Berg v. Obama: Finding the proper defendants
posted by Howard Wasserman
One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.
But let’s assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commenters on this site have derided reliance on standing as a dodge by Obama and the court). It is worth thinking about how one could go about bringing such a lawsuit–whom to sue for what claims and what relief. Berg’s initial strategy was to sue Obama, the DNC, and the FEC–and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen–it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.
So who should Berg have sued? Let’s have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.
The obvious target should have been the Pennsylvania Secretary of the Commonwealth, the executive-branch official responsible for overseeing state elections, including determining ballot eligibility. An injunction could prevent the Secretary from allowing Obama on the ballot or, given the late date, from certifying Obama as the winner of the state popular vote, because doing so would violate the Eligibility Clause, thus violating Berg’s right. Actually, Berg named the Secretary, Pedro Cortes, in the Amended Complaint, but Cortes had not been served as of the date of the dismissal.
Of course, that only makes Obama unable to run or win in Pennsylvania. And the electoral map is such that Obama could become President even without winning Pennsylvania. So Berg would have to bring suits in all 50 states and the District of Columbia against the Secretary of State in each state. But Berg would lack standing in any state other than Pennsylvania; he cannot vote in any other state, thus he has not been deprived of his right to vote for an eligible candidate in any other state. So Berg would need to find a voter in every other state who would be willing to sue the Secretary of State in each of these other states. And perhaps the Pennsylvania decision would have a persuasive effect, if not an outright preclusive effect, in the later cases.
Well, OK. What if Berg wants to assert not his right to vote for an eligible candidate in the Pennsylvania election, but his right not have an ineligible person become President, assuming, of course, that Obama wins 270 EC votes-worth of state popular elections (and still putting standing to one side)? Now Berg must enjoin the people in the federal government who would make Obama President. It seems to me Berg might have three options. First, he could try suing the 538 electors (or at least those committed to Obama/Biden) who will “meet” and vote on December 15. But I simply cannot imagine a judge enjoining electors from voting a certain way. It seems like that would create a massive separation-of-powers problem, akin to ordering legislators to vote a certain way, something courts generally are not willing or able to do. Second, he could try enjoining the House of Representatives from certifying the Electoral College results. But this unquestionably would be barred by Speech or Debate Clause immunity. Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.
And just to add three more wrinkles. First, none of the actions described in the previous paragraph would be ripe at this point The need to stop the federal apparatus from recognizing Obama as President and allowing him to take the Oath of Office (or, put another way, Berg’s right to have the apparatus not recognize an Obama victory or allow Obama to take office) is not triggered prior to Election Day and Obama actually winning 270 EC votes-worth of popular elections. Second, the political question doctrine would block any injunction from issuing, since the question of eligibility seems to be textually committed to Congress. Of course, if we are going to recognize citizen.ideological standing, we may as well eliminate the political question doctrine.
Third, what would happen if, say, Rice were enjoined from recognizing a House certification of Obama as President? Come January 20, we would have a President who has failed to “qualify,” and Joe Biden would become acting president under the Twenty-second Amendment.
All this is my way of saying that, even if Berg did not lack standing, a combination of the limits of the judicial process and our byzantine, multi-layered system for selecting a President makes judicial resolution of this matter virtually unworkable.
Did I miss any other steps that Berg might have taken? Any other bizarre twists that I missed?
October 30, 2008 at 7:04 am
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Responses (20)
John Sabia - October 30, 2008 at 8:51 am
I think that about sums it up.
Ana - October 30, 2008 at 10:24 am
In other words, the people have no protection… Maybe Obama is right in disregarding The Constitution since it seems it’s just a piece of paper. Sad times.
Howard Wasserman - October 30, 2008 at 10:54 am
Only if you assume that only the courts can provide that protection, a proposition that most people (including most liberals) now reject.
John - October 30, 2008 at 12:56 pm
Forget the suit. There are only two possibilities.
One, if Obama has the original birth certificate, he should simply release it. If he doesn’t have the official birth certificate, he should request the Secretary of State in Hawaii release it. The Governor says they have the official birth certificate, but will not release it unless Obama requests it to be releaed.
Two, if Obama knows he is not a citizen and cannot produce an original birth certificate he will continue along the present course that he is pursueing.
Scot Boyd - October 30, 2008 at 2:57 pm
What about enjoining the Chief Justice from swearing in a non-citizen as President? That would keep it all within the Judicial branch.
Steve McGarvey - October 30, 2008 at 4:15 pm
Would it be safe to say that once and if he wins that the Republicans in Congress would challenge this and open an inquiry? Also along those lines, is Obama’s Senatorship in jeopardy here if he loses? I can’t imagine that this goes away with the passing of the election.
Howard Wasserman - October 30, 2008 at 4:23 pm
As for the second question about the Senate seat, there is no natural-born-citizen requirement. So even if he was not born in the U.S., he is eligible to serve in the Senate. Unless the new conspiracy theory is going to be that he is not actually a U.S. citizen.
