'Birthers' lawsuit against Obama thrown out by federal appeals court

Dec. 23, 2011
'Birthers' lawsuit against Obama thrown out by federal appeals court
Carol J. Williams | McClatchy-Tribune News Service

last updated: December 23, 2011 06:30:42 AM

LOS ANGELES —A group of Southern Californians who insist President Barack Obama was born in Africa and should be ousted from the Oval Office had their case thrown out by a federal appeals court Thursday, but vowed to press their conspiracy theory with judges at the top of the judicial chain.

None of the "birthers" who filed suit on Inauguration Day 2009 can show that they suffered any harm from the Obama presidency that would give them the right to sue him, a three-judge panel of the 9th U.S. Circuit Court of Appeals said in dismissing the lawsuit brought by dozens of opponents.

Even the political candidates who lost to Obama in 2008 would only have had standing to sue if they had filed their complaint alleging unfair competition from an ineligible candidate before the election, the 9th Circuit judges said.

Lawyers for dueling factions of birthers said they would appeal the decision, with one group planning to seek review by a full 11-judge panel of the 9th Circuit and another that will go directly to the U.S. Supreme Court with a petition to reverse Thursday's decision.

Among those challenging Obama's eligibility for the presidency is Wiley Drake, a Buena Park, Calif., minister who once called on his First Southern Baptist flock to pray for Obama's death. Drake's attorney, Gary Kreep, said he would file for Supreme Court review because going back to the 9th Circuit "wouldn't get us very far."

Orly Taitz, a dentist-turned-lawyer who represents Alan Keyes, the American Independent Party's 2008 presidential candidate, and about 40 others who joined the lawsuit against Obama expressed frustration with a judicial system that refuses to answer their questions about Obama's legal right to his office.

"In three years, not one single court has stated that Barack Obama is a legitimate president, no court has verified that the Social Security number he uses was assigned to him, no court has validated his birth certificate," said Taitz. "All the courts are simply passing the buck, kicking the can by saying they have no jurisdiction and that the plaintiffs have no standing."

Taitz said the only reason Obama and his allies in Hawaii refuse to provide her with the original copy of his birth certificate is because "they know it's a forgery and they will have to go to prison."

The birthers' allegations that Obama was born abroad and has falsified his identity documents for decades were aired at a packed hearing at the 9th Circuit courthouse in Pasadena, Calif., in May, just days after the president released a copy of his birth certificate issued by the Honolulu hospital where he was born on Aug. 4, 1961.

But rather than put to rest the conspiracy theory spread by talk radio hosts and political opponents that Obama was born in Africa, the Hawaiian document was brandished by the birthers as evidence of forgery.

The 9th Circuit judges noted at the hearing as well as in their ruling Thursday that, aside from the plaintiffs' lack of standing, the challenge of Obama's legitimacy to serve as president is a political question beyond any federal court's power to decide. Only Congress can impeach a president, and any citizen petition for a common-law writ to initiate an inquiry into the legitimacy of the president would have to be brought through the federal court in Washington, D.C., the 9th Circuit panel noted.

Because the courts are constitutionally barred by the separation of powers doctrine from ruling on a president's eligibility to hold office, the three-judge panel - all appointees of Democratic presidents - declined to review any of the materials the birthers hauled to the Pasadena hearing to prove Obama's documents were counterfeit.

Rebuffed by the court, the birthers took their evidence outside the courthouse and pointed out for reporters and television cameras what they claimed were inconsistencies in the lettering, type size, paper quality and numbering of Obama's birth certificate and that of a woman born at the same hospital a few hours earlier.

In the 9th Circuit's 29-page ruling, the judges separately considered the claims of service personnel challenging Obama's right to command them, congressional representatives questioning his authority to decide budget matters, common taxpayers claiming they were being defrauded by an illegitimate leader and 2008 candidates and election officials who said their campaigns were harmed by competition from an ineligible contender.

One element required of plaintiffs to establish that they have a right to sue is identifying an injury that the court has the power to redress. None of the other plaintiffs suffered any harm caused by Obama, the court said, and the defeated candidates "cannot claim competitive standing because they were no longer candidates when they filed their complaint."

Neither Assistant U.S. Attorney David A. DeJute, who argued on Obama's behalf at the May hearing, nor a Justice Department spokesman returned phone calls asking for the administration's response to the ruling.

Carol J. Williams writes for the Los Angeles Times.