Last month, an administrative law judge in Georgia issued a widely-mocked decision rejecting President Obama’s attorneys’ argument that the president should not be forced to testify in a case brought by several birther activists who claim that he is ineligible to be president. On Friday, however, the judge finally decided to end this charade, holding that President Obama is indeed eligible to hold his current office:
In 2009, the Indiana Court of Appeals (“Indiana Court”) addressed facts and issues similar to those before this Court. In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as an eligible candidate for president because his is not a natural born citizen. The plaintiffs argued, as the Plaintiffs argue before this Court, that “there is a very clear distinction between a ‘citizen of the United States’ and a ‘natural born Citizens,’ and the difference involves having [two] parent of U.S. citizenship, owning no foreign allegiance.” The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that children born within the United States are natural born citizens regardless of the citizenship of their parents. The Court finds the decision and analysis of Arkeny persuasive.
Even if this Georgia administrative law judge had traveled even further down the rabbit hole and held that President Obama cannot be president, it is exceedingly unlikely that his decision would not have been rejected by a higher authority. Nevertheless, it is important that this judge decided to back away from his earlier decision.
Two years ago, conservative activists uncovered two judges who were willing to ignore nearly 200 years of precedent and the text of the Constitution itself in order to hold the Affordable Care Act unconstitutional. One of these judges was a longtime Republican activist who was best known for producing “a miasma of misplaced morality and prudishness masquerading as social science” when he lead the Reagan administration’s anti-pornography commission. The other produced an opinion containing nearly four dozen errors of fact or law and which also included an explicit shout out to the Tea Party.
Nevertheless, these two deeply erroneous opinions were enough to confuse reporters who lack a background in constitutional law into believing that the utterly frivolous case against health reform might have merit. Worse, it emboldened conservative lawyers who knew better into pretending that the two judges were right. It remains very unlikely that the Supreme Court will strike the law down, but it is at least as likely that the case would have died more than a year ago if these two judges hadn’t so emboldened the law’s opponents.
Birtherism is no less absurd than tentherism, so there is no good reason that one outlier judge should breathe new life into an attack on Obama’s presidency that is widely viewed as frivolous. Nevertheless, the fact that the case against the Affordable Care Act is viewed today as anything other than a joke is proof of the power outlier judges have to transform the ridiculous into the possible.