Monday, July 6, 2009

Plaintiffs Obtain Extension of Time to Answer Obama/Congress Motion to Dismiss

Defendants, Obama, USA, Congress, Senate, House, Cheney, and Pelosi have filed a motion to dismiss plaintiffs' complaint/petition. Their main argument is that the plaintiffs do not have standing and that all the defendants have immunity from all of plaintiffs' constitutional claims.

The current defense motion to dismiss the complaint/petition was returnable Friday, July 20, 2009. Plaintiffs’ opposition was due by Monday, July 6, 2009.

The defendants took over 4 months to file their motion. I was only given 2 weeks to respond. Given the critical importance of this case, the complexity and novelty of the constitutional issues, and the need to do a thorough job, I sought fit to request a 2-week extension of time to answer the defendants' motion to dismiss.

I realize that by the extension we are losing two weeks, but winning the motion is more important than not losing the two weeks.

The new motion day is Monday, August 3, 2009. I will file our opposition papers at least 14 days prior to the new motion day, and the defendants shall file their reply papers, if any, at least seven calendar days prior to August 3, 2009.

I know that many of you have been posting on this blog your thoughts and analysis on how we can defeat the defendants' motion. Your input is highly appreciated. I am asking that you continue to give me your ideas in this public blog. I encourage the open exhange of ideas so that we may all arrive at the best answer. Only strategy and personal matters will be treated confidentially. I will appreciate that if you do have a point you want to make, you provide a citation to support what you are saying, if a citation exists. If you do not have a citation, still make your argument. I will consider all comments and choose which points to incorporate into our opposition brief.

The points to research and comment on are standing and immunity. For a full reading of how the defendants are using these defenses to try to convince the judicial branch of government not to address the issue of Obama's Article II "natural born Citizen" eligibility, you may clique on the link in this blog and view the defendants' brief that they filed in support of their motion to dismiss.

Mario Apuzzo, Esq.

54 comments:

cfkerchner said...

A copy of Kerchner et al v Obama & Congress et al DOC 30, which is Atty Apuzzo's letter to the court today, is available at this link:

http://www.scribd.com/doc/17148377/

Charles

James said...

The Plot Thickens:

Hospital won't back Obama birth claim
Honolulu's Kapi'olani Medical Center refuses to confirm White House letter
http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=103294

Larry Walker Jr said...

http://larrymwalkerjr.multiply.com/journal/item/6

The big question is what is 'standing' and who has it? Who has the right to stand up for our Constitution? Who has the right to ensure that a Presidential candidate meets the 'natural born citizen' qualification?

To have standing to sue in federal court, a plaintiff must show (1) a particularized injury-in-fact, (2) a causal relationship between that particularized injury-in-fact and the actions of the defendant or defendants, and (3) that proper adjudication of the matter will provide redress for that injury.

In all the eligibility cases dismissed to-date (12 so far), no one has been able to show the following:

An 'injury-in-fact' - A mere voter or citizen is not considered injured by having an ineligible Presidential candidate on the ballot. One would have to show a direct injury. Alan Keyes may be able to prove this since he was on the ballot in California.


A 'causal relationship' - It must be shown that the plaintiff had a relationship with Obama directly related to the matter. So far none of the plaintiffs have been Presidential candidates, and thus not directly related to any direct injury. Alan Keyes should be able to prove this because he was on the ballot. Keyes was directly affected by Obama's candidacy.


And finally that the lawsuit would provide 'redress for that injury' - In other words, that disqualifying Obama would somehow directly benefit the plaintiff. On this point, Keyes would have trouble proving had Obama been disqualified, that he would have had a chance to win the election.
According to 3 U.S.C. 8, electors who vote in the Electoral College would have standing. So it's time for members of the electoral college to step up to the plate.

3 United States Code (U.S.C.) Section 8 provides, “The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.” This federal statute confers upon each elector an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a “natural born” citizen. Otherwise, the elector would not know if his vote was being cast in the “manner directed by the Constitution.”

Given this constitutionally mandated duty, PETITIONERS have standing to bring this Writ before this Court.

There are however two other persons, and only two in my opinion, who have the right to bring this case up in the Federal courts. John McCain and Sarah Palin would meet the criteria, and could clearly show that they could have won the election had Obama been determined to be ineligible for President. I think Sarah Palin has the guts to take up this matter, but I'm not sure that John McCain has the backbone.

So in conclusion, if Keyes, Martin, and Berg get tossed, who's going to defend our Constitution? Any takers? Mr. McCain? Ms. Palin? Any of the 538 Electors? Is anybody listening?

Sources:

http://www.americasright.com/2008/11/keyes-action-unlikely-to-overcome.html
http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=80928
http://www.americasright.com/2008/09/berg-v-obama-update-tuesday-september.html
http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=80931
http://www.americasright.com/2008/10/berg-to-us-supreme-court-this-afternoon.html

squinlivan said...

Mario,

Some food for thought..(hope your not suffering indigestion yet! LOL)

RE: Article III Standing: From Newdow 542 US 1
"Consistent with these principles, our standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 559-562 (1992); and prudential standing, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction," Allen, 468 U. S., at 751. The Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an "injury in fact" that a favorable judgment will redress. See Lujan, 504 U. S., at 560-561. Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Allen, 468 U. S., at 751. See also Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955-956 (1984). "Without such limitations—closely related to Art. III concerns but essentially matters of judicial self-governance—the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth, 422 U. S., at 500."

After reading that excerpt, lets assume for a minute that te respective parties placed Ronald Regan and Bill Clinon up for election...even though this would violate the Constitutional limits on Presidential Terms. (2 Terms only)

Bill Clinton is elected and the suits follow....by the same Plaintiffs as have done so now...

Justice Kennedy states "prudential standing encompasses "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches,"
.....the great dificulty here is that the Legislative branch has acted "contrary to the law" and the new Executive branch leader is in aligned with their efforts...if the Judiciary does not act..then what is to become of the Supreme Law of the Land ?

And this: "the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights."....

In this case it is the Legislative branch itself that has taken it upon itself to determine who is a Natural Born Citizen (John McCain and SR511) and to provide several candidates from the respective parites, AT LEAST THREE who were, arguably not NBC, and placed them before the voters with THEIR approval...not all voters will question the leaders...and will assume they are qualified or they would not be there.

Finally... what judicial rule, "the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches," can supersede the plain language of... "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution....to Controversies to which the United States shall be a Party...since when do judicial doctrines trump the Constitution ?

squinlivan said...

Mario,

From Defendants Motion pg 8 Footnote 2:

"The Constitution does not grant to members of the public generally a right to be heard by bodies making decisions of policy." Minn State Board of Cmnty Coll v Knight 465 US 271...

