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.
Bocca Della Verita ~ Mario Apuzzo Esq
I enjoy the universe of ideas and a sound mind and body. Mario Apuzzo, Esq., 185 Gatzmer Ave, Jamesburg NJ 08831, Email: apuzzo[AT]erols.com, TEL: 732-521-1900 • FAX: 732-521-3906, BLOG: http://puzo1.blogspot.com
• A Catalog of Evidence - Concerned Americans Have Good Reason to Doubt Putative President Obama Born in Hawaii
• Read the Kerchner v Obama/Congress Petition to the U.S. Supreme Court
• Summary of Latest Court Activity - Kerchner v Obama & Congress
• Supreme Court of U.S. Docket Report - Kerchner v Obama & Congress
• Summary of Lawsuit/Complaint and Link to the Complaint-Counts/Charges
• Article II 'natural born Citizenship' Means Unity of Citizenship at Birth
• Obama - Maybe a Citizen of the United States but Not a "natural born Citizen" of the United States
• Natural Born Citizenship Requires Both Parents to be U.S. Citizens
• Law of Nations - The Legal Book Used by the Founders & Framers to Write the Declaration of Independence and U.S. Constitution to Unite the 13 Free & Independent Sovereign States into a More Perfect Union
• The Law of Nations & Natural Law is U.S. Federal Common Law on "natural born Citizenship"
• An Article II "natural born Citizen" is Not the Same as an English Common Law "natural born Subject"
• Obama When Born in 1961 Was a British Subject as Was His Father and Obama is Still a British Protected Person and Citizen to This Day
• Neither the 14th Amendment Ratified in 1868 nor the Wong Kim Ark decision in 1898 makes Any Person a "natural born Citizen". Those acts and laws create "Citizens of the U.S." but NOT "natural born Citizens of the U.S."
• Why the "natural born Citizen" Clause of Our Constitution is Important and Worth Preserving
• What is Putative President Obama's Current U.S. Citizenship Status?
• Obama's Lack of Constitutional Eligibility - The 3 Enablers
• HR 1503 Pres Candidates Constitutional Eligibility Docs Bill for Future Elections Now Has 12 Signers
• AZ HB 2441 - State of AZ Presidential Constitutional Eligibility Verificaton Bill with Numerous Sponsors
• SC Bill 3389 - State of SC Requires Conclusive Proof of Natural Born Citizenship Status for Pres Elections
• NH Bill 1245 - State of NH Bill Says No More Hidden BC Records
• The Blog Rules-Please Read
• Read Atty Apuzzo's Writings/Briefs @ SCRIBD.com
• How You Can Help the Cause
92 comments:
Continuation thread of the discussion on defeating the defendants' motion to dismiss.
Copy of post by JayJay from prior thread to continue the discussion here.
JayJay said:
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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???
July 8, 2009 8:00 PM
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Dear Mr. Apuzzo,
As a very concerned citizen re: the Obama ineligibility issue, I just want to thank you for your hard work on this case and tireless efforts in this matter. I, for one, greatly appreciate it!
I'm sure that you are probably already aware of a blog site called The Obama File. If you haven't visited the site lately, I think that the following article might be of interest and, hopefully, might help with your case. Something must have spooked them to take it down!
Here is a copy of what is written. There are many links included within the text at "The Obama File" website. I have shared just the one "cached" link here.
Quote:
Fight The Smears Disappears
Barack Obama is now hiding his short form Certification of Live Birth. It appears that Obama has taken down his "Fight the Smears" website.
As the public groundswell surrounding Obama's birth certificate grows, Obama has removed his phony Certification of Live Birth from the Internet. The one at the link in the "share the fact" box is also gone. What's really strange is the archived copies in the WayBackMachine, the Internet Archive, are also gone. Removing those copies required additional steps to remove and should be beyond Obama's reach -- but I guess not.
But guess what? Obama's published lies are in my cache. I learned a long time ago that anything Obama sensitive has to be cached, because Obama's Obots will take it down.
What I never noticed before, is the damning statement in the window in the left column, under the legend, "Share the Facts Copy the text below and paste it into your email." It is also in the banner at the top of the page.
The statement reads (cursor down), "The fact is Barack Obama was born in the state of Hawaii in 1961, a native citizen of the United States of America."
A "native born citizen" is not the same as a "natural born citizen." A "native born citizen" is any person born in the mainland US. Anchor babies are "native born citizens."
A "natural born citizen" must be born in the mainland US and must have TWO US citizen parents. Obama knows he had only one US parent. The man knows he is occupying the Oval Office in violation of the requirements of the US Constitution and applicable Supreme Court caselaw.
By the way, this page, at the bottom, also contains Obama's admission that he was, "at birth," a citizen of Kenya and a British subject.
Replying to squinlivan from the previous thread. As far as I can tell the "standing" issue is related to challenges to Acts of Congress. If the effect of the Act is widespread, the Plaintiff has no standing.
Obama is an illegal occupant of the office of President of the United States. The matter for trial is nothing to do with Acts of Congress, it is to do with the US Constitution. Therefor any US Citizen has standing.
For example, if a Black person were to allege that he were being treated un-Constitutionally, no-one would assert that he did not have standing, even though the circumstances he complained of were widespread. eg Brown v. Board of Education of Topeka, landmark court case of 1954 in which the Supreme Court of the United States unanimously declared that it was unconstitutional......
The lack of standing issue applies to Acts of Congress, because the remedy for widespread wrongful Acts of Congress is to not re-elect them.
Lack of "standing" cannot apply to breaches of the Constitution.
FIGHT THE SMEARS DISAPPEARS...That Smear Site served it's purpose in SMEARING the NBC issue.
Obanana is CONFUSED about hwre he was born mentioned TWO diff Hospitals but he is teh MEssiah he could actually have miraculously been born in MANY PLACES at the same time including Kenya, Wshington State and Canada and of course TWO diff Hospitals in Hawaii. Maybe he was never even born at all but instead just found in a wicker basket flowing downstream.............
Now for some Serious Suff:
BY his OWN ADMISSION Obama/Soetoro is not a NATURAL BORN CITIZEN period end of story.
By His Own Admission he admits that he was Born a British Subject. We are talking 1961 before the feminization of America and the world. At that time men ruled and Citizenship was dominated thru the male. Therefore Obama II was a British Subject just like his daddy no matter where he was born. When Kenya became independent from UK he became a Kenyan just like his daddy. By his own admission he says he was a Kenyan til his Citizen expired at age 21 because he didn’t renew it.
NOW HERE IS WHERE IT GETS INTERESTING:
He was a British before becoming Kenyan when he doesn’t renew his Kenyan Citizenship at 21 his Citizenship REVERTS back to British by British LAW. He is a British Citizen, NOT EVEN an AMERICAN CITIZEN never mind NATURAL BORN CITIZEN which would require TWO (2) QUALIFIED AMERICAN CITIZEN PARENTS. He had NEITHER. His mom was a minor and NOT a qualified Citizen required to pass down citizenship and his daddy was a FOREIGN NATIONAL. Even if he was born in the White House he could never be a Natural Born Citizen.
There are some misconceptions, confusion and intentional misdirections. Up until 1986 in USA there was no anchor baby statute. If a child was born in America it would have the citizenship of the parents. Now with the SABOTAGED and BASTARDIZED “anchor baby” rule babies are allowed to be citizens BUT THEY ARE NOT NATURAL BORN CITIZENS.
OBAMA II is a British Citizen even if he was born in Kenya or Hawaii.
This makes him a FRAUD and an USURPER that needs to be detained promptly.
RISE UP, STAND UP…SPREAD THE WORD.
This case will be WON in the Real People’s Court the Court of Public Opionion therefore it is our Duty to Present this CASE to more and MORE People till everyone is as OUTRAGED AS WE ARE.
#19):
Mack's got it right I think in that the "standing" thingy applies largely if not entirely to statute law as opposed to laws outlined in the Constitution. Statute laws (Congressional actions) are more frequently changed and more easily subject to change whereas Constitutional laws require going through the Constitutional Amendment process which is much more rigorous.
Certainly "injuries" stemming from statutes may eventually be corrected by voting the Beltway Bastards out either individually or en masse - but that is not the sort of thing we have here, but an issue of a violation of Constitutional law which is vastly more difficult to alter.
In looking at Brown v. Board of Education 347 US 483, we find in the opinion by Chief Justice Earl Warren no discussion of "standing" or "injury" at all, but the statements:
"... This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.
...
The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction."
So it seems that this 14th Amendment (a Constitutional law) case pitching an 1896 ruling was "important enough" to be taken up by the court. And keep in mind that the thing complained of was not that there was NO education being received by the black students but that the type or quality of education was not sufficient.
In Kerchner, the argument is that there has been no affirmative proof of eligibility (as required by the Constitution) promulgated by Mr. Obama as well as that what has been offered casually through websites and political operatives is exceedingly insufficient.
The posters bearing witness to the "electronic execution" of the FightTheSmear.com website and its various footprints in different cached sites should not be surprised. It's not as if the man and his supporters have been "transparent" (or honest even).
Keep in mind that in the discovery process subpoenas can be issued to those manipulating the various websites to determine the previous content (which many us have privately taken off-line) to establish why it was done. Also remember that sites such as Google, snopes.com, and others are very much Obama supporters and - one must suppose - compliant tools for their political heroes. Perhaps the court should be asked to take note of the disappearing "admissions against interest" such as that in FightTheSmears.com.
STANDING - DUE PROCESS
Are "We the People" entitled to "due process"? Answer: YES
Who owns the Constitution of the United States? Answer: We the People
Preamble: We the people of the United States ...establish this Constitution for [We the people of] the United States of America.
Amendment V
No person shall ...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
STANDING according to SCOTUS [Unfortunately we have to play by their rules, whether their rules are Constitutional or not]:
"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?
Answer: "We the People" have a property right in the Constitution of the United States. The "unlawful acts" of the "Senators and Representatives" have deprived "We the People" of "property"... Thus, we are entitled to "due process" under Amendment 5 and Amendment 14. Thus Amendment 5 and 14 give us standing...
Is the "personal injury fairly traceable to the defendants' allegedly unlawful conduct"?
Will the "personal injury" likely "be redressed by the requested relief"?
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.
Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856)
[1] UNITED STATES SUPREME COURT
[13] 7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
As a "foreigner", Barry Soetoro is NOT entitled "to the rights and privleges secured to citizens [Natural Born Citizens] by that instrument [The Constitution of the United States]...
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.
Under the reasoning of the SCOTUS in Scott v. Sandford, "The Senators and Representatives" do NOT have the right under "that instrument [The Constitution of the United States]" to grant a foreigner [Barry Soetoro] the rights and privleges secured to citizens [Natural Born Citizens] by that instrument [The Constitution of the United States]...
Under the reasoning of the SCOTUS in Scott v. Sandford, "The Senators and Representatives" do NOT have the right under "that instrument [The Constitution of the United States]" to grant a "citizen" [Barry Soetoro if he was indeed born in Hawaii] the rights and privleges secured to "Natural Born Citizens" by that instrument [The Constitution of the United States]...
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.”
Thank you all. After reading the wise and thoughtful posts here, I feel more confident than ever about America's future. It's very encouraging and heartening to find so many good minds and hearts working together for our greatest good. Thank you all.
TREASON AGAINST THE UNITED STATES
Article III, Section 3: “Treason against the United States, shall consist only ...in adhering to their Enemies”
Barack Hussein Obahmadinejihad:
“I’ve now been in 57 States...”: http://www.youtube.com/watch?v=EpGH02DtIws
"I know that the trust that binds the United States and Turkey has been strained, and I know that strain is shared in many places where the Muslim faith is practiced... So let me say this as clearly as I can: the United States is not and will never be at war with Islam”
“America's relationship with the Muslim world cannot and will not be based on opposition to al Qaida.”
“We seek broad engagement based upon mutual interests and mutual respect. ...We will convey our deep appreciation for the Islamic faith, which has done so much over so many centuries to shape the world for the better, including my own country.”
"The United States has been enriched by Muslim-Americans. Many other Americans have Muslims in their family, or have lived in a Muslim-majority country... I know, because I am one of them."
57 States: http://www.oic-oci.org/member_states.asp
Obama surrenders to the Iranian Mullahs: “My administration is now committed to diplomacy [appeasement] that addresses the full range of issues before us and to pursuing constructive ties among the United States, Iran [Mullahs] , and the international community [57 States]. This process will not be advanced by threats. We seek engagement [submission to Islam] that is honest [deceptive] and grounded in mutual respect [deception]...”
The Islamic regime of the Iranian Mullahs is an enemy of the United States.
