Berg v. Obama and Common Sense

Andrew McCarthy, former AUSA and current NRO contributor, writes:

What is the deal with Obama’s birth certificate and citizenship status?

… , Philip J. Berg, a former Deputy AG of Pennsylvania and a professed Hillary supporter, filed a lawsuit claiming Obama is not constitutionally eligible to be president; instead of simply clearing up any questions — which you would think would take about five minutes — Obama’s lawyers moved to dismiss the suit and failed to file a timely answer, meaning that, under the applicable rules (according to Berg), Obama is legally deemed to have admitted Berg’s allegations that he is constitutionally ineligible to be president. . . .

Has anyone around here looked into this? Is it a serious issue, and why does Obama seem to be so squirmy about it?

This seemed in my wheelhouse. So I checked out the docket of Berg v. Obama et al., 08-cv-04083-RBS (EDPA).

First up, here’s the complaint, followed in short order by Judge Surrick’s order denying Berg’s TRO, seeking to disqualify Obama. Pretty summary, eh? Maybe it’s because Berg doesn’t have standing, and thus Surrick can’t bring himself to waste time better devoted to actual litigants with real cases-in-controversy.

Next up, here’s Obama’s motion to dismiss, and Berg’s opposition. Not surprisingly, Obama then moved to stay discovery pending resolution of the dispositive motion. Here’s the FEC, joining Obama’s motion to dismiss for lack of jurisdiction.

Those dispositive motions are all pending. Now, I’ve no idea what Berg has been telling McCarthy, but in civil court, filing a motion to dismiss an original complaint tolls the time in which a defendant has to answer a complaint. (FRCP 12(4).)

Obama (and the FEC) have admitted nothing, and no judge in the Country would find to the contrary.

[Just to be clear, I have no informed views about the merits of the Obama citizenship theory, though I’m inclined to think it is silly based on what I’ve read. Nor do I have informed views about whether the standing rule which prohibits Berg’s claims is a normatively desirable one. All I’m saying is this: McCarthy claimed, based on bad information I think, that Obama’s failure to answer was consequential. That’s plainly wrong.]

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101 Responses

  1. Brett Bellmore says:

    “Maybe it’s because Berg doesn’t have standing,”

    The standard dodge; If Obama wins, he becomes Berg’s President as much as anybody’s, and Berg ‘suffers’ the wrong of being subject to rule by an unconstitutional President.

    But apparently in terms of standing, if everybody is wronged, nobody is allowed to complain. So the more widespread the violation, the harder it is to get a court to do anything about it.

    You’d think in a sane world if a wrong was to be committed against everybody, then everybody would have standing, rather than nobody.

  2. Bruce Boyden says:

    I take it neither Berg nor McCarty has done much civil procedure. Rule 12(a)(4) is a pretty memorable one for civil litigators, since it allows you to postpone a deadline.

  3. Matt says:

    What I don’t understand about this whole silly affair is what the point is supposed to be. The dumb story is that Obama wasn’t born in the US but was actually born in Indonesia. But even if he was, he’d still be eligible to be president, I would think, because he’d be a citizen at birth via his US Citizen mother. Is the claim now supposed to be that his supposed mother wasn’t his mother or that she wasn’t a US citizen? In his case his being born outside the US would be neither hear nor there for citizenship purposes since the alleged loop-hole that some claim keeps McCain from being a “natural born citizen” was closed long before Obama was born. This seems pretty clearly the case under INA Section 301(g), unless the truly fantastic claims about his mother are made.

  4. Matt says:

    It’s not clear from what I wrote but the loop-hole that allegedly keeps McCain from being a natural born citizen has nothing to do w/ Obama’s situation under any reading, as well. (It had to do w/ the obscurity of the status of the Canal zone.) But, the law clearly makes, and made, Obama a natural born citizen via his citizen mother regardless of where he was born so this whole charade is even more clearly nonsense. The only possible reason for it is to encourage the “OMG! HE’s A sEcret MUzlIM!!!1!1” crowd. It really is beyond stupid.

  5. Matt says:

    Usually the number of comments in one post by a single commenter is inversely proportional to what they add or the accuracy. Sadly that seems to be the case here. As was very kindly pointed out to me there is a way for Obama to not be a natural-born citizen despite his citizen mother if he was born outside the US (as insane people think.) That is, INA 301(g) was changed only after Obama was born to cover people 18 years old, as his mother was at the time. When he was born the citizen parent had to be 21. I’d be shocked if the rule wasn’t found to be retroactive if it went to court (on the grounds that any other rule would be extremely dumb) but that’s what the law was then. Thanks to a kind and knowledgeable correspondent for pointing this out.

  6. Kathy says:

    Rules are rules! What disturbs me the most about this whole thing is that Obama has been asked to hand over birth certificate, creditials concerning his education and health records and he has refused. It makes me think that he does have something to hide. That right there is more alarming than not being a natural citizen. The old saying is that “if someone will do it with you, he will do it to you”! (you fill in the it)

  7. bill says:

    that’s right Kathy. He isn’t giving up any medical info. Biden, McCain, & Palin all did.

    He won’t give up education records – some from over seas. And…..now he won’t give up “vault” birth certificate.

    He says he was born in Hawaii. Others say otherwise. And now he is going to Hawaii to visit his sick Grand Mother????

  8. bill says:

    I am the standard bill and not the one above.

    Note that the LA Times posted Obama’s birth certificate.

    http://latimesblogs.latimes.com/washington/2008/06/obama-birth.html

    The question is whether McCain has released his Panamanian birth certificate.

  9. Andrew says:

    As I understand it, Senator Obama has released what is known as a short-form birth certificate.

    However, he has not released what is known as a long-form birth certificate.

    I don’t why the latter has not been released, since it would apparently rebut many of the fringe theories that allege he’s not a “natural born citizen”.

  10. Bob Dixon says:

    Hey Bill, Quoting from your link:

    “McCain was, in fact, born in a U.S. military hospital in the Panama Canal Zone, where his father was serving in the Navy. That was, in fact, American-controlled territory at the time.

    More importantly, his parents were both American citizens, so he could have been born on Mars and still been an American at birth. And a sense of the Senate resolution took care of any lingering doubts.”

  11. dennis says:

    At some point, on this site, a lawyer, presumably with no axe to grind, gave us the groundrules for the tolling of time to provide a response to Berg’s demands. If, as expected, the Judge will rule in favor of the DNC and Obama, Berg’s demands will presumably need to be part of an appeal to the 3rd Circuit Court of Appeals, or wherever he hopes to run with it.

    Most importantly, and I am not a lawyer, but have dealt with the process of charges, and proof, in a civil proceeding like this, where one party asserts that a document is not “true” (i.e. the birth document issued by the Hawai’i Dept of Health, and publically deemed to be valid by a representative), then the burden of proof in on the moving party, i.e. Berg as the plaintiff.

    All the other frivolities would not be relevant. If the document cannot be proved to be a false Hawai’i document, then it remains true, and Obama meets the standard of a natural-born person in the United States.

    Being realistic, his mother and father left the states shortly after he was born. If there were any additional documents provided at birth, the travels and travails of his mother, etc. in Kenya and Indonesia, and later return to the States certainly might have caused these documents to be lost.

    Somehow, Stanley and Barack were readmitted to the US, and apparently as US citizens. Makes sense, as both were born here in the States.

    Note elsewhere in some of these legal blogs that Berg has been previously censured by a Court for friviolous motions and legal malpractice.

  12. Adrian says:

    I’ve seen the short-form certificate on Obama’s website. Presumably short-form certificates can be made at any point in the future after the filing of the long-form certificate.

    I say this because I don’t recall ever seeing a government issued document created circa 1961 that was produced on a typewriter with an Arial-type, sans serif font.

    More of an investigative point rather than legal I’m sure, but the document I saw only in it’s electronic form could have been made at any time in the last 47 years. Based upon the graphical presentation, the last 15 years seems more accurate.

  13. dennis says:

    I have PA Certs of birth for myself and my wife issued in the 1990s whereas we were born in the mid-1940s.

    The font style certainly is as you state, and the form date is consistent with the much later issue.

    If I recall, this is also the case with Obama’s, and this seems to unduly lead folks to question it. If you or I or anybody asked for a Cert of Birth, we probably will get a machine rendition, and not a copy of the original. Is Obama’s original out there, and available to him? I don’t know, and I do wonder why just to clear the air, it has not been requested by Obama and provided. But that burden of proof would be on Berg.

    I suspect that even if a “100%” cert were provided, that the skeptics (to say it nicely) will still be getting into his family travels and residencies to attempt to discredit his standing as a natural born citizen.

  14. Andrew says:

    Question for Dave Hoffman:

    Doesn’t FRCP 12(4) only apply to pleadings? Pleadings are separate from discovery requests, right? FRCP 12(4) describes the time periods to file a responsive pleading. Aren’t time period to respond to discovery requests a whole other ball of wax?

    For example, FRCP 36 covers requests for admissions, which are part of discovery. Are you sure that FRCP 12(4) affects the time period spelled out in FRCP 36?

