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On the ?Birthers? Lawsuits and Separation of Powers

By Ashby Jones (index)

We’re not sure it’s exactly newsworthy anymore when a lawsuit challenging President Obama’s election on the grounds that he wasn’t born in the U.S. gets dismissed. (Though rest assured, we’ll be all over it if and when one gains significant traction.)

But an opinion issued on Thursday dismissing one of these suits (this one, like others, brought by Orange County lawyer/dentist Orly Taitz) caught our attention.

Here’s why: the court made some interesting observations on separation of powers. Many of the suits brought on these grounds have been dismissed for so-called standing problems. (Click here for a nice piece from last year from Supreme Court reporter Jess Bravin on the issue of standing.) In Bravin’s words, “the Supreme Court has interpreted this to mean that courts . . . only should decide disputes where the plaintiff alleges “concrete” and “particularized” harm, rather than what Justice Antonin Scalia has called “purely psychological displeasure.” Citizens who have sued Obama have largely been found to have lacked standing.

The opinion issued on Thursday, by Santa Ana, Calif., federal judge David O. Carter (a Clinton appointee), delved deeply into standing problems he felt many plaintiffs in the suit suffered.

But in the suit dismissed on Thursday, Carter ruled that a group of plaintiffs could have standing: namely Wiley S. Drake, Alan Keyes, Gail Lightfoot, and Markham Robinson because they appeared on the California ballot as candidates for president or vice president in the 2008 election. Therefore, they may have been, theoretically speaking, harmed by an alleged fraud perpetrated by Obama in regard to his birthplace.

In regard to this group, Carter move on to another issue: separation of powers, finding that it is not within the constitutional power of the federal courts to "overthrow a sitting president." Click here for an LA Times article on the suit.

Writes Carter:

In order for Plaintiffs' alleged injury to be fully addressed, Plaintiffs would have the Court intervene, upheave the results of a national election, declare the President illegitimate, shut down the functioning of the government of the United States, and leave this country defenseless.

. . .

Plaintiffs make it clear from their briefing that they believe that any order issued by a president who does not satisfy the natural-born citizen clause is unconstitutional. Therefore, in order to cure Plaintiffs' perceived injury, the Court would need to wade deep into the waters of the President's official duties–in fact, it would have to declare that the President could no longer perform any official duties. The separation of powers concerns implicated by this request are grave.

. . .

The founders of the Constitution created impeachment to allow an orderly process of transition and succession during which the country can continue to function. Plaintiffs' request, asking this Court to sweep away the votes of over sixty-nine million Americans with the stroke of a pen and order a new election during which the country would be in a state of turmoil, ignores the Constitution's processes and separation of powers that were developed by the founders

The analysis certainly seemed persuasive, but just as an added check, we called up Michael Small, a lawyer at Akin Gump in Los Angeles who last year taught a course at UCLA law on separation of powers.

Small explained that he “wasn’t surprised in the least” by the opinion. “Any judge would have ruled this way,” he said. “I could imagine a judge enjoining a specific ruling issued by a president viewed as illegitimate, but not one ousting the president.”

Full post as published by Law Blog - WSJ.com on October 30, 2009 (boomark / email).