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October 29, 2009

Birthers Lose Another Lawsuit

Alright, that's not news. The news is that the judge wrote what will probably be the most in-depth discussion (30 pages) of the issues that have plagued the Birther lawsuits: standing, separation of powers, and the political question doctrine.

First, for the first time a court has suggested that failed presidential candidates like Alan Keyes might have standing to sue the President over constitutional eligibility. This is the argument that Ace has been making for a while. As Ace said long ago, somebody out there should have standing. The court in this case considered several possible plaintiffs and found each lacking: active military, retired military, state representatives, taxpayers, and distant Obama relatives (!!!).

When it came to presidential candidates, though, the judge noted "the political candidate plaintiffs are the only category of plaintiffs who potentially satisfy the injury-in-fact requirement[.] [T]he Court will turn to whether the political candidates can satisfy the redressability requirement of the standing analysis."

That's where the plaintiffs failed. As I have been arguing all along, the Constitution does not commit any authority to the courts to depose Presidents. Sole constitutional authority to remove sitting presidents rests with Congress. Thus, there is no remedy for the courts to provide.

So the lawsuit was dismissed. Oh, and lest I forget, Orly Taitz took it in the teeth (again). The judge was not amused by her antics. I LOLed at this observation:

While Plaintiffs removed Mueller in their First Amended Complaint following the Court’s suggestion that they narrow and focus their claims, they insisted upon the continued inclusion of the First Lady, Secretary of State, Secretary of Defense, and Vice President as Defendants. [FN2]

FN2. The inclusion of the First Lady in this lawsuit, considering she holds no
constitutional office, is baffling.

But seriously, Taitz is probably facing a bar complaint over several of her claims, which the court called "inexcusable", and for some possibly criminal behavior. I've tucked that portion of the decision below the fold.


The hearings have been interesting to say the least. Plaintiffs’ arguments through Taitz have generally failed to aid the Court. Instead, Plaintiffs’ counsel has favored rhetoric seeking to arouse the emotions and prejudices of her followers rather than the language of a lawyer seeking to present arguments through cogent legal reasoning. While the Court has no desire to chill Plaintiffs’ enthusiastic presentation, Taitz’s argument often hampered the efforts of her co-counsel Gary Kreep (“Kreep”), counsel for Plaintiffs Drake and Robinson, to bring serious issues before the Court. The Court has attempted to give Plaintiffs a voice and a chance to be heard by respecting their choice of counsel and by making every effort to discern the legal arguments of Plaintiffs’ counsel amongst the rhetoric.

This Court exercised extreme patience when Taitz endangered this case being heard at all by failing to properly file and serve the complaint upon Defendants and held multiple hearings to ensure that the case would not be dismissed on the technicality of failure to effect service. While the original complaint in this matter was filed on January 20, 2009, Defendants were not properly served until August 25, 2009. Taitz successfully served Defendants only after the Court intervened on several occasions and requested that defense counsel make significant accommodations for her to effect service. Taitz also continually refused to comply with court rules and procedure. Taitz even asked this Court to recuse Magistrate Judge Arthur Nakazato on the basis that he required her to comply with the Local Rules. ... Taitz also attempted to dismiss two of her clients against their wishes because she did not want to work with their new counsel.

Taitz encouraged her supporters to contact this Court, both via letters and phone calls. It was improper and unethical for her as an attorney to encourage her supporters to attempt to influence this Court's decision. Despite these attempts to manipulate this Court, the Court has not considered any outside pleas to influence the Court's decision.

Additionally, the Court has received several sworn affidavits that Taitz asked potential witnesses that she planned to call before this Court to perjure themselves. This Court is deeply concerned that Taitz may have suborned perjury through witnesses she intended to bring before this Court.

While the Court seeks to ensure that all interested parties have had the opportunity to be heard, the Court cannot condone the conduct of Plaintiffs’ counsel in her efforts to influence this Court.

This observation at the very end of the decision, however, seems a bit much to me, as it is not so much directed at these particular plaintiffs as it is their counsel and the Birther movement in general:

Plaintiffs have attacked the judiciary, including every prior court that has dismissed their claim, as unpatriotic and even treasonous for refusing to grant their requests and for adhering to the terms of the Constitution which set forth its jurisdiction.

The judge is right, of course, but he probably shouldn't have blamed these particular plaintiffs for the behavior of a fairly varied group of people.

For your nighttable reading pleasure, the decision is here (PDF) or if that's not working here.

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posted by Gabriel Malor at 10:13 PM

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