Latest Birther Trick Failed in 1973

Despite much better counsel, I might add.

The latest Birther trick is one of the more creative (if quasi-treasonous) devices to come out of their retinue. Recall that the Birthers’ goal is to leverage their mongrel understanding of law to build a theory – any theory – that makes President Obama’s eligibility for office somehow questionable. Thus far, they haven’t even been able to get into court, halted in their tracks by federal standing, and other justiciability doctrines. Blast those “activist judges”!

Fake lawyer Orly Taitz thinks she’s fixed that. By choosing as a plaintiff a beleagured soldier – unsure whether to follow the orders of his current commander-in-chief, lest he accidentally support an impostor – she’s managed to state an injury that’s sufficiently discrete and personal to, probably, satisfy the prudential requirements of federal standing. Good for her!

But, for Orly and the Birthers, it’s out of the frying pan and into the fire. The Supreme Court has heard a challenge like this before, and it didn’t end well. In 1973, professional Good Guy and all-around rock god of law Burt Neuborne filed a suit against then-Secretary of Defense Arthur Schlesinger, on behalf of soldiers being ordered to bomb Cambodia in the hitherto undeclared Vietnam War. Building off of the plaintiffs’ plausible stake in the matter, he argued that since the Vietnam War was never formally declared, these soldiers were being forced to choose between their orders and the Constitution. It’s essentially Orly’s theory, just used to support a far nobler goal.

Despite a brilliant attempt, the “Cambodia bombing” case (Holtzman v. Schlesinger) failed, when the Supreme Court, in an impromptu phone-conferenced hearing, vacated a stay of the bombing ordered by the district court. Fatal to the case was another doctrine of justiciability – the “political question” doctrine, which forbids federal courts from inquiring into matters committed to other branches of government, like the validity of wars and (ahem) battle orders.

But, it was worth a try.  The “soldier standing” trick was clever in 1973, when it made a point and, despite failing, apparently made the Justices seriously stop & think about the consequences of the Vietnam War. Job well done, I’d say. You can’t say the same for Orly. Orly Taitz, on the other hand, is a racist troll, exploiting a soldier’s naivete to feed her delusions of grandeur. For God’s sake, she’s not even admitted to the bar in the case’s jurisdiction (remember?)!

It’s time to dismiss the case – indeed, all birther cases – disbar Taitz in the few jurisdictions she’s still allowed to practice in, for failing to make legal arguments in good faith, and move on with our lives.

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