Here the defendants seem to change the meaning of the complaint...Plaintiffs are complaining of unconstitutional conduct,contrary to the mandates of the Constitution... not debates over policy formulations in compliance with the Constitution...within the power delegated to Congress...by the Constitution....to which the Congress may or may not listen to the people...

Congress has limits imposed upon it as well, and Just Where do the Courts think we are going to go to restrain their wrongful conduct???

Article 1 Section 9 has many limits on the Power of Congress...and just where should the plaintiffs go if they are but x many of the population of southern half of New Jersey that has been specially taxed by Congress 20% of their earnings to provide funds for any potential natural disaster relief that FEMA might need to provide? The only people across America who are taxed specifically for this purpose? Really...if not protected by Article 1 Section 9...then rebellion?

Puzo1 said...

To Larry Walker Jr.

Do you believe that my plaintiffs can get standing?

Mario Apuzzo, Esq.

Puzo1 said...

Squinlivan,

I have a good appetite. Keep it coming. I greatly appreciate all you work and input. I am studying all materials sent to me for incorporation into the final brief. Hope to have more from you.

Mario Apuzzo, Esq.

sjc said...

This term "standing" seems to be a "which came first the chicken or the egg" type question. However is it so simplistically complicated?
As a taxpayer, a portion of my taxes go to pay the salaries and overhead costs to maintain these elected officials. I am being required to pay even when I am being defrauded by defendants. While I am a member of the "universe" of the group called the American taxpayers. I set myself apart from that group from those who may not consider their tax dollars stolen, I do. Obama has actually and factually stolen from me. In addition, I claim breech of contract by the United States government. I invoke said breech due to the derelict discharge of duties and/or neglect in performing acts as required by the US Constitution as agreed by myself,a citizen bound by said constitution and the executive and legislative branch in this instance. My injuries amongst others include unlawful acts against my person,my estate and my heirs,mental anguish, loss of trust, and physical discomfort (I think I may be developing a stomach ulcer from said mental distress directly attributed to this constitutional crisis brought about by defendants).
It would seem to me there would be other citizens who are suffering many , but not limited to these same injuries, including your clients Mr Apuzzo. Our so called standing IS satisfied in that, each citizen is a unique and separate body. Therefore it is an impossibility to collectively assign each aggrieved individual into the false universe of non-standing before the court. Some citizens may be blissful and happy given the current state of affairs, some may be ambivalent and non concerned, but these do not preclude, offset, or remove those who claim injury.

I hope this arguement helps you/us sir.

Gordon said...

This "standing" issue has essentially turned into a declaration by the courts that if the injury inflicted by the political class is egregious and broad enough, so that all citizens are injured equally, that no one has "standing" to petition the courts for redress; so that, in effect, the courts themselves have decided that if the injury is big enough, and broad enough, to have inflicted injury upon everyone equally and nobody "particularized", that they have declared themselves impotent, by their own self-imposed rule, to provide redress. The courts have ensnared themselves, and contributed to our ruin, by their own legalistic involutional, irrational, insular, idiocy.

Whatever happened to prudence and common sense?

roderick said...

You see the difference between Kerchner's arguments and all other cases to date is that the other matters were directed at Obama himself. Obama returns the argument that the people elected me and you can't overturn the election even if it reaches the Supreme Court. The fact of the matter is that the people elected the democratic ticket and the Constitution does provide relief if the top man on that ticket is found to be ineligible before taking the oath. In other words if Obama ran for president under the Liberterian ticket he would have never won despite all of the vain promises he made to everybody, they would have laughed him off the block. Your argument has to be that the election stands no matter what and the man can stay in office until his term is up. No judge in his right mind even wants to remotely touch the possibility of trying to remove a sitting president even if he is not constitutionally qualified to hold said office. The best angle to date has been taken with the arguments of Kerchner that he phoned his Representatives in Washington before the election and before the swearing in on Jan. 20, 2009. They ignored his calls and many other calls that were made to these Representatives all over the country. Let's review:
You are not trying to overturn an election (one possibility is that Biden takes over the office no argument from anybody about whether or not he is Constitutionally qualified).
Also you will win this case because the courts will set in motion clarification of all of the requirements to being President.

Benaiah said...

12 US 253 - THE VENUS

The Supreme Court of the United States, in The Venus, relied upon Vattel’s “Law of Nations” as the authority on citizenship issues.

The Venus, 12 U.S. (8 Cranch) 253, 1814


“Vattel, …is more explicit and more satisfactory on it [CITIZENSHIP ISSUES] than any other whose work has fallen into my hands, [Vattel] says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens.’ ”

Vattel’s Law of Nations: § 212. Citizens and natives

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.

Benaiah said...

Quo Warranto “or otherwise”

http://www.ofbyfor.us.com/page8/page8.html

Benaiah said...

Quo Warranto

District of Columbia Official Code
Title 16, Chapter 35, Subchapter I

§ 16-3501. Persons against whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

§ 16-3502. Parties who may institute; ex rel. proceedings.

The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.

If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.

Benaiah said...

Quo Warranto

§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.

If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.

When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States...

The Constitution of the United Ststes is the Supreme Law of the United States. A Quo Warranto petition based upon Article II, Section 1, Clause 5, and Article 6, would be unequivocally "sufficient in law".... Thus, the court would have no choice but to issue the writ, as the Quo Warranto statue states the following: When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States...

Benaiah said...

U.S. House of Representatives
Committee on Appropriations
COMMITTEE RULES


Sec. 1: Power to Sit and Act
(a) For the purpose of carrying out any of its functions and duties under Rules X and XI of the Rules of the House of Representatives, the Committee and each of its subcommittees is authorized:

(1) To sit and act at such times and places within the United States whether the House is in session, has recessed, or has adjourned, and to hold such hearings as it deems necessary; and
(2) To require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, reports, correspondence, memorandums, papers, and documents as it deems necessary.

(b) The Chairman, or any Member designated by the Chairman, may administer oaths to any witness.
(c) A subpoena may be authorized and issued by the Committee or its subcommittees under subsection

(a)(2) in the conduct of any investigation or activity or series of investigations or activities, only when authorized by a majority of the Members of the Committee voting, a majority being present. The power to authorize and issue subpoenas under subsection (a)(2) may be delegated to the Chairman pursuant to such rules and under such limitations as the Committee may prescribe. Authorized subpoenas shall be signed by the Chairman or by any Member designated by the Committee.

(d) Compliance with any subpoena issued by the Committee or its subcommittees may be enforced only as authorized or directed by the House.

Sec. 2: Subcommittees
(a) The Majority Caucus of the Committee shall establish the number of subcommittees and shall determine the jurisdiction of each subcommittee.
(b) Each subcommittee is authorized to meet, hold hearings, receive evidence, and report to the Committee all matters referred to it.

