Paul R. Hollrah

The Supreme Court’s Hottest Potato
January 20, 2009
 

Recent polls tell us that from 55-60 percent of the American people now believe that the question of Barack Obama’s eligibility to serve as President of the United States has at least some merit.

To review the bidding, more than a dozen lawsuits have been filed in federal courts alleging that Obama cannot serve as president by reason of the fact that he is not a "natural born” U.S. citizen, as required by Article II, Section 1 of the U.S. Constitution.

A number of suits have made their way to the U.S. Supreme Court where, to date, all have been denied certiorari. Essentially all of the lawsuits allege that Obama fails to meet the "natural born” citizen requirement based on one or both of the following counts:

1) Barack Obama is not a "natural born” citizen by reason of the fact that he was born in Kenya, not in Hawaii. His paternal grandmother, a half sister, and a half brother in Kenya have testified that they were present at his birth in Mombasa on August 4, 1961. If that is the case, in order for Obama’s mother to pass on her U.S. citizenship to him, automatically, the law required that she must have been a U.S. resident for at least five years after her 14th birthday. Inasmuch as she was only 18 years, 8 months, and 6 days old when Obama was born, she did not technically meet that standard. If Obama was born in Kenya, as charged, he would have been born a British subject, his father’s nationality, and remains a British subject today.

2) When his mother married Indonesian Lolo Soetoro and moved to Jakarta in 1967, Obama was subsequently adopted by his stepfather. In renouncing her U.S. citizenship, Obama’s mother also renounced his U.S. citizenship. At that time Obama became an Indonesian citizen because Indonesian law did not recognize dual citizenships. In order for him to attend school in Indonesia, which he did, he had to be a citizen of that country.

Obama was sent back to Hawaii at age 10 to live with his grandparents. However, at age 20, while transferring from Occidental College to Columbia, Obama traveled to Indonesia to see his mother and from there to Pakistan for three weeks. Unfortunately for Obama, Pakistan was then on the U.S. State Department’s no-travel list, making it impossible to travel to Pakistan on a U.S. passport. The only reasonable alternative is that Obama traveled on an Indonesian passport, a document that could be obtained only by an Indonesian citizen. In that event, Obama would be an Indonesian citizen today.

There is no evidence that Obama’s mother or his grandparents made any effort to have his U.S. citizenship reinstated or that he took an oath of allegiance when he reached the age of 18. What makes these cases so intriguing is that Obama could end all speculation regarding his eligibility by simply making his birth records and his college records available for inspection by plaintiffs or by the courts. However, he has steadfastly refused to do so. Instead, he spends a small fortune on legal fees to keep from having to prove that he is, in fact, a "natural born” citizen.

So where do all of these cases stand, legally? Given that there appears to be credible evidence to support one or both of the alleged scenarios, how can the courts fail to adjudicate the matter? And what must be going through the minds of the justices as these cases are laid before them?

In each instance, the cases have been denied by the lower courts based on the question of "standing,” a ruling that has been consistently upheld by the Supreme Court... in some cases by individual justices; in other cases following a conference attended by all nine justices. In other words, the plaintiffs have failed to provide sufficient proof that they would be injured if Obama were to be elected and installed in office as a usurper.

However, given the charges as outlined above, the justices must have known in their own minds that the question of Obama’s eligibility would sooner or later have to be answered. After all, the U.S. Constitution is not merely a list of suggestions; it is a document containing hard and fast imperatives.

Even if we were a fly on the wall during the court’s conferences, we probably could not be sure exactly how the individual justices feel about these cases. If we had to guess, we’d say that there were two primary considerations on the minds of the justices:

1) As the ultimate defenders of the U.S. Constitution, they understand that they cannot allow a usurper, an impostor, to serve as President of the United States. Therefore, the question of Obama’s status as a "natural born” citizen absolutely must be settled, sooner or later.

2) After intervening in Florida in 2000 to prevent an outlaw Florida Supreme Court from interfering in the selection of the Florida electors, where they had absolutely no jurisdiction, the Court absolutely cannot be seen as interfering in the seating of a president in 2008... especially a black president. To do so would be an open invitation to insurrection.

It leaves the justices in a totally untenable situation. So what must they be thinking now?

The liberals on the court... Breyer, Ginsburg, Souter, and Stevens ... have probably convinced themselves, as we might expect liberals to do, to simply ignore the constitutional considerations surrounding Obama’s eligibility. After all, the Constitution is a "living” document; it means whatever liberals want it to mean on any given day. They’ll be thinking, "The election is over, the people have spoken, they’ve made their choice, so we’ll simply look the other way and act as if nothing happened.”

The centrist on the court, Justice Kennedy, has probably decided to wait and see what the conservatives do.

The conservatives on the court... Alito, Roberts, Scalia, and Thomas... are probably thinking that it’s best to wait until a case arises that absolutely demands to be heard. Until then, the conservative justices have probably justified in their own minds an argument to support the notion that, since Obama was not yet president when the suits were filed, the plaintiffs did, in fact, lack standing.

What they are likely waiting for is a case to be filed, post-inauguration, that even the liberals on the court cannot ignore. For example, if President Obama should decide in March 2009 that four additional brigades of U.S. troops should be sent to bolster our forces in Afghanistan... and one of those individuals refused to deploy based on a sincere belief that the commander in chief who ordered his/her deployment was, in fact, not eligible to serve as commander in chief... what then? Such a case would have to make its way through the courts and the plaintiff’s counsel would have every right to demand proof that Obama is eligible to serve as president.

Millions of Americans would immediately have standing to sue because of credible doubts that he lacks the authority to serve as president.

Barrack Obama is set to take the Oath of Office on the west front of the U.S. Capitol at the stroke of noon tomorrow, January 20, 2009. It should take roughly a nanosecond or two after he says, "I do,” before the first challenge is filed. Then, even the most liberal members of the Court will be unable to dodge the issue. They will finally come face to face with the reality that the only thing that stands between the rule of law and the barrel of a gun is the U.S. Supreme Court. It promises to be the hottest potato the Court has ever handled.