    On Monday, December 8, the Supreme Court turned down a request to prevent the Presidential Electors from voting for Barack Obama our next President. A number of persons have brought lawsuits contending that Barack Obama is not a "natural born" United States citizen and that therefore he is ineligible to become President. In order to win such a case it would not be enough to prove that Obama's Hawai'i birth certificate is a fake and that he was really born outside the United States; it would also be necessary to prove that Ann Dunham was not his mother, because the children of American women are "natural born citizens" no matter where they are born. Nevertheless, some people persist in the belief that Obama simply cannot be eligible to be President and some of them persist in filing these lawsuits. One suspects that this belief and these cases are motivated more by anger and frustration at losing the election than by rationality.
    These lawsuits have so far been dismissed, not on the merits, but because the plaintiffs lack standing. What is standing and why is it required?
    Article III of the Constitution creates the federal courts and specifies the jurisdiction of those courts. The Constitution provides that the federal courts have the power to hear a number of different types of "cases" and "controversies." For example, Article III states that federal courts may hear cases arising under the Constitution and laws of the United States ("federal question" cases) and controversies between citizens of different states ("diversity cases").
    To be a "case or controversy" several elements must be satisfied. The case must be "ripe" for decision and not "moot," that is, no longer relevant. The case must be a dispute between two different parties who are adversaries. The dispute between those parties must be actual, not hypothetical; the federal courts do not issue advisory opinions. Finally, the parties must have "standing" to litigate the issues that are raised.
    For a plaintiff to have standing the plaintiff must prove three elements: (1) injury; (2) causation; and (3) redressibility. The plaintiff has to show the court that he or she suffered an injury to his legal rights, that the injury was caused by the defendant and that the courts, by ruling in favor of the plaintiff, could redress the injury that the plaintiff sustained. For example, a person injured by another driver in an auto accident has standing because all three elements are met. The plaintiff suffered an injury, the defendant caused it, and if the defendant is made to pay compensation to the plaintiff the plaintiff's injury will be redressed.
    An important point – a critical point in a case such as this – is that under the Constitution there is no such thing as "citizen" standing. To have standing a person must have suffered some injury that is greater or of a different kind than every other person in society.
    When the government directly takes action against someone – for example, if the I.R.S. files a tax lien against someone's property – then that person has standing to challenge the government's action. The person was injured in their legal rights, the government caused the injury, and if the plaintiff wins and a court orders the I.R.S. to lift the tax lien then the plaintiff's injury will be redressed. The same is true in any other case where the government has taken direct action against an individual: when the police falsely arrest someone, when the Board of Health wrongfully closes a restaurant, or when a public school suspends a student without justification – in all of these cases the injured party has standing to sue the government.
    But standing problems are more complicated when the plaintiff claims that the government injured him or her by taking action against someone else. For example, if the government conducts illegal wiretapping against someone else, or tortures someone else, or unlawfully detains someone else, I would not have standing to challenge the government's actions. Even though I am a citizen and even though my tax dollars are being used for these activities and even though I am appalled by the government's lawbreaking, I simply don't have standing to challenge the government's actions. Similarly, it is difficult to get standing when my complaint is that the government should have acted but failed to do so. If I can show that the government's failure to act directly caused me harm, then I might obtain standing to sue, but if my only complaint is that the government was breaking the law or failing to enforce the law then I have no more justification for suing than anyone else has, and the courts will find that I do not have standing.
    Who would have standing to challenge Obama's eligibility to serve as President? Who is directly and personally injured in their legal rights by his becoming President, at least more than any other citizen? At the moment, Hillary Clinton and John McCain come to mind as persons who would clearly have standing to assert this claim since Obama denied them the nomination and the general election respectively. (Of course, they didn't sue because they were probably part of the conspiracy to elect Obama President! Based upon her performance in her interviews with Katie Couric, it would appear that Sarah Palin was also a member of this nefarious plot!) I believe that any of the Presidential Electors, who will soon cast their ballots for President, would also have standing to challenge Obama's right to be on the ballot. Once Obama takes office there will be hundreds, thousands, or millions of people who will have standing to challenge his right to lead from the Oval Office – any government employee who is fired as a result of his actions, any organization that loses any funding which was under his control, or any citizen or corporation whose legal rights are affected by one of his Executive Orders – all would have standing to challenge his eligibility to serve as President.
    So if someone seriously wants to litigate this matter there will be plenty of people with standing after January 20, 2009, when Barack Obama is inaugurated as the 44th President of the United States. Until then, the self-appointed guardians of American citizenship will just have to wait.
{ 11 comments }
Would one wonder if Mr. McCain was born in Panama disqualifies him? No matter where in America you are born you would be eligable for the Presidentcy. Some say this is frustration. I think it is racism and the fact the republican party was shown to be as rotten as it has become. Palin my be a backwater undereducated political opportunist but at least stupid comment or not she stood by what she said. McCain lost respect and votes because he didn't.
