etc. (Not at all to say that no Democrats, or even no group of Democrats, isn't on the same side, but as an overall tendency). But when it comes to immigration and citizenship issues, they suddenly want to rely only on official government documents, and make massive decisions affecting individuals based only on the government records.

Compulsory registration of births with the government (for tax and conscription purposes, mostly) didn't begin in England until about 1853 (see Wikipedia entry on Birth Certificate). The U.N. Convention on the Rights of the Child says that all kids have the right to a "legally registered" name.

It's odd to me that so many people place so much reliance on the physical location in which he was born, and I think inappropriate for conservatives to think that the official document registered with the government should be the sole arbiter of the place of his birth.

If I, for whatever reason, don't want to register my children with the government, why should I have to, and why should my failure to do so deprive them of their rights? Suppose President Obama's parents were from the backwoods, or part of some militia-type of organization who didn't believe in registering births with the government, would these same conservatives still believe he was constitutionally ineligible to be president, because without a birth certificate he couldn't prove he was an American citizen at birth?

For that matter, there are no identifying characteristics recorded on birth certificates. No fingerprints or footprints, no DNA extracted, etc. They're public records (not the original form in Hawaii, obviously, but at least the computer-generated certificates in most states), so anybody can get a copy of them. How do they in any way prove that you are in fact you?

With President Obama, I grant you that there is circumstantial evidence which would justify, I think, reasonable people to wonder a little more. His father was a visiting foreigner. His mother was traveling abroad very shortly before his due date. He lived abroad for a great deal of his very early childhood. Were it not for these factors, I don't think anybody would have ever asked about his birth certificate.

Beg to differ.

Were it not for these factors, I don't think anybody would have ever asked about his birth certificate.

I'm sorry, but I don't believe that for an instant. I suspect that the prime motivation behind birtherism, is similar to the motivation behind fringe conspiracies on the Left--animus and contempt. Many people have a deep seated hatred for the man, and this has led them to buy into bogus ideas. I'll say again, that every single time he has been asked, he has provided valid proof. If you agree with that, I don't see how one can give the birthers any legitimacy at all.

The thing is, I always thought when someone is accused of crimes, and that's what's happening here--President Obama is being accused of crimes, it was the responsibility of the accuser to prove their case, not the accused. As to the politics, I suspect on some level, Obama acknowledges the political advantage, but that's only possible because the birthers keep giving it up. I also suspect Obama doesn't want to give them any legitimacy, seeing as they haven't earned it.

So you're saying...

So you're saying that if President Obama had been born in Illinois and lived there throughout his childhood, and his father was an American citizen, then there would still be birthers denying that he was a natural born American citizen without seeing his actual original birth certificate? Seriously?

It's possible, but seeing as all the evidence points to him

being born in Hawaii, and the fact that his father was an immigrant and foreign national, and that his mother travelled abroad a lot, do nothing to change that, and yet birtherism persists, it's possible. Are you seriously telling me that because his father emigrated from Kenya, and his mother travelled a lot, and that he spent time in a foreign country as a child, that's enough to doubt his place of birth? Really? That's just bizarre.

The only way your argument makes sense, Pat, is if there is evidence that points he was born in Kenya, or Indonesia, or anywhere but Hawaii. There's none.

What is the evidence?

Rafique, other than the certificate of live birth which was computer-generated by the state of Hawaii (which I agree is legally sufficient), what is the evidence that he was born in Hawaii?

Pat, why is it legally sufficient? It's legally sufficient,

because it's based on a preexisting document. Are you suggesting that they made this up out of whole cloth? That some tech at Vital Records just made up a fake document? Are you serious, dude? I lost my copy of my original birth certficate. When I needed a copy for my ID, I went to Vital Records, and received a computer printout, with a seal. They cannot just make it up.

Oh, and there's also the birth announcement, and the statement from Hawaii authorities that they've seen the original.

Right...

I'm not saying to doubt that, but you disagreed with my premise that the birth certificate wouldn't be an issue in the absence of the foreign father, his mother being out of country right near the time of his birth, etc., on the basis that there's "no" evidence of his being born elsewhere, and "all" the evidence was that he was born in Hawaii. But there's the recording made by the preacher who spoke on the phone with his grandmother Sarah in Kenya who says she witnessed the birth, in Kenya. While she apparently walks that statement back later in the interview, she still says flat out at one point in the interview that she witnessed the birth, in Kenya.