  15. Andrew says:

    I think Andy McCarthy may have slightly misstated the matter. McCarthy wrote that Berg says Obama “failed to file a timely answer”. Actually, I think Berg says Obama failed to respond to a Request for Admissions under FRCP 36, which is not the same as failing to file a responsive pleading.

  16. Andrew says:

    I’ll take one more stab at this. I agree with Dave Hoffman that “Obama (and the FEC) have admitted nothing” but not for the reason given above in the post. The reason is not FRCP 12(4) but rather FRCP 36(3), which says: “A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.”

    Obama filed a Motion for Protective Order within 30 days, so the matter is not admitted. I don’t think FRCP 12(4) applies to discovery requests.

    Anyway, who can I bill for this legal research? 🙂

  17. dave hoffman says:

    Andrew,

    If that’s really what’s going on, McCartney more than slightly misstated the matter, he made a complete hash of it.

    On the discovery point, *if* the RFA were timely, then Obama’s motion for a protective order would toll it, for the reasons you give. But the parties in this case haven’t had a scheduling conference to discuss discovery under the applicable local rule (16.1(b)), which suggests that this RFA is untimely in any event. This is is why Berg has moved, four times (!), to expedite discovery. The Court hasn’t ruled on those motions (because it is writing its dismissal order, no doubt). Until it does, or the Court rules on the motion for a protective order, this is all much ado about nothing.

    And even if that weren’t so, there are very, very, very few judges that would deem failure to respond to an RFA at any point in a lawsuit a waiver of a defense, unless that parties’ failure to answer was willful or repetitive. (This is what the 16(e) discretionary hook is for.)

    I think we all recognize that this is a political stunt of a lawsuit, which seeks to advance a claim of dubious legal merit (and not just because of the standing issue). It is disappointing that McCarthy, a well-respected former assistant United States attorney, felt it worthwhile to publicize it so uncritically, and even worse that he’s yet to correct his original blog post.

  18. Andrew says:

    Professor Hoffman:

    Thanks for the reply. I wouldn’t be too hard on McCarthy, for several reasons. First, FRCP 36 does use the word “answer” so McCarthy was probably entitled to use that word too in his NRO post; he just could have been a bit clearer about it. Second, many reputable sources have been covering this matter, including the Washington Times, Greta Van Sustern at her Fox News blog, and various other reputable media outlets, so I don’t see anything wrong with McCarthy mentioning the subject. Third, I do find Obama’s conduct here somewhat strange; John McCain has already released his long-form birth certificate, so Obama does not seem to have any reason for not releasing his own long-form birth certificate. I’m 99% sure it would resolve this whole matter.

  19. CWC says:

    I’m trying to follow all of this as best as I can. I have a question for anyone out there to answer. If the birth of Obama is found to not be a question, is the question of his citizenship in Indonesia by Berg a concern to anyone? If what Berg says is true and Obama does hold citizenship in another Country, is this actually a valid reason for Obama to be ineliglbly to run for or hold the office of President of the United States? Not knowing if any of what Berg aledges is true, the questions he raises are a concern to me. How do we find the truth about these questions?

  20. As a concerned citizen, and we all should be, I do not find this issue to fall into the “An axe to grind” category.

    It most certainly does fall into the “I’m asking the people of the United States to honor me with the PRIVILEGE of being the next POTUS, so the least I can do, is to cooperate to the best of my abilities as a man with good intentions would be expected” category.

    The big question that lies unanswered, and in my opinion ignored, is the one of BHO having attended school, as a child, in Indonesia. Indonesia does not accept dual citizenship, and therefore BHO denounced his U.S. citizenship in order to obtain an education in the foreign country of Indonesia.

    At his point he would no longer be a citizen of the U.S., but a citizen of Indonesia. Furthermore, there was not an accusation of BHO being born in Indonesia. His grandmother, “the sick one”, the “typical white person”, said that BHO was, in fact, born in Kenya.

    If anyone believes that this issue is dumb, silly, beyond stupid, or simply insignificant, then it is because, like a child, you want what you want just because you want it, and you do not care if the means is illegal or unethical. If that is the case, you should not have become a lawyer in the first place, because the constitution of our country means nothing to you anyway. More than likely, you want to earn a living exploiting it rather than upholding it.

    If there is nothing to hide, and everything is legitamet and within compliance, bring forth the proof, and in turn, shutting peoples mouths. It is too easy, and in all reality, the general public deserves at least that much.

    BHO should do the right thing, and just produce the document. This is exactly the type of thing that comes to mind when people ask “Why don’t you trust him?”, “Why do you think he’s shady?”.

    COME ON PEOPLE! He wants to be the President of the United States! It may as well be me running for this position. I’ll trade-off 143 days of actual Senate time for twelve years in the U.S. Military, including combat, and still have more to offer this country than BHO! Mark my words; within a year of his inauguration, you will be sorry that you ever bought into this whole Obama/Biden ticket of substandard humans. Idiots I tell you, IDIOTS!

  21. Andrew says:

    CWC, if the country of New Zealand decides unilaterally to give you citizenship, that does not make you any less a U.S. citizen. Same thing if the country of Indonesia decides to give you citizenship.

    If a person was born in the USA, and resides in the USA now, then that person is entitled to US citizenship and is a natural born U.S. citizen. The 14th Amendment says so: “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It doesn’t matter if you lived in Indonesia for awhile.

    The only issue with Obama is whether he was born in the USA, and it’s a 99% sure thing that he was. But it’s strange that he won’t produce his original (long-form) birth certificate to prove it.

  22. Wayne says:

    As a genealogist, I am concerned.

    A certification of birth is not the same thing as an original certificate of birth. What is on the original certificate of birth is different than what can subsequently issued. For example, my wife’s father changed his name during WWII time, and her original birth certificate showed this change of name on her original birth certificate. Several years later trying to get her social security/medicare

    we requested a copy of the birth certificate. What we really got a revised certificate of birth, a certification of birth, that did

    not show her father had changed his name.

    Consequenly a review of a original birth certificate is needed to verify that a citzen is really a natural born citzen. For example, the original birth certificate could indicate that the person’s birth was merely being registered and not actually having show that, that person was born in the state or territory.

  23. dave hoffman says:

    Andrew,

    Focusing on the procedure, for just a second, I think you are letting McCarthy off too easily. Look at his post – he wrote “Obama’s lawyers moved to dismiss the suit and failed to file a timely answer, meaning that, under the applicable rules . . . Obama is legally deemed to have admitted Berg’s allegations that he is constitutionally ineligible to be president. . . .” That clearly doesn’t refer to a discovery RFA, but rather the allegations in the complaint. If McCarthy knew a lick about civil practice, he’d have to know this is wrong. I’ve emailed him about it, but he hasn’t made a correction.

    In terms of the coverage, I have no problem with covering the lawsuit, but I think that journalists ought to mention, pretty quickly, that (1) standing rules prohibit recovery; and therefore (2) there is no chance this will be adjudicated. To suggest that Obama does wrong by not contesting the merits on a motion to dismiss distorts how litigation is supposed to work.

    On the birth certificate merits itself, I’ll let the commentators duke it out. I’ll just say that views of the facts, and their relevance, seems overdetermined by individuals’ priors.

  24. Bill says:

    As a US Citizen (one of the highest honors in this world) I call for our champions of the legal system to step forward and demand in one voice that proof of citizenship for all four candidates be provided for verification. Failing that, doubts and distractions will follow every action of the executive branch for the next four years. Lawsuit after lawsuit will be filed. Restore the faith of the American Legal system to We, the People. Stand up!

  25. Ted says:

    Handled right, the Fed District Court throwing out Berg for lack of standing can present a political check-mate “win” on appeal for the anti-Obama side (if not in law, in the Court of Public Opinion). Here’s how: SIMPLY SPREAD AROUND OBAMA’S APPELLATE BRIEF HAVING TO ARGUE AGAINST AN AMERICAN VOTER’S RIGHT TO RAISE THE QUESTION UNDER THE CONSTITUTION. Should be a PR disaster for the Dems and Obama!!!

  26. Ted says:

    Handled right, the Fed District Court throwing out Berg for lack of standing can present a political check-mate “win” on appeal for the anti-Obama side (if not in law, in the Court of Public Opinion). Here’s how: SIMPLY SPREAD AROUND OBAMA’S APPELLATE BRIEF HAVING TO ARGUE AGAINST AN AMERICAN VOTER’S RIGHT TO RAISE THE QUESTION UNDER THE CONSTITUTION. Should be a PR disaster for the Dems and Obama!!!

  27. john says:

    Put aside Obama’s and McCain’s circumstances. I want to ask a standing question:

    Assume that Arnold Schwartzenegger were elected President. He is not a natural born citizen.

    Who would have standing to challenge his qualifications to be President?