“Prior to this month's disputed presidential election in Iran, Barack Hussein Obahmadinejihad sent a letter to the country's supreme leader, Ayatollah Ali Khamenei ...An Iranian with knowledge of the overture, however, told The Washington Times that the letter was sent between May 4 and May 10 and laid out the prospect of ‘cooperation in regional and bilateral relations’ ”
United States Supreme Court Justice Clarence Thomas
“…the framers …understood that for liberty to exist the populace needed to be educated enough to understand liberty and to be able to defend liberty. They also understood that liberty was not on automatic pilot, that liberty would not exist simply because it was once started, and that having won it it was very delicate and had to be protected…”
http://www.thehopeforamerica.com/play.php?id=897
#20) (cont.)
Charles Dickens explained it almost perfectly well in his social parody "Bleak House" with its Jarndyce v. Jarndyce litigation. Dickens (who had been a law clerk) was actually bitterly criticising the grossly ponderous (and inequitable) British judicial system and had been very upset by its failure to offer legal relief for his copyrights.
The British system at the time (just prior to the so-called Civil War in the US) was composed of the Common Law (court rulings/case law) and Equity Law (called "Chancery Law" - somewhat like our SCOTUS scheme of inferior/superior courts.
In thinking about it, it seems to me that we have in Kerchner a case in Equity Law in effect since it is decidedly NOT based on Common Law (case, court decisions, governmental statute law). It is something else, indeed. As such, the definition of "standing" as used in US common/case/statute law should not apply.
More in #21 ...
#21) (cont.) ...
To think about "standing" and whether a court should undertake a particular action, one need only to consider former Chief Justice Marshall (yes, THAT Marshall) who wrote the opinion for the court in the case of:
Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 819 (1824) in which he said:
"All governments which are not extremely defective in their organization must possess within themselves the means of expounding, as well as enforcing, their own laws. If we examine the Constitution of the United States, we find that its framers kept this great political principle in view. The second article vests the whole executive power in the President; and the third article declares that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."
...
"This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States."
...
"Efforts have been made to fix the precise sense of the Constitution when it vests jurisdiction in the general government in "cases arising under the laws of the United States." To me, the question appears susceptible of a very simple solution -- that all depends upon the identity of the case supposed -- according to which idea, a case may be such in its very existence, or it may become such in its progress.
An action may "live, move, and have its being," in a law of the United States; such is that given for the violation of a patent right, and four or five different actions given by this act of incorporation, particularly that against the President and Directors for over-issuing, in all of which cases the plaintiff must count upon the law itself as the ground of his action. And of the other description would have been an action of trespass, in this case, had remedy been sought for an actual levy of the tax imposed. Such was the case of the former Bank against Deveaux, and many others that have occurred in this Court, in which the suit, in its form, was such as occur in ordinary cases, but in which the pleadings or evidence raised the question on the law or Constitution of the United States. In this class of cases, the occurrence of a question makes the case, and transfers it, as provided for under the twenty-fifth section of the Judiciary Act, to the jurisdiction of the United States. And this appears to me to present the only sound and practical construction of the Constitution on this subject, for no other cases does it regard as necessary to place under the control of the general government. It is only when the case exhibits one or the other of these characteristics that it is acted upon by the Constitution. Where no question is raised, there can be no contrariety of construction; and what else had the Constitution to guard against? As to cases of the first description, ex necessitate rei, the courts of the United States must be susceptible of original jurisdiction; and as to all other cases, I should hold them, also, susceptible of original jurisdiction if it were practicable in the nature of things to make out the definition of the case so as to bring it under the Constitution judicially, upon an original suit.".
More in #22) ...
Mark,
Guess I'm misunderstood....
We need to be aware of the "ACT" and what the "character of the ACT" is in order to defeat the defendants motion.....
What Congress DID not do was to make an unconstitutional law regarding the recent election....
What Congress can do is pass any law they want, and the Court says that you cannot attack that law unless that law is both unconstitutional and directly harms you, the complainer...
Congress is limited to what "power" they have by the Constitution....especially see section 9...it says what they cannot do!
Some actions done by the legislative branch, both houses of Congress, have "constitutional duties" that they MUST DO...they dont have a choice...keeping this first example simple...they have to attend 1 meeting on one day each year...thats what the Constitution says they must do...yep they could take off the rest of the year if they want to...and that would be a "discretionary decision" that could not be attacked......
However, Congress, and the VICE President, and the Electoral College have specific duties that they must comply with....because thats what the law requires of them...they DO NOT HAVE discretion to defeat the meaning of the law to suit their own agenda....read what happens in the case called EX PARTE VIRGINIA.....there a Judge of the County was charged by local law with picking 100 names off the voter registration rolls and putting these names into a box so that the clerk of the court court then pick by lottery names for the next needed jury. The Judge choose only WHITE men from the voter rols and was arrested for violating the laws and "discriminating" against both blacks and the rest of the population for denying them their "right to a trial by a representative group of the local population as required by the constitution....follow me to the next post....
follow up to Mark:
Now Congress members cannot be interferred with on their way to and from Congress....BUT if a member of Congress is driving drunk, and gets pulled over and fails a sobriety test and gets arrested, that member of Congress is going to have to face the criminal consequences of his actions...because driving drunk IS NOT acting in a lawful manner....and there is NO immunity for acts that are unlawful...and that the law proibits....
So when Congress is charged by the Constitution with insuring that the "election process" is complied with and they fail to do there MANDATED DUTY, they are to be held accountable and they have no immunity for their failure to comply with the law....and they have by their actions deprived these Plaintiff's of their right to VOTE, as well as other harms....and yes others are affected too...BUT the fact remains that Congress has only provided one way for the law to be enforced by statute, and thats the D C Quo Warranto...BUT this does not end here....Quo Warranto limits the abilitity of the people by its method to seek constitutional compliance with the constitution...
So the people must go to the Courts to seek a solution...it could be a Writ of Mandate ordering the AG ERic Holder to appoint a special prosecutor to conduct a Quo Warranto action in DC as the law allows, and then if BO can prove he is a NBC then he can stay in office...if not he's outta there!
But the action of the Plaintiff's cannot be to have the current court declare this election null and void...only to put the wheels in motion to have the law complied with....including forcing Congress to PROVE that they did in fact verify the NBC status of BO...they did their own version for McCain.
BUT the OUTSTANDING problem with having Congress do this WITHOUT FIRST HAVING A JUDICIAL DETERMINATION OF WHAT IS A NATURAL BORN CITIZEN....
is a problem, because it is up to the judicial branch to define the words and mandates of the constitution... so this action needs to have this Court define Natural Born Citizen and what the Constitution means by having that "requirement." Without knowing this information...this action should not be dismissed nor should the Plaintiffs be given discovery until WE ALL KNOW what this means and what its effect is...how can a Court determine Standing or any Jurisdiction until they know or define WHAT IS BEING DISPUTED BEFORE THEM....
#22) (cont.) ...
What Marshall seems to be saying in #21 above is "standing is as standing does" and that it depends upon the case with cases having a Constitutional relationship or impact in the higher-level category almost from the start. The details of the case he is commenting upon are not important to follow, but his words on "who should be heard" are VERY important. I, for one, believe they still apply today.
Reflecting, then, upon the Judicial or Legislative oath - which is the same Oath that many of us have taken and even Census Enumerators must take to attaqin that position - we have this from:
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803):
"The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:
"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime."
Since the judges for Kerchner have taken this Oath, we must suppose they will indeed uphold it. If not, we're all in deep doo-doo. It is difficult for me to fathom that any judge with self-respect would wish to be involved in such a crime.
There's much, much more in Marbury and I think almost everyone would benefit from reading a good bit of it. There are some wonderful passages in it. To save time, one cqan start at the phrase "It is emphatically the duty of the Judicial Department ..." and go on from there as the case details themselves are not so significant.
Article III
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution...
Kerchner v. Obama unequivocally "arises under the Constitution"...
Hence, under Article III, Section 2 of the Constituion of the United States, "The judicial power shall extend" to Kerchner v. Obama...
The judicalliy created concept of "standing", with its narrow definition, is in and of itself unconstituional, as it relates to matters that "arise under the Constituion".
The following definition of STANDING is unconstituional as it applies to matters that "arise under 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."
#23) (cont.) ...
I'm not at all sure that the meaning of NBC must be defined before proceeding since what is being disputed is the fact that Mr. Obama has not demonstrated eligibility under the Constitution no matter what that might mean - but you raise a good point squinlivan.
Keep in mind the defense has been careful in their MTD to dispute nothing no doubt in order to claim there is no controversy (yeah, right). They've hewed strictly to procedural stuff.
You may not be aware of it but a written request was made of SCOTUS quite some time ago to try to get them to declare "sua sponte" the meaning of the NBC term of art and request amcus briefs from the legal body at large in doing so. This would solve the difficulty you outline - SCOTUS, however, ducked that completely and no doubt they will braavely continue to do so. I believe, then, that we're left with "dancin' with the gal we brung" and Kerchner seems to be a very good vehicle.
In fact, I doubt there is any way to compel or obtain a definition of the NBC term absent a proceeding like Kerchner. After a fairly simple and straightforward finding of a few facts (such as subpoenaing the vault BC from HI and not from Obama due to his continued prevarications and likely perpetrating document fraud as well as subpoenaing Occidental records) to start the determination of his eligibility.
If, as some suppose, he was born outside the US that might lead to a legal determination with, perhaps as well, a definition of what the term of art means. But it not only needn't be defined beforehand - I think it cannot be absent something like Kerchner.
If, after discovery, the facts justify additional arguments (or perhape additional charges, etc.) I'd think that might be do-able.
I think that most people realize the non-O defendants are being sued for their (non) acts in violation of the Constitutional requirement and that there is no expectation of the court "removing from office" if ineligible but merely declaring him ineligible under quo warranto and that he be removed (not necessarily by the court).
Long before any qw hearing or decision, the definition of the NBC term would have to have been made by the court after considering the arguments which would follow the discovery process. By that point, I think the American people by and large will have long since been on board as to his eligibility or lack thereof. Maybe even one or two of the MSM or big-dog talk show hosts might deign to mention it.
After all, if the man IS found Constitutionally eligible then there is no further case except that I'd expect to at least see a formal definition of the term of art NBC. The pleading in the alternative done in Kerchner, though, may be very helpful. The trick is to get the rocket launched and off the ground.
BTW, I sort of doubt that the supposed 4,096 charactrer limit is too exact. I normally have to shut down well short of that.
#24) (cont.) ...
I agree with you Benaiah that "standing" should not apply to Kerchner. The term is a legal fiction that appears nowhere in the US Constitution and therefore - no matter which of the three branches of government originated it - must be held as inferior to the Constitution itself and of no effect. If the 3 branches can get by with using it for garden variety litigation, that's fine - but that's not what we have here.
That leads us right back to the pleading wording in Kerchner which, I think, is right on the money. It may be necessary to point out this fact of Constitutional precedence to the court, however, since (keep in mind) they are likely to be mentally conditioned by the multitude of "run of the mill" (not to say unimportant, but just different) cases they normally see.
Kerchner is different ... unprecedented ... and as such must reasonably be viewed out from under the normal magnifying glass the court uses for other cases. It is not an issue “... of property, one arising out of contract, one protected against tortious invasion, or one founded in a statute which confers a privilege ...” (Tennessee Elec. Power Co. v. TVA, 306 U.S. 118 (1939)) but is a direct Constitutional matter. As such there is no "invasion" or "violation" of personal indivisible legal rights pnly that are alleged but in fact a violation of pertinent parts of the Constitution.
For those reasons I agree with you that "standing" is not applicable - and I also think that the legal fiction is both unlawful under the Constitution and I view it as a huge convenience for the courts (and governmental defendants) to preclude trial.
I hope and pray that in this instance, the court does view Kerchner in the Constitutional light that really applies to it.
Jayjay...your one amazing thought provoking individual....
You said, "I'm not at all sure that the meaning of NBC must be defined before proceeding since what is being disputed is the fact that Mr. Obama has not demonstrated eligibility under the Constitution no matter what that might mean - but you raise a good point squinlivan."
As in previous posts...its not what you say, but what's in what you say that has IMPORT!
.....Mr Obama HAS NOT DEMONSTRATED ELIGIBILITY under the constitution no matter what.....
That is the POINT! Brilliant, and no one can prove to a Court of law by "legally cognizable evidentiary standards" that Mr Obama meets the meaning of NBC, no matter its definition at this point...and because it has no defintion....TO DATE, there has been NO Proof offered to the people or to any Government Official "responsible" for insuring that the requirements of the Office of the President have been met!
Now I digress....to Marbury v Madison...as I continue to hammer...
"It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose."
[apply the above to Cheney, and Pelosi, et al]
AGAIN here is the KEY..."ministerial act"...which is a lawful duty that must be done...no discretion by any government officer to "omit this duty," and then lets add...
again from Marbury; Quoting Blackstone:
'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.'
