October 29, 2008
Who Enforces the Constitution's Natural Born Citizen Clause?
If you believe in individual rights and the notion that our Constitution is a document granting enumerated but limited powers to the federal government, then you have reason to be troubled by the recent dismissal in Berg v. Obama et al.
Philip Berg, Democrat and former Assistant Attorney General for Pennsylvania, brought suit alleging that under the Natural Born Citizen Clause of the U.S. Constitution, Barack Obama is ineligible to be President. Federal Judge R. Barclay Surrick recently granted the motion to dismiss filed by Senator Obama and other defendants, including the Democratic National Committee, on grounds that Berg lacked standing to sue as a mere voter.
The judicial doctrine of standing is important. It is a requirement that plaintiffs have a real stake in the outcome of a real controversy. This prevents, among other problems, persons bringing lawsuits simply to harass defendants. The judicial doctrine of standing is one of many judicial doctrines designed to limit the courts from being overloaded with cases that aren't properly resolvable by the courts, such as ripeness (case brought too soon), mootness (case brought too late), lack of jurisdiction, etc.
When constitutional rights are at stake, courts have tended to give wider latitude to the standing of plaintiffs. The theory is that another person's loss of constitutional rights may indeed affect one's own constitutional rights.
Judge Surrick's carefully worded opinion cites to cases where standing was at issue, including a similar case in which the eligibility of John McCain to be President was challenged. In deciding that "a candidate's ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters," Judge Surrick writes in a footnote of potentially considerable consequence:
If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution's eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring . . .
Here's where I believe Judge Surrick's decision breaks down from a constitutional perspective.
The enumerated powers of the respective branches of government are set forth in the first three articles of the Constitution. Article III states that the judicial power is vested in the courts, and "shall extend to all Cases, in Law and Equity, arising under this Constitution . . ."
A case about whether a candidate is a natural born citizen seems quite clearly to arise under the Constitution, and thus within the exclusive domain of the courts. Under the language of the Constitution itself, there appears to be no need for Congress to pass a law authorizing individuals to file suit, or for courts to hear such challenges. In fact, there may be a separation of powers issue if Congress were to attempt to legislate broader or narrower access to the courts to hear constitutional challenges. That could infringe on the jurisdiction of the courts "to all Cases . . . arising under this Constitution."
Secondly, the enumerated powers of Congress under Article I do not extend to dictating who may have standing to sue under the Constitution. One may argue that Judge Surrick relied on what some believe to be the catch-all "Necessary and Proper Clause" in Article I, Section 8. That authorizes Congress:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Judge Surrick, however, never cites to that clause as his reason. Indeed, it would be inherently dangerous to our freedoms if Congress could dictate who can and cannot sue to enforce the Constitution.
So if the Framers established that courts "shall" hear cases arising under the Constitution, and failed to authorize Congress to otherwise establish who may sue to enforce the document, then where might we find conclusively that Berg has standing to sue?
The 10th Amendment to the Constitution states that the powers not delegated to the federal government, nor prohibited to the states, remain with the states or the people. Therefore it seems that any state or any person has standing to sue to enforce not just the Natural Born Citizen Clause, but other constitutional requirements and rights, absent some expressly written bar within the Constitution itself.
Disputes under the Natural Born Citizen Clause are few and far between, so Judge Surrick couldn't have been worried about his court being flooded with new cases. In this presidential election, however, both candidates of the two major parties were faced with similar challenges. Both filed motions to dismiss for lack of standing.
It's a shame these cases didn't get more attention and scrutiny based simply on how the candidates handled them. When faced with the potential for public reprobation before either acquired the ominous powers of the Presidency, both candidates chose a path indicating preference for their own power over the rights of individuals.
Although the merits of the Berg case weren't reached, Senator Obama has raised concerns in other contexts about his obscured and under-scrutinized views on "collective" rights as opposed to rights of individuals. His motion to dismiss for lack of standing doesn't portend well for how he would view individual rights under the Constitution if he were elected President.
Chief Justice John Marshall, writing in Marbury v. Madison, said that judges have a duty to decide cases under our paramount law, the Constitution. I have lamented previously about how some judges tend to evade their duty to decide constitutional matters by resorting to court-made doctrines. Judge Surrick's reliance on case law to dismiss Berg's suit for lack of standing is reasoned from a lawyer's perspective, but not heroic and perhaps evasive of his larger duty.
His decision to "punt" the matter to Congress creates, I suggest, a dangerous, longer and perhaps more painful constitutional quagmire than had he heard the evidence in the case. Even had the case lacked merit, the Constitution would not have been harmed.
Mark J. Fitzgibbons is President of Corporate and Legal Affairs at American Target Advertising, Inc., Manassas, VA.