Constitutional Integrity: Part I

A couple of weeks before the election, the blogosphere and internet media outlets started reporting that there was a bit of a controversy surrounding Barak Obama's qualifications to be president. Specifically at issue - Article II of the US Constitution, which states in part that

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the United States...

So what's the problem? We haven't seen Barak Obama's birth certificate. It all started on August 21, 2008, when Phillidelphia Lawyer, Philip Berg filed a lawsuit in Pennsylvania's Eastern District court challenging Obama's "qualifications" to be president. Berg, a life-long democrat and contributer to the DNC, named as defendants Obama, the Federal Election Committee, the DNC, and unknown co-defendants 1-50. The complaint asserts, that

• Obama claims he was born in Honolulu, Hawaii on August 4, 1961 but has failed to provide the name of the hospital he was born in. Upon investigation into the birth of Barack Hussein Obama in Honolulu, Hawaii, Obama's birth is reported as occuring at (2) seperate hospitals: Kapiolani Hospital and Queen's Hospital.
  
• Obama's grandmother on his father's side, half brother and half sister claim Obama was born in Kenya.
  
• Wayne Madsen, Journalist with an Online Journal was a contributing writer for a published article on June 9, 2008, stating that a research team sent to Mombasa, Kenya, located a Certificate Registering the birth of a Barak Obama, Jr. at a Maternity Hospital, to his father, a Kenyan Citizen and his mother, a U.S. Citizen.
• At the time of Obama's Birth in 1961, Kenya was a British Colony and there is a Canadian Birth Certificate posted on the Internet in the name of Barack Hussein Obama, Jr., although the date of birth is August 23, 1961.
• There is evidence that Obama's mother went to Kenya during her pregnancy, and evidence that she was prevented from boarding a flight in Kenya to Hawaii at her late stage of pregnancy (airline policy to avoid births during a flight).
  
• Under the Independence Constitution of Kenya, Obama became a citizen of Kenya on December 12, 1963. Obama has never renounced his Kenyan citizenship either.
  
• There is evidence to suggest that Obama's mother, Stanley Ann Dunham (Obama) gave birth to Obama in Kenya, after which she flew to Hawaii and registered his birth. There are records of a "registry of birth" for Obama, on or about August 8, 1961, in the public records office Hawaii.
• Under Section 301(a)(7) of the INA, the law in effect at the time of Obama's birth stated that if a child is born abroad and one parent is a U.S. citizen (Obama's mother), in order the the child to take that parent's nationality at birth, that parent would have to have live ten (10) years in the United States, five (5) of which were after the age of fourteen (14). Obama's mother was 18 when he was born, so Obama can not be a natural born U.S. citizen under this provision.
  
• As a matter of law, Obama lost any U.S. citizenship he may have tentatively had when he was expatriated (Naturalization Act of 1940). His mother married an Indonesian citizen, Lolo Soetoro and relocated both him and her to Indonesia, wherein Obama's mother naturalized there. Obama, as a minor in the custody of his mother, as a matter of law, followed her naturalization.
  
• Obama was enrolled by his parents in a public school, Fransiskus Assisi School in Jakarta, Indonesia. Copies of the school registration show Obama's name as Barry Soetoro, his father as Lolo Soetoro, and his citizenship as Indonesian. Inside Edition has verified this document.
• Obama's mother sent him, at age 10, back to Hawaii, and she followed him shortly after. She divorced her Indonesian husband, and had the option to regain her citizenship. In order to do so, Stanley Ann Dunham need only to take the oath of allegiance either abroad before a diplomatic or conuslar officer on the United States, or in the United States before the Attorney General or the judge of a clerk of a Court. Had she taken this oath, a record of such would've been entered in the records of the appropriate embassy, legation, consulate, court, or with the Attorny General, including a copy of the oath administered under the seal of whomeever. Under Chapter 8 of the U.S.C., section 1435, the certified copy shall be evidence of facts stated therin before any court of record or judicial tribunal etc. No such record exists, and Obama's mother failed to take the oath in order to regain her U.S. Citizenship.
  
• Obama failed to take the oath of allegiance when he turned (18) years to regain his US citizenship status.
• Obama still maintains multiple citizenships with various foreign nations, still making him ineligible under Article II.
  