The phrase “or otherwise” is not defined in the Committee Rules. Thus, the U.S. House of Representatives, Committee on Appropriations, or any Subcommittee thereof, has broad authority and means by which it can “receive evidence”, such as any and all “documents as it deems necessary” to determine whether or not Barack Hussein Obama, is an Article II, Section 1, Clause 5, “natural born citizen” of the United States, such as being “the interested party” in a Quo Warranto action, either as “the third person” “relator” under § 16-3502 in an action brought by the US Attorney for the District of Columbia, or in a direct action as “the interested person” in § 16-3503.

Benaiah said...

The following is the legal authority by which any member of The U.S. House of Representatives Committee on Appropriations, or Subcommittees thereof, not only has the authority, but also has the Constitutional duty to determine whether or not Barack Hussein Obama is “eligible to the office of President”.

Article II, Section 1 of the Constitution states, “No person except a natural born citizen ...shall be eligible to the office of President”.

Article VI of the Constitution states, “The Senators and Representatives ...shall be bound by oath or affirmation, to support [DEFEND] this Constitution”.

Hence, under Article VI of the Constitution, each and every US Senator and Representative has the duty “to support [DEFEND]” the Constitution of the United States.

If Barack Hussein Obama is not a “natural born citizen” of the United States, he is NOT “eligible to the office of President” and is a usurper of “the office of President”. If Barack Hussein Obama is not a “natural born citizen” of the United States, the Constitution of the United States is “opposed, denied, and weakened”.

The U.S. House of Representatives, Committee on Appropriations, COMMITTEE RULES, Section 1 (a) (1) and (2) states the following: “the Committee and each of its subcommittees is authorized: to hold such hearings as it deems necessary; and To require by subpoena or otherwise...the production of...documents as it deems necessary”.

The U.S. House of Representatives, Committee on Appropriations, COMMITTEE RULES, Section 2 (b) states the following: “Each subcommittee is authorized to meet, hold hearings, receive evidence, and report to the Committee all matters referred to it.”

Thus, any Subcommittee of the U.S. House of Representatives Committee on Appropriations, such as the Subcommittee on State, Foreign Operations, and Related Programs, unequivocally has the authority to “receive evidence”, and “to require”“by subpoena or otherwise” “the production of...documents as it deems necessary” to determine the truth regarding “all matters referred to it”, such as whether or not Barack Hussein Obama is an Article II, Section 1, Clause 5, “natural born citizen” of the United States.

Whether or not Barack Hussein Obama, is an Article II, Section 1, Clause 5, “natural born citizen” of the United States, determines whether or NOT Barack Hussein Obama, is “eligible to the office of President”.

This is unequivocally an issue, or “matter”, that Article VI of the United States Constitution has “referred to” each and every U.S. Senator and Representative.

Article VI of the Constitution states, “The Senators and Representatives ...shall be bound by oath or affirmation, to support [DEFEND] this Constitution”.

Hence, under Article VI of the Constitution, each and every US Senator and Representative has the duty to determine whether or not Barack Hussein Obama is an Article II, Section 1, Clause 5, “natural born citizen” of the United States.

Thus, the U.S. House of Representatives, Committee on Appropriations, or any Subcommittee thereof, such as the Subcommittee on State, Foreign Operations, and Related Programs, has the authority “to require”, “by subpoena or otherwise”, “documents as it deems necessary” to determine whether or not Obama is a “natural born citizen” of the United States, such as any and all passports, birth certificates, Occidental College records, etc,...

The phrase “or otherwise” is not defined in the Committee Rules. Thus, the U.S. House of Representatives, Committee on Appropriations, or any Subcommittee thereof, has broad authority and means by which it can “receive evidence”, such as any and all “documents as it deems necessary” to determine whether or not Barack Hussein Obama, is an Article II, Section 1, Clause 5, “natural born citizen” of the United States, such as being “the interested party” in a Quo Warranto action, either as “the third person” “relator” under § 16-3502 in an action brought by the US Attorney for the District of Columbia, or in a direct action as “the interested person” in § 16-3503.

Benaiah said...

Barack Hussein Obama has taken the following oath as was required by Article II, Section 1, Clause 8 of the Constitution of the United States: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

If Barack Hussein Obama refuses to comply with the “writ of Quo Warranto” he is in open opposition to the Constitution of United States, and is thus adhering to the Enemies of the United States..

If and when the “writ of Quo Warranto” is issued, Barack Hussein Obama will have a choice to comply with the “writ of Quo Warranto”, “or otherwise” be tried for Treason for adhering to the Enemies of the United States.

Benaiah said...

Perhaps you could recruit one of the Republican members of the Committee on Appropriations to allow you to represent them in a Quo Warranto action...

Committee on Appropriations Members:

Republicans


Jerry Lewis, California, Ranking Member

C.W. Bill Young, Florida

Harold Rogers, Kentucky

Frank R. Wolf, Virginia

Jack Kingston, Georgia

Rodney P. Frelinghuysen, New Jersey

Todd Tiahrt, Kansas

Zach Wamp, Tennessee

Tom Latham, Iowa

Robert B.Aderholt, Alabama

Jo Ann Emerson, Missouri

Kay Granger, Texas

Michael K. Simpson, Idaho

John Abney Culberson, Texas

Mark Steven Kirk, Illinois

Ander Crenshaw, Florida

Dennis R. Rehberg, Montana

John R. Carter, Texas

Rodney Alexander, Louisiana

Ken Calvert, California

Jo Bonner, Alabama

Steven C. LaTourette, Ohio

Tom Cole, Oklahoma

Democrats

David R. Obey, Wisconsin, Chairman

John P. Murtha, Pennsylvania

Norman D. Dicks, Washington

Alan B. Mollohan, West Virginia

Marcy Kaptur, Ohio

Peter J. Visclosky, Indiana

Nita M. Lowey, New York

José E. Serrano, New York

Rosa L. DeLauro, Connecticut

James P. Moran, Virginia

John W. Olver, Massachusetts

Ed Pastor, Arizona

David E. Price, North Carolina

Chet Edwards, Texas

Patrick J. Kennedy, Rhode Island

Maurice D. Hinchey, New York

Lucille Roybal-Allard, California

Sam Farr, California

Jesse L. Jackson, Jr., Illinois

Carolyn C. Kilpatrick, Michigan

Allen Boyd, Florida

Chaka Fattah, Pennsylvania

Steven R. Rothman, New Jersey

Sanford D. Bishop Jr., Georgia

Marion Berry, Arkansas

Barbara Lee, California

Adam Schiff, California

Michael Honda, California

Betty McCollum, Minnesota

Steve Israel, New York

Tim Ryan, Ohio

C.A "Dutch" Ruppersberger, Maryland

Ben Chandler, Kentucky

Debbie Wasserman Schultz, Florida

Ciro Rodriguez, Texas

Lincoln Davis, Tennessee

John T. Salazar, Colorado

Benaiah said...