AND THEN THE BIG ONE:
"And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'
THIS IS IMPORTANT BECAUSE: There is no place to be found a responsible office or officer or other direction of the Constitution that places responsibility for insuring that the Candidate for the Office of President actually complies with the mandates of the COnstitutions qualifications clause re NBC.
"Is it to be contended that where the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? "
[ Failure of the Court to act would continue to render the Constitutional requirements to be POTUS impotent.]
"In the same case he says, 'this writ [Mandamus] ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.'
FINALLY as to the NBC requirement:
"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."
Summary: IT is only the Courts given the Circumstances before us that ARE duty bound to resolve this problem, otherwise the Constitution is without force and effect, because the other branches can make a mockery of what the law commands....and then we are governed by men and NOT BY LAW.
According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under THE CONSTITUTION and laws of the United States. So help me God."
I posted my essay on Sovereign Immunity which I first posted here on to Scribd.com. That will get it wider coverage as it gets linked to from there. Here is the link:
Kerchner: On Sovereign Immunity
Thank you all for your excellent ideas and comments on points to attack on as to the Motion to Dismiss. 10 heads are better than 2. 10 pairs of eyes are better than 2. I know Mario appreciates the inputs from you all ... We the People.
I believe we will win and defeat the motion to dismiss. The Constitution is supreme and if the courts do not protect it in this historic and precedence setting case regarding eligibility for the office of the Presidency under Article II, the supreme law of the land is history. That will lead to the total ruination of the Constitutional Republic as we become a nation ruled more and more by charismatic and skilled front men with foreign allegiances and influences reading off of teleprompters instead of a nation ruled by law, the supreme and fundamental law, the U.S. Constitution, and the limits defined therein as to what our federal government can and cannot do and who is eligible to lead us as President and CINC.
We the People acting together through the legal system will remove the Usurper from office.
Synergy at Work! If we all do a little together we will accomplish a lot!
Charles
How about an argument of standing to assert rights of others?
Your plaintiff Kerchner is a retired U.S. Navy Reserve officer. He can argue injury to his own contitutional rights, but he could also assert third-party rights when those third parties find it difficult to assert their own rights. Who could be the potential third-parties in this case? Active duty military, members of the National Guard or Reserves. Why do these third parties find it difficult to assert their own rights? Because they risk action under the Uniform Code of Military Justice (United States Code title 10, chapter 47). Particularly articles 88 ("Contempt Towards Officials" - the term officials includes the President, Vice President, and Congress as a group), article 94 ("Mutiny or Sedition"), article 92 ("Failure to Obey Order or Regulation"),article 133 ("Conduct Unbecoming an Officer and a Gentleman"), article 87 ("Missing Movement" for refusing to deploy to Iraq or Afganistan, for example), article 134 ("General Article" which is a catch-all provision which would include disloyal statements or other acts that are not specifically prohibited but might negatively impact the service, unit, etc.).
This standing to assert rights of others was recognized in NAACP v. Alabama, 357 U.S. 449 (1958) where the NAACP was permitted to assert the freedom of association rights of its members in attacking a state law requiring disclosure of membership lists because its members could not file suit without disclosing their identities. Not exactly on point for what you need, but the argument might be useful to you.
Although this question is indirect to the case at hand, I would like to ask this of the legal scholars here. Our government being divided into three branches for the the sake of checks and balances, by what constitutional power does the legislative branch have to ensure the judicial branch performs lawfully? Should at some point action be taken by plantiffs via the legislature requiring justice be served and not derailed by endless judicial technicalities?
#25) (cont.) ...
Charles -- hear, hear!!! (and bravo as well). And squinlivan ... good stuff!! Marbury is a great resource (more on that later) and your points are well taken.
I guess the whole idea behind this "Web Wrangling" for ideas, thoughts, and approaches is to provide ideas for Mr. Apuzzo (Esq.) and/or the Plantiffs (whose human face is Charles for now) that are either usable or that will trigger thought patterns helpful in the MTD response.
The way I view it is that not only our Constitution but our entire way of life - and that of our progeny - is under attack. I do not suffer that lightly nor do I cede the field of battle to the Obots. I know that many of us have been restive about the things going on that are herein involved and feel powerless to do something about it since "fighting city hall" is truly difficult.
HOWEVER, the Kerchner case is truly an opportunity to do exactly that and no one should feel inferior in any respect; now is the time to come and help support our country by supporting the document upon which it is founded - otherwise as squinlivan and others have said ... the alternative is unthinkable mob rule! Help out however you can. Anything that might help Mr. Apuzzo combat the MTD or trigger thoughts or approaches to do so is your chance to help save this country; make no mistake.
In many respects it is a war and so some of the "war philosophers" of ages past offer some advice such as:
"When the enemy is too strong to be attacked directly, then attack something he holds dear. Know that he cannot be superior in all things. Somewhere there is a gap in the armour, a weakness that can be attacked instead."
... and no, that was not Sun Tzu from the Art of War but a different Chinese text. This quote may be telling us to attack the MTD as it is actually very weak (and the defense does not realize it). Getting past the MTD gets us into the real heart of the matter.
In many respects the MTD is really taken from the DOJ Cliffs Notes since if you check a number of the other "preemptive strikes" they've made in other cases, you find the same pattern of cites (and in fact many identical ones). This seems to be right out of the playbook to protect political maladventurism - get cases thrown out before going "on merits".
I have tried to point out as best I can that the defense in the MTD is shooting the wrong ammunition - and at the wrong target. ALL of the cites they give relate to the "standard" legal actions against the government and/or its officers and that it is those situations to which the MTD "standing" (either Art. III or prudential) and "immunity" proffers are made. These types of situations are described in the cite I gave in post #24 earlier; q.v..
We all need to stand up as we have here and battle with our Time, Talent, ... AND some ....
Treasure!
Charles
HR 1503 now has TEN signers. See the link in the upper right corner frame.
Mario,
HR 1503 could have 200 signers, My problem with it is that if they can seek this action for the 2012 date they could enact it now, rush it just like the stimulus, and it would be law that BO would have to conform to now....its as much show as the audit of the FED, and then trashed by the Senate, (yes I know its still alive in the House)
squinlivan said...
Mario,
What about attacking the MTD from the angle of responsibility?
Clearly the Constitution makes no one directly , yet everyone, especially those sworn under oath, responsible for compliance with its mandates.....
AND how can it be a policy "issue" when is requires a ministerial action to insure compliance?
AND how can it be that only Congress can insure compliance when its ALL of Congress that has undermined it...remember at least 3 Parties presented Candidates that were NOT NBC....
THats why I think Marbury and Ex Parte VIRGINIA carry the "argument" that moves the day, if not outright wins it....
I know that no federal judge is going to go out on a limb, and he must be given something to sink his teeth into...
[balance of comment deleted by editor]
July 10, 2009 8:01 PM
Mario,
I hate answering my own questions...BUT here goes...and I should have re read the amended complaint re the Quo warranto part before I say this part, BUT I can't lose the thought....
THe three requirements of the Constitution regarding qualifications to be president ARE NOT DIScretionary actions...they are ministerial acts that could be conducted by anyone...they do not require and Official to do them...by the Constitution...but Congress is charged, by the Constitution, with "by law providing for the method of removing the President..."
(yep I re read all of Leo Donofrio's stuff...and congrats to him because now all the pieces are here)
So hope your with me here...you cant yourself get to Quo Warranto directly, and neither can Congress, because its been provided for by law..neither can you get the Court (because of the separation of powers), that would be controling their Congress's discretionary acts... to ORDER Congress to hold some kind of investigative hearing either....the DC Statute for Quo Warranto....is the way to challenge the office...even the President....
BUT Ordering the US Attorney for DC to conduct Quo Warranto , BECAUSE ITS A ministerial Act to check the qualifications, but done thru the Quo Warranto proceedings..Because thats all thatCongress has provided for, and Mandamus is available to force Officials to do their jobs....and Charles has standing for this harm of following orders of a Usurper..
So seek to Amend what you seek...This Court will want to push the monkey off its back, give him the OUT...The thing to be done is to insure qualifications...since Congress has not done it and even when they did (re McCain) argue they cannot do what they did, (Marbury) because the COurts decide what NBC is and SR 511 had to be non binding because they knew they COULD NOT MAKE IT BINDING....they are not the Judiciary...
so using what Congress provided, the US Attorney for DC can be ordered [Mandamus]to do as the Constitution demands and conduct Quo warranto against BO...and later if Congress wants to avoid all this they can provide by law another method...but for now..thats what they provided...
and the US Attorney can not refuse to comply, because its his duty undeer oath, and the Courts and everyone elses to follow the Constitution...
Please tell me you GOT IT...because this feels so right its scary...but its all supported by the law, and Leo DOnofrio and you and all this should present the best EFFORT to DATE...blow them outta there Mario...what ya think????
Mike, a NJ attorney from our group wrote the following after a request for his opinion on making a standing argument.
Reposted here per your request:
--------------
Massachusetts v. Environmental Protection Agency. Note Chief Roberts' dissenting opinion which acknowledges the practice of enforcing merit in lieu of particularized injury in fact, to wit:
Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006).
There's your reasoning and justification, now on to merit where Roberts proceeds with:
Judge Sentelle wrote separately because he believed petitioners failed to “demonstrat[e] the element of injury necessary to establish standing under Article III.” Id., at 59 (opinion dissenting in part and concurring in judgment). In his view, they had alleged that global warming is “harmful to humanity at large,” but could not allege “particularized injuries” to themselves. Id., at 60 (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) ). While he dissented on standing, however, he accepted the contrary view as the law of the case and joined Judge Randolph’s judgment on the merits as the closest to that which he preferred. 415 F. 3d, at 60–61.
http://www.law.cornell.edu/supct/html/05-1120.ZO.html
Further...
In his opinion announcing the court’s judgment, Judge Randolph avoided a definitive ruling as to petitioners’ standing, id., at 56, reasoning that it was permissible to proceed to the merits because the standing and the merits inquiries “overlap[ped],”
... the above is a good example where the courts have weighed merit over standing arguments. If I were to argue this case, you better believe I'd be pointing out the measuring of balance toward justice that took place in this case alone. It is quite obvious to me that standing arguments aside, the courts deemed the overall importance of the issue as valid merit to be heard due to the enormity of impact the issue dealt everyone, not just the parties involved in the suit - it was the "unusual importance" to the "humanity at large" that titled the scales, regardless if they admitted to the murkiness of standing arguments.
-------------
And later Mike wrote:
He's asking for judicial review. Standing is a construction that stonewalls that review in its most abusive forms we see here. To quote Chief Justice Marshall from Judicial Politics was that it is:
"emphaticaly the province and duty of the judicial department to say what the law is."
If that is the duty and purpose of this branch of government, and it is, then why did even John Randolph lament as we are now:
"All wrong, all wrong, but no man in the United States can tell why or wherein."
Our Constitution made this judicial branch to answer and review the questions presented to them by the people as a checkpoint and yet, we've allowed the government to silence the people when they dare to ask questions. Steven Winter points this out meticulously in The Metaphor of Standing.
No truer words were spoken than that of Alexander Hamilton in Federalist 22:
"Laws are a dead letter without Courts to expound and define their true meaning and operation."
This is what Apuzzo is up against. A dead letter because no man can be found thus far to tell why or wherein. All we have seen are men who preach to the judiciary that they are not allowed to say why or wherein. This is emphatically not what the people bargained for when they accepted the supreme law of a constitution. They expected justices who would answer the many voices of humanity at large who are paying attention despite the ones who were hoping these citizens were inept and relenting of their rights. It remains to be seen if there is a judge out there who has the courage and respect for the law and do his job. That man will go down in history as a hero like Kamira says.
As a layperson, it is difficult for me to fathom that judges are constantly letting the plaintiffs get away with using the claim (and excuse) that all of these people who have already presented lawsuits are deemed "not to have standing." This seems absolutely ludicrous to me! How can such "lawyer manipulation" of the system trump upholding the principle of the rule of law?
What is really happening here? Does it involve some sort of a sweeping claim of so-called "presidential authority" which has set itself up against what is already written in our U.S. Constitution?
The way I see it - every single American voter SHOULD have standing on this issue!
"Executive privilege" may allow a president to have confidential discussions with his aides - and in most cases perhaps such discussions should remain confidential. However, as we had seen in the United States vs. Nixon case, they shouldn't remain confidential when such records of discussions may be essential to investigating alleged crimes.
Even though this case is different from the Nixon case, isn't usurpation of the office of POTUS considered an alleged crime against our nation, our American citizens, our rule of law and our U.S. Constitution?
