Berg V. Obama - The Day of Reckoning

Berg v. Obama: The Day of Reckoning

Thomas J. Latino, Esq.

Thomas.latino@biotechcapitalgroup.com

The deadline has come and gone. At 5pm Eastern Standard Time, yesterday, December 1st, 2008 the case of Berg v. Obama reached a seminal moment. Yesterday was the deadline for the Obama legal team to file their response to the Berg Petition for a Writ of Certiorari. There was nothing. According to the Supreme Court's docket for the case nothing was filed overnight. Mr. Obama has done what hasn't been done before, he has made history twice, Mr. Obama has blatantly ignored a request from the Supreme Court of the United States—our highest and most revered legal institution; Mr. Obama, quiet frankly has thumbed his nose at the highest court in our land.

Being an attorney, I know full well that Rule 11 of the United States Supreme Court does not specifically dictate a Respondent file a reply brief "unless specifically ordered by the Court"—and to be fair we have no evidence to show that Mr. Obama was indeed ordered by the Court to produce such a reply. However, it is out of sheer reverence and respect for the institution, if not to underscore the merits of your case and the lacking of your opponents' that almost ALL Respondents file some sort of reply with the court. Mr. Obama's actions yesterday reek of a type of arrogance that even I as an attorney never displayed to any court nor have I ever witnessed such flippant behavior during my legal career.

This is not some low level circuit court; this is the United States Supreme Court. Why would the Obama legal team find it necessary to work so diligently in the Federal Court in Pennsylvania filing Motions to Dismiss and Protective Orders and not even file a Waiver of Rights with the Supreme Court? One can surmise two logical possible explanations for Mr. Obama's strategy: (1) Mr. Obama is putting all his chips on the hopes that 4 justices will view Mr. Berg's petition as laughable and deny his Petition for the Writ and (2) Refer to #1.

So what now? Now the issue rests with 9 robed clad justices residing in the inner most chambers of America's most revered legal institution. We will know more likely than not before the week is out whether or not the court will hear this case. The justices now find themselves in a most unenviable position. They have to way the consequences of their actions. If they vote to hear the case, do they stay the Electoral College vote? And if they find for Berg what then? Do we have new elections if Mr. Obama fails to show he is a natural born citizen and who will be responsible for setting a time table?

What if they deny Berg's petition? That answer is relatively simple. This issue goes away once and for all. The other 14 lawsuits pending in various states will suffer a mortal blow—all the district courts in those cases will do is cite the US Supreme Court case of Berg v. Obama ___ US____ (2008) as binding precedent and that will be that.

What will the justices have to consider? These 9 justices are charged with deciding if one American citizen has the standing to legitimately challenge the constitutional qualifications of our President-Elect. A man who will be our leader, our public servant, our Commander in Chief; a man who will, god forbid, be charged with the responsibility of sending our sons, daughters, husbands, wives, aunts, uncles, cousins, brothers and sisters into harms way to fight and possibly die for our beloved nation. The court will determine if Berg is directly injured by Obama's transgressions. If Berg has any siblings in the US Armed forces, it would seem he would have a direct interest and the possibility for direct harm if the President sent his sibling to fight and die should not have been allowed to serve in the first place. Indeed, all Americans would have a vested interest and thus standing.

As noteworthy as this argument is, the court has not forgotten Bush v. Gore and the fallout that decision created. There are those on the court that remember the hit the court's approval rating took after many on the left accused it of "stealing" an election and "injecting law into a political, democratic process". These are valid arguments; after all, judges are political animals at heart; they have to be elected to the local circuit and to be successfully elected one has to be a decent politician. It is for this reason that I am still uncertain as to what the court will ultimately decide. On one hand we have the gravity of the US Constitution, Article 2 Section 1; on the other we have a court who has its ear to the ground, who can ascertain the public fallout not only if they agree to hear the case but if the eventually were to find for Berg. It is very likely, the court will decide to simply "punt" the issue and avoid opening a can of worms.

I conclude this article with a simple question that I realize will generate a myriad of responses, "If Mr. Berg, an American citizen, does not hold the right to challenge the constitutional requirements of the President-Elect of the United States, then who among us will ever; who among us will have the authority to challenge such an individual if there are legitimate questions surrounding his or her qualifications?" Some will undoubtedly answer that Congress is the only one to hold such authority. Do we really want a partisan, elected body -many of them belonging to the same party as the President-Elect involved in such an issue? Allowing Congressmen to interject themselves would turn the process into some sort of morbid, grand-standing ploy, everyone clamoring for their 15 seconds of fame. This issue is something Congress would be to inept to handle.

If Berg's Petition is granted, it will be an oral argument session that will go down as one of the seminal moments in the judiciary's 200 year history. There is no greater charge entrusted to the Supreme Court than to prevent any grievous usurpation of the US Constitution; it is there solemn duty—regardless of political ideology or identification—to entrust the fundamental rule of law is upheld.