Monday, September 29, 2008
Berg to File Opposition to Obama’s Motion to Dismiss Today
By the end of the day today, Philadelphia attorney Philip Berg will file an Opposition and supporting Brief in response to the Motion to Dismiss filed by Illinois Sen. Barack Obama and the Democratic National Committee with regard to the underlying August 21, 2008 suit filed by Berg which contends that Obama is not constitutionally eligible to hold the office of president of the United States.
The Motion to Dismiss filed by Obama and the DNC last Wednesday–available for view and download HERE–made two distinct arguments: First, that the court lacked subject matter jurisdiction because Berg has no standing to file suit and, secondly, that Berg’s complaint failed to state a claim upon which relief could be granted.
Among other authority cited by Obama and the DNC in support of the first defense was Hollander v. McCain, a recent case from New Hampshire in which the court held that Fred Hollander, asserting the claim that Arizona Sen. John McCain was ineligible for the presidency based upon his birth in the Panama Canal Zone, lacked standing to sue. In that case, the court cited several factors in its decision:
- Regardless of McCain’s eligibility for the presidency, his candidacy did not constitute a “restriction on voters’ rights” as it did not preclude Hollander or anyone else from voting for another candidate in the New Hampshire primary.
- The “generalized interest of of all citizens in constitutional governance” was not enough to claim harm.
- Hollander failed to allege that any harm was indeed proximately “traceable” to McCain’s alleged unlawful conduct.
- McCain was “unquestionably an American citizen.”
Berg is quick to distinguish Hollander. First, he says, Obama’s candidacy for the presidency in the general election prevents citizens from voting for Hillary Clinton despite her 18 million votes received in the primary election. Second, the harm Berg suffered is particular to him because he has been denied the constitutional right to cast his ballot for an eligible candidate. Third, his claims of injury can indeed be traced to Obama’s unlawful behavior, his “failure to disclose information to which American voters are entited.” And finally, the defendants have failed to show, as mentioned by the New Hampshire court in Hollander, that Sen. Obama is “unquestionably an American citizen.”
“If you take a closer look at the factors used by the court to decide Hollander v. McCain,” Berg said, “Those very same factors clearly come down in favor of me having standing in this case.”
There are a number of other avenues by which Berg could address the argument that he lacks standing.
First, he says that the failure of the Federal Election Commission and the DNC to investigate Barack Obama and his campaign, which has fraudulently taken in more than $400 million all the while knowing that he cannot serve as president, runs afoul of 5 USC §702, which states, in relevant part, that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
Second, pursuant to 2 USC §437(d), the Federal Election Commission has the power to, among other things, require documentary evidence relating to the execution of its duties and conduct investigations and other mechanisms expeditiously and to report any apparent violations to law enforcement authorities as deemed appropriate. The agency, Berg says, has breached its duty to remedy any wrongdoing with regard to the political process.
“We’ve brought these issues to the attention of the DNC and the FEC but they’ve refused to take any action whatsoever to protect voters in this country,” Berg said. “Voters have donated $400 million to a candidate who fraudulently seeks the presidency.”
Furthermore, Berg plans to argue that he has standing under 8 U.S.C. § 1481(b), which states that whenever the loss of citizenship is at issue with regard to a civil action presumably such as this, the burden of proof is placed on the party bringing the action–in this case, Berg–to establish the claim by preponderance of the evidence.
“Every country has its own laws,” Berg said. “In one of his books, Obama wrote that his stepfather went back to Indonesia from Hawaii a little while before Obama and his mother did. When he finally got there, all the friends and relatives were out to meet him, the stepfather called him his son, and he was already registered in school.”
“We have the school registration papers,” Berg said, referring of course to the Associated Press-verified record from Obama’s school in Indonesia which shows his name as “Barry Soetoro,” his citizenship as Indonesian and his religion as Islam. “To be registered, the stepfather had to acknowledge that Obama was his son. For Obama to be acknowledged as his stepfather’s son, he had to become a natural born citizen of Indonesia.”
That’s right, Berg said “natural born citizen of Indonesia.” I asked him if his argument that Obama became a natural born Indonesian without being born there somehow weakened his argument that the Illinois senator wasn’t a natural born U.S. citizen because he was born in Kenya. He cited Article II of the Indonesian Constitution, which states that an adopted child–with the adoption severing the child’s relationship with the birth parent in question according to Indonesian law–is given the same status as a natural born child.
Interestingly enough, Berg also cites a case I had brought to his attention and asked him about, something we had read in school a while ago. Though Federal Election Commission v. Akins was a case which has nothing to do with citizenship–it questioned whether or not the American Israel Public Affair Commitee (AIPAC) could be considered a “political committee” under the Federal Election Campaign Act–the thing that struck me about it was the Court’s treatment of the plaintiffs. The Court, in that case, was concerned with “informational injury.” When the U.S. Court of Appeals for the District of Columbia Circuit reversed the trial court’s dismissal of the plaintiff’s action, the court stated the following:
…Continue Reading Here
Comment – Still the MSM is boycotting this story. Thanks to Jeff Schreiber for all of his work regarding this matter. Too bad Hillary doesn’t join in this suit. She certainly has standing.
Obama’s campaign is shameful. The Media’s behavior is shameful. What about the allegations that Obama used cocaine and engaged in consensual gay sex with Larry Sinclair in November of 1999? Will the MSM stop taking sides in the election and do their jobs? Will they investigate Mr. Sinclair’s allegations? Will they dig into Obama’s past as hard as they have jumped on Sarah Palin and her 17 year old daughter? Will they look deeply into Obama’s relationships with William Ayers, Rev. Wright, Tony Rezko, Acorn, and all the rest? Will they look into the Democratic involvement in Fannie Mae and Freddy Mac failures? Will they call Sen. Obama to task for his possible violation of the Logan Act? Will they support Rush Limbaugh against Sen. Obama’s smears? Unfortunately, the answer is No.
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