  28. cynthia says:

    It is my understanding, based on the Immigration and Nationality Act of 1940 and its subsequent amendment in 1952, that the citizenship follows that of the mother. Since she married an Indonesian man and moved BHO to Indonesia where he was required to be a naturalized citizen to attend their schools, he and his mother took on Indonesian citizenship. Neither of them apparently swore an oath of allegiance on coming back into the United States which would preclude them from being considered natural born citizens of the US. This is the whole crux of the issue with regards to Obama. Since he at the age of 20 traveled to Pakistan on an Indonesian passport, he was acknowledging his Indonesian citizenship. He refuses to produce a copy of the oath of allegiance which would have made him a US citizen again, although, if I understand the INA 1940 and 1952 amendment correctly, a naturalized vs natural born citizen. He would have regained his citizenship had he taken the oath between the ages of 18 and 23 years, provided he could show his residency on American soil (su solis) for a minimum of 5 years which was the requirement at the time. Apparently, he and his mother re-entered the US when BHO was about 10 years old. In the meantime, he was an Indonesian citizen which did NOT recognize dual citizenship with the US until just a year ago. This is the whole issue. And, if we as Americans cannot stand up and claim foul play when we see a problem with regards to who is elected president of this country when they refuse to provide the necessary documentation, how can we as a country ensure that someone who does not have this country’s best interests in mind? I’m NOT an attorney, but have been researching this issue for several days now. I understand where Berg’s mindset is on this issue and, while we all anticipated that the matter might be dismissed for “lack of standing”, claiming that Berg and all Americans who feel disenfranchised by the DNC (a private concern, no less) have the ability to choose from among the many other candidates and so are not truly “injured” by this, the fact remains that All Americans, regardless of party affiliation are affected by what is essentially a federal court’s decision that we have no authority to sue the government or any private election party to question what they’re doing. We are supposed to be a nation of laws created by, of and for the people. The people want an answer – it does not matter his political leanings. We want an answer.

  29. cynthia says:

    It is my understanding, based on the Immigration and Nationality Act of 1940 and its subsequent amendment in 1952, that the citizenship follows that of the mother. Since she married an Indonesian man and moved BHO to Indonesia where he was required to be a naturalized citizen to attend their schools, he and his mother took on Indonesian citizenship. Neither of them apparently swore an oath of allegiance on coming back into the United States which would preclude them from being considered natural born citizens of the US. This is the whole crux of the issue with regards to Obama. Since he at the age of 20 traveled to Pakistan on an Indonesian passport, he was acknowledging his Indonesian citizenship. He refuses to produce a copy of the oath of allegiance which would have made him a US citizen again, although, if I understand the INA 1940 and 1952 amendment correctly, a naturalized vs natural born citizen. He would have regained his citizenship had he taken the oath between the ages of 18 and 23 years, provided he could show his residency on American soil (su solis) for a minimum of 5 years which was the requirement at the time. Apparently, he and his mother re-entered the US when BHO was about 10 years old. In the meantime, he was an Indonesian citizen which did NOT recognize dual citizenship with the US until just a year ago. This is the whole issue. And, if we as Americans cannot stand up and claim foul play when we see a problem with regards to who is elected president of this country when they refuse to provide the necessary documentation, how can we as a country ensure that someone who does not have this country’s best interests in mind? I’m NOT an attorney, but have been researching this issue for several days now. I understand where Berg’s mindset is on this issue and, while we all anticipated that the matter might be dismissed for “lack of standing”, claiming that Berg and all Americans who feel disenfranchised by the DNC (a private concern, no less) have the ability to choose from among the many other candidates and so are not truly “injured” by this, the fact remains that All Americans, regardless of party affiliation are affected by what is essentially a federal court’s decision that we have no authority to sue the government or any private election party to question what they’re doing. We are supposed to be a nation of laws created by, of and for the people. The people want an answer – it does not matter his political leanings. We want an answer.

  30. anil sanghvi says:

    mr obama is very brillent person and its help

    us people and worlds countery. he become a best

    president of us.

    THE GREAT END OF LIFE IS NOT KNOWLEDGE BUT

    ACTION.

    REGARDS

    ANIL SANGHVI

    INDIA

  31. Danney says:

    Regardless of the posting if there is a true certificate of birth and you want to simply get a case dismissed and make the plaintiff look like a fool then you walk it over and submit it to the court. Now there is a huge questions to why that was not done? Is he hiding something? Why such a mysterious past? Why did enough voters now elect this man if truth is not transparent? Where in the world does a politician get $600plus million and hide where it come from? So many questions I really think America has made a big mistake. My hopes that the truth will be found if he is cleared congratulations but if not a great wrong has been done to our country and We The People will suffer from this. Can anyone tell me truly who has standing? As Berg said if I don’t have standing if you don’t have standing then who does? Do we not have the right now to redress our grievances as We The People? If we have question to the constitutionality of a leader elect and that question remains then I do interpret the constitution to say we should have no alliances. With all these shady doubts can we really believe this man is or is not a tyrant?

  32. Eigernorthface says:

    The case was appealed to the U.S. Supreme Court. Berg requests a Writ of Certiorari. Justice Souter was on duty when the complaint came in. He denied the motion to stay the election and scheduled a hearing on the application fot the Writ of Certiorari for 1 Dec 2008. Berg has other things he wanted besides staying the election.

    So on 1 Dec 08 Berg will appear and say why the Writ should be granted, and the Obama lawyers will appear and say why the Writ should not be granted. Both sides will file briefs.

    The transcript of the hearing and all the briefs will be circulated to all the Justices. Some time later they will vote on whether the Writ of Certiorari will be granted. If four of them say yes, then Berg v Obama will be docketed as a case before the Supreme Court.

    If the case is docketed Berg will have a chance to argue that the District Court should not have dismissed his case on the standing issue. If the Supreme Court disagrees, that’s the end of the legal case.

    If the Supreme Court agrees with Berg they can do two things (1) remand to the District Court for further proceedings or (2) take the whole case up to the Supreme Court by pendant jurisdiction.

    If Berg got that far — possibly by someone else joining the case to enhance Berg’s standing, pendant jurisdiction would probably be involked because of the scope and time issues of the case.

    Who could join Berg to allay the standing issue? One of the other candidates — clearly they have a case — if Obama is not qualified to run. Also any of the electors would have standing. Some electors from certain states have already heard of the case and are talking about it. They have a direct legal obligation to be sure the person they vote for in the Electoral College is qualified.

    {Editorial Note: In a nation of 300 million people it is truly amazing — almost Twilight Zone like that only a few dozen people seem to care at all about this case. It gets zero coverage in the mainstream media — no radio, no TV no newspapers. We appear to be living in the era of “Don’t Know Don’t Care”. 53% said they did not care whom Obama was associated with prior to his candidacy. Several people have loudly stated that they don’t care if he comes from the moon as long as he can bring some change. 20 generations of Americans have fought and died to preserve the U.S. Constitution. The people on the U.S. Supreme Court do care. They will do what’s right, even if no one is watching.)

  33. Eigernorthface says:

    In the event that the Supreme Court grants the cert petition, and decides to take the whole Berg case up on pendant jurisdiction for a trial on the facts there would be three key issues for evidence to be found.

    1. The airline that flew from Kenya to Hawaii has a passenger manifest, which even in 1961, would be legally bound to specify the number of souls aboard the plane. If the baby that is now called Barack Obama was on that plane, there would be a listing for it on the manifest. This would be strong evidence that the baby was not born in Hawaii.

    2. A question arises as to whether there is any non-forged documentary evidence indicating Barack Obama’s birth in Hawaii. The certificate of live birth might fit the bill, if it’s a non-forged document. On the other hand it could well be a non-forged official document that is in fact not accurate. Hawaii in 1961 was a sort of semi-organized place. The mother was a person who had the resources to cause an official document to be created even if the information recited thereon was not true. So, document specialists would have to tell the Court if the COLB is genuine, and other investigators would have to find out if “facts” presented thereon are true. A long-form vault birth certificate would be very helpful in answering these questions. Mr. Obama either cannot or will not present such a document, but if same exists it may be in the hands of authorities in Hawaii, and the Supreme Court presumably could obtain it.

    3. It has been alleged that Barack Obama was taken to Indonesia prior to the age of 18 by his mother who then became an Indonesian citizen. But one cannot lose one’s U.S. citizenship involutarily, and a 16 year old in the care custody and control of a parent has no voluntary capacity. However, it has also been alleged that at the age of 20 — 2 years after attaining adult status, Barack Obama travelled to Pakistan on an Indonesian passport. If this is true, it would constitute an act inconsistent with his reclaiming his American citizenship at the age of 18, which he arguably may have had a right to do, if he was really born in Hawaii and not in Kenya.

