Federal 3rd Circuit Court of Appeals tosses Berg vs. Obama

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by John Charlton

Independence Hall, Philadelphia, USA

Independence Hall, Philadelphia, USA

(Nov. 12, 2009) — Today, the Federal 3rd Circuit Court of Appeals tossed the case Philip J. Berg vs. Obama et al., specifically addressing several claims Attorney Berg had made, noting on pp. 5-65 that “In light of the public’s interest in the final resolution of this case” that it wanted to “to put some finality to the dispute” on Obama’s eligibility.  Remarkably, the Court did not consider it’s duty to regard justice, just political quiescence!

Having thus declared a political agenda, the Court’s opinion should not be surprising.  It states that its judgment is “Precedential”, and cites several other cases against Obama or McCain, on the question of eligibility for office, under the Article II, Section i, paragraph 5 clause of the U.S. Constitution — namely the obligation to be a “natural born citizen”, as precedents themselves.  The Court’s opinion is available on the web in its entirety.

Attorney Philip J. Berg, a life long Democrat, and former assistant Attorney General of the Commonwealth of Pennsylvania, had brought suit before the Electoin of 2008, to challenge Obama’s presence on the ballot, on the grounds that he was not a natural born citizen, and thus not eligiblie to hold the office.

Among the arguments denied by the Court, were the following. On p. 6, the Court of Appeals said:

In sum, we agree with the District Court that Berg lacks standing to bring this suit because he has suffered no injury particularized to him. A prerequisite of standing is that the litigant has suffered or will suffer an injury in fact that is caused by the complained-of conduct by a defendant and that can be redressed by the court. Taliaferro, 458 F.3d at 188. An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotations omitted). “[W]hen the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citation omitted).

Then the Court of Appeals said, in other words, that Election Fraud was acceptable to it:

Berg’s worry that Obama, if elected, might someday be removed from office was not an injury cognizable in a federal court because it was based on speculation and was contingent on future events. As a practical matter, Berg was not directly injured because he could always support a candidate he believed was eligible. See Becker v. Fed. Election Comm’n, 230 F.3d 381, 390 (1st Cir. 2000) (no cognizable injury to voters when they can still cast for preferred candidate), cert. denied, 532 U.S. 1007 (2001); Gottlieb v. Fed. Election Comm’n, 143 F.3d 618, 622 (D.C. Cir. 1998) (no harm to voters who could support the candidate of their choice); Hollander, 566 F. Supp. 2d at 68; cf. Gottlieb, 143 F.3d at 621 (injury to voters’ ability to influence the political process too speculative for purposes of standing).

On pp. 7-8, the Court of Appeals said even if Obama was ineligible, the injury resulting does not grant individual voters standing:

Even if we assume that the placement of an ineligible candidate on the presidential ballot harmed Berg, that injury, including any frustration Berg felt because others refused to act on his view of the law, was too general for the purposes of Article III: Berg shared both his “interest in proper application of the Constitution and laws,” and the objective uncertainty of Obama’s possible removal, pari passu with all voters; and the relief he sought would have “no more directly and tangibly benefit[ed] him than . . . the public at large.” Lujan, 504 U.S. at 573-74; see also Crist, 262 F.3d at 195; Becker, 230 F.3d at 389- 90; Gottlieb, 143 F.3d at 622; Hollander, 566 F. Supp. 2d at 68 (dismissing voter’s suit alleging that Senator McCain was ineligible to be President under the Natural Born Citizen Clause); Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex. 2000) (dismissing voter’s suit alleging that the Twelfth Amendment barred electors from voting for President George Walker Bush and Vice President Cheney), aff’d, Jones v. Bush, 244 F.3d 134 (5th Cir. 2000) (summary affirmance), cert. denied, 531 U.S. 1062 (2001); cf. Cohen, 2008 WL 5191864 at *1 (dismissing citizen challenge to Obama’s eligibility); Robinson, 567 F. Supp. 2d at 1146-47 (dismissing elector’s suit challenging McCain’s eligibility).

Then, in a decision stripping the entire American people of their preambulary rights, expressly retained by them according to the U.S. Constitution, the Court of Appeals denies that American citizens have 10th Amendment rights to seek judicial determination of Obama’s eligibility:

Berg also argues that he has standing “under the Tenth Amendment because the power to determine the qualifications of the President-elect is left to the states and the people after the Congressmen and Senators failed to object to the counting of the electoral votes” pursuant to 3 U.S.C. § 15 – a statute that provides a mechanism for members of Congress to object to electoral votes after they are cast. Appellant’s Br. at 18. The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. That clause has no apparent relevance to this case and Berg’s citation to Gregory v. Ashcroft, 501 U.S. 452 (1991), is not helpful.

On p. 10, the Court of Appeals makes the equally absurd argument, that a violation of statutory obligations by the Vice President, in his capacity as Speaker of the Senate, in the Joint Session, to ask for objections to Obama’s eligibility, injures no one sufficiently, to merit standing:

Among the litany of Berg’s claims is his argument that he was injured when the “President of the Senate failed to call for objections during the counting of the electoral votes from each state . . . .” Appellant’s Br. at 28. Berg supplies no factual basis for that assertion and we have no idea if it is true, but, assuming it is, Berg has been no more injured by that omission than any other United States citizen.

The Court, therefore, in summary, concluded that the case did not merit it’s consideration:

“Absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff’s claims, and they must be dismissed.”6 Taliaferro, 458 F.3d at 188.

Because there is no case or controversy, we will affirm the District Court’s order dismissing Berg’s action.

The apparent determination and intention of the 3rd Circuit Court of Appeals to end the public controversy, rather than grant a just consideration of this case, bodes ill for the likelihood of redress in the appeal of Kerchner et al. vs. Obama & Congress, which also falls under its pervue, and the filings of which appeal Attorney Mario Apuzzo is presently preparing.

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