THE VENUS, 12 U. S. 253 (1814)

http://supreme.justia.com/us/12/253/case.html

Benaiah said...

STANDING

"We the people" unequivocally have standing, as "We the people" established the Constitution "for [We the people of] the United States of America."

Preamble: We the people of the United States ...establish this Constitution for the United States of America.

Article II, Section 1, Clause 5: No person except a natural born citizen ...shall be eligible to the office of President.

Article VI: The Senators and Representatives ...shall be bound by oath or affirmation, to support [DEFEND] this Constitution.

Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

Article VI gives "We the people" the standing to hold the "The Senators and Representatives" accountable, as "The Senators and Representatives...shall be bound by oath or affirmation, to support [DEFEND] this Constitution."

"We the people" established the Constitution "for [We the people of] the United States of America."

JeffM said...

Mario,

Your client has standing. Many states, such as Florida, Oklahoma, and Rhode Island, also grant civilians the right for writ of quo warranto based on the premise of public interest. Additionally, any of your military officer plaintiffs are subject to recall by Congress or the U.S. military at any time prior to his/her 64th birthday. He/she has direct vested interest in the validity of the office of the Presidency in this case.

This statement of standing is confirmed in the following prior cases:

Rowan v. City of Shawneetown, 38 N.E.2d 2

FACDL v, Florida Governor Charles Crist Et Al, 2007,CA,002898

McKenna v. Williams, No. 2005-05-144 M.P.(PC/05-1773)

Jackson v. Freeman,1995 OK 100,905 P.2d 217,66 OBJ 3048

I'm sure there are plenty more cases, but this will get you started. There are a few issues with your quo warranto that need addressed:

1. You can not file quo warranto against Congress as it is a municipal governing body
2. You can only file quo warranto against an officer(s) or holder(s) of public office
3. You'll need to stress that quo warranto is unique unto the fact the the defendant, not the plaintiff must prove legal eligibility to remain in office or obtain a position in an office of public trust or municipality
4. Quo warranto is not to be used to satisfy writs of a criminal nature; they are only designed to remove or replace usurpers from office
5. You need to stress that Congress can not be involved in the implementation of quo warranto due to conflict of interest
6. You also need to stress that every district court thus far has refused to file quo warranto on behalf of the public regardless of the mounting evidence available to the public


One excellent excerpt regarding item 3 is People ex rel Ray v. Lewistown Community High School Dist., 57 N.E.2d 486 (Ill. 1944):

"The plaintiff in quo warranto is not required to allege any facts in the complaint showing that the challenged acts are unlawful. It is enough to allege the exercise of the right without lawful authority. All that is necessary or material in any count of the complaint is the general charge of usurpation. The defendant must either disclaim or justify. If he justifies he must set out facts which show his lawful authority to exercise the right claimed....The plaintiff is not required to either allege or prove any facts. The right to call upon any person, natural or artificial, by quo warranto, to justify his acts, is an incident of sovereignty. The burden is on the defendant. If he attempts to justify he must allege and prove facts which justify his acts. Such facts when alleged may be rebutted. The defendant, not the plaintiff, must, by his answer, tender the issues on which the rights claimed by him are to be litigated....The office of an information or complaint in the nature of quo warranto is not to tender an issue of fact, but only to all upon the defendants to show by what authority they claim the right to exercise the powers alleged to be usurped....In other litigation the complaint tenders the issues. It is only in rare instances that the issues tendered by the complaint, in so far as the plaintiff's case is concerned, are departed from. This is not true in quo warranto proceedings. In such cases the issues are never tendered by the complaint. They are tendered for the first time by the answer of the defendant."

You and your client have solid ground re. standing and you only need minimal evidence of usurpation to be granted quo warranto. Good luck in your endeavors.

JeffM said...

Mario,

One more item I would like to add. Citizens do have the right to file quo warranto in cases without the need for a district attorney.

The reason is rather simple:

If every quo warranto case required a district attorney to file (as in the case of California), there would be no redress for a plantiff filing quo warranto against this very district attorney as a defendant. This is especially valid at the federal level due to D.C. Code § 16-3501.

Granted, every effort should be made to file via a federal district attorney as it is the best and easiest approach to quo warranto, it is not and should not be an end-all, be-all requirement of the rules of the court or by statute.

P@ said...

Mario...you and Mr. Kerchner are doing a great job!!! Please take as much time as you need...you are right...we do need to be thorough. Thanks for all of you work and effort to bring justice for the people!!!

jayjay said...

Some great observations and thinking on this thread ... congratulations; that sort of output can only help Mr Apuzzo as he sorts through things.

Here's another set of links re QW:

http://www.constitution.org/uslaw/q-w_cases.txt

Also, as JeffM posted the comment from "People ex rel Ray v. Lewistown Community High School Dist." on QW, much of that same logic surely applies in the present Complaint to "... allege the excercise of the right without lawful authority ...".

Benaiah said...

IMMUNITY

Preamble: We the people of the United States ...establish this Constitution for [We the people of] the United States of America.

Article II, Section 1, Clause 5: No person except a natural born citizen ...shall be eligible to the office of President.

Article VI: The Senators and Representatives ...shall be bound by oath or affirmation, to support [DEFEND] this Constitution.

Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

Article VI gives "We the people" the standing to hold the "The Senators and Representatives" accountable, as "The Senators and Representatives...shall be bound by oath or affirmation, to support [DEFEND] this Constitution."

Furthermore, Article VI nullifies immunity as a defense for "The Senators and Representatives", with regard to constitutional matters, as "The Senators and Representatives...shall be bound by oath or affirmation, to support [DEFEND] this Constitution."

JeffM said...

Take notes on this one. It will be your toughest contention against standing on this case:

http://openjurist.org/238/us/537

Mark said...

"Article III - The Judicial Branch
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,.... to Controversies to which the United States shall be a Party;...and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects"

Surely the Supremes have to try the case? There is no mention of "standing" in the Constitution above.

Equally, if Obama is alleged to be a foreign citizen or subject, the Supreme Court has Jurisdiction.

Mark said...

The US Courts created the issue of "Standing", and should add Public interest standing:

"Public interest standing
The Supreme Court of Canada developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General),[22] Nova Scotia Board of Censors v. McNeil,[23] and Minister of Justice v. Borowski.[24] The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):[25]

It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?[26]

Also the UK Law:

In British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates.[28] This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock put it:[29]

"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public sprited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."

http://en.wikipedia.org/wiki/Standing_(law)

Ultimately it is the Supreme Courts duty to stop unlawful conduct, otherwise the rule of Law is absent.