As for the Senate opening an investigation if he wins, I doubt it. First, because Dems are going to control the Senate. At most, there might be some noise during the House vote counting, but I doubt anyone would even make the effort.
se - October 30, 2008 at 4:55 pm
I think Mr. Wasserman needs to go back and take some time to actually read the Constitution. Particularly the Twelfth Amendment.
Mr. Wasserman writes:
Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.
Mr. Wasserman seems to be of the impression that the US Secretary of State certifies electoral votes in the same fashion as state level Secretaries of State certify votes in state elections.
This is flat out WRONG.
The ONLY role the executive branch has in any of this is the Vice President, who, in his capacity as President of the Senate, does nothing more than count the electoral votes before the House and Senate on December 15th.
There is no certification of these votes by the US Secretary of State.
So if Mr. Wasserman believes that suing Condi Rice is “the only possible way to go,” then there simply is no possible way to go.
C’mon people. You’re all worked up about a “constitutional crisis” yet it seems most of you have never actually READ the damn thing.
It’s not that hard. It’s not like the Constitution is a 300 page novel. At a leisurely pace, it can be read in no more than an hour.
se
se - October 30, 2008 at 5:13 pm
I just realized that I’d misread what Mr. Wasserman wrote.
Mr. Wasserman was referring to the US Secretary of State certifying the House vote accepting the electoral votes, not the electoral votes themselves.
This is even goofier than what I originally thought he was saying.
The US Secretary of State doesn’t certify any House or Senate votes. And I have no idea where anyone would ever get such a notion.
se
Melba Wilson - October 30, 2008 at 5:50 pm
Actually, it’s the “birth records” Hawaii won’t release. So there may be a birth certificate or a birth registration.
Look at “Box 7C” on a real Original Hawaiian birth certificate. Note that it leaves an option for “Foreign Country.”
Without the original records, Obama is not a U.S. Citizen.
BTW, it’s too late now. If they couldn’t release this a year or two ago, any release now, with FOUR DAYS to go would have “LIE” and “FRAUD” written all over it.
I really don’t know how Obama expects to govern as more and more people are learning the truth all of the time.
Then, as if this isn’t bad enough, there is a gigantic dirty laundry list – an elephant in the room, and that’s going to follow Obama around forever.
The sad fact is I was undecided and leaning toward Obama in the summer. After learning about this, and everything else, there is NO OTHER CHOICE THAN TO VOTE FOR JOHN McCAIN. BTW, I have voted for every viable Democratic candidate, and even some that didn’t have a chance. So, I am NOT a right wing nut, and I’m also not now or ever a Hillary supporter.
se - October 30, 2008 at 6:30 pm
Melba Wilson wrote:
Actually, it’s the “birth records” Hawaii won’t release. So there may be a birth certificate or a birth registration.
Look at “Box 7C” on a real Original Hawaiian birth certificate. Note that it leaves an option for “Foreign Country.”
However the certification of birth takes its information from the birth records. So if the certification gives the place of birth as Honolulu, Hawaii, that’s the place of birth that was in the birth record.
I really don’t know how Obama expects to govern as more and more people are learning the truth all of the time.
Learn WHAT truth?
There is literally nothing in Berg’s lawsuit which isn’t either factually incorrect or has absolutely no credible evidence supporting it.
If that’s what you call “truth” then I know a gentleman in Nigeria who would be most interested in your help regarding a large sum of money.
se
Howard Wasserman - October 30, 2008 at 7:02 pm
As to Rice, I did not mean to write “certify” and I know the Secretary of State does not play any role in determining the winner, a la a state Secretary of State. I meant to say “execute” or “enforce” or “carry out.” The certification by the House of a victor, of its own force, has no effect unless someone enforces it, in what is basically a ministerial act. So, my point stands. If the House cannot be enjoined from declaring Obama the winner (because of Speech or Debate), a court would enjoin whomever is responsible for enforcing that declaration.
Now, I believe I was mistaken as to the Secretary of State being that executive official. My colleague Prof. Baker and I both agreed it originally was the Secretary of State. But that responsibility may been transferred elsewhere within the executive branch, to a different agency or official.
Bama 1L - October 30, 2008 at 10:56 pm
According to the 12th Amendment, the President of the Senate (aka the Vice President) collects, counts, and certifies the vote of the Electoral College.
Does anyone else remember Al Gore having to do this in January 2001?
Bama 1L - October 30, 2008 at 11:13 pm
I wonder if the President of the Senate (Vice President) is therefore responsible for enforcing the Art. 2, § 1 rules of eligibility.
Fun example: On electin day, Obama wins the majority of electoral votes. The electors transmit their votes to Washington; all are for Obama or McCain. Cheney announces that the majority of electoral votes has gone to a constitutionally ineligible candidate. No eligible candidate has a majority, so we go to the backup procedure. The House, voting by state delegations, then gets to choose the President from among the top three electoral-vote getters. Only McCain appears on the ballot. McCain wins. Cheney announces that the winner is, again, constitutionally ineligible. No President can be elected. Cheney does have to announce, though, that Joe Biden is the new Vice President.