    (Editorial note: It may be hard for us lawyers to accept that this case is not all about the law — it’s actually all about the facts. The Supreme Court can sort the facts out fairly quickly if it doesn’t get into the process of taking testimony from unreliable foreign witnesses. Certainly there is no law of any other country that makes any difference here. Whether Barack Obama is or is not qualified to take the oath of office for the Presidency of the USA is entirely a matter of US law, as it may incorporate the laws of the State of Hawaii as they existed in 1961. The case really turns on the facts as they emerge from documentary evidence interpreted by qualified document examiners. We do have such people at CIA and FBI and NSA and NRO. The Court would have access to their services as needed. Getting to the bottom of this case actually is relevant, kind of important. The Founders were very specific on this point and for good reasons. We don’t even think in those kinds of terms today. They knew why the President had to be a natural born American. Obama may have the right stuff to be sworn in — but one way or another — we need to know — this is not something that we can just skate by on — sort of a “Don’t know; Don’t Care” kind of thing. This is not political for me — I’ve been a member of the Bar of the US Supreme Court since 1985. The Constitution should be upheld, and it will be — the Justices are not asleep.

  34. Danney says:

    As I am studying this as a student of law apparently there is an on going investigation with some of the EC as to the constitutionality of Obama. I do know that Ron Paul and the We The People foundation are now spreading the word and are asking donations to run an add with USA today an open letter of demand for prof addressed to Obama. They also have informed and preparing suit involving the EC to restrain there vote in key states. The foundation has stated that they are preparing in the case SCOTUS denial of writ of cert as I read the dismissal memorandum and order this may happen unless Berg corrected some issues.

    According to the ruling by Judge Surrick “Defendants were not represented 1 at the hearing. Plaintiff advised the Court that he had

    faxed a copy of the Complaint and Motion for Temporary Restraining Order as well as notice of

    the hearing to Defendants, but that he could not confirm that they had been received by

    Defendants. (Hr’g. Exs. P-1, P-2, & P-9.)

    2 Federal Rule of Civil Procedure 15(a) provides that “a party may amend its pleading

    once as a matter of course . . . before being served with a responsive pleading.” A motion to

    dismiss is not a responsive pleading. The motion seeking leave to amend was unnecessary. The

    Amended Complaint is deemed filed.”

    This leads to weigh in Judge Surrick’s decision to dismiss. But then he also sited Rule 12(b)(1) Lack of Jurisdiction and the explained reason for having no standing was because failure to demonstrate damages excluding primary candidates and he included them who vote or may vote.

    Thank you Eigernorthface for your help.

  35. Eigernorthface says:

    Dear Danney,

    It’s good to hear that Ron Paul and his people are taking an active role.

    From what you tell me, it sounds like there may have been an issue of service of the complaint in Judge Surrick’s court. When I was practicing in that same court we always had to file the complaint and then show by clear signature proof that the complaint had been served on the defendants. It doesn’t sound right to me that Berg would just file his complaint and then FAX it off to someone. What’s next just text messaging? Why bother to file at all — why not just text message the Clerk of Court, with copy to defendant?

    Defective service is a valid basis for dismissal without predjudice in my opinion, especially if the case would involve a major forfeiture of possible rights or privileges, and the defendants do not appear. The law abhors a forfeiture.

    The case was providently dismissed by Judge Surrick simply because he does not have the resources to process such a case. It’s like calling in the cavalry — you dismiss the case on some sort of technicality — it buys time — it allows a court with fuller and better resources take the matter up, and in the meantime it doesn’t impact the case in any way.

    The bottom line from Surrick’s decision is “Look Berg if you can’t find anybody with a more direct stake in this matter than you have merely by being a registered voter to join you in this case, then this might well be the sort of frivolous vexacious litigation that the “cases and controversies” limitation on jurisdiction is designed to prevent.”

    As I say Surrick’s decision is provident — I’m assuming that out of 300 milliion people somebody, maybe Ron Paul, might be found who will step forward and say — “Maybe Berg doesn’t have standing but I do — I was one of the other candidates in the same race! If I’m not directly harmed by a possible fraud on the whole country and its Constitution placing an inelligible person in the Oval Office — who would be?”

    If Surrick can’t or won’t answer that, he should be impeached — he’s not fit to be a Federal Judge.

    Any of the electors would also clearly have standing. So what are the 500+ electors — and each of them is legally duty bound to take all necessary steps to assure that the person they cast their vote for is elligible — no matter what the DNC, FBI, CIA or anybody else may have failed to do. So is every single elector living in the world of “Don’t Know, Don’t Care”?

    Right now that’s how it looks. Berg stands alone, like the Sheriff in High Noon — with all the “respectable townspeople” hiding behind their couches, hoping nothing bad happens to them.

    Do Americans deserve to live under their own Constitution? Have we all gone slack? Is this the Brave New Unworthy World?

    Let’s have Ron Paul come forward and join the case. One man with a spine goes out to join the Sheriff at high noon and says “I don’t know how this is going to come out — but we need to get to the bottom of this — not just skate by it!”

    Hope this helps you, Ron Paul, my fellow Americans, and the Constitution.

  36. Danney says:

    Thank you again for your explanation it is expertly presented. As I stated I am in the process of study and this was handed to me a case study as I was very vocal of my discontent for both candidates but more so against Obama as clearly being a so called “constitutional scholar” references he has made regarding the constitution has clearly been wrong. It seems the constitution gets in his way of ideology more so then McCain.

    I took issue with the McCain/Feingold act 2 years ago as a project explaining the unconstitutional clauses in this act related to the guarantee of free speech. I got a high score on my project. This act was proven also worthless as Obama did exploit the holes in campaign finance reform by donation of $200 or less the sources need not be explained also as use of prepaid visa/MasterCard leave none or limited resources to investigate violations. Donation with the use of them to the campaign of Obama only as McCain refused to except. Any foreign government or donation from foreign sources gives freedom to exploit. This most likely is the case. I truly fear the Election of Obama as he has plainly shown circumvention of laws and leads me to believe he is not constitutionally qualified. I shake to say buying into one that shows no respect for the law or twists it in favor has grave consequences without weighing his history of this.

    We seem to be 2 voices but there are many. We The People Foundation is a groundswell. I do not buy into some of the conspiracy theories presented by this foundation but I understand it is not an arm of a political party but that of many and many ideas will be voiced. The focus though is restoration of the constitution and the demand of We The People have the right to redress our grievances and protect our constitution as the law of the land. They expose blatant violations in tax law as withholding taxes makes the power of the people inept. The only recourse we have is mass demonstration and legalese. Being the judicial system has been set up to protect the interests of governing bodies legal means has been weakened. We do have some on our side I am very impressed with decisions from Thomas, Alito, Roberts and Scalia and sometimes Kennedy. Ginsberg is by my definition a political hack siding always with liberal causes along with Souter and Bryer. Stevens has been inconsistent at best as O Connor before her retirement.

  37. Eigernorthface says:

    To Danney on 10 Nov 08

    Danney a groundswell is not needed. Lots of chatter won’t help. Many talking heads add nothing.

    The only thing that will make a difference right now is for one person who clearly does have standing to join Berg as a plaintiff in the lawsuit.

    Bob Barr might do it. Ralph Nader might do it. Ron Paul could do it, but he would have to put aside distractions like organizing groundswells and taking ads in the paper and focus his consciousness on filing the appropriate papers with the U.S District Court for the Eastern Distric of Pennsylvania to add himself as an additional plaintiff in the Berg v Obama lawsuit.

    Intellectual exercises are very excellent things, but in this particular matter there’s absolutely no substitute for actual deeds — doing things, not just thinking, analysing, or opining.

    Hillary and McCain have big big political careers to worry about, so I don’t think they will join Berg. But one of the lesser candidates could, and would be just as good for purposes of overcoming the standing problem.

    Any of the electors would be just as good. If I were taking an ad in the paper, I would list all 500 + electors by name, explain the independent responsibility they bear for casting their vote only for lawful and eligible candidates, and then implore at least one of them to stand up like a real person and join in the Berg v Obama case.

    There’s a limited number of people that can help solve the standing problem — I can’t, you can’t, it has to be someone who is specifically and most directly harmed if Obama is ineligible. Those who ran against him and those who must vote in the Electoral College would be directly harmed by a failure of the American judiciary to address and resolve any issues about Obama’s eligibility that are backed by credible evidence offerred in good faith.

    Berg, I think, has some of that in his pleadings. He is offerring to prove that Obama is invalid as a candidate for the Presidency. Among the few hundred people who could make a difference here, one of them has to step forward, and say “Yes, I care about this matter, I want to see it proved one way or the other, just like Berg does”.

    So far, all we have is the sound of “zzzzzzzzzzz” by 99.9999% of the citizens, and idle chatter by the other .0001%.

    This means that even if cert is granted, Berg with have to deal with the standing issue in the Supreme Court, and prevail on that issue, before his case in chief can be considered on its merits. Berg won’t get to talk about Obama’s trip to Pakistan at age 20 on an Indonesian passport unless 4 out of nine of the supremes grant cert and then 5 out of 9 say that Berg all by his lonesome has enough standing to bring the case.

    This is not just a technicality. The more likely the Supreme Court is to be challenged in a Constitutional showdown, the more carefully it must create and document its jurisdiction to hear the case. The scardey cats who won’t join Berg are making the situation far more complex than it needs to be and creating a huge and expensive hurdle for a sole practitioner lawyer to overcome with no institutional funding. The standing issue can’t be removed summarily because it is not a mere technicality. The way to remove it is by one person with a spine — maybe Rob Paul — doing the only action that will make a difference — it’s a matter of filing not talking.