Benaiah said...

ALLEN v. WRIGHT ET AL., 104 S. Ct. 3315, 468 U.S. 737 (U.S. 07/03/1984)

[1] SUPREME COURT OF THE UNITED STATES

[33] The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government.

[34] The Art. III doctrine that requires a litigant to have "standing" to invoke the power of a federal court is perhaps the most important of these doctrines. "In essence the question of standing is whether the litigant is entitled to have the

[ 468 U.S. Page 751]

court decide the merits of the dispute or of particular issues." Warth v. Seldin, supra, at 498. Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. See Valley Forge, supra, at 474-475. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.454 U.S., at 472.

Benaiah said...

Hein v. Freedom From Religion Foundation, Inc., 127 S.Ct. 2553, 551 U.S. 587, 168 L.Ed.2d 424 (U.S. 06/25/2007)

[1] SUPREME COURT OF THE UNITED STATES

[13] 1. Federal-court jurisdiction is limited to actual "Cases" and "Controversies." U. S. Const., Art. III. A controlling factor in the definition of such a case or controversy is standing, ASARCO Inc. v. Kadish, 490 U. S. 605, 613, the requisite elements of which are well established: "A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737, 751. Pp. 6-8.

Benaiah said...

STANDING according to SCOTUS:

"A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."


To meet the SCOTUS definition of STANDING, we must address the following questions:

What is the "unlawful conduct" of the defendants?

What is the "personal injury" suffered by the plaintiffs?

Is the "personal injury fairly traceable to the defendants' allegedly unlawful conduct"?

Will the "personal injury" likely "be redressed by the requested relief"?

capedeh said...

the immigration bill of Indonesia UU no.62 tahun 1958 bases on uuds 1950, temporary constitution 1950 of Indonesia. However since the president Soekarno revoke this on 1959 this law (uuds 1950) is no longer intituted. But the immigration bill of uu no.62 tahun 1958 stilll applied even added with UU no.67 tahun 1958 about how to execute uu.no.62 tahun.1958. The proove that he is or still indonesian citizen actually lies on uu no.62 tahun 1958 article 1.b. and article 2. This is the html version of the file Page 1 Page 1
PERATURAN PEMERINTAH NO. GOVERNMENT REGULATION NO. 67/1958 67/1958
TENTANG ABOUT
PELAKSANAAN UNDANG-UNDANG NO. IMPLEMENTATION LAW NO. 62 TAHUN 1958 62 YEAR 1958
PRESIDEN REPUBLIK INDONESIA, PRESIDENT OF THE REPUBLIC OF INDONESIA,
Considering: that need to be rules about the implementation of citizenship
Republic of Indonesia (1958 Sheets No Country. 113, in the Additional Explanations
No Country sheet. 1647);
Given the
: 1. Article 98 paragraph (1) Basic Law/constitution While RI.;
2. State Sheets Tahun 1958 Nomor 113); State 113 Tax Year 1958);
Hearing: the Council of Ministers on 28 November 1958.
Decide:
Setting: RULES
GOVERNMENT ABOUT IMPLEMENTATION
LAW OF THE REPUBLIC OF INDONESIA citizenship.
Article 1
(1) If the concerned live outside the country, the District Court
Special Jakarta authorities:
a. To endorse a foreign child adoption, according to Article 2 of Law no. 62 tahun 1958;
b. To determine whether a citizen of the Republic of Indonesia or not, according to Article IV Rule Closing Act in a letter on this.
2) confirmation and determination of this be done with the materials and the consideration that has received Representative of the Republic of Indonesia.
Article 2
Representative of the Republic of Indonesia, representatives receive a request referred to in section 2 and Rule IV Closing Law on Citizenship of the Republic of Indonesia and moved forward to the Court of Special Jakarta, accompanied documents that need verification, if the concerned live abroad.
Article 3
1) Fees based on the Court and Article IV Rule 2 Conclusion of Law
Citizenship of the Republic of Indonesia is Rp. 1.500,- 1500, --
2) If the partied held outside the country, the court fee is
paragraph (1) District Court for the Jakarta Special Representative of the Republic of the Indonesia is in chapter 2 for the next shall e responsible to Minister of Justice.
You must seek on google about uu no.67 tahun 1958 that contain how to execute this matter and of course translate this with your dictionary.

capedeh said...

Now moved forward to Indonesian contitution that reapplied in 1959 (uud 1945) article 26:
Article 26 and article 27:
(1) The citizens are the native people of Indonesia and the foreigner people of the nation that was passed with the law as citizens.
(2) The requirements are defined with the citizenship laws.
Article 27
(1) Any citizen at the same position in law and government and must uphold the law and that the government does not have exception.
(2) Every citizen has the right to work and a decent life for humanity.
About his go to public school in Indonesia bases on that same law:
Article 31:
CHAPTER XIII
EDUCATION
Article 31
(1) Every citizen is entitled to instruction (education).
(2) Government organize and hold the Government of a national system of teaching, which is regulated by law.
After the amendment of UUD 1945 Indonesian make sure there's no retroactive: here's the chapter 28.i:
(1) The right to live, the right not to be torchered, the right to be free of mind and will, the right of religion faith, the right not to be enslave, the right to be as person in front of the law, and the right to cannot being sued retroactively is the human right that cannot being reduced on any circumstances at all.

sjc said...

As far as a sympathetic ear amongst the congressional appropriations committee I'd reccommend Rep. Culberson (r) Texas. Culberson attended the Houston Tea Party Tax Day protest 4/15/09 and this past 4th of July freedom rally in Houston he had a petition in support of the constitution for we attendees to sign so he could present it on our behalves on the floor of Congress. Culberson is a Patriot.

A pen said...

Federalist 78

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. ....
... They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."


http://www.foundingfathers.info/federalistpapers/fedindex.htm

As congress has refused to challenge the eligibility of the president it is their will. The people challenge that "will" as it conflicts with the constitution, the fundamental law. The power of the people being superior is superior to both the judicial and the legislative branch. Can the judicial then refuse the people standing when doing so raises the legislature above the people?

Standing, the ability of a particular party to bring suit, is not a fundamental law .

Standing is derived from common law not constitutional law. There is no debate as to whether the law must be interpreted, it simply must be applied.

“The province of the court,” as Chief Justice Marshall said in Marbury v. Madison… “is, solely, to
decide on the rights of individuals.” Vindicating the public interest (including the public interest in
Government observance of the Constitution and laws) is the function of Congress and the Chief
Executive.

That vindicating the public interest is the function of congress and the president when it is in fact the will of congress and the executive to violate the law not vindicate it is what is at issue.