• In 1981, Obama taveled to Pakistan using his Indonesian passport, thus being fully aware of his Indonesian citizenship.
• Indonesia does not allow dual citizenship.
• Obama and his Campaign Office have been asked for the Certificate of Birth to prove he is a natural born citizen. After many requests, Obama's campaign posted a digital copy online. Three independent forensic experts have tested the certificate as presented online, and have each determined it to be a forgery.
• It was further discovered that this original certificate of live birth was an altered and forged copy of one issued to Obama's half sister, Maya Kasandra Soetoro, who was born in Indonesia in 1970.

On the same day, Berg also filed a motion requesting a temporary restraining order to prevent Obama from running for President; to enjoin the DNC from nominating him. Berg's motion was denied. On September 9, 2008, no named (or unnamed) defendant had yet to file a response of any kind, or produce the birth certificate, Berg filed MOTION to Expedite Discovery, Extensive Discovery and Appoint A Special Master. Still no answer. Wait Wait Wait..it's going to get EVEN BETTER!! On September 15th, 2008, Obama and the DNC were served with discovery by Berg. Among this discovery request was a Request for Admissions and Request for Production of Documents. A request for admissions is just what it sounds like: it's a request sent from one party to another in a lawsuit requesting that they either admit or deny basic facts are true. If the parties can agree on a few things, it can make litigation easier. By law, the Defendants have 30 days to respond, and if the Defendants don't respond, all the statements/facts that are listed in the Request for Admissions are deemed true as a matter of law. Obama and his lawyers and the DNC didn't answer the complaint or the the Request for Admissions, but instead filed that Motion To Dismiss for lack of subject matter jurisdiction. The Court asked Berg to file his Response to the Motion To Dismiss and he did so in a timely fashion on September 29th. On October 6, Obama and the DNC's attorney(s) called Berg and asked him to agree to staying discovery till the election was over - in otherwords asking him to agree that they didn't have to turn over any documents or the birth certificate or answer any of the questions in the Request for Admissons until after the election had already taken place. Since Berk is not an idiot, he said no "declined as Obama’s citizenship status is of National security as he is running for President of the United States."

So, on October 6th, Berg also filed a MOTION for Leave to File First Amended Complaint on October 6, 2008. In response, Obama et. all filed MOTION for Protective Order Staying Discovery Pending Decision (on their Motion to Dismiss), but in their motion they acknowledged that they had received the requests for admissions.

Berg filed his Response to the Motion for a Protective Order Staying Discovery on October 9th. Obama et all filed a new motion to dismiss, directed at the First Amendeded Complaint on October 20th. The basic arguments of the Motion to Dismiss are that: (1) the plaintiff lacks standing to sue; and (2) that there is no federal cause of action for enforcement of Article II of the Constitution.

On October 21, Berg filed a MOTION for Order Deeming Requests for Admissions. In plain English here's what that means: the 30 day time period had ellapsed. The Defendants had admitted that they had the Request for Admissions and still hadn't responded in 30 days, and the Court had issued no order protecting them from the deadline. Thus, in accordance with Federal Rule of Civil Procedure 36(a) [along with relevant case law), Obama and the DNC are deemed to have admitted as a matter of law that Obama is ineligible to be President. PERIOD. It should be over. That should've been the end of it. But NO. Even though Berg filed all his responses on time, followed the rules of the court and the law of the land, he didn't get his order deeming all the requests for admissions admitted by the defendants. Instead, the Honorable R. BARCLAY SURRICK ordered on October 24 that the Defendants' Motion to Dismiss was granted. Then, he ordered on October 27 that since the Motion to Dismiss was granted, ALL pending motions by the Plaintiff, Berg, were deemed Moot. Swept under the rug.


Don't lose hope though fellow defendants of the constitution. On October 30, Berg filed his notice of intent to appeal. The third circuit affirmed, but Berg filed Writ of Certiorari for review of the case and an injunction to stay the election pending review. Justice Souter denied the injunction.

However, the U.S. Supreme Court has reserved judgement about whether or not to grant cert (it takes at least four concurring justices). Thus, under Supreme Court Rule 15.3, Obama and FEC and DNC have until December 1st (30 days) to file a brief as to why cert should not be granted. The brief is not mandatory, except in a capital case, which Berg v. Obama clearly is not. Whether Obama and the DNC choose to file an opposition brief remains to be seen — most likely they will, or else produce for the plaintiffs the birth certificate etc. The entry of an appearance by the Solicitor General is a pretty clear indication that the FEC will oppose certiorari. Then Berg gets a chance to respond.

Remember, as much as Obama would like to think he's already the head of the The Office of The President-Elect, he's not even that yet. The Electoral College doesn't meet to cast its' votes until December 13th. The Court will have plenty of time to enforce the Constitution, should it come to that.