  38. Danney says:

    Eigernorthface thank you once again. You bring to me experience and tutelage better then I am receiving in my study at times. I have to weigh consistently viewpoints of them who have an agenda put forth over the teaching of facts and experience. This sadly to say is often the case in higher education institutes as well as public school. Fortunately my parents put me though a private school.

    Dr. Edwin Vieira is one of my greatest sources as in evaluation of his writings seems he bucks the trend. I have 2 of his books Constitutional Homeland Security and Pieces of Eight both very informative. I shall not bother with the details but I do encourage you to read these as I can do little justice to his explanation of steps to legally take action.

    I was disappointed with Ron Paul’s congratulatory senate speech but then again he has a political future and I don’t know if it was out of the necessity to not rock the apple cart. I do know he is pursuing adjudication involving the EC hopefully he will continue and be effective as well. The movement lead by him at least is getting some publicity I do hope he post the add. This has been lacking as you and I know the media has ignored any negativity involving Obama Fox news has had some but surely presented the other side softball question.

    Do you believe the writ of cert will be denied? I do believe Ron Paul is in discussion with Berg or he would not be taking this add out involving the case. So maybe there is light between the clouds.

  39. Danney says:

    Quoting Dr. Edwin Vieira PHD and constitutional scholar’s stance on this issue.

    “In disposing of the lawsuit Berg v. Obama, which squarely presents the question of Obama’s true citizenship, the presiding judge complained that Berg “would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory.” This is exceptionally thin hogwash. A proper judicial inquiry into Obama’s eligibility for “the Office of President” will not deny his supporters a “right” to vote for him—rather, it will determine whether they have any such “right” at all. For, just as Obama’s “right” to stand for election to “the Office of President” is contingent upon his being “a natural born Citizen,” so too are the “rights” of his partisans to vote for him contingent upon whether he is even eligible for that “Office.” If Obama is ineligible, then no one can claim any “right” to vote for him. Indeed, in that case every American who does vote has a constitutional duty to vote against him.”

  40. Eigernorthface says:

    To Danney and Dr. Edwin Vieira, Ph.D 11 Nov 08

    First, I’m honored to receive such a thoughtful and correct analysis from Dr. Vieira on the issue of what it would mean to permit a judicial inquiry to proceed into the question of Obama’s eligibility. This is a place for concurring opinions, and my opinion concurs 100% with what Dr. Vieira has so eloquently said. Why couldn’t Ron Paul say it? Is all his bravado just posture, hot air, no spine? In a rightly organized election, one of the other candidates or one of the electors would come forward. These are people who supposedly care about the election. Leaving poor Berg out there all by himself is not right if I could come to his side by joining him as a plaintiff, I would do it. I’ve been where he is. I represented the nuclear veterans from the atomic test site and the people in the 4 county area around Three Mile Island. Being a lonely attorney out there trying to get the right thing done, is not so much fun — it’s a grim twilight struggle against evil, while the whole town peeps out their windows to see how the fight will come out — just as in the classic western “High Noon”. Right now it appears that our country is so morally bankrupt that it simply does not matter to any of the other election participants what the facts are about Obama’s eligibility. Their comfort zone does not include doing what their duty requires — it’s just too hard. It’s a good thing the veterans didn’t behave that way, over the last 200 years, or there wouldn’t have been an election at all.

    Now to Danney’s question: Yes — I do think that Cert. will be granted. I think that Scalia will make a strong argument that this is a matter the Court is duty bound to get to the bottom of one way or the other. I think Roberts, Alito, and Thomas will concur. That’s four votes — that’s all you need to grant Cert.

    After Cert is granted dear old Berg will still have to prove that he has standing — that the District Court Judge Surrick was wrong. I think he may not have standing — although I surely recognize the irony and paradox of such a view. Standing requires a special and direct injury above and beyond what all citizens get from a fraudulent election. Surrick’s idea that if Berg can’t find anybody to join him to overcome the standing issue then maybe more harm than good would come out of this case if it was ever heard on the merits. I’m not sure that I disagree. I’m appauled that none of the duty bound people have come forward to join Berg — no candidate — no elector — nobody from the Justice Department — no Speaker of the House — no Senator — nobody.

    We get what we rate as a nation. If Berg is the only man is America that wants a non-fraudulent election to be assured by a proper inquiry, then what we rate as a nation is kind of a “Don’t Know — Don’t Care” election. People here in Maryland have told me that they don’t care if Obama comes from the moon as long as he can bring change.

    Letting the issue of eligibility slide by would set a terrible precedent — one that we could not live with — Scalia will, come to this view, in my humble opinion, the other conservative Justices will join him — and justice Kennedy might even join him — and possibly others.

    It would not surprize me if the decision to grant Cert was by a unamimous Court. If the Court takes up a matter that is beyond its Constitutional jurisdiction — cause it’s not a real case or controversy — under the precedents that exist in our laws — the Constitutional crisis would be 100 times bigger than if someone with really clear standing were joined as a co-plaintiff in the case — let’s say Hillary, or McCain, or even Palin. Once the standing hurdle is overcome, if it is, the Supreme Court would almost surely hear the whole case on its facts and make a final dispositiion of the issue of Obama’s eligibility.

    But if we can’t find among us anyone with standing plus guts, then we should just get what we rate — that would be one of the less fortunate but fully Constitutional possible outcomes.

    The Founders thought the natural born citizen criterion was important because they thought the opposite possibility would create temptations for a military coup. The Army might decide they don’t want to die at the orders of a National Command Authority who is not even a natural born citizen of USA. Maybe the Founders were wrong about this. Of course they were smarter than we are about political matters — they might have been the most far-seeing and provident group of political thinkers who ever lived — that’s why we keep their document at the Archives and their ideas in our hearts — especially today Veterans’ Day.

    The case will go as it goes — we will get what we rate.

  41. Danney says:

    Eigernorthface,

    I had a very good chat with my friend and judge advocate Major USAF on the phone asking him to email today answers to allegiance of the military in case Obama was ro take the oath of office and found to be a usurper later. His reply was such.

    “Dannyboy great to hear from you and I am very pleased that you are taking up law as I suggested please do tell me when your going to take the dreaded bar Marianne and I will pray for you.

    We took an oath when we joined military service. The oath we took.

    “I, {name}, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

    In answering the question. The first and most important defend the constitution against enemies foreign and domestic. If Obama is found to be a usurper this is an anomaly to the constitution and he is not considered president but considered a domestic enemy under the UCMJ and the responsibility of the military to remove him either peacefully or by force. This is contingent to orders from higher command as we can not question their authority but if they do follow their oath most likely this will be the case.

    I did read the decision by that judge and am not surprised. This standing business is not in the constitution. This is an invention of the judicial system to find refuge from cases they are either politically afraid of or mind boggled to decide. I can quote you case examples of those being non citizens filing suits and winning because they where bound by the law when entering the country on visa considered standing on civil matters. Reportedly some illegal aliens as well in a Texas case but I have no example yet. Most of these where simple cases of dog bites, assaults breach of contract so forth. Berg is a tax paying, voting, public serving citizen with a hell of a beef. The party with the name only “Democrat” nominated a could be unconstitutional candidate. This I believe was because of his color, and over a most likely more qualified candidate he avidly supported. Then overlooking the vetting process a responsibility to members derelict. Then nominating him with “super delegates” thus disenfranchising the popular primary vote. Berg has no standing? Ridicules. I could be a Mexican that crosses the Rio Grande, get beat up by some citizen boarder vigilantly without political clout, file suit if I had the balls, the court would reward me damages and send me back to feed my family in Mexico. Sounds like political fear to me. He shoved it aside to cover himself figuring an appeal may happen and correction by a higher court.

    Hope this answers your question well pal. Please do give our regards to Sheila. Happy Veterans Day

    Jimbo”

  42. Eigernorthface says:

    First on the subject of “standing” being in the Constitution — it most certainly is. It is the fundamental limitation on the jurisdiction of the Federal Courts. For jurisdiction to exist, there must be a case or controversy. A case or controversy means that the plaintiff must have some special direct injury. Otherwise, what is being brought to the Court is merely a vexacious form of intermeddling — essentially a request for an advisory opinion about a hypothetical and speculative matter. The Court does not have jurisdiction to issue opinions on such matters — the Constitution does not permit that. So, the Obama matter being a possible source of a major Constitutional crisis, it is supremely important that the jurisdiction of the Federal Courts to accept the case in the first place be established with 100% firmness and merit. It’s not a question of the size of the beef — it’s a question of whether the plaintiff is specially and directly harmed by the beef. Berg is directly harmed, one may suppose, but is he specially harmed? Is he harmed in a way that all the other citizens are not harmed? If not, his litigation may not amount to a case. It’s more like a protest, supposedly on behalf of a lot of people, but that’s just a speculation, an hypothesis. U.S. District Courts are not authorized to deal in such matters. Maybe they should be — but they are not. It’s not a question of how American Berg is compared to some illegal migrant from Mexico. Berg would not have to be a natural born American to bring the suit if he had standing, which I don’t think he does. Our national disgrace is that hundreds of people who clearly have standing are so hypocritical and cowardly that not a single one will join Berg to perfect the standing issue and allow his case in chief to go forward on the merits. These are people who pretended to care about the USA, the election, the Constitution — but when duty called — they were not there. No minutemen these days, just fakey politicians hiding behind their couches, hoping that the sheriff (Berg) either gets the bad guys or gets killed, but what the heck it doesn’t really matter, as long as their own political careers are safeguarded. I would call that dishonorable cowardice — since it represents a breach of duty on a monumental scale.