It is the will of the senate to adopt, res 511, and then refuse to apply the standard. 511 clearly states that " Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to Americans....." and again "Whereas John Sidney McCain, III, was born to American citizens.... " , plurals for parent descriptors, both parents to be citizens is the standard.

Given Barack Obama openly admits his father was Kentan, not American, how can there be any doubt that the legislatures are in disagreement with the constitution and their understanding of it clearly states their understanding that it takes two citizen parents to be a natural born citizen.

http://www.govtrack.us/congress/billtext.xpd?bill=sr110-511

There is clearly a breach which will not be healed by the senate or congress as neither had taken issue before inauguration or since and both having ample knowledge of the public / peoples grievance.

What remedy is left? If the people have no standing when both other branches are in league then the constitution has no authority at all.

squinlivan said...

Hey Mario,

Why reinvent the wheel...look into some of the Sierra Clubs actions as they have slipped past standing issues...and look below ..this excerpt from the West's Law Dictionary....

"The issue of standing has played a crucial role in class action lawsuits, especially those filed by environmental groups. In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the Sierra Club had not demonstrated that its members would be substantially adversely affected by the secretary's decision. Later environmental class actions have overcome the standing hurdle by including specific harms that group members would suffer, thus avoiding the Court's rule against generalized concerns."

Munch munch munch...

squinlivan said...

Policy Issues or Legal Issues...standing was placed as a road block to stop interference with policy in the Courts...this case last I knew was about compliance with the MANDATES OF THE LAW...Not Policy

Again fromm West's Law Dictionary
"The issue of standing is more than a technical aspect of the judicial process. A grant or denial of standing determines who may challenge government policies and what types of policies may be challenged. Those who believe that the federal courts should not increase their power generally believe standing should be used to limit access to the courts by persons or groups seeking to change public policy. They believe the legislative branch should deal with these types of issues. Opponents of a strict standing test complain that plaintiffs never get a chance to prove their case in court. They believe that justice should not be denied by the application of judicially created doctrines such as standing."

squinlivan said...

Mario,

Study hard the Flast v Cohen case...392 US 83

"The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the [[taxing and spending clause]] of Art. I, § 8, of the Constitution." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and '''not''' simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." Id., at 102-103, 88 S.Ct., at 1954."

Apparently, standing can be overcom....if the argument is made that Congress has exceeded its authority, and this is as important as insuring that the characters are not allowed to argue immunity for "acts" that are in violation of the mandates of the law...One must remember its the character of thhe act, that must be immune...NOT as the defendants claim the "position of the defendants entitles them to immunity"...this is wrong!

A pen said...

Federalist 78

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

That "particular act" was when congress failed to apply the law.

The constitution must be given preference even above congressional acts including laws. This would include any interpretation of natural born status that runs contrary to the founders intent.

Most standing issues fall under lesser law than supreme law, constitutional law. Standing is derived from lesser law, correct? Then it should not apply when the two branches of government which would normally decide or debate a grievance such as this are the actual parties of contention. It is by their hand there is a breach of constitutional law, how would they remedy that other than refusing to correct it as they are?

Benaiah said...

INJURY

CONSOLIDATED RAIL CORPORATION v. JAMES E. GOTTSHALL CONSOLIDATED RAIL CORPORATION (06/24/94)

[1] SUPREME COURT OF THE UNITED STATES

[37] We turn, therefore, to consider the right of recovery pursued by respondents in light of the common law... The term "negligent infliction of emotional distress" is largely self-explanatory, but a definitional point should be clarified at the outset. The injury we contemplate when considering negligent infliction of emotional distress is mental or emotional injury, cf. id., at 568, apart from the tort law concepts of pain and suffering. Although pain and suffering technically are mental harms, these terms traditionally "have been used to describe sensations stemming directly from a physical injury or condition." ...The injury we deal with here is mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.

[38] Nearly all of the States have recognized a right to recover for negligent infliction of emotional distress, as we have defined it.*fn3 No jurisdiction, however, allows recovery for all emotional harms, no matter how intangible or trivial, that might be causally linked to the negligence of another. Indeed, significant limitations, taking the form of "tests" or "rules," are placed by the common law on the right to recover for negligently inflicted emotional distress, and have been since the right was first recognized late in the last century.

[45] The courts of nearly half the States now allow bystanders outside of the zone of danger to obtain recovery in certain circumstances for emotional distress brought on by witnessing the injury or death of a third party (who typically must be a close relative of the bystander) that is caused by the defendant's negligence.*fn10 Most of these jurisdictions have adopted the Dillon factors either verbatim or with variations and additions, and have held some or all of these factors to be substantive limitations on recovery.*fn11

[60] The zone of danger test also is consistent with FELA's central focus on physical perils. We have recognized that FELA was intended to provide compensation for the injuries and deaths caused by the physical dangers of railroad work by allowing employees or their estates to assert damages claims. Cf. Urie, supra, at 181. By imposing liability, FELA presumably also was meant to encourage employers to improve safety measures in order to avoid those claims. Cf. Wilkerson,336 U.S., at 68 (Douglas, J., concurring). As the Seventh Circuit has observed, FELA was (and is) aimed at ensuring "the security of the person from physical invasions or menaces." ...But while the statute may have been primarily focused on physical injury, it refers simply to "injury," which may encompass both physical and emotional injury. We believe that allowing recovery for negligently inflicted emotional injury as provided for under the zone of danger test best harmonizes these considerations. Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries--physical and emotional--caused by the negligent conduct of their employers that threatens them imminently with physical impact. This rule will further Congress' goal in enacting the statute of alleviating the physical dangers of railroading.

[73] I join the Court's opinion holding that claims for negligent infliction of emotional distress are cognizable under FELA, and that the zone of danger test is the appropriate rule for determining liability for such claims...

Benaiah said...

Perhaps you could argue the plaintiffs, as members of "We the people", were within the "zone of danger", and the injury is "emotional distress", which the plaintiffs suffered as they witnessed the death of the Constitution of the United States, which was caused by the unlawful acts of the Senators and Representatives as they failed to uphold their duty to defend the Constitution of the United States when they knowingly allowed Obama to usurp the office of President, which has resulted in a fear of "physical perils" by the plaintiffs, as the Commander in Chief is unequivocally NOT loyal to the United States, as is evidenced by his intent to release the GITMO enemy combatants...

CONSOLIDATED RAIL CORPORATION v. JAMES E. GOTTSHALL CONSOLIDATED RAIL CORPORATION (06/24/94)

[1] SUPREME COURT OF THE UNITED STATES

[45] The courts of nearly half the States now allow bystanders outside of the zone of danger to obtain recovery in certain circumstances for emotional distress brought on by witnessing the injury or death of a third party (who typically must be a close relative of the bystander) that is caused by the defendant's negligence...

