No Leg to Stand on: Birther Berg's Obama Lawsuit Has No Standing

By Tanya Roth, Esq. on November 16, 2009 | Last updated on March 21, 2019

There is an old saying among attorneys: he who represents himself has a fool for a client. A sharper illustration of this adage cannot be found outside Third Circuit Court of Appeals decision handed down last Thursday in the Philip Berg lawsuit, in which yet another "birther" sued regarding President Obama's birthplace and eligibility to serve as President.

Philip Berg, an attorney, represented himself in his appeal (and presumably in the myriad of cases that preceded this one) of the District Court's decision against him in his "birther" suit against President Obama. A "birther" suit is one (of many) lawsuits based on the curious notion that President Obama is not actually a natural born citizen of the United States and thus ineligible to run for the office of president. The Court, in all its wisdom, did not even reach the question of the president's actual or alleged birthplace. They instead ruled against Berg due to a lack of standing to bring the suit.

Standing is the law's way of deciding who is the appropriate party to bring a case to court. Imagine, if this prerequisite did not exist, the courts would be clogged with frivolous and irrelevant suits. Even more than they are now. A complainant is found to have standing if these conditions are met:

  • he or she has suffered or will, in fact, suffer an injury;
  • the injury is caused by the complained of conduct of the defendant; and
  • the injury can be redressed by the court. 

In the Philip Berg lawsuit, the court failed to see, among other things, that Berg suffered the necessary injury in fact. As stated by the court, the injury must be a "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." The court goes on to say that when a harm is shared by all or a large class of people say, voters for instance, the harm does not warrant the right to bring the case.

Finally, as for redress for this harm, the court gently asked if he could not redress the harm himself by simply voting for someone else. Maybe he didn't like his options?

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