Uncharted legal waters.
That's how Ramona attorney summed up the judicial dilemma surrounding the question of whether President Barack Obama is eligible for his office and how Americans should generally deal with an eligibility issue once a president takes office.
On Monday, Kreep and lawyer of Rancho Santa Margarita once again asked the courts to allow them to present their cases and bring evidence in their fight to show that Obama isn't a U.S. citizen.
It's not a simple request.
At this stage, the court isn't hearing details about what Kreep and Taitz may have found as evidence. This phase involves convincing the courts that judges have the right to rule on eligibility matters.
Taitz and Kreep's cases were dismissed by the U.S. District Court in Santa Ana in 2009 because the judge didn't believe the court had the jurisdiction to decide the eligibility of the president.
But if the courts don't, who does?
The answer, according to Deputy U.S. Attorney David DeJute, is Congress. DeJute represented Obama in Monday's oral arguments at the 9th U.S. Circuit Court of Appeals in Pasadena.
But that wasn't the final answer either.
Judge Marcia Berzon raised the 20th Amendment. “If there's a difficulty regarding eligibility, Congress shall decide by law,” she said.
“By law,” she repeated, which would seem to imply that the courts have to get involved. Or not.
“The courts need to be involved to enforce the constitution,” Kreep argued.
“That's not the issue,” DeJute told Berzon. “The candidates don't have standing.”
Kreep represents two members of a small, conservative Christian political party called the American Independent Party. His plaintiffs, Wiley Drake and Markham Robinson, feel that the playing field in the 2008 presidential election wasn't fair because Obama, they believe, won the race without having the requirements to hold the job. His candidacy eclipsed their effort because of the size of their party, but the election wasn't fair if he wasn't eligible, they claim.
Standing means eligibility to bring a case before the courts. DeJute and at least one judge questioned whether the general public can come into court and complain about another candidate's eligibility after that person has been sworn into office, just because they didn't get elected.
Kreep stood his ground. “This is about the Constitution,” he argued. “The public has a right to enforce the Constitution.”
Even if the public can go into court to argue these types of matters, sometimes that right may have limitations, such as timing, according to Berzon.
“You did not file a claim at the time when relief might have been plausible,” she told Kreep. Taitz filed the original case, which was split when two plaintiffs were removed and began working with Kreep instead. She filed the case on Inauguration Day “before Obama did anything as president,” she said. But the judges questioned whether that was too late.
“There's no point arguing eligibility when someone hasn't been elected and if we wait until after the election, we're too late,” Kreep contended. “We don't know who's going to be elected.”
One of the judges and the Deputy U.S. Attorney concurred that the judiciary is likely responsible for these types of matters until a person is elected and then the responsibility rests with Congress.
The judges asked Kreep what he would want as the ultimate relief.
“Our expectation is that Obama would vacate the office and Vice President [Joe] Biden would become president,” he replied.
Relief means the actions or awards that could be possible to remedy an “injury.” Kreep contends the injury is that his clients couldn't get elected.
The judges on Monday also questioned the "political question" involved in the cases.
“It's a ‘yes’ or ‘no’ question,” Kreep stated. “Is the person eligible or not, based on evidence? We disagree with Judge Carter [of the federal court] that it's a political question.”
All-in-all, the public got a lesson in U.S. Constitution 101 on Monday but no one knows where the discussion will lead because this exact type of case hasn't come up before.
There's a way to remove a president from office. Impeachment. However, Kreep argued, if the president was never eligible in the first place, then he isn't really president, so impeachment wouldn't apply.
“Nobody is willing to take on this issue,” Kreep told the three judges. “John McCain was the subject of congressional hearings on whether he was eligible and a ruling was issued. Why McCain and not Obama?” he asked.
Three attorneys flew in to help Kreep prepare for oral arguments. Phillip J. Berg came from Philadelphia and J. Thomas Smith flew in from Tennessee. Both attorneys have worked on similar cases. The third lawyer asked to remain anonymous.
Berg said it's always hard to know how judges will decide but he, like Kreep, hopes the appellate judges will remand the case back to the federal court for a judge to decide. He said the attorneys need a chance to do discovery and bring evidence.
Taitz represents 30 clients, some of whom are in the military and one is an ambassador. She said her case needs to be overturned due to errors made by the U.S. District Court judge. She also said that there has been undue influence from the U.S. Attorney's Office and the White House in the judicial proceedings so far, referencing a friend of the White House who she says was “placed as a clerk” for the federal court judge.
“I'm from the Soviet Union,” she said. “I would expect that there but not in the United States.”
As she wrapped up, Taitz said, “We went to Congress and the Joint Chiefs of the military. We exhausted all our avenues. Mr. Kreep is right. The courts need to decide.”
DeJute told the judges that the U.S. Attorney's Office was basing its case on two issues: “They need to show injury and they don't have standing.” No one from the office would offer comments following the arguments.
After the hearing, a group of people surrounded Taitz as she displayed copies of several personal documents that she said Obama has provided the public. She talked about what she believes are discrepancies.
John Florance from Simi Valley was among the general public at the hearing. The 61 year old took a day off work in the wholesale produce industry. He said, “I'm just a frustrated witness. Government employees aren't saying anything. The silence is deafening. Why don't they just bring it out in the open and deal with it?”
A Rancho Mirage woman, Pat Levy, turned out in support of Taitz. She described herself as a retired business owner.
The panel of three judges will take an indeterminate time to issue a ruling.
Smith, the attorney who flew in from Tennessee, said there have been about 100 lawsuits filed nationwide over the question of the president's eligibility. According to Berg and Kreep, these two cases in California are the only ones to make it as far as oral arguments. If the appellate court sends the cases back to the federal court, Kreep anticipates that the U.S. Department of Justice will file a writ with the Supreme Court to block them.