[60] The zone of danger test also is consistent with FELA's central focus on physical perils. We have recognized that FELA was intended to provide compensation for the injuries and deaths caused by the physical dangers of railroad work by allowing employees or their estates to assert damages claims. Cf. Urie, supra, at 181. By imposing liability, FELA presumably also was meant to encourage employers to improve safety measures in order to avoid those claims. Cf. Wilkerson,336 U.S., at 68 (Douglas, J., concurring). As the Seventh Circuit has observed, FELA was (and is) aimed at ensuring "the security of the person from physical invasions or menaces." Lancaster v. Norfolk & Western R. Co.,773 F.2d 807, 813 (1985), cert. denied, 480 U.S. 945, 94 L. Ed. 2d 788, 107 S. Ct. 1602 (1987). But while the statute may have been primarily focused on physical injury, it refers simply to "injury," which may encompass both physical and emotional injury. We believe that allowing recovery for negligently inflicted emotional injury as provided for under the zone of danger test best harmonizes these considerations. Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries--physical and emotional--caused by the negligent conduct of their employers that threatens them imminently with physi-cal impact. This rule will further Congress' goal in enacting the statute of alleviating the physical dangers of railroading.

Catherine said...

Attorney Apuzzo, thank you for posting this informative thread, and asking for input. Though not a lawyer, I would argue Article IV, clause 4 might apply...although it references 'the state'....:

"The US shall gurantee to every state in this union a republican form of government, and shall protect each of them against invasion: and on application of the legislature, or of the executive, against domestic violence"

New York state used the 10th amendment and this Article IV clause to repel a federal effort to bury waste from a federal facility in NY. Sorry, no case number but O'Connor was the one who pointed out the rationale for the Court's decision in favor of NY, among them, Article IV, sect 4.

I agree with those comments here that employ the common sense argument: if we the people don't have standing then the constitution does not exist. No amount of wiggling around in the federal rules of civil procedure (which weigh heavily against the 'quaint' people's petitions for redress.

This coult will have to be courageous where none has been before. Let Obama argue this in front of the people: why the constitution does not apply to him or to congress. Or let him get to his real argument, that the 14th amendment modified article II.

Thank you again for the opportunity to comment.

(ps, you were a guest on "Constitutional RAdio" with my co-host Marnie, aka, "the dame Truth")

sjc said...

Because Congress failed to perform their assigned duties per Constitutional contract the Citizen Body has been injured in one form or another by the usurpation of the office of POTUS by BHO. Congress as the strongest and last line of defense failed to protect,not just taxpayers, but ALL Americans, not limited to and including the youngest infants to the feeble and mentally infirm. These who have no voice with which to speak, yet unknowingly must trust our government to do no harmful acts, against their liberty. How do these have no standing? Must we stoop to the menial individual specifics of how Obama has signed bills into law, and authorized the massive printing of billions of dollars, and has subsequently devalued the purchaing power of funds in my checking account or that my credit card interest rates have increased mainly due to BHO's monetary actions. These are specifics that a reasonable man would not deny, and said acts lay at the feet of of the executive and legislative branch. Further if any of your clients own GM or Chyrsler bonds, they have been harmed by the failure of the government to respect ownership of private property. The government by dictating what these bonds were worth infringed upon the private citizen's right to self determination as to when to dispose and at what best price
in the regulated free market place. Perhaps some had the intent to hold said bonds to maturity. If you must have specifics consult your clients as to how BHO's acts have affected them. Their mortgages, their loans, their jobs, their investments, their cd's or t-bill rates.

Mark said...

Frothingham v. Mellon and Massachusetts v. Mellon, 262 U.S. 447 (1923), were two consolidated cases decided by the Supreme Court of the United States in which the court rejected the concept of taxpayer standing. The court wrote:

We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional.

http://en.wikipedia.org/wiki/Frothingham_v._Mellon

Surely this "standing" issue is in connection with acts of Congress, not the instant case, where Obama has usurped illegally the office of President?

squinlivan said...

A PEN ...just brilliant for you to enlighten...more than you said....here's my reading of that paper....

In the second post (Federalist 78) by A PEN, he quotes the Federalist 78 as the Founding Fathers stating that the Congress can not be their own judges over their Constiutional Actions....and then states that it was their [Congress} duty to insure compliance with the Costitutional mandate of NBC for a President, .............

AND IT WAS ALSO their DUTY to provide for the people, a method... to insure complaince with the NBC mandate.

They provided the Quo Warranto Statute in the District of Columbia, BUT it is woefully inadequate....and Congress cannot, as both major parties did, (and a few smaller ones) present upon the people "unverified candidates" and expect us to do nothing....failure of the Courts to act to solve such a serious issue...as the last defense available....can lead to anarchy, as people fight to resist tyranny....the Courts must not side step issues of such import, particularly when there is no intent on the part of Congress to address the problem inspite of the complaints of the people....

Judicial doctrines have their place, but as the other posters have stated....the Supreme Law of the Land comes before Codified statutes, and judicially created doctrines..and the common law....but MARIO give this low level Judge something to sink his teeth into with the Flast v Cohen case...and rebut the red herring of immunity by referring to the "unconstitutional acts that have no immunity....AND FINALLY seek from the Judge a Writ of Mandate compelling the AG to appoint a neutral Special Prosecutor to conduct a "Quo Warranto" in DC, since that is what Congress has provided for, and while their is supposed to be discretion by these "prosecutors" to bring the Writ, they have also refused to do their duty, as they have been hounded by the public and refused to act....

Mandating that they do their job would not be the first time a Court made such an order....BUT the main reason this needs to be ordered, is because Eric Holder, and everyone under him is beholden to Eric and BO for their jobs...and they do not want to jepordize their positions...lets face it whats the pay??? Certainly less than private practice for decent attorneys...

squinlivan said...

Mark,

There was an exception to the Frothingham v Mellon case and it was the Flast v Cohen case...of course the USSC can declare an act of Congress unconstitutional, they have done it many times...read your own source carefully, even Wikipedia has this right for a change...

jayjay said...

(continued from the "Vattel: On those Claiming ...")

#17) There are some great posts on this thread, too - and it is yet young.

A pen and the Fed'list 78 observations and MvM quotes are things I hope Mr. A. will find useful as well as those by sqinlivan, Beniah, JeffM, capedeh, sjc as well as others I've most likely missed.

I wonder, though, if "standing" is truly an issue - obviously the Defense is thrashing about trying to make it such with their many case cites and partial quotes intended to show Plantiffs have no standing and can be dismissed.

But I've been reflecting upon the truly unprecedented nature of this action as shown in numbered paragraphs 21 & 22 of the 2nd Amended Complaint. It is unique in all of US history so perhaps that alone should be something the court should take notice of.