Shouldn't there be some cases where the court proceeds in spite of the lack of standing?
I am reminded of Michael Newdow's challenge to the words "under God" in the Pledge of Allegiance.
After years of working it's way through different levels of courts, the Supreme Court ruled that Newdow did not have the legal standing to bring the case. Where is the harm in ruling on the merits of the case? Settle it once and for all.
charles –
Similar nonsense cases were filed against McCain. So this weakens your racism theory.
We have become increasingly petty in this country and unwilling to accept election results. We find it necessary to file court challenges and make unsubstantiated claims of wrongdoing.
In the future, before you throw around terms like – backwater undereducated political opportunist – you might want to check your spelling.
Dave,
I agree that it was a surprise when the Newdow case was dismissed on standing grounds after the Court had agreed to hear the case – the fact that the father was not the custodial parent seemed to be fairly weak grounds for saying that his legal rights were not compromised. O'Connor's opinion in that case on the merits was impressive, though, and I think it will be the starting point for any future analysis.
O'Connor said that the key question was whether the Pledge of Allegiance was or was not a "prayer." If it was a prayer, then teachers may not lead students in reciting it, but if it is not a prayer, then it is permissible for the government to inculcate children with those values.
Another way of looking at that case is as an example of government speech. Essentially, the government may express itself and may communicate messages and values to children and others with one exception – the government may not speak on the subject of religion. The government may not establish a church or fund a church or encourage people to attend church. The government may not take the position that God exists or that God does not exist. O'Connor concluded that the Pledge was not a prayer and that the Pledge, taken as a whole, is not communicating a religious message. But some people will disagree.
Because the Court found, at the last minute, that Michael Newdow lacked standing, and they did not decide this case on constitutional grounds, we still get to argue about this subject!
Please correct me if I am wrong, but the "natural born citizen" requirement in our constitution strikes me as being out of sync with the rest of our constitution and our historical identity. We purport to be the "land of opportunity" with equal rights for all. Yet here is a situation where two American citizens, one natural born and one not, have very different rights and freedoms. Presumably the founders were concerned about loyalty to the new country when they included this clause. Is it time to remove it? I realize something in the constitution cannot actually be "unconstitutional", but the natural born citizen requirement seems to break with the spirit of the constitution.
Good post, Professor. Obama will tke the oath of office on January 20 2009. He will swear to uphold the Constitutuion of the United States as part of the oath. Absent compelling evidence that he is ineligible under the Constitution that he will swear to uphold, he is entitled to the benefit of the doubt. After all, he holds a political position. There are political solutions to dealing with him if he is found to be ineligible.
Agreed, Quidpro. Curious, the framers were concerned that a foreign national such as the King of Spain might qualify as President if we allowed naturalized citizens to be eligible. The modern analogy would be that it would open the door to someone like Vladimir Putin if he were to be naturalized and if he were to reside in the United States for at least 14 years. You are right, though – today, this limitation deprives us of the possibly outstanding service in that office of naturalized citizens like Arnold Schwarzenegger or Janet Granholm. Most proposals to abolish the "natural born citizen" requirement of Article II would either extend the residency requirement from 14 years to a longer period such as 20 or even 35 years, or even require that the person have been a citizen for a lengthy period of time before qualifying for the office of the Presidency.
You have written above :
" Once Obama takes office … " & etc. { paras. 9, 10 }
Do you in fact thus extend an invitation to open the floodgates to eligibility suits under the clause ?
Addendum :
' natural born citizen ' clause, of course ……………………………
Any person who has suffered a legal injury as a result of any action taken by President Obama would have standing to challenge the legality of that action. The floodgates are now open.
In my opinion, the people who believe that Barack Obama is not eligible to serve as President are deluded, in many cases because they simply cannot accept the fact that an African-American is the President of the United States. Furthermore, in my opinion Senator Shelby was pandering to those views in his recent statements. It is fitting and proper for these people to have their day in court. The courts will quickly dispose of these cases and will impose Rule 11 sanctions on anyone who wastes the court's time with them.
Please reply if you know of a case that grants the rights of "natural born citizen" to an individual born in the U.S. when only the mother is a U.S. citizen. "Natural Law" states both parents to be citizens and I've only seen "natural born citizen" cases decided by the fathers citizenship at the time of the child's birth. At the very least, a child born in the U.S. with a U.S. citizen mother and Kenyan father would have dual citizenship and "native" U.S. citizenship". Whether Obama was born in Hawaii or Kenyan seems to make no difference. I see a "native born citizen" not a "natural born citizen".
The floodgates may have already been opened by a ruling that I just can't find.
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