This is an unprecedented case - one that has not ever happened before (at least not in my lifetime; perhaps the Chester Arthur case is similar) and for any judge to allow a defendant to use an excuse like "standing" in order to automatically dismiss all of the plaintiffs lawsuits against Obama without a hearing by the judge seems absolutely ridiculous to me!!
The Constitution of the United States
Preamble ["We the people...."]
Article I [The Legislative Branch]
Article II [The Presidency]
Article III [The Judiciary]
Apart from the Constitution of the United States, "We the people" have no rights or freedom...
Apart from the Constitution of the United States, The Senators, the Representatives, the President, and the Judiciary, have no authority or duties...
If Kerchner v. Obama is dismissed, the ‘Coup D’Etat’ at 1600 Pennsylvania Avenue will be complete...
Kerchner swore an oath to support and defend the Constitution against all enemies foreign and domestic.
This oath created the duty and the standing to support and defend the Constitution against all enemies foreign and domestic...
If Kerchner has the duty to support and defend the Constitution against all enemies foreign and domestic, but no standing to support and defend the Constitution against all enemies foreign and domestic, then the oath is without substance, and the Constitution is without defenders.
Mega dittos to Benaiah.
I know we all have been reading the defendants' motion to dismiss (MTD). But this might be a good time to take a copy of the original complaint and kick back in a chair and re-read it. I think the MTD has deliberately skipped and misrepresented things in the Complaint. You folks contributing here are very sharp. I respectfully ask that you all take another read of the 2nd Amended Complaint and then take another read of the MTD to sharpen the points of attack as laid out in the 2nd Amended Complaint. You all may dig up some more useful ideas in such a re-read of the complaint at this critical juncture and step, i.e., getting past the standing obstacles in court. I of course believe all laws made by man and the court rulings that block getting standing on a constitutional issue such as this should be set aside for this case. Particularly we need in this instant case to get the courts to address and to define once and for all what Article II natural born citizen means for the Office of the Presidency and CINC, and then order it applied and tested on this instant Usurper's facts and of course to all future Presidents. This needs to be done to protect the Constitution. The Constitution is the supreme and fundamental law of this nation and if ordinary standing laws block its enforcement, the nation and republic is doomed. Here is a convenient link to the 2nd Amended Complaint, if you have not already downloaded it and printed it out.
http://www.scribd.com/doc/11317148/
Respectfully suggested,
Charles
Article III, Section 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution...
Article III, Section 3: “Treason against the United States, shall consist only ...in adhering to their Enemies”
Opposing the Constitution of the United States is "adhering to" the "Enemies" of the United States.
Kerchner took an oath to support and defend the Constitution against all enemies foreign and domestic.
Article III unequivocally states, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..."
Hence, Article III gives the Judiciary the authority and the duty to hear cases "arising under this Constitution", such as Kerchner v. Obama, which in effect alleges that a "domestic enemy [Barack Hussein Obama II]" of the United States has usurped the office of President, and a "domestic enemy [Barack Hussein Obama II, and the Senators and Representives]" have opposed, and are actively opposing, the Constitution of the United States.
The "judicial power" given to the courts by Article III is the only means by which Kerchner can uphold his oath to defend the Constitution against domestic enemies...
Apart for the courts, there is no means to fight domestic enemies of the Constitution...
Thus, under Article III, Kerchner has standing...
Please note that Article III not only deals with "the judical power" but it also deals with "treason". Thus, the founding fathers intended "the judicial power" to be used to protect, support and defend the Constitution of the United States from domestic enemies of the United States, such as those who actively oppose the Constitution of the United States, such as Barack Hussein Obama II, and the Senators and Representatives who were/are complicit in the ‘Coup D’Etat’ at 1600 Pennsylvania Avenue.
#26) (cont.) ...
Wow! - some truly great posts on this thread such as squinlivan, Zapem, and Benaiah (not to overlook many of the others).
For sure Zapem has hit the proverbial nail ...
"Thinking" is good, that's for sure and knowing what to do with the thinking (Mario's job) is even better. I mentioned Sun Tzu in my post #25, but Sun Tzu had many personal uses of his observations such as:
"The king of Wu tested Sun's skills by commanding him to train a harem of 360 concubines into soldiers. Sun divided them into two companies, appointing the two concubines most favored by the king as the company commanders. When Sun first ordered the concubines to face right, they giggled. In response, Sun said that the general, in this case himself, was responsible for ensuring that soldiers understood the commands given to them. Then, he reiterated the command, and again the concubines giggled. Sun then ordered the execution of the king's two favored concubines, to the king's protests. He explained that if the general's soldiers understood their commands but did not obey, it was the fault of the officers. Sun also said that once a general was appointed, it was their duty to carry out their mission, even if the king protested. After both concubines were killed, new officers were chosen to replace them. Afterward, both companies performed their maneuvers flawlessly."
Now I'm not commenting upon the number of Mr. Obama's concubines, if any, but perhaps upon the necessity of the Judicial system in "carrying out" the orders of "We The People" as mandated by the Constitution.
After all, the Constitution is a contract by which we are governed and I like to call it a "Compact"
sometimes to distinguish it from normal contract law - which normal laws are the "usual suspects" when various Branches try to evade a Judicial determination - such as in this instance.
Although we call ourselves plantiffs aren't we really behaving in a defensive legal mode instead of an attacking mode? While focus on the main issue at hand is paramount and necessary, could other officers of the court file a federal temporary restraining order against the president to cease and desist until the eligibility question is satisfied? Is it unreasonable to expect that We The People should be entitled to mitigate damages to the nation during this contitutional crisis. Doesn't our constitution allow for the Vice President to assume the office during presidential incapacity. Is "incapacity" limited to a question of health? I think not. Why should Obama freely enjoy the office to which serious challenges exist? Quo Warranto needs to be filed against him as well. Obama must be hounded on all legal fronts until driven from office without let up unless he can satisfy natural born citizen. Force the issue gentlemen you have the Constitution on your side.
#27) (cont.) ...
Actually, Zapem the cite you gave is not from CJ Roberts but from justice Stevens in justifying SCOTUS hearing the case (what we are trying to get done here):
Massachusetts v. Environmental Protection Agency, 549 U.S. 497
"Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006)."
Stevens says that there ARE INDEED some things that are of "unusual importance" above and beyond jurisdictional arguments (such as the legal fiction of Article III "standing"). In the body of the holding of the above case from SCOTUS it also says:
"To demonstrate standing, a litigant must show that ithas suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, andthat a favorable decision will likely redress that injury. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. However, a litigant towhom Congress has “accorded a procedural right to protect his con-crete interests,” id., at 573, n. 7—here, the right to challenge agencyaction unlawfully withheld, §7607(b)(1)—“can assert that right with-out meeting all the normal standards for redressability and immedi-acy,” ibid. Only one petitioner needs to have standing to authorize review.
Marbury also said much the same thing ... see my post #22) above.
The comments of sjc are in order about the restraining order except that might detract from moving Kerchner along. Maybe Orly's new Cook v. Good will give us a clue how TRO's would be viewed since in that case the courts may think it's a separation of powers issue.
DE LIMA v. BIDWELL., 21 S. Ct. 743, 182 U.S. 1 (U.S. 05/27/1901)
[1] SUPREME COURT OF THE UNITED STATES
[188] It is upon the Government that the Constitution acts directly.
Thus, the Constitution of the United States "acts directly" upon "the Government"... DE LIMA v. BIDWELL.
Hence, when "the Government" is the defendant in an action which "arises under the Constitution", the "Constitution" "acts directly" upon "the Government" to create the standing for the full force and effect of the judicial power to extend to the case...
Hence, Article III, Section 2 states, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..."
DE LIMA v. BIDWELL., 21 S. Ct. 743, 182 U.S. 1 (U.S. 05/27/1901)
[1] SUPREME COURT OF THE UNITED STATES
[188] It is upon the Government that the Constitution acts directly.
Thus, the Constitution of the United States "acts directly" upon "the Government"... DE LIMA v. BIDWELL.
Hence, when "the Government" is the defendant in an action which "arises under the Constitution", the "Constitution" "acts directly" upon "the Government" to create the standing for the full force and effect of the judicial power to extend to the case...
Hence, Article III, Section 2 states, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..."
OATH OF ALLEGIANCE
"the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier"
GRIMLEY, 11 S. Ct. 54, 137 U.S. 147 (U.S. 11/17/1890)
[1] SUPREME COURT OF THE UNITED STATES
[21] But in this transaction something more is involved than the making of a contract, whose breach exposes to an action for damages. Enlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes. Marriage is a contract; but it is one which creates a status...
[22] By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged...
[23] A minor question arises on these facts as to whether the petitioner was in fact enlisted. It appears that on Saturday, February 18, 1888, the petitioner entered the recruiting rendezvous in Boston, and expressed a desire to enlist. He underwent a physical examination. He took the oath of allegiance before the recruiting officer, signed the clothing rolls, and was placed in charge of the sergeant. The latter took him to the clothing-room, and selected for his uniform a cap, trousers, blanket, shirt and pair of stockings, and laid them before him. He put none of these articles on except the cap, and that in a few minutes he took off. He then asked permission to go away and see his friends, and the sergeant told him to go, and be back on Monday. He went away in his citizens' clothes, returned to his mother's house and told her what he had done. She was very much grieved, and after some conversation with him went to the recruiting office, and finding three men there told them her errand, and was advised substantially that Grimley need not come back, and might go to work. Who these men were is not disclosed. On the strength of that he did not return, but went off and engaged in service as a coachman. He was arrested as a deserter on May 16, 1888, brought before a court-martial and found guilty, as heretofore stated. The oath of allegiance which he took was as follows:
[24] "The United States of America.
[25] "State of Massachusetts, City or Town of Boston, ss:
[26] I, John Grimley, born in Armagh, in the State of Ireland, aged twenty-eight years and -- months, and by occupation a groom, do hereby acknowledge to have voluntarily enlisted, this eighteenth day of February, 1888, as a soldier in the Army of the United States of America, for the period of five years, unless sooner discharged by proper authority; and do also agree to accept from the United States such bounty, pay, rations and clothing as are or may be established by law. And I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies whomsoever; 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 the rules and articles of war.
[33] ...We conclude, therefore, upon the whole case, that the age of the petitioner was no bar to his enlistment of which he can take advantage; that the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier; that the enlistment was a deliberate act on the part of the petitioner; and that the circumstances surrounding it were not such as would enable him, of his own volition, to ignore it, or justify a court in setting it aside.
The first insertion paid for by the concerned Americans donating towards the Advertorial "Help Protect Our Liberty" project has been placed and will run in the Monday issue of the Washington Times National Weekly edition on page 9. Here is a link to the copy as it will appear. Scroll down to see the Paid For byline. Visit this site Help Protect Our Liberty for more details. Thank you to all who have donated to make this possible.
http://www.scribd.com/doc/17289375/
Synergy at work! If we all do a little together we will accomplish a lot!
Charles
#28) (cont.) ...
Looking at the case squinlivan cited earlier we find:
Ex Parte VA 100 us 339 (1879):
... Whoever, by virtue of public position under a State government, deprives another of property, life,
or liberty, without due process of law, or denies or takes away the equal protection of the laws,
violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with
the State's power, his act is that of the State. This must be so, or the constitutional prohibition has
no meaning. Then the State has clothed one of its agents with power to annul or to evade it. "
... "the State" mentioned in the opinion could equally as well be the federal government and the "constitutional inhibition" in this case violated would be the requirements of the NBC poerion of the Constitution. It is the agents of the state (the federal government) in this case who are attempting to violate the constitutional inhibition of the NBC clause by using trhe legal fiction of Article III standing snd their arguments and citations are both weak and inapplicable to the Kerchner case. We MUST NOT let these agents accomplish this.
As for their "immunity" blather, how is it that statutes (which is what the "standing" and "immunity" presumptions are drawn from as they are not mentioned in the Constitution) passed by Congress can be superior to the United States Constitution??? That cannot possibly be true - unless the Constitution has already become null and void except as something of a make-believe storybook to read to children to make them think they live in a free country under laws.
As Chief Justice Marshall said in -
McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819)
"...the argument on which most reliance is placed is drawn from that peculiar language of this clause. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be "necessary and proper" for carrying them into execution. The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress in each case that only which is most direct and simple."
So is the artificial constraint of "immunity" for two other branshes of government allowed to be superior???
NO, NEVER!!! This is not what all of our many ancestors bled and died for. This suit must be heard on merits and, if eligible, Mr. Obama legally holds his office and Americans will needs must live with that decision. If not eligible, that should be made patently and abundantly clear to all Americans do that the people concur in any actions that follow that decision.
Who knows, perhaps even the MSM and biggie talk show "conservatives" will feel brave enough to mention it fleetingly then ...