More that that, I've looked briefly at all the cites given in the MTD and found them to be completelyu inapplicable to the pleadings in this action. The "claim" being made, after all, is one governed by the Constitution upon which this case is founded - as the action states.

Nowhere in the action (unless I've missed it) are the defendants asking for any sort of "damages" due to any sort of "injury" as would commonly be seen in cases relating to tortious acts, alleged statute violations (the Constitute not being a statute passed by Congress), contract disputes seeking seeking monetary damages or legal relief of some sort due to "injury" to the party being the action.

Indeed, all if the cites so lovingly and laboriously presented by the Defense relate to things such as violation of zoning laws, improper movement of 50 trees, alleged civil right discrimination, whether a policeman with a drawn gun in a traffic stop is considered to be making an arrest, unfair business competition by banks as opposed to independent businesses, and many, many more of what I think of as "subordinate (or low-level) issues" when compared to the Constitutional violations the Plantiffs put forth. That is not to say such issues are not important, but merely that they are of a different level pf what I think of as "judicial intensity" as to where they fall and how widespread their effects may be. Any such effects are most frequently limited to the two parties involved primarily and so it's reasonable to think that the complainer must "show cause" (or whatever phrase is proper) and show how he is affected. Otherwise there is no basis for his suit.

In other words, while "standing", "injury in fact", "causal connection of injury to conduct complained of", and "likelihood of redress by favorable decision" - ALL of those seem to not apply in the case at hand.

What is being "complained of" is that the Constitution is not being followed both by the failure of Mr. Obama to demonstrate eligibility as required by the Constitution and by the Congressional inaction of failing to do as specified by the Constitution. These are very first-order complaints rather than the typical tort corrections, commercial contract disputes, zoning complaints etc. that make up the more-normal body of litigation.

Kerchner is quite different as even the Defense seems to realize but will not admit except to say, in effect, it's "too darned much work". The injury here to the Plantiffs is Constitutional, not personal, and can certainly be redressed by the remedies sought since should Mr. Obama be able to show Constitutional eligibility such a showing would satisfy the complaint but, perhaps, Congress, would still need to complete their portion of the complaint. But in any event, those actions by the defendants would redress the complaint - which is solely of a Constitutional nature.

Later ...

jayjay said...

18) ... HA!! fooled you!

Another way to put it is that "standing" may not be required to be proven in the "normal" was separately by the Plantiffs but is implicit in the illegal acts of the defendants in violating the law of the land. The "injury" here is to our laws and following those laws should not require the channeling of this action into some sort of a psuedo-tort action since it is nothing like that.

I would say that the "standing" issues raised by the defense are almost specious or at least illusory and might justify a separate parallel response along those lines? The seem to me to apply to what I think of as "lower-level" controversies of more mundane origin ... after all this action is without precedent.

In fact, the action is really a contract violation action ... the contract we know as the Constitution on the one hand and the citizens on the other (in this case in the persons of the Planfiffs). It is a 233-year old contract with solid perecedents that is being broken rather than some defense contract (or perhaps an 80 year old flaxseed production contract with the government that has been broken) which is trying to obtain additional funds from the government by showing "injury", etc.

As for "immunity" - that is pure "barrister balderdash" on the part of the Defense hoping, I suppose, to turn this into some sort of "Jarndyce v. Jarndyce" never-ending proceeding (or at least until the next election - if any) until the thing falls of its own weight.

The action is much cleaner than that and should clearly demand a rapid court hearing with court ordered subpoenas of (at least) the long form BC from HI and the school records from Occidental (and perhaps others) since both have been identified as existing by the entities controlling them. The findings of fact from those documents or perhaps ancillary documents should not be at all difficult and the court may quickly move on the consider the law in the matter.

Despite Defense counsel's protestations, the issues are in fact quite clearly set out in the complaint and reading them is in fact a no-brainer since I was able to do so with very limited skills and failing eyesight and mind. I would think that most assuredly a highly-paid government solicitor would be able to grasp the particulars after - what - 5 months or so???

Puzo1 said...

Please continue this discussion in the continuation thread at this link:

http://puzo1.blogspot.com/2009/07/plaintiffs-obtain-extension-of-time-to_08.html

cfkerchner said...

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http://www.scribd.com/doc/17289375/

Synergy at work! If we all do a little together we will accomplish a lot!

Charles

Puzo1 said...

Moved from another thread.

Barbara L said...
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Just wanted to pass along some case laws that may or may not be helpful for standing.. You don't need to post this--- just keep it if you think it will be helpful or toss it away... Just trying to help.

Any way we can get any state atty general to become a plaintiff? I bet Bill McCollum from Florida might! Just a thought!

I skimmed the defendant's reply and it looks like smoke & mirrors to me.
The government is NOT Immune from lawsuits... See the FEMA case about the hurricane victims.

Warth vs Weldin 422 U.S. 490, 501 (1975) states that:

".....For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E.g., Jenkins v. McKeithen, 395 U.S. 411, 421-422 (1969).

And as far as the injury--- it's public trust!

I don't know, but this is an interesting case where an appellate court reversed the lower court and gave standing. This is a good & interesting standing case and you could use the same case law they used (Lujan) to your benefit!
They ruled for standing because of an "aesthetic & emotional " injury. See American Society For Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus
United States
317 F.3d 334 (C.A.D.C.,2003)

http://www.animallaw.info/cases/causfd317f3d334.htm

July 9, 2009 5:43 PM
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Raymond said...

Not sure if this suggestion has been brought up before. Regarding the issue of "standing", my understanding of the "standing" issue is that a plaintiff must show that HE IN PARTICULAR is injured by what he is complaining about, rather than bringing forward a "common complaint".

One possible argument to establish the standing of plaintiffs with military backgrounds would be to cite the oath they take when they join the armed forces. For example, here is a link to the Army Oath of Enlistment and Oath of Office: http://www.history.army.mil/faq/oaths.htm

The Oath of Enlistment states: "I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

Would it not be possible to argue that any Army veteran or anyone on acive duty would have standing because he has made a particular legally-enforceable commitment to protect the Constitution from domestic enemies? In other words, his commitment to uphold the Constitution carries force of law because he has sworn an oath under Title 10 of the US Code, and indeed he could be prosecuted for failing to uphold the oath. He is therefore injured in particular, over and above the general population, because he is being prevented from executing his sworn responsibility to "protect and defend the Constitution", the legal mandate of which was established by him swearing out his Oath of Enlistment.

Puzo1 said...

Raymond,

I did included in our opposition brief the point about Mr. Kerchner and Mr. Nelsen taking the oath to protect and defend the Constitution. I also cited cases where the court found standing when the plaintiff took such an oath.

Mario Apuzzo, Esq.

Raymond said...

Thank you for your reply.