On March 4, by operation of the 12th Amendment, Biden becomes President of the United States.
se - October 30, 2008 at 11:33 pm
Howard Wasserman wrote:
As to Rice, I did not mean to write “certify” and I know the Secretary of State does not play any role in determining the winner, a la a state Secretary of State. I meant to say “execute” or “enforce” or “carry out.” The certification by the House of a victor, of its own force, has no effect unless someone enforces it, in what is basically a ministerial act. So, my point stands. If the House cannot be enjoined from declaring Obama the winner (because of Speech or Debate), a court would enjoin whomever is responsible for enforcing that declaration.
I’m sorry, but I’m having a hard time swallowing the notion that an elected President may only assume power depending on the action or inaction of some bureaucrat.
Please cite where this is detailed in the United States Code or the Code of Federal Regulations.
se
se - October 30, 2008 at 11:41 pm
Bama 1L wrote:
I wonder if the President of the Senate (Vice President) is therefore responsible for enforcing the Art. 2, § 1 rules of eligibility.
Nah. He just opens the ballots and counts the votes.
However anyone in Congress can issue a challenge to any electoral votes.
In fact, this was done in 2004 by an Ohio Congresswoman with regard to the “voting irregularities” in Ohio.
se
Bama 1L - October 31, 2008 at 1:18 am
se, in your opinion who may enforce the eligibility requirements?
If the President of the Senate believes that the person elected is, in fact, ineligible, how can the President of the Senate announce that person’s election, given the 3 U.S.C. § 15 makes that declaration determinative? How can the houses of Congress sitting in special session to hear the votes tallied let it go through? That’s when you make the objection.
Can any court enforce the Art. 2, § 1 rules or does someone have to do this during the vote-counting process? I don’t think so. But there is no caselaw.
Cf. Art. I, § 5, granting to each house of Congress the power to judge elections, returns, and qualifications of its members. In Powell v. McCormack (1969), the Court came close to saying this granted an unreviewable power to enforce constitutional qualifications but did not reach the issue. (Justice Douglas wrote in concurrence to say exactly this.)
se - October 31, 2008 at 2:21 am
Bama 1L wrote:
se, in your opinion who may enforce the eligibility requirements?
Well, state legislatures may make it a requirement for appearing on state ballots.
Electors can take eligibility into consideration when it comes to casting their votes.
And finally, Congress may challenge any electoral votes cast for a candidate they may have reason to believe would not qualify.
If the President of the Senate believes that the person elected is, in fact, ineligible, how can the President of the Senate announce that person’s election, given the 3 U.S.C. § 15 makes that declaration determinative? How can the houses of Congress sitting in special session to hear the votes tallied let it go through? That’s when you make the objection.
Yes, the President of the Senate must call for any objections. If there are none, I don’t see any way for the President of the Senate to do anything about it.
Can any court enforce the Art. 2, § 1 rules or does someone have to do this during the vote-counting process? I don’t think so. But there is no caselaw.
I don’t think any court should do anything until after the established political process has run its course. To do otherwise would have the courts usurping the powers given to Congress.
It would be rather like the courts stepping in and declaring some piece of legislation unconstitutional before it was ever enacted.
Cf. Art. I, § 5, granting to each house of Congress the power to judge elections, returns, and qualifications of its members. In Powell v. McCormack (1969), the Court came close to saying this granted an unreviewable power to enforce constitutional qualifications but did not reach the issue. (Justice Douglas wrote in concurrence to say exactly this.)
The key phrase here being “of its members.” The President of the United States isn’t a member of Congress.
se
Howard Wasserman - October 31, 2008 at 6:53 am
But the issue of accepting or rejecting the votes of the Electoral College is committed to Congress in the Twelfth Amendment, so the Political Question Doctrine would bar judicial review. Alternatively, assuming P/Q/D does not preclude review, we are back to the point of the original post–who can be sued at this point? You cannot sue any member of the House or Senate (including, I would suggest, the President of the Senate while presiding there) because of Speech or Debate Immunity.
Bama 1L - October 31, 2008 at 1:33 pm
se, yes it’s obvious that Art. I, § 5 is not applicable, but it’s the most analogous part of the Constitution for which there is caselaw–and the caselaw all but says there’s no judicial review available. Only Congress can act.
I am not at all confident that there is any place for judicial review based on Art. II, § 1 qualifications. As you observe, there are numerous opportunities for legislative action, particularly questioning the ballots. I think that the President of the Senate is the last person who can act, and I don’t think that the President of the Senate can be obliged to read out the whatever name got the majority of electoral votes if it would lead to an unconstitutional result. But I also don’t see how that decision is reviewable by the court.
If the President of the Senate “misbehaved” in this regard, solution would be to be for the House to impeach and the Senate to convict. The Senate would then elect itself a new president, who would resume the process.
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