At any rate we need to continue offering up all the thoughts and ideas that we can to - hopefully - help Mr. Apuzzo in HIS deliberations as he has a difficult job. A few prayers might not hurt either.
#29) (cont.) ...
The question of "immunity" put forth by the defense now arises to determine whether or not the politicians in the Legislative and Executive branches of government are superior in all things and above reproach - even the the demands of the Constitution???
Let's see what CJ John Marshall said in:
McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819)
"The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
If we apply this principle of construction to any of the powers of the Government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued with as much plausibility as other incidental powers have been assailed that the convention was not unmindful of this subject. The oath which might be exacted -- that of fidelity to the Constitution -- is prescribed, and no other can be required. Yet he would be charged with insanity who should contend that the legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest."
While it is true that "reasonable men may disagree", let us take note of the fact that it is those potentially threatened by the complaint that are trying to invoke an unwritten (and unspecified) "immunity" that appears noplace in the Constitution. Certqinly that does not qualify them as "reasonable men".
Instead, they are merely trying to subvert the superior law of our land - the Constitution. That is hardly "reasonable" as Marshall (and others) have noted. It must be the task of the court to see this fact and hear this case "on merit". Nothing less will provide justice and nothing more is being asked.
#30) (Cont.) ...
... and - speaking of reasonable men -let's see what John Marshall opined in:
COHENS v. COM. OF VIRGINIA, 19 U.S. 264 Wheat. (1821)
"It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one."
To me, that qualifies as "reasonable", indeed. Have at 'em, Mr. Apuzzo ...!!!
TO ALL:
I think it is appropriate that we center Again on why we are here:
We have a Problem: Constitutional eligibility of the Office of President.
We have a complaint placed before the Courts seeking a solution...and the opposition seeks to dismiss both the complaint and the Courts authority to determine the dispute.
The Center of the dispute is the term or phrase Natural Born Citizen.
(yes we are trying to simplify everything here)
It is proper to list the major stumbling blocks to a resolution of this problem.
1. The separation of powers.
2. The UNDEFINED term or Phrase Natural Born Citizen. {Remember it is UNDEFINED by the US Supreme Court)
3. There is no direction or instruction in the law or the Constitution that declares or makes anyone or any authority responsible for insuring compliance with the MANDATES of the Constitutional requirements of eligibility for the office of the President.
The number one reason why we must solve this problem is that if we allow any part of the Constitution to be ignored or violated then the rule of law is destroyed and the rule of men will replace it.
The result is that we will lose our freedoms, rights and entitlements according to the Supreme Law of the land.
The following posts will present an orderly argument for solving the problem according to the law, and why ..... beginning with POST 1 Separation of Powers.
Before I begin POST 1, I want to inform you of what these posts will do. The POST’S will prove that it is the Judicial Branch that will begin the solution, but they will not “remove the USURPER” from office, it will be the Justice Department that will do that. I will demonstrate that it is ONLY Congress that has the power and authority to remove a President or EVEN a USURPER from office.
I will demonstrate why every citizen as a litigant has a right to standing before the FEDERAL Courts for this problem, and why the Courts are obligated, without choice, to hear the complaint, and why there is no immunity, NO CRIME, and how the URSURPER problem will be solved… NOTICE I DID NOT SAY removed from office, even though I believe he will be removed, it is still possible that Natural Born Citizen gets a definition that allows him to remain in office.
If you think of this solution as one where people will end up in jail or you pursue this problem seeking vengeance then you will win some battles and lose the WAR. This problem can only be resolved by dealing with the hard realities that are present in our mutual problem. That reality is that we have a loophole in the Constitution that has caused this problem, and just like the tax laws, no matter how Congress constructs them there will always be those who can spot the loophole and take advantage of it. This is the reason that the founding fathers believed in a LIMITED form of government. Because every law or rule ends up creating some unintended consequence, and those consequences are why we are here.
#31) (cont.) ...
There is a single thing I would clarify in your last post, squilivan. When you say ...
"3. There is no direction or instruction in the law or the Constitution that declares or makes anyone or any authority responsible for insuring compliance with the MANDATES of the Constitutional requirements of eligibility for the office of the President."
... that may not present the picture in an exact enough light for understanding. If you read the actual wording of A2, S1, c5 carefully, it says ...
"No Person ... shall be eligible to the Office of President ..."
... which, of course, means that the very document itself that makes it mandatory by the use of "shall" actually also specifies that "we the people" are the enabling body of that determination - if not through the Constitutionally-provided morass of elections (which in this instance has failed due to the willing collusion of the MSM and other partisan political interests - some with questionable legality) then at least through the court system as the Constitution is the uppermost law.
The fact that it does not appoint, say, Mr. Smith or Mr. Jones, or even the State of Confusion (which there apparently certainly is) as the person or body to implement the determination is probably done by design so that we the people have ample room to operate under the Constitutional laws. It is incumbent upon the court to insure that this is done through hearing this case on merit since that - as the defense certainly recognizes - IS the case.
The other particulars of the non-0bama defendants are important surely but are dependent upon the eligibility issue and can be more easily handled by the court. the eligibility issue is paramount and that is where the most energy should be directed for the case at hand.
I certainly applaud your effort and those other contributors who have been addressing the problem.
I'm one of those who believe that the false impediments thrown up (which are the same old, same old by the DOJ attorneys) do not merit a hearing mush less being accepted by the court as justification to dismiss. The ruling on the MTD will tell us worlds about whether our country is beyond repair or not.
I believe Kerchner will be heard on merit and that the Plantiffs will prevail. Beyond that it will become even more interesting. In any event, you will ALL be able to tell your kids and grandids that - like the old Chinese proverb - you have lived in "interesting times" (not that they'll listen, but it'll make you feel better :-)).
Article 2 Section 1 of the Constitution taken in it’s entirety defines the parameters for establishing what is known as “the Office of the President” . This Article sets the length for a term in office, it regulates periodic changes to compensation for the office. It prescribes the Oath the President Elect must swear. It lists the eligibility requirements needed in order to hold the office and it sets out the electoral process as superceded by the 12th amendment. The portion originally written regarding removal from office , is now superceded by the 20th and 25th amendments.
Article 2 Section 1 plus the 12th, 20th. and 25th amendments by rights empowers Congress with the authority to ascertain the eligibility of a candidate, to elect, or once confirmed remove, with cause from office . As goes the authority so must go the responsibility.Therefore by rights the Congress must bear responsibility to the people for any malpractice of said authority.
Congress is charged with satisfying ALL presidential election statutes contained in Article 2 Section 1, as well as the 12th, 20th and 25th amendments.
The 9th amendment states : “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.”
Therefore the people, individually or collectively put forth our 9th amendment right to have our grievances heard by the court. And in furtherance the judicial device known as standing denies, disparages and unlawfully diminishes the natural rights so implied by the 9th amendment.
Reid v Covert
"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional [p40] practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."
POST 1
While the title of this is Separation of Powers…it will deal with immunities and duties of public office and officers as sub topics. For simplicity sake we will leave out “legal cites” until the end.
I start with strict constructionist statements regarding separation of powers. Each branch is considered co-equal. Each branch has their respective duty, and obligations under the Constitution. Congress is charged with making the laws, The Executive is charged with executing the laws, and the Judicial Branch is charged with determining what the laws say and mean.
It can be said of all the branches and officers of government that they have only two types of duties to perform, one is discretionary, and the other is mandatory. When an act is determined or recognized as discretionary, that branch, department, or official has immunity for those actions, otherwise they would never make decisions for fear of adverse actions. The other is mandatory, or by law directed to do OR NOT DO a certain thing or ACT. For these mandatory actions there is no immunity. But this does not mean that to fail to comply with a mandatory requirement is necessarily a crime. It could just be incompetence that the criminal laws do not recognize, or even the civil laws failed to provide for; AND THAT IS WHAT HAS OCCURRED that brought us to this crises.
When it comes to the current problem, WHAT is the DUTY and responsibility of each branch?
For the answer we need to search the Constitution and the laws to find out who has the duty and responsibility. cont'd
cont'd
POST 1
Congress and the Law…..
The United States Constitution, Article 1, Section 8, Clause 17 states:
“The Congress shall have Power To… exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States…”
AND Section 18 states: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [In the legal world “shall” is mandatory, we need this later.]
There exists a statute enacted by Congress wherein it exercised Constitutional authority to challenge the credentials of, and/or remove, a sitting President found to be a usurper by failing to possess Article 2 Section 1 qualifications for holding the office of President of the United States. The Statute exists in the District of Columbia Code, the same Code which includes the United States Constitution
District of Columbia Code § 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.
This is the only statute in the entire body of United States federal law which specifically provides for removing all officers of the United States located in the District of Columbia, whether appointed or elected, including the President.
Then we have two Constitutional Amendments the 20th and the 25th.
cont'd
cont'd
POST 1
The 20th Section 3 states:
3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. [Notice that the word “may” is used here, that means discretion, we’ll need that later, too]
The 25th Amendment, Section 1, states:
1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
What is important about these two Amendments is that they prove that Presidents , and President Elects can “fail to qualify” for the office, and that the President can be “removed from office.” And not just through impeachment.
Please keep in mind that the 20th Amendment was originally needed because of the “lame duck” period between the Election and the swearing of the next President and Congress.
The 25th Amendment was instigated because of the death of President Kennedy, because there was the potential of having a President, disabled by a COMA.
Next the Executive branch duties and responsibilities….
cont'd
jayjay SJC and A PEN
Stay with me folks you are all kinda right but jumping the gun...or as they say in the TV business "jumping the shark" dont do it just yet...HINT:
JUST because there is no law directly making someone or office responsible for insuring that the qualifications are met by POTUS Candidates does not mean that there is NOT law at all it just means that Congress DID not do its JOB "entirely" and we can in this case try to get them to serve the people....please watch the rest of the series I'm doing...more tomorrow
STANDING
FROM WIKIPEDIA
"In the year 2000, the Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.
Another originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate. Constitutional historian Jon Roland has argued that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments.
The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment."
I refer to the 1st and 5th amendments as enumerated rights.
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.
REDRESS
redress v. 1. To set right, remedy or rectify. 2. To make amends for. n. 1. Satisfaction for wrong done; reparation. 2. Correction
Standing by its nature infringes upon the 1st amendment, when it denies redress of grievances.
I find it interesting the words "redress of grievances" does not state that grievances must be specific and unique in nature or that no other citizen or group of citizens having like grievances would preclude the petionioner from being heard.
5th amendment
No person shall be....... deprived of life, LIBERTY, or property, without due process of law;
I also ask a basic question, "If Congress and the States are responsible for LEGISLATING, and SCOTUS is responsible for RULING on the constituionality of the enacted laws. By what power of law does the Court have to legislate "standing"? Can this be a battle for another day for you JURISTS to take up?
What about the first amendment right of the people to petition for redress of grievances?
Ineligibility of the executive seems like a fundamental enough grievance that any or all of the people have an inherent right, protected by the Constitution, to petition the Judiciary for its redress.
Why was it so important to black out the document number on the fake COLB posted by Obama on the internet?
The sensitive information is presented but the number is blacked out. WHY??
Could it be they didn't know what number to use as the document was being forged??
A misplaced number could be traced back to Hawaii's number system in 2007, 2008 or whenever.
It has always bothered me as to why just the number was blacked out for the internet.
Q: Guy4013 said...
Why was it so important to black out the document number on the fake COLB posted by Obama on the internet?
A: One possibility is plausible deniability. Look at the bottom of that COLB and you'll see it says:
"ANY ALTERATIONS INVALIDATE THIS CERTIFICATE"
If/When the house of cards comes tumbling down it can be said that this was never presented as a valid document.
I received this contribution via email. It, along with the many comments being posted on this blog, is very good. I felt it merited being shared with everyone, as it will surely be thought provoking.
Mario Apuzzo, Esq.
++++++++++++++++++++
PART I
Hello Mario and Charles,
This is azgo, I sent the article written by Sandra Day O'Connor regarding 'Judicial Independence'.
I don't know much about law but I do enjoy 'the universe of ideas'.
Does an [alleged] illegal president possess standing to ask for 'standing' and 'immunity', when the president is unproven? -'My little mind'. azgo
I found this to be an interesting paper (download) by Jason LaFond, a J.D. Candidate, University of Michigan Law School, December 2009. The paper brings up some interesting points, publication references, case law examples, and supreme court decisions regarding 'modern standing decisions'.
http://works.bepress.com/jason_lafond/1/ ("Download the Paper")
Injury-in-Fact, Justice-in-Fiction: Toward a More Realistic Definition of “Injury” in the Context of Unenforced Criminal Laws
And to me, this paper brings up these questions.