Again, I don't personally have any doubt that he was born in Hawaii. But I AM saying, as I think Brian Shapiro was agreeing with, that were it not for these other factors that give him a very "foreign" flavor, the official, long-form birth certificate would not be an issue in the slightest, and nobody would have ever asked for it.

Foreign flavor? What does that mean?

Frankly, none of the evidence you cited adds up to sufficient doubt in my view, not even the fact that his mother travelled a lot. I think people, with a preexisting view about Obama, latched on to spotty evidence to bolster their own beliefs about his "otherness." The stuff about his supposed Kenyan grandmother are so spotty and unfounded, that no serious person should take it seriously.

What I'm saying is, certain people have a preconceived notion of Obama as somehow being un-American, so stuff like this only adds to it, but it's not the source. I'm telling you, Pat, I know want to believe this will all go away if Obama would just "shut this downn," but if that were true, this issue wouldn't have been an issue in the first place.

I think Pat and I agree. The

I think Pat and I agree. The thrust of my point was actually that if people just conceded whatever grain of truth there is to these conspiracy theories, it would do a lot more to diffuse them than trying to debunk them and admit nothing. It would show people who are hung up on them how silly they're being.

The birther issue would have an equivalent if McCain were elected to office; then people would question whether he would be eligible since he was born in Arizona when it was just a territory. The way politics goes, you'd have the far left hung up on the issue, while Republicans would be up in arms to defend McCain. They'd be outraged at the 'birthers' who would be questioning McCain's eligibility. However, the question itself would be fair enough, and it would be right to provide the answer.

All of these questions about Obama likewise should be fair enough to provide an answer to. People who think he's a Muslim are treated as if he's crazy, but they believe that only because his father had been a Muslim and while in Indonesia as a kid he attended mosques. All that should be necessary is to point out that he's been a practicing Christian and how no serious Muslims would accept him as a Muslim because of that. That would be enough to diffuse the issue, point out the facts. Instead, its made into something about bigotry, paranoia, and what else have you, and this just causes people to be defensive and hunker down in their trenches. People don't like to be called bigots or paranoid.

Its really a parallel to the Sarah Palin phenomenon in my view. Very few people think she's really qualified to be President, but they defend the idea because of the people who attack her unfairly.

Usually all these conspiracy

Usually all these conspiracy theories, both on the left and the right, have some grain of truth in them or some small justified concern.

People who think the government knew about 9/11 ahead of time and let it happen, for instance, always quote how the CIA heard something about it but didn't act on it, which is true, but they're taking it out of context of course. They also will talk about the war games the government was doing as proof that this was all some secret plot.

On this issue, from what I've read, it hinges on a technicality, on whether Obama's parents flew into Hawaii in time for him to be born. Even if they didn't, and the birthers happen to be right, and they were a day late, its still a stupid issue.

The fact that they get hung up on these issues may have to do with animus and contempt, but I think they get further into it by the fact that everyone will deny that small grain of truth that they may be hung up on, trying to 'debunk' them and prove them wrong. It makes them oppositional, and feel like they know something everyone else doesn't.

Right. Much like with the truthers, they feel that the public at

large has been duped, and they feel, in their own delusion, that they are speaking truth to power. "He was born in Kenya" is basically the same as "Fire can't melt steel."

Many people have a deep

Many people have a deep seated hatred for the man, and this has led them to buy into bogus ideas.

And to ignore obvious logical flaws with their evidence—look at my exchange with Marie here.

I suspect on some level, Obama acknowledges the political advantage, but that's only possible because the birthers keep giving it up.

And he keeps feeding and encouraging them. it's all well and good for us to say "why don't these muppets see that there's no fire?" yet he keeps showing them smoke.

Re giving someone legitimacy, I'm reminded of a speech Scalia gave at the 7th circuit bar conference a few years back. He reminded us that bullfighters sometimes turn their backs imperiously on the bull in a display of contempt and mastery. But alas, he observed, the matador may ignore it all he likes, but the bull sometimes gets you from behind.

only if

The bull can only gore you if it really has, you know, actual horns. Who thinks the birthers do?

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