    If and when the standing issue is favorably resolved, so a fully authenticated case or controversy exists — maybe Hillary joins Berg, or one of the electors, or Sarah Palin, or Ron Paul, or Bob Berg, or Ralph Nader — then the whole case can be resolved with four data points — it’s really quite simple.

    1. Obama either did or did not travel to Pakistan in or about 1981 when he was 20 years old.

    2. If so, he either did or did not travel on an Indonesian passport.

    3. If so, he either did or did not reclaim his U.S. citizenship at some time after his trip to Pakistan on an Indonesian passport.

    4. If he did reclaim his U.S. citizenship (having been involuntarily removed to Indonesia as a minor), there either is or is not some documentary evidence of that occurance — a piece of paper showing that he applied to reclaim his US citizenship — a piece of paper showing his claim was granted.

    Four little data points. And here are the people who could do the investigation. The State Department, the CIA, FBI, NSA, NRO, the Justice Department, the GAO, NCIS, and the Supreme Court itself.

    Put that kind of manpower on these four tiny data points, and some sort of data would probably emerge to fill in some of the blanks.

    But of course there is effort involved. Nothing gets done without effort. In a slackey slackey Washington DC there is very little effort on anything. You may think that whether the President elect is elligible to take the oath is “important” enough to justify some minimal level of effort — but that’s just wishful thinking — there is no evidence of it.

    53% of the American people (according to a NY Times poll) said they did not care whom Obama was associated with prior to the election. Many people have since said that they don’t give a hoot if Obama is from the moon as long as he can bring change. In a “don’t know – don’t care” society, mustering the effort to get off one’s duff and fill in the four data points, could turn out to be “just too hard” for us. Good thing that the vets who took Mount Suribachi didn’t feel that way — but those were other times — times when gallant men walked the earth.

  43. Eigernorthface says:

    Here’s a letter that went out today. All that’s needed is 49 other people in 49 other states to send similar letters. Text follows:

    Hon. Condoleezza Rice

    Secretary of State

    U.S. Department of State 13 November 2008

    2201 C Street, NW

    Washington, DC 20520

    Dear Secretary Rice,

    I respectfully request that you do not certify the votes of the electors from Maryland in the Electoral College unless and until you are satisfied that Barack Obama is a lawful and eligible candidate to be President of the United States.

    You may wish to obtain answers to following four questions:

    1. Did Barack Obama travel to Pakistan in 1981?

    2. If so, did he use an Indonesian passport to enter Pakistan?

    3. If Obama entered Pakistan on an Indonesian passport at age 20, did he subsequently take the oath of allegiance to regain his U.S. citizenship before a diplomatic or consular officer or the Attorney General, or the Judge or Clerk of a U.S. Court?

    4. If Obama did reclaim his U.S. citizenship after his visit to Pakistan in 1981, are there records of that fact at any embassy, legation, consulate, or Court, or in the Offices of the Attorney General to verify that occurrence?

    I am a citizen of the United States, a voter in the state of Maryland, a member of the Bar of the U.S. Supreme Court and a retired Navy JAG. I would be directly harmed if the Presidential election was inconsistent with Article II, Section 1, Clause 4 of the U.S. Constitution, and I seek redress of this grievance under Amendment I of the U.S. Constitution. There is no special harm to me separate from or beyond the injury to any other American voter by having a corrupted and fraudulent nomination, election, and inauguration process. I do not have any special direct personal and injury such as might give me standing to pursue these questions in a Federal Court. I only have my faith and reliance on you, as a honest person, who wants to do her duty as the official that certifies the results of the Electoral College process. I’m not asking that all the electors be disqualified if the above questions can’t be answered, just the ones from my own state of Maryland.

    Very Sincerely,

  44. Danney says:

    Thanks again Eigernorthface my friend Maj. James “Jimbo” Kelly asked me to pass on his reply and also get some incite. I requested when he has time to join our discussion.

    Dannyboy I can agree but then disagree this is my conclusion and please pass it on in your discussion.

    Article 3 section 2 clause 1 US constitution.

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    The Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of being resolved by the court. The Court and legal scholars commonly refer to the issue of whether a “case or controversy” exists as the concept of standing.

    As you see the issue of “standing or case of controversy” is as he said interpreted under this article. What I argue is the amiss of definition as yes there is 3 standard constitutional rules.

    1. Injury: The plaintiff must have suffered or imminently will suffer injury – an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.

    2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. Massachusetts v. Environmental Protection Agency (global warming caused by EPA’s refusal to regulate carbon dioxide emissions satisfied element of causation for Massachusetts’s alleged injury of loss of coastland).

    3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[4]

    Now the judicial invention comes in on another set of 3 rules as follows

    .

    1. Prohibition of Third Party Standing: A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court; exceptions exist where the third party has interchangeable economic interests with the injured party, or a person unprotected by a particular law sues to challenge the oversweeping of the law into the rights of others, for example, a party suing that a law prohibiting certain types of visual material may sue because the 1st Amendment rights of others engaged in similar displays might also be damaged as well as those suing. Additionally, third parties who don’t have standing may be able to sue under the next-friend doctrine if the third party is an infant, mentally handicapped, or not a party to a contract.

    2. Prohibition of Generalized Grievances: A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many people. For example, the general rule is that there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them. Such grievances are ordinarily more appropriately addressed in the representative branches

    3. Zone of Interest Test: There are in fact two tests used by the United States Supreme Court for the Zone of Interest

    1. Zone of Injury – The injury is the kind of injury that Congress expected might be addressed under the statute.[5]

    2. Zone of Interests – The party is within the zone of interest protected by the statute or constitutional provision.[6]

    Now if good and fine Congress can come in and over rule these last 3. The question is where is checks and balance? Can the congress adjudicate by over rule these last test rules if controlling party finds something in them to determent their interests? This is why my explanation to the unconstitutional definition of “standing” being inclusive of these judicial inventions if only once but has been used many times sets precedent and says the constitution is a living document with the ability of all branches of government to manipulate. This also says that limitless power of government determines not the will of the people but the will of those in power because if we the judicial branch of government can change the rules to who we think has “standing” and the congress can say no we don’t like these rules so go by the constitutional rules. Then the powers that be determine who can redress grievance and who cannot. If the definition of standing goes by Article 3 section 2 clause 1 yes in deed it is in the constitution and must be defined with disregard to the last 3.

    Mr. Eigernorthface has credentials that I cannot compare with. I have read your e-mail with the answers he has given you and thanks to him for mentoring you. As you are aware Dannyboy I am in infancy practice according to the UCMJ and have no experience in civilian matters. My limited knowledge can only grow with experience and with hope, I can help you with some issues. I am happy that you finally contacted me after such a long time and chastise you for the reason but do understand the study will keep you busy. I hope civilian life is doing you well. Do stop by and visit with the fly boys we do miss you.

    Maj. James (jimbo) Kelly.

  45. Danney says:

    Thanks again Eigernorthface my friend Maj. James “Jimbo” Kelly asked me to pass on his reply and also get some incite. I requested when he has time to join our discussion.

    Dannyboy I can agree but then disagree this is my conclusion and please pass it on in your discussion.

    Article 3 section 2 clause 1 US constitution.

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    The Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of being resolved by the court. The Court and legal scholars commonly refer to the issue of whether a “case or controversy” exists as the concept of standing.

    As you see the issue of “standing or case of controversy” is as he said interpreted under this article. What I argue is the amiss of definition as yes there is 3 standard constitutional rules.

    1. Injury: The plaintiff must have suffered or imminently will suffer injury – an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.

    2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. Massachusetts v. Environmental Protection Agency (global warming caused by EPA’s refusal to regulate carbon dioxide emissions satisfied element of causation for Massachusetts’s alleged injury of loss of coastland).

    3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[4]

    Now the judicial invention comes in on another set of 3 rules as follows

    .

    1. Prohibition of Third Party Standing: A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court; exceptions exist where the third party has interchangeable economic interests with the injured party, or a person unprotected by a particular law sues to challenge the oversweeping of the law into the rights of others, for example, a party suing that a law prohibiting certain types of visual material may sue because the 1st Amendment rights of others engaged in similar displays might also be damaged as well as those suing. Additionally, third parties who don’t have standing may be able to sue under the next-friend doctrine if the third party is an infant, mentally handicapped, or not a party to a contract.