Is the 'natural born' requirement being abused as an unenforced law now?
Are the issues of 'standing' and 'immunity' supreme to the laws of this nation, i.e. the Constitution of the United States?
Would a dismissal or release of prosecution condone and sanction the unenforced law to all unqualified citizens, immigrants and aliens?
Is this 'standing' and 'immunity' issue totally unjustified when the "natural born citizen' requirement is the law and should supersed all other court regulations, standards, rules, doctrines, and tests. (A spaghetti jungle 'to machete' to attain the truth!)
Here are some excerpts;
" Contrary to popular belief, the courthouse door is not open to all. Article III, section 2, clause 1 of the Constitution, the “Case or Controversy clause,” puts a lock on the federal courthouse door. Federal courts are only empowered to hear cases and controversies; among the necessary ingredients for a case or controversy, and, in turn, a key to the courthouse door, is an injured plaintiff. Without an adequate injury, one lacks “standing” to bring an action into court. This requirement has received some much-needed attention in recent weeks with the mini-controversies over President Obama’s birthplace and Hillary Clinton vis-Ã -vis the emoluments clause. ..... "
[emphasis added]
" Thus, the law can inhibit behavior, lay the foundation for sanctions, and cause economic harms without formal enforcement mechanisms ever getting involved. "
Is there is no penalty or 'prosecution or credible threat of prosecution' as to the requirements of being president and simply has now become an unenforced law?
Is the lawless penalty simply social sanctions in the sen se of and including personal and public confidence? So, how can there be any sort of injury-in-fact 'standing' issue since not being a 'natural born citizen' is not even a misdemeanor?
Isn't this such a high level issue involving the very heart, soul and function of our national government that this law demands to be made clear and therefore enforced, instead of being guided by a rule, regulation, standard, doctrine or test?
" II. RECONCILING THIS WIDER DEFINITION OF “INJURY” WITH THE COURT’S MODERN STANDING JURISPRUDENCE
Standing doctrine is not a settled matter. For at least the past 40 years, as the Supreme Court has become more concerned with standing, the pendulum has swung from a very relaxed view of standing in the Warren Court, to a tighter view under the Burger Court, to a very tight view under the influence of Justice Scalia in the early Rehnquist Court, and back to a more relaxed view under the influence of Justice Kennedy in the later days of the Rehnquist Court and to confusion in the early Roberts Court decisions. ..... "
[emphasis added]
Cont'd
PART II
" The introduction of “injury-in-fact” analysis was meant to liberalize access to courts but in the hands of more conservative courts it has been used to restrict access. The later courts feared a potential explosion of litigation against the government by a nation of plaintiffs who could use a policy disagreement as the basis for a lawsuit. In Allen v. Wright the Burger Court repudiated a relaxed notion of standing and sought to eliminate the potential for a “nation of plaintiffs” by raising the bar for entry into federal court and redefining injury in a more narrow sense:
When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-established rule that the government has traditionally been granted the widest latitude in the dispatch of its own internal affairs. When transported into the U.S. Const. art. III context, that principle, grounded as it is in the idea of separation of powers, counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executive Branch, and not to the Judicial Branch, the duty to take Care that the Laws be faithfully executed. "
[emphasis added]
The qualification for president is not a policy disagreement, the qualification for president is the law.
Seems to me this 'standing' and 'immunity' issue is totally unjustified when the "natural born citizen' requirement is the law superseding all other court regulations, standards, rules, doctrines, and tests.
" Justice Kennedy in his Lujan concurrence claimed the injury requirement is also intended to give the public confidence in judicial pronouncements:
[I]t is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury requirement helps assure that there can be an answer to these questions; and, as the Court's opinion is careful to show, that is part of the constitutional design.
As I will attempt to explain below, a wider definition of injury encompassing unenforced laws is supported by all of these various rationales. "
[emphasis added]
The pronouncement of hearing this case would give the plaintiff's a sense of personal confidence if not a sense of a more collective public confidence. Isn't public confidence a guide as to our political
endeavors and directions?
" In a much more heralded case, Massachusetts v. EPA, the Court granted standing where the injury was in the form of projected future rising sea levels injuring a state in its capacity as a landowner, an injury suffered not just by the entire nation, but the entire world. This injury not only lacked particularity but also concreteness and imminence. The only thing these two 5-4 decisions had in common was Justice Kennedy in the majority. "
[emphasis added]
I think this is an extremely important case on allowing 'standing' and as to this case since the injury suffered extends beyond a single voter (taxpayer) to a nation of voters and non-voters and to the entire world people (non-voters) of international policy and good will.
I hope reading this paper can help and inspire !!!
Thank you for your great work! May God bless America!
I found this article/ blog while reading. It may contain the keys you are looking for.
http://naturalborncitizen.wordpress.com/2009/03/18/two-minute-warning-vattel-decoded/
Can it be boiled down to this; anyone has access to the Court to right a wrong against/under the Constitution, but one must have "standing" or "merit" to seek redress in actions connected with Act of Congress?
Thanks, Charles, for the link to be a part of this lawsuit by helping out with some of the expenses involved. I had wondered if there was a way to help. My check for $150 will be mailed tomorrow.
I love reading this blog, because of the level of knowledge that is imparted here. It makes me feel like a mouse on the wall during a high-stakes strategy session. . .well now, I guess that is what it is.
If there is another way I can help in this effort, please let me know. I do not have a legal background, but as a retired federal contracting officer, I'm sure I could do something to take on some of the administrative burden.
I want you to know that I believe God will not be mocked by any usurper-false-messiah-megalomaniac.
God is aligning His resources and the timing of events on many different stages. God moves through His creation to accomplish His will. WHEN we get this lawsuit adjudicated, we need to give HIM all the honor and glory, even while acknowledging the truly great minds and hearts He used in accomplishing a successful end.
Maranatha! But until He comes, we must occupy and tear down strongholds, just like you are doing in Kerchner v. Obama!
To Mario: You have stated on the various radio braodcasts that whichever side the judge rules for the other side will request an appeal. If this judge allows this Motion to stand at the request of the defendants (congress et al) which court is the appeal presented to?
QUO WARRANTO
JayJay,Squilivian,Beniah and others, magnificent minds! I'm well out of my depth swimming with the big fish. Common sense is my only claim to fame, and my fame is not world renown.
District of Columbia Code § 16-3501,16-3502.
The founding fathers in their divinely assisted wisdom claimed a space of ten square miles for the seat of the federal government. By so establishing this "federal sphere" the federal government was on "home territory" free from any conflict of interest with any state. This land was not Virginia,or Maryland nor any other could lay claim, influence or priority regarding state laws.
The true heart of this case lay in the District of Columbia.
Kerchner v Obama with a favorable ruling for plaintiff, will only be the first step. The process of removal will ultimately go through D.C. Simultaneously a Quo Warranto for the Usurper President should be filed or am I mistaken?
If Quo Warranto hearings are held by the House presided over by the Chief Justice. What is the reasoning for going through the courts. Will the Supreme Court file the Quo Warranto??
From: desertconservative.com
+++++++++++++++++++++++++++++
6-29-2009
Carl,
I personally called (and so did my boyfriend) the Chief Judge Magistrate Royce Lamberth’s chambers (Dist of Columbia)and spoke with his aide in his office. The aide did know about the presentments(grand jury indictments for treason) and said that he was aware that the judge was aware of them also. I told him that we were completely serious about this & that he is urged by the people of the US to look into these charges of TREASON against Obama and the the people are looking for answers. He told me that he certainly would let the judge know about my comments.
I have also contacted all the people on your list that were presented with the paperwork also. I have also informed them that they need to take this seriously & that we will be expecting results.
Keep up the good work! And THANK YOU!
-Deidra Hensley
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Squilivian left me with the impression that, even if Obama fails the eligibility test, that he my not be removed or there may be NBC wiggle room? My sense tells me that if Obama fails the slightest of ArtI sec 2 he is on his out the door and will face trial for high crimes and misdemeanors just for starters. Public Opinion still matters. Obama's closet is full of skeletons, we just don't have the key YET. Some say he is still on the hook for re entering this country as Barry Soetoro and this AKA Barack Obama has never gone through immigration or once entered a US Customs port of entry legally. His State Department passport issued to all members of congress obtained by fraud vis-avis his aka only extends the statute of limitations every time he travels abroad and we all know how much Obama craves overseas travel. The Arm of the Law is extremely long, as so many other two-bit criminals have found out.
Albert Gallatin, Removed from the Senate in 1794 due to Citizenship Ineligibility
Posted on another forum.
On December 2, 1793, Albert Gallatin of Pennsylvania took the oath of office in the Senate. His eligibility was then challenged on the grounds that he did not meet the minimum nine years of citizenship as constitutionally required for Senators ( http://tinyurl.com/mkru86 ). This appears to be the first eligibility case in the Senate.
On February 10, 1794, the Committee of Elections reported on testimony. It was sworn that Mr. Gallatin said that he had “‘not been a citizen long enough’” to be a Senator, but after being nominated, Mr. Gallatin “said that he had made this declaration under a mistaken idea that it was necessary for him to have been nine years a citizen of Pennsylvania, but that, upon examining the Constitution, he had found that to have been nine years a citizen of the United States was sufficient”. It was also sworn that, “a considerable time subsequent to Mr. Gallatin’s election”, Mr. Gallatin said “something with respect to the laws of Massachusetts not requiring an oath of allegiance” but that “he took the oath of allegiance in Virginia” ( http://tinyurl.com/n3qeb4 ).
Mr. Gallatin declined to produce any evidence unless the Senate decided against him. The Committee of Elections then concluded by the evidence that it was incumbent on Mr. Gallatin to show that he became a citizen of the United States ( http://tinyurl.com/lrj5re ).
On February 20, 1794, Mr. Gallatin produced a statement of facts. He was born in Geneva in 1761 and arrived in Massachusetts in 1780. He started living in Virginia in November 1783. He took the oath of allegiance in Virginia in October 1785 ( http://tinyurl.com/lrj5re ). Yet, Albert Gallatin claimed that he became a citizen “from the time of his first qualifying after his arrival and attachment to the country” ( http://tinyurl.com/lv3yru ).
On February 28, 1794, the Senate resolved that the election of Albert Gallatin was void since he did not meet the nine-year minimum citizenship requirement ( http://tinyurl.com/nt3lpc ). “Gallatin was removed in a party-line vote of 14–12″ ( http://tinyurl.com/msm86b ).
Albert Gallatin’s citizenship was challenged, and the evidence seemed to prove that he was not eligible for office, even if he truly believed otherwise. Yet, politics played a role in the voting to remove him from the Senate. Obama is ineligible since he is not a “natural born Citizen”. Maybe he can be removed, too.
roderick,
Normally when a party appeals from the Federal District Court, he goes to the Federal Circuit Court of Appeals which in this case is the 3d Circuit Court of Appeals located in Philadelphia. Given the nature and importance of the issues in this case, an appeal to the Supreme Court would be probably explored by both parties, thereby by-passing the Circuit Court.
Also, not all orders of the District Court are appealable as right to the Circuit Court of Appeals. Final judgments are appealable as of right. The order that the Court issues in the pending dismissal motion may not be a final order. If the Court dismisses the complaint, it would be a final judgment and appealable as of right. If the Court denies the motion, it would not be a final judgment and therefore the defendants would have to obtain permission to appeal to the higher court. Some orders, even if not final, can still be appealed as of right to the Circuit Court. Each order is different and each must be examined to see if an appeal is allowed as of right or only with leave of court.
Mario Apuzzo, Esq.
Hello Kingskid:
Thank you very much for the donation. This case is about to get very intense in the next few weeks. And we need the support of the People to help get the word out to the electorate and general public as to how this man is a Usurper in the Oval Office. The Advertorial project will help immensely with that, imo. Thank you for your help to defray those costs.
For those that may have missed the link to where and how to help, here it is again:
Help Protect Our Liberty
Thank you again to all here who have contributed time, talent, and some treasure. We will win this. The truth and the Constitution will win.
Charles
P.S.
Most everyone knows that the military take an oath to support and defend the Constitution, but some people may not be aware that federal civilian employees must do so also. In my 32-year federal career, I left the gov't several times for the private sector, and each time I returned to federal service, I had to retake the oath. And I meant it each time, and still mean it now as a retiree. I never abrogated my oath at any time and am even more committed to supporting and defending our Constitution now with the fraud in our WH.
Kerchner v. Obama, imo, is the best vehicle we have to break this travesty wide open. This cancer of usurpation on our Constitution needs to have the bandages hiding the disease ripped off, and surgical excision done before metastases kills the foundation of law in this country.
