Obama citizenship, Leo Donofrio, Alan Keyes Obama
Obama Presidential Campaign/AP
President-elect Barack Obama with his
mother, Ann Dunham, in an undated
photo from the 1960s.

Supreme Court Declines to Hear Obama Citizenship Case

December 08, 2008 12:57 PM
by Josh Katz
The U.S. Supreme Court will not hear attorney Leo Donofrio’s case challenging the citizenship of Barack Obama. But similar cases remain in the legal pipeline.

Supreme Court Decides Whether to Discuss Donofrio’s Case

In a one-line decision, the U.S. Supreme Court today chose not to hear the case questioning President-elect Barack Obama’s U.S. citizenship, the Baltimore Sun reports.

The Court will not take up the case of New Jersey attorney Leo Donofrio, who originally filed the lawsuit against N.J. Secretary of State Nina Mitchell Wells with the intention of delaying the presidential election. He then amended the suit to halt the certification of Obama by the Electoral College on Dec. 15.

Few legal experts were surprised by the Supreme Court’s decision. “Nothing in what we’ve seen from the court so far suggests any likelihood the court is actually going to take the cases,” said Eugene Volokh, a constitutional law professor at the University of California at Los Angeles School of Law, according to The Washington Times before the Court’s order.

Donofrio does not dispute that Obama was born in Hawaii, unlike many of the other cases challenging his citizenship. But he argues that Obama is a British citizen because his father held a British citizenship—Kenya used to be British East Africa.

The case is only one of a number of efforts throughout the country questioning Obama’s citizenship. Six lawsuits have been filed in Hawaii, and one each in New Jersey, Ohio, California, Kentucky and Pennsylvania, according to Wesley Pruden in a Washington Times blog. The state of Hawaii stands by the assertions of the Obama campaign that the president-elect was born there and holds a legitimate birth certificate.
The standard arguments are that Obama was born in Kenya, not Hawaii, and the U.S. Constitution requires any president to be a “natural-born” citizen—or, according to the popular interpretation, born in America. The skeptics say that Obama’s parents could have made use of a Hawaiian law loophole “that allows a birth to U.S. citizens in a foreign country to be registered as a live birth in Hawaii,” Pruden writes. Also fueling speculation is the fact that Obama has not asked Hawaii to release his original birth certificate, though the Obama campaign has presented a copy of the certificate.

The Kentucky lawsuit “aims to have a federal judge review Obama’s original birth certificate, which Hawaiian officials say is locked in a state vault,” according to the Chicago Tribune.

Alan Keyes, whom Obama defeated in the 2004 Senate race, is one of the individuals filing a lawsuit. In one of the more publicized cases, Philip J. Berg filed a lawsuit in Pennsylvania in August, attempting to prevent the nomination of Obama at the Democratic National Convention. Berg, who supported N.Y. Sen. Hillary Clinton’s campaign, argued that Obama was a Kenyan citizen or became an Indonesian citizen when he moved to the country in his youth, according to Legal News Line. The U.S. Supreme Court refused to hear Berg’s case.

The issue of legal standing has come into play as well. In a brief filed by the Federal Election Commission on Oct. 31, in regard to one of the other cases, it argued that the people suing Obama lack standing because they can’t prove that they were personally harmed, The Washington Times reports.

Opinion & Analysis: The legitimacy of the Obama citizenship case

In the Hot Air blog, Ed Morrissey says Donofrio’s British citizenship explanation is an even “dumber argument than first thought.” According to Morrissey, “The children of immigrants born in this country are ineligible to be President? Since when does ‘natural born’ refer to the parents of citizens? Natural born means the person at question was born in US territory, and it always has.”

But Kurt Williamsen of the New American contended that Obama must be hiding something, because “A person just doesn’t spend something on the order of hundreds of thousands of dollars to keep one’s birth records a secret unless one has something to hide.” He didn't think the case would succeed, but said that's the point: “it should be pursued because to ignore it is to say that the Constitution is no longer the law of the land and is instead just an old piece of paper.”

The chances of the case succeeding were minute, as Andrew Malcolm of the Los Angeles Times noted, “given the court’s distaste for hanging chad and public disfavor for its involvement in settling the Al Gore–George W. Bush presidential contest over Florida in 2000.”

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