    2. Prohibition of Generalized Grievances: A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many people. For example, the general rule is that there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them. Such grievances are ordinarily more appropriately addressed in the representative branches

    3. Zone of Interest Test: There are in fact two tests used by the United States Supreme Court for the Zone of Interest

    1. Zone of Injury – The injury is the kind of injury that Congress expected might be addressed under the statute.[5]

    2. Zone of Interests – The party is within the zone of interest protected by the statute or constitutional provision.[6]

    Now if good and fine Congress can come in and over rule these last 3. The question is where is checks and balance? Can the congress adjudicate by over rule these last test rules if controlling party finds something in them to determent their interests? This is why my explanation to the unconstitutional definition of “standing” being inclusive of these judicial inventions if only once but has been used many times sets precedent and says the constitution is a living document with the ability of all branches of government to manipulate. This also says that limitless power of government determines not the will of the people but the will of those in power because if we the judicial branch of government can change the rules to who we think has “standing” and the congress can say no we don’t like these rules so go by the constitutional rules. Then the powers that be determine who can redress grievance and who cannot. If the definition of standing goes by Article 3 section 2 clause 1 yes in deed it is in the constitution and must be defined with disregard to the last 3.

    Mr. Eigernorthface has credentials that I cannot compare with. I have read your e-mail with the answers he has given you and thanks to him for mentoring you. As you are aware Dannyboy I am in infancy practice according to the UCMJ and have no experience in civilian matters. My limited knowledge can only grow with experience and with hope, I can help you with some issues. I am happy that you finally contacted me after such a long time and chastise you for the reason but do understand the study will keep you busy. I hope civilian life is doing you well. Do stop by and visit with the fly boys we do miss you.

    Maj. James (jimbo) Kelly.

  46. Eigernorthface says:

    To Major James Kelly and Denney:

    The letter was delivered to Offices of Condi Rice and John Negroponte (her Deputy) around 11:30 a.m. today 14 November 1947.

    In the meantime I have sought parallel and similar letters from the secretaries of state of Mississippi, Nebraska, California, Maryland and Utah.

    My goal is to get at least one registered voter, preferably a secretary of state, in all 50 states to send letters that closely parallel my own to Condi Rice. She can decertify any candidate being considered by the Electoral College. She can certify that Obama got the most votes of all the inelligible candidates. We don’t inaugurate inelligible candidates. The most votes of any eligible candidates would thus be received by McCain and Palin. They might be selected by the electors for inauguration — unless the majority of the electors chose to vote for some other eligible person — for example Hillary and Biden or Bob Barr and Biden, or some other eligible persons who volunteer to be considered, or who ran.

    The Berg v Obama Route is convoluted and slow, could take two or three years to run its course, even if Berg gets Cert, even if the case on the standing issue goes his way on its merits in the Supreme Court, even if the Supreme Court does not remand the case but accepts the entire matter for adjudication in the Supreme Court due to the urgency and importance of the matter — it could still take until January of 2010 to sort the matter out and come to a final ruling. In, the meantime Obama/Biden will have been installed in the White House. If Obama is disqualified in 2010, Biden would step up as per Amendment 20 section 3.

    One of my friends in Utah asked me if my 1st Amendment petititon to Condi really did have merit. Here’s what I told him:

    Dear Merrill — On the solidity of the information, let’s just say, yes I think it’s solid enough to request answers to my 4 little question. The first 2 questions can be answered “yes” or “no” — one word answers, not a lot of paper, not a lot of ink. After Obama came back to the USA, age 20+ he either did or did not reclaim his citizenship by taking the oath of allegiance (notice I’m giving him the benefit of the doubt on his place of birth – there are many who feel it was not in Honolulu Hawaii — but I’m just accepting that it was for the sake of argument). A non-minor who travels on a foreign passport thereby expatriates himself — he performs an act that is not consistent with his continuance as an American citizen, if he ever had that status. This act of expatriation can be reversed, but only if he takes the oath of allegiance to restore hsi citizenship. All the evidence would be in the hands of the State Department (or conceivably the Justice Department in the rare event that he took the oath of allegiance before the US Attorney General). Anyhow, Condi Rice has a sworn duty to assure the eligibility of the winner to serve when she certifies the results of the Electoral College. This is in the Constitution. That’s her duty as Secratary of State of the USA. Judge Surrick has told Philip J Berg that he does not have standing because the injury to him although direct is not special enough — the injury doesn’t run specifically to Philip J Berg as distinct from any other voter — so he lacks standing. This matter may be argued in the Supreme Court sometime in the next two or three years. It seems a very harsh and paradoxical holding. I did try to get some of the other candidates to join with Berg as co-plaintiffs in his case. Ron Paul, Ralph Nader, Bob Barr, Hillary, McCain — would all clearly have standing. So, far they have not expressed any interest. Any of the 535 electors would have standing — including any elector from Utah — they have a legal duty to assure the eligibility just as Condi does. They could join Berg and thus perfect his standing and let him get on with his case. So far, not a single elector has come forward. A lot of times the practice of Constitutional law entails just the lawyer and the Constitution out on Desolation Row (or Highway 61). I’ve been here before. If I’m the only person in the country willing to formally request that Condi Rice do her job well, then so be it, whatever happens, it’s my fate to live with it. But if 49 other Americans could join me — one voter from each other state — the league of American patriots if you like — the 50 who stood tall, then things might be different, especially is Fox news decided to run with the story. Four teeny tiny questions, easy paperwork to look up if it exists, Obama should be able to guide us to the place where he took the oath of allegiance if he did, so it’s just a matter of looking in a file, takes 5 minutes, and then a nickle for the xerox copy of the list of oath takers — and this somehow is too hard — we are better off just letting a foreigner be President if he wants it that much rather than spend 5 minutes to make sure the Constitution is being followed. The men who went up Suribachi didn’t think that was too hard, but today any effort no matter how slight, is just too hard. I don’t know if this is news — it’s proabaly something everybody but me knew already. Fox might turn it down, tell me I’m a dodo, I should wake up to the rules of the Brave New World. Anyhow, please recruit a letter sender for me if you can. They should do it on paper not by e-mail, and change the personal data and place so it fits them and not me, but keep the legal wording about the same. Send the letter to the address that’s on my letter. I also sent a copy to John Negroponte the Deputy Secretary at the same address. Both will arrive by noon today — in about 17 minutes. Moral suasion worked for Ghandi. There are still moral people in the USA. It could work here too — even if I have no standing — which Judge Surrick tells me I don’t.

    All the Best,

  47. Eigernorthface says:

    To Maj. Kelly and Danney,

    Even if everything goes right for Berg, the Supremes won’t render a final decision on the merits of his case for about a year — say by January of 2010. Berg has to win the Cert petition argument — that could happen by the end of December, but more likely no outcome till the end of January 2009. Then, the Supremes would have to agree that the case is urgent and important enough to skip remanding it back to the District Court and go straight to a trail on the merits before the Supreme Court. With the resources available to him as President, Obama could delay the actual trial date by at least 3 months, and make the trial itself last for at least a month. So figure Summer of 2009 as first possible time the Supremes could issue a final opinion in the case — even if everything goes perfectly for Berg.

    My route is shorter. Condi gets to certify the outcome of the Electoral College vote, and she cannot legally certify for inauguration the inelligible person who got the most votes — only the elligible person who got the most votes among the eliigible people can be certified.

    My 1st Amendment Petition to Condi was received by her and John Negroponte at or about 11:30 a.m. today 14 November 2008. In the meantime I have sought similar letters be written by citizens and secretaries of state all over the USA. Ideally I want at least 1 letter from a registered voter in each of the 50 states — I have Maryland — so I just need 49 more.