BTW, how right on Benaiah was in discussing how those of us who have taken the oath to support and defend the Constitution, had a DUTY to so (if we desired federal service), but we have no STANDING to actually do so in our courts. What's with that?? What a Gordian knot! I'm wondering if there is a legal doctrine that can rectify the conundrum?
GRIMLEY, 11 S. Ct. 54, 137 U.S. 147 (U.S. 11/17/1890)
[1] SUPREME COURT OF THE UNITED STATES
[33] ...We conclude, therefore, upon the whole case, ...that the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier; ...that the circumstances surrounding it were not such as would enable him, of his own volition, to ignore it, or justify a court in setting it aside.
The Court does NOT have the authority to "set aside" Kerchner's "oath of allegiance"... To do so would be unconstitutional.
Article III
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution...
DE LIMA v. BIDWELL., 21 S. Ct. 743, 182 U.S. 1 (U.S. 05/27/1901)
[1] SUPREME COURT OF THE UNITED STATES
[188] It is upon the Government that the Constitution acts directly.
The "judicial power" of the Courts is the only means by which the "We the people" can be protected from an "unconstitutional government", and it is the only means by which the Constitution of the United States can be defended from the unconstitutional acts of a "legitimate government".
Great cites, Benaiah!!
US Supreme Court Cases which quote "Vattel"...
FONG YUE TING v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES., 13 S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/1893)
[21] Vattel says: "Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner." "Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates." Vattel's Law of Nations, lib. 1, c. 19, §§ 230, 231.
[64] By the law of nations, doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, acquire, in one sense, a domicil there; and, while they are permitted by the nation to retain such a residence and domicil, are subject to its laws, and may invoke its protection against other nations. This is recognized by those publicists who, as has been seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. Vattel, lib. 1, c. 19, § 213; 1 Phillimore, c. 18, § 321; Mr. Marcy, in Koszta's case, Wharton's International Law Digest, § 198. See also Lau Ow Bew v. United States,144 U.S. 47, 62; Merlin, Repertoire de Jurisprudence, Domicile, § 13, quoted in the case, above cited, of In re Adam, 1 Moore P.C. 460, 472, 473.
[96] That those who have become domiciled in a country are entitled to a more distinct and larger measure of protection than those who are simply passing through, or temporarily in it, has long been recognized by the law of nations. It was said by this court, in the case of The Venus,8 Cranch, 253, 278: "The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil, which he defines to be 'a habitation fixed in any place, with an intention of always staying there.' Such a person, says this author, becomes a member of the new society, at least a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens; but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicil, he continues, is not established, unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. (Vatt. pp. 92, 93.) Grotius nowhere uses the word domicil, but he also distinguishes between those who stay in a foreign country by the necessity of their affairs, or from any other temporary cause, and those who reside there from a permanent cause. The former he denominates strangers, and the latter subjects." The rule is thus laid down by Sir Robert Phillimore: "It has been said that these rules of law are applicable to naturalized as well as native citizens. But there is a class of persons which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode . . . in another. These are domiciled inhabitants; they have not put on a new citizenship through some formal made enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil." 1 Phillimore, International Law, Chap. XVIII, p. 347.
US Supreme Court Cases which quote "Vattel"...
UNITED STATES STEEL CORP. ET AL. v. MULTISTATE TAX COMMISSION ET AL., 98 S. Ct. 799, 434 U.S. 452 (U.S. 02/21/1978)
[123] *fn12 Some commentators have theorized that the Framers understood those terms in relation to the precisely defined categories, fashionable in the contemporary literature of international law, of accords between sovereigns. See, e.g., Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich. L. Rev. 63 (1965); Weinfeld, What Did the Framers of the Federal Constitution Mean by "Agreements or Compacts"?, 3 U. Chi. L. Rev. 453 (1936). The international jurist most widely cited in the first 50 years after the Revolution was Emmerich de Vattel. 1 J. Kent, Commentaries on American Law 18 (1826). In 1775, Benjamin Franklin acknowledged receipt of three copies of a new edition, in French, of Vattel's Law of Nations and remarked that the book "has been continually in the hands of the members of our Congress now sitting...." 2 F. Wharton, United States Revolutionary Diplomatic Correspondence 64 (1889), cited in Weinfeld, supra, at 458.
Vattel differentiated between "treaties," which were made either for perpetuity or for a considerable period, and "agreements, conventions, and actions," which "are perfected in their execution once for all." E. Vattel, Law of Nations 192 (J. Chitty ed. 1883). Unlike a "treaty" or "alliance," an "agreement" or "paction" was perfected upon execution: "[T]hose compacts, which are accomplished once for all, and not by successive acts, -- are no sooner executed then they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect ...." Id., at 208. This distinction between supposedly ongoing accords, such as military alliances, and instantaneously executed, though perpetually effective, agreements, such as boundary settlements, may have informed the drafting in Art. I, § 10. The Framers clearly recognized the necessity for amicable resolution of boundary disputes and related grievances. See Virginia v. West Virginia,246 U.S. 565, 597-600 (1918); Frankfurter & Landis, The Compact Clause of the Constitution -- A Study in Interstate Adjustments, 34 Yale L.J. 685, 692-695 (1925). Interstate agreements were a method with which they were familiar. Id., at 694, 732-734. Although these dispositive compacts affected the interests of the States involved, they did not represent the continuing threat to the other States embodied in a "treaty of alliance," to use Vattel's words. E. Vattel, supra, at 192.
[124] *fn13 St. George Tucker, who along with Madison and Edmund Randolph was a Virginia commissioner to the Annapolis Convention of 1786, drew a distinction between "treaties, alliances, and confederations" on the one hand, and "agreements or compacts" on the other:
"The former relate ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time; the power of making these is altogether prohibited to the individual states; but agreements, or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties, may still be entered into by the respective states, with the consent of congress." 1 W. Blackstone, Commentaries, Appendix 310 (S. Tucker ed. 1803) (footnotes omitted). Tucker cited Vattel as authority for his interpretation of Art. I, § 10.
US Supreme Court Cases which quote "Vattel"...
Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 542 U.S. 692, 159 L.Ed.2d 718 (U.S. 06/29/2004)
[72] "When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement." Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.)...
[73] The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated "in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry ... ; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills." Id., at 67...
[74] ...See Vattel 463-464. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.
[76] ...but Congress had done what it could to signal a commitment to enforce the law of nations.
[78] The Framers responded by vesting the Supreme Court with original jurisdiction over "all Cases affecting Ambassadors, other public ministers and Consuls." U. S. Const., Art. III, §2, and the First Congress followed through. The Judiciary Act reinforced this Court's original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, §13, created alienage jurisdiction, §11 and, of course, included the ATS, §9. See generally Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int'l L. & Pol. 1, 15-21 (1985) (discussing foreign affairs implications of the Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27-53 (1995).
[82] The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have been offenses against ambassadors, see id., at 118; violations of safe conduct were probably understood to be actionable, ibid., and individual actions arising out of prize captures and piracy may well have also been contemplated. Id., at 113-114. But the common law appears to have understood only those three of the hybrid variety as definite and actionable, or at any rate, to have assumed only a very limited set of claims. As Blackstone had put it, "offences against this law [of nations] are principally incident to whole states or nations," and not individuals seeking relief in court. 4 Commentaries 68.
[94] We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of §1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended §1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind...
US Supreme Court Cases which quote "Vattel"...
STATE MARYLAND v. STATE WEST VIRGINIA., 30 S. Ct. 268, 217 U.S. 1 (U.S. 02/21/1910)
[13] ... And this is the only construction which is consonant with the manifest intention of the grant and with the rule of interpreting such grants as laid down by the foremost publicists and jurists. Cases supra and Chapman v. Hoskins, 2 Md. Chanc. 485; Alexandria Canal Co. v. District of Columbia, 9 Wash. Law Rep. 456; 1 Story's Comm., § 103; O'Neal v. Virginia Bridge Co., 18 Maryland, 1, 16, and see Mr. Alvey's argument in Doddridge v. Thompson,9 Wheat. 469; Howard v. Ingersoll, 13 How. 416, 424, 425; Vattel's Law of Nations, bk. 1, ch. 22, par. 5; 1 Bancroft's Hist. of U.S., ch. 7, p. 241; McMahon's Hist. of Maryland, 49, 51, 69; McSherry's Hist. of Maryland; Prof. Wm. H. Browne's "Maryland: The History of a Palatinate," 18; 1 Scharf's Hist. of Maryland, 409; United States v. Texas,162 U.S. 1; Uhl v. Reynolds, 23 Ky. Law Rep. 759; 30 Am. and Eng. Ency. of Law, title "Waters and Watercourses," sub-title "Source," 351; Gould on Waters, § 41; Wright v. Brown, 1 Simon and St. 203; 2 Farnham on Waters and Watercourses, § 501, p. 1656.
[46] ...according to every writer on public and international law, is founded upon a presumed abandonment of right, and cannot arise where presumption of abandonment is rebutted and negatived by open and express declarations to the contrary. Vattel, Chitty's ed., bk. II, ch. 11, par. 139; Marten's Law of Nations, bk. II, ch. iii, § 1, title "Law of Nature and Nations," in law bk. IV, ch. 12, § 4; 22 Cyc. sub-title "Prescription," 1728; Oppenheim, Int. Law, V. I, § 243; Heimburger, p. 151; 1 Moore's Int. Law Dig., § 107, p. 466.
[76] That possession, or as it is called in books on international law, usu caption, for a long period of time is the best evidence of a national right. Vattel, 187, 191, etc.
[79] Independently of any effect due to the compact as such, a boundary line between States or provinces, as between private persons, which has been run out, located, marked upon the earth and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant, and the line so established, takes effect not as an alienation of territory, but as a definition of the true and ancient boundary. Virginia v. Tennessee, opinion of Mr. Justice Field, p. 522; citing Penn v. Ld. Baltimore, 1 Ves. Sen. 444-448; Boyd v. Graves,4 Wheat. 513; Rhode Island v. Massachusetts, 12 Pet. 657; United States v. Stone, 2 Wall. 525, 537; Kellogg v. Smith, 7 Cush. 375, 382; Chenery v. Waltham, 8 Cush. 327; Hunt, Boundaries, 3d ed., 306; Indiana v. Kentucky, 136 U.S. 479, 516; Rhode Island v. Massachusetts, 4 How. 591, 639; Vattel, Law of Nations, bk. 2, ch. 11, § 149; Wheaton on Int. Law, pt. 2, ch. 4, § 164.
US Supreme Court Cases which quote "Vattel"...
[30] Congress has power to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the Government of the United States, Art. I, sec. 8, clause 18; and the Government of the United States has been vested exclusively with the power of representing the nation in all its intercourse with foreign countries... ...Congress is expressly authorized "to define and punish . . . offences against the law of nations." Art. I, sec. 8, clause 10.
...Vattel,in his Law of Nations, which was first printed at Neuchatel in 1758, and was translated into English and published in England in 1760, uses this language: "From the principles thus laid down, it is easy to conclude, that if one nation counterfeits the money of another, or if she allows and protects false coiners who presume to do it, she does that nation an injury." ...Vattel, Law of Nations, Phil. ed. 1876, Book I, chap. 10, pages 46, 47. In a note by Mr. Chitty in his London edition of 1834 it is said: "This is a sound principle, which ought to be extended so as to deny effect to any fraud upon a foreign nation or its subjects." Id. 47, note 50.
[31] This rule was established for the protection of nations in their intercourse with each other... ...Vattel meant when he said: "For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom;" namely, exchange, or the traffic or bankers, by means of which a merchant remits immense sums from one end of the world to the other," "by good laws, in which every merchant, whether citizen or foreigner, may find security."
[32] In the time of Vattel certificates of the public debt of a nation, government bonds, and other government securities, were rarely seen in any other country than that in which they were put out. Banks of issue were not so common as to need special protection for themselves or the public against forgers and counterfeiters elsewhere than at home, and the great corporations, now so numerous and so important, established by public authority for the promotion of public enterprises, were almost unknown, and certainly they had not got to be extensive borrowers of money wherever it could be had at home or abroad on the faith of their quasi public securities. Now, however, the amount of national and corporate debt and of corporate property represented by bonds, certificates, notes, bills, and other forms of commercial securities, which are bought and sold in all the money markets of the world, both in and out of the country under whose authority they were created, is something enormous.
[33] Such being the case, it is easy to see that the same principles that developed, when it became necessary, the rule of national conduct which was intended to prevent, as far as might be, the counterfeiting of the money of one nation within the dominion of another, and which, in the opinion of so eminent a publicist as Vattel, could be applied to the foreign exchange of bankers, may, with just propriety, be extended to the protection of this more recent custom among bankers of dealing in foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home, and sent abroad as the subjects of trade and commerce. And especially is this so of bank notes and bank bills issued under the authority of law, which, from their very nature, enter into and form part of the circulating medium of exchange -- the money -- of a country. Under such circumstances, every nation has not only the right to require the protection, as far as possible, of its own credit abroad against fraud, but the banks and other great commercial corporations, which have been created within its own jurisdiction for the advancement of the public good, may call on it to see that their interests are not neglected by a foreign government to whose dominion they have, in the lawful prosecution of their business, become to some extent subjected.