    One retired marine in Utah wanted assurance that my petition had merit. Here’s what I told him:

    Dear Merrill — On the solidity of the information, let’s just say, yes I think it’s solid enough to request answers to my 4 little question. The first 2 questions can be answered “yes” or “no” — one word answers, not a lot of paper, not a lot of ink. After Obama came back to the USA, age 20+ he either did or did not reclaim his citizenship by taking the oath of allegiance (notice I’m giving him the benefit of the doubt on his place of birth – there are many who feel it was not in Honolulu Hawaii — but I’m just accepting that it was for the sake of argument). A non-minor who travels on a foreign passport thereby expatriates himself — he performs an act that is not consistent with his continuance as an American citizen, if he ever had that status. This act of expatriation can be reversed, but only if he takes the oath of allegiance to restore hsi citizenship. All the evidence would be in the hands of the State Department (or conceivably the Justice Department in the rare event that he took the oath of allegiance before the US Attorney General). Anyhow, Condi Rice has a sworn duty to assure the eligibility of the winner to serve when she certifies the results of the Electoral College. This is in the Constitution. That’s her duty as Secratary of State of the USA. Judge Surrick has told Philip J Berg that he does not have standing because the injury to him although direct is not special enough — the injury doesn’t run specifically to Philip J Berg as distinct from any other voter — so he lacks standing. This matter may be argued in the Supreme Court sometime in the next two or three years. It seems a very harsh and paradoxical holding. I did try to get some of the other candidates to join with Berg as co-plaintiffs in his case. Ron Paul, Ralph Nader, Bob Barr, Hillary, McCain — would all clearly have standing. So, far they have not expressed any interest. Any of the 535 electors would have standing — including any elector from Utah — they have a legal duty to assure the eligibility just as Condi does. They could join Berg and thus perfect his standing and let him get on with his case. So far, not a single elector has come forward. A lot of times the practice of Constitutional law entails just the lawyer and the Constitution out on Desolation Row (or Highway 61). I’ve been here before. If I’m the only person in the country willing to formally request that Condi Rice do her job well, then so be it, whatever happens, it’s my fate to live with it. But if 49 other Americans could join me — one voter from each other state — the league of American patriots if you like — the 50 who stood tall, then things might be different, especially is Fox news decided to run with the story. Four teeny tiny questions, easy paperwork to look up if it exists, Obama should be able to guide us to the place where he took the oath of allegiance if he did, so it’s just a matter of looking in a file, takes 5 minutes, and then a nickle for the xerox copy of the list of oath takers — and this somehow is too hard — we are better off just letting a foreigner be President if he wants it that much rather than spend 5 minutes to make sure the Constitution is being followed. The men who went up Suribachi didn’t think that was too hard, but today any effort no matter how slight, is just too hard. I don’t know if this is news — it’s proabaly something everybody but me knew already. Fox might turn it down, tell me I’m a dodo, I should wake up to the rules of the Brave New World. Anyhow, please recruit a letter sender for me if you can. They should do it on paper not by e-mail, and change the personal data and place so it fits them and not me, but keep the legal wording about the same. Send the letter to the address that’s on my letter. I also sent a copy to John Negroponte the Deputy Secretary at the same address. Both will arrive by noon today — in about 17 minutes. Moral suasion worked for Ghandi. There are still moral people in the USA. It could work here too — even if I have no standing — which Judge Surrick tells me I don’t.

    All the Best,

  48. Danney says:

    I fired an e-mail to Maj. Kelly with a copy of what you wrote and your letter. He is quite a patriot and so are the flyboys (Air Force) I am sure we can get quite a bit of them to represent states.

  49. Danney says:

    Eigernorthface I made a copy of your letter but changed the credentials part as suggested by you. Used a MS Word doc attachment to make it easy and requested they put their own in place then sent them to persons mostly military and family I had from my address book. This covered 23 states. Hopefully these people, as stated in the e-mails most important to uphold our constitution please comply with the request. I have already had a positive response from 7 of them and no negative responses as yet. Jimbo was one and did respond offering to print many and contact others who would also comply.

    Other law suits going on.

    New Jersey

    In Leo C. Donofrio v. Nina Mitchell Wells, Secretary of State of the State of New Jersey, retired attorney and New Jersey resident Leo. C. Donofrio asked the U.S. Supreme Court for an emergency stay on Nov. 3 prohibiting three candidates from appearing on New Jersey’s ballots: Republican candidate John McCain, Democratic candidate Barack Obama and Socialist Worker’s Party candidate Roger Calero.

    Donofrio claimed the candidates are not “natural born citizens” as enumerated in Article 2, Section 1, of the Constitution of the United States, which states, “No person except a natural born citizen of the United States, at the time of adoption of this Constitution, shall be eligible to the office of President.”

    He wrote, Obama is not eligible for the presidency “even if it were proved he was born in Hawaii, since … Senator Obama’s father was born in Kenya and therefore, having been born with split and competing loyalties, candidate Obama is not a ‘natural born citizen’ …”

    “Republican candidate John McCain was born in Panama,” the request states. “Socialist Workers Party candidate Roger Calero was born in Nicaragua. And the birthplace of Democratic candidate Barack Obama has not been verified by Respondent.”

    Donofrio said Panama has never been considered U.S. soil, and that McCain is merely a citizen at birth by statute, and not a “natural born citizen.”

    With three ineligible presidential candidates on ballots, Donofrio warned, New Jersey voters will “witness firsthand the fraud their electoral process has become.”

    Justice David Souter denied Donofrio’s application on Nov. 6. However, his case is still pending as an emergency stay application. Donofrio is resubmitting his request for an emergency stay of the national election results and Electoral College meeting to Justice Clarence Thomas.

    Georgia

    Rev. Tom Terry of Atlanta, Ga., appealed to the Georgia Supreme Court the day before the election to determine authenticity of Obama’s original birth certificate and his qualifications to be president.

    “I bear no personal ill will against Barack Obama,” Terry, an independent, said in a statement. “In fact, his election solely on the basis as the first African-American president-elect is a very positive thing for our nation. However, as an American, I have very grave concerns about Mr. Obama’s possible divided loyalties since he has strenuously and vigorously fought every request and every legal effort to force him to release his original birth certificate for public review and scrutiny. I think that is significant.”

    On Oct 24, Georgia Superior Court Judge Jerry W. Baxter denied Terry’s request for an injunction against Secretary of State Karen Handel.

    “I don’t think you have standing to bring this suit,” he said. “I think that the attorney general has argued the law. I think he is correct. I think you are not a lawyer.”

    Terry is appealing his suit even though Obama didn’t win Georgia because he said he wants to set an example for other states. He is asking the court to direct Georgia Secretary of State Karen Handel to decertify all votes for Obama.

    “Hopefully, this action will be noticed by other states and they will also take a serious look at the meaning of Georgia’s Supreme Court’s actions,” he said. “It is apropos that the Latin motto in the Georgia Supreme Court is interpreted: ‘Let justice be done, though the heavens fall.’ I think if the Court rules in my favor, that motto will come alive with meaning and impact.”

    Hawaii

    On Oct. 17, Andy Martin filed a writ of mandamus in Hawaii’s Supreme Court to compel Gov. Linda Lingle to release a certified copy of Obama’s vital statistics record. His request to expedite the circuit court was denied on Oct. 22.

    Martin now has a pending case seeking access to Obama’s original 1961 typewritten birth certificate. The circuit court hearing is set to begin Nov. 18.

    The saga continues …

    Several unconfirmed reports also indicate that citizens of Utah, Wyoming, Florida, New York, North Carolina, Texas, California and Virginia have also filed lawsuits or requested court orders to verify Obama’s citizenship status.

    As reported earlier, WND senior investigative reporter Jerome Corsi traveled both to Kenya and Hawaii to investigate issues surrounding Obama’s birth.

    But his discoveries only raised more questions.

    The governor’s office in Hawaii said he had a valid certificate but rejected requests for access and left ambiguous its origin – leaving some to wonder if the certificate on file with the Department of Health indicates a Hawaiian birth or whether it was generated after the Obama family registered a Kenyan birth in Hawaii.

    The Obama campaign posted a certification of live birth, a document stating the baby was born on Aug. 4, 1961. However, according to the Department of Hawaiian Home Lands, there is a difference between the two documents. A certification of live birth is not an authentication of Hawaiian birth, and critics say the procedure could have allowed Obama’s mother to have the baby elsewhere, return to the U.S. and obtain the document in Hawaii.

    The Department of Hawaiian Home Lands makes a distinction between the two:

    In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL.

    However, Andy Martin has specifically requested verification of the original 1961 type-written certificate of live birth – or, as the Department of Hawaiian Home Lands describes it, the “more complete record” of Obama’s birth.

    Further adding to complications, Obama’s half-sister, Maya Soetoro, has named two different Hawaii hospitals where Obama could have been born. In a November 2004 interview with the Rainbow Newsletter, Maya told reporters her half-brother Sen. Barack Obama was born on Aug. 4, 1961, at Queens Medical Center in Honolulu; then in February 2008, Maya told reporters for the Honolulu Star-Bulletin that Obama was at the Kapiolani Medical Center for Women and Children.

    But a video posted on YouTube features Obama’s Kenyan grandmother Sarah claiming to have witnessed Obama’s birth in Kenya.

    Seeking to settle the issue, Hawaii Department of Health Director Director Chiyome Fukino released an Oct. 31 statement saying, “State law (Hawai’i Revised Statutes §338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record. Therefore, I as Director of Health for the State of Hawai’i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai’i State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures.”

    The statement does not clarify whether “the record” is a certification of live birth or a Hawaiian certificate of live birth.

    Before the election, WND retained a top private investigator in Hawaii with extensive FBI training and tasked him with visiting both the Queens Medical Center and the Kaliolani Medical Center to investigate claims that Obama birth certificates existed at either hospital.

    However, the private investigator reported that sheriff’s deputies were stationed at both hospitals to fend off press inquiries about Obama’s birth certificate.

    When WND asked the Obama campaign spokeswoman why Obama simply hasn’t released the original 1961 certificate of live birth to make the lawsuits go away, she replied, “I have no idea. I think they released what they chose to release, and Hawaii has confirmed that he was born in Hawaii, so I don’t know what else you want.”