US Supreme Court Cases which quote "Vattel"...
[420] ...to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country"
Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856)
[412] Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says:
[413] Nations or States are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their mutual strength. Such a society has her affairs and her interests, she deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself.
[414] Again, in the first chapter of the first book of the Treatise just quoted, the same writer, after repeating his definition of a State, proceeds to remark that,
[415] from the very design that induces a number of men to form a society which has its common interests and which is to act in concert, it is necessary that there should be established a public authority to order and direct what is to be done by each in relation to the end of the association. This political authority is the sovereignty.
[416] Again, this writer remarks: "The authority of all over each member essentially belongs to the body politic, or the State."
[417] By this same writer it is also said:
[418] 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. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.
[420] I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country. Vattel, Book 1, cap. 19, p. 101.
Obama is NOT "of the country" of the United States of America, as his father was a "foreigner"...
Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856)
[1] UNITED STATES SUPREME COURT
[418] 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. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.
[419] Again:
[420] I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country. Vattel, Book 1, cap. 19, p. 101.
US Supreme Court Cases which quote "Vattel"...
The Venus, 12 U.S. (8 Cranch) 253, 1814
FONG YUE TING v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES., 13 S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/ 05/15/1893
UNITED STATES STEEL CORP. ET AL. v. MULTISTATE TAX COMMISSION ET AL., 98 S. Ct. 799, 434 U.S. 452 (U.S. 02/21/1978) 02/21/1978
Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 542 U.S. 692, 159 L.Ed.2d 718 (U.S. 06/29/2004) 06/29/2004
STATE MARYLAND v. STATE WEST VIRGINIA., 30 S. Ct. 268, 217 U.S. 1 (U.S. 02/21/1910) 02/21/1910
UNITED STATES v. ARJONA., 7 S. Ct. 628, 120 U.S. 479 (U.S. 03/07/1887) 03/07/1887
Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856) 01/02/1856
NEW JERSEY v. DELAWARE, 54 S. Ct. 407, 291 U.S. 361 (U.S. 02/05/1934) 02/05/1934
DOWNES v. BIDWELL., 21 S. Ct. 770, 182 U.S. 244 (U.S. 05/27/1901) 05/27/1901
STATE OKLAHOMA v. STATE TEXAS. UNITED STATES, 43 S. Ct. 221, 260 U.S. 606 (U.S. 01/15/1923) 01/15/1923
SELECTIVE DRAFT LAW CASES. *FN1, 38 S. Ct. 159, 245 U.S. 366 (U.S. 01/07/1918) 01/07/1918
UNITED STATES v. RODGERS., 14 S. Ct. 109, 150 U.S. 249 (U.S. 11/20/1893) 11/20/1893
New Jersey v. New York, 523 U.S. 767, 118 S.Ct. 1726, 140 L.Ed.2d 993 (U.S. 05/26/1998) 05/26/1998
BERIZZI BROTHERS COMPANY v. STEAMSHIP PESARO, 46 S. Ct. 611, 271 U.S. 562 (U.S. 06/07/1926) 06/07/1926
MARINE RAILWAY & COAL COMPANY v. UNITED STATES., 42 S. Ct. 32, 257 U.S. 47 (U.S. 11/07/1921) 11/07/1921
STATE ARKANSAS v. STATE TENNESSEE., 38 S. Ct. 301, 246 U.S. 158 (U.S. 03/04/1918) 03/04/1918
ALVAREZ Y SANCHEZ v. UNITED STATES., 30 S. Ct. 361, 216 U.S. 167 (U.S. 02/21/1910) 02/21/1910
LOUISIANA v. MISSISSIPPI., 26 S. Ct. 408, 202 U.S. 1 (U.S. 03/05/1906) 03/05/1906
WEDDING v. MEYLER, 24 S. Ct. 322, 192 U.S. 573 (U.S. 02/23/1904) 02/23/1904
NEBRASKA v. IOWA., 12 S. Ct. 396, 143 U.S. 359 (U.S. 02/29/1892) 02/29/1892
INDIANA v. KENTUCKY., 10 S. Ct. 1051, 136 U.S. 479 (U.S. 05/19/1890)
GEOFROY v. RIGGS., 10 S. Ct. 295, 133 U.S. 258 (U.S. 02/03/1890) 02/03/1890
UNITED STATES v. PACIFIC RAILROAD. PACIFIC RAILROAD V. UNITED STATES., 7 S. Ct. 490, 120 U.S. 227 (U.S. 01/31/1887) 01/31/1887
District of Columbia v. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (U.S. 06/26/2008) 06/26/2008
Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (U.S. 04/22/1998) 04/22/1998
TERRACE ET AL. v. THOMPSON, 44 S. Ct. 15, 263 U.S. 197 (U.S. 11/12/1923)
Hear Ye…Hear Ye…news just came from a Patriot who talked to Dr. Taitz!!! Thank you Pamela for the information and congratulations Dr. Taitz….go all the way girlfriend!!! Jackie:)
"We the people are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." - Abraham Lincoln
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From: PAMELA BARNETT [mailto:pb_realestate@yahoo.com]
Sent: Monday, July 13, 2009 3:09 PM
To: pamela barnett
Subject: Great News! Obama eligibility will be heard on merits!!
Please distribute everywhere.
Just got off the phone with Orly Taitz, the attorney who had a hearing today in court concerning BO qualifications!!!!
At the hearing today at the Federal Court building in Santa Ana, Judge Carter said the following:
1. There will be a trial.
2. It will be heard on the merits.
3. Nothing will be dismissed on proceedural issues.
4. The trial will be expeditious, and the judge pledged to give case priority.
5. Being a former Marine he realizes the importance of having a Constitutionally qualified POTUS/CINC.
6. Judge stated that if Obama isn't Constitutionally qualifed he needs to leave the White House.
The DOJ will be involved with the case also.... I wasn't clear if they would be trying to get to the truth or they would just be blindly representing Obama.
Orly will be adding members of the military from California as plaintiffs also.
This is from what my interpretation of our conversation.
Orly, asked me to disseminate this information out for her, she will be doing a posting later after she gets some sleep.
Please say a prayer of protection for Orly, her family, and Judge Carter. Please also pray that the truth will come to light regarding Obama and justice will be done.
Respectfully,
CPT Pamela Barnett, USA Retired
Great news - many thanks to both P@ and Pamela!!!
Maybe things are finally slowly grinding along and we'll eventually see some justice.
Could this be used by Mr. Apuzzo in combating the MTD, perhaps???
I support Orly Taitz as well as Mario Apuzzo and remain indebted to both. Whomever succeeds in removing the Usurper will certainly be celebrated, BUT, those who stood up for America should rightly have a place of honor at the banquet table.
I'm waiting to learn more from California, all the while looking to New Jersey, knowing full well the race has yet been won. We should pause a moment, inhale the airs of hope, then redouble our efforts until the job is finished.
I sense a movement among the Obama supporters to try to discredit the law of nations as a source of law to which we must look in determining what the Founders meant when they wrote in Article II "natural born Citizen." As some of you know, Judge Sotomayor has been under attack by some for her support in using international law in our legal decisions. Now the argument goes that we cannot use the law of nations in defining what an Article II "natural born Citizen" is because that law is foreign? I knew this was coming and now I am seeing it around.
The definition of "natural born Citizen" comes from the law of nations which were codified by Vattel. This is one of the laws that the Founders used at the time the new Constitutional Republic was formed. The law of nations became the common law of the United States. The law of nations defined a natural born citizen as one born in the country to parents (plural) who are citizens. The Founders relied heavily upon Vattel in forming the new nation and in drafting the Constitution. Vattel has also been cited by numerous U.S. Supreme Court decisions. Citizenship of a child following the condition of the father (and necessarily the mother by her marriage to the father under the old law) has been cited as a maxim in numerous Supreme Court and lower court cases throughout our legal history.
The current issue about whether our courts should use international law in our legal decision has nothing to do with the question of what did the Founders mean when they wrote in Article II "natural born Citizen." Regardless of how we answer the question of whether we should use international law in our legal decisions today, we cannot change history and deny what law the Founders relied upon when they wrote the "natural born Citizen" clause in Article II.
Additionally, Obama supporters incorrectly argue that the definition of what an Article II "natural born Citizen" is may be found in English common law. Is not that law also foreign law?
Mario Apuzzo, Esq.
The following paragraphs from Scott v. Sandford, 60 U.S. 393, are not only Vattel's definition of a "natural born citizen", but they are also Supreme Court "precedence" of the Founding Fathers' definition of an Article II "natural born citizen".
Hence, Vattels' definition of a "natural born citizen" has already been adopted by the Supreme Court as their interpretation of what it means to be an Article II "natural born citizen".
In other words, Scott v. Sanford is NOT "international law". Scott v. Sanford is American law...
Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856)
[1] UNITED STATES SUPREME COURT
[418] 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. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.
[419] Again:
[420] I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country. Vattel, Book 1, cap. 19, p. 101.
Hi,
I thought the same thing as I watched excerpts of the questions today and the talking heads discussing her views.
I think a key point is that our founders and framers clearly used Vattel to create the nation. It was well studied in the colonies and they considered it the new ideal for a form of government, a republic with a sovereign constitution and they adopted many of Vattel's concepts. And later historians contemporaneous with the establishing of our Constitution wrote about Vattel's influence on America. We cannot retroactively say they were wrong for what they did when they wrote the founding documents. They used quotes from Vattel in the Declaration of Independence and quotes from it and many concepts from it in writing the Constitution, ... that the fundamental law or Constitution is sovereign and inviolable by the chief executive/the prince, and that the federal government is a based on a limited powers contract with the People and the independent judiciary, etc.
Vattel is not modern foreign law. It was ancient natural law codified by Vattel in 1758 and incorporated into the fabric of our nation and our founding documents. Many parts and quotes from Vattel are now U.S. law as others here have cited.
Thus the question is not what is foreign law now which goes against our nation's sovereignty, but what was incorporated and used from Vattel in our founding documents. And certainly the definition of natural born citizenship was clearly one of them. Vattel preceded the forming of our country and many of his concepts were part of the fabric of our nation when founded, and continued as such for at least the first 100 years of the country. And as to NBC's definition it was reaffirmed as recent as 1939 in the Egl case. But the Progressives in the last 100 years want to forget Vattel so they can rewrite the Constitution.
And if they want to throw out Vattel as foreign, then we need to throw out Blackstone as foreign law too. ;-)
After all the French helped us achieve Freedom and while Vattel was not French he wrote in French. The revolutionaries cited Vattel to justify the revolution, not Blackstone. ;-)
And of course the British were our enemies from c1775 up to and including the 1815 time frame and we kicked the butt in the War of 1812 because they were capturing impressing our seamen into their Navy on the high seas.
And in the Rev. War, the French Navy saved the day at the battle of Yorktown when the British Navy tried to reinforce or evacuate the British Army trapped there by the northern and southern parts of the revolutionary forces. The battle of Cow Pens and disasterist defeat of the British Army in the south by the southern revolutionary forces lead to the entrapment at Yorktown and the ultimate surrender.
So throw out Blackstone with Vattel if we are not to look at the historical laws in effect at the time of the founding of the nation and the framing of the Constitution and our Republic.
Charles
BREAKING NEWS!!!
Sean Hannity on his showed just mentioned the Obama eligiblity issue. Hannity briefly mentioned the new lawsuit filed by Orly over the military officer in GA who is refusing to go to Afganistan because Obama is ineligible to be the POTUS.
Hannity had no comment on the matter and only briefly mentioned it.
Hannity certainly without a doubt is quite aware of the issue.
This is one the first instances where I have actually seen Hannity mention Obama's elgiblity problem.
Perhaps this is a start with Hannity and maybe we can build on it.
Since Hannity has publicly acknolwedged Obama inelgibility, this could what people need to purpeuate Hannity's acknowledgment of it. Perhaps people need to call the Sean Hannity show ask Hannity about his feelings on the subject now that he has publicly acknowledged it:
To talk with Sean during his show (3-6PM EST)
Call: 800.941.7326
LISTEN LIVE ONLINE MON - FRI 3PM - 6PM EST
http://www.hannity.com/
http://www.hannity.com/contactus.asp
An interesting link that provides cases where high level government officials have limited immunity from suit. http://www.constitution.org/grossack/bivens.htm
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