The 'Real' Kerchner v. Obama & Congress Case Is On Its Way to the Higher Courts of Justice

He is called the straw man. Set him up and knock him down. Recently, the Hon. Jerome B. Simandle decided Kerchner et al. v. Obama and Congress et al. case, granting the defendants’ motion to dismiss the case. But did Judge Simandle decide the real Kerchner case? Let us take a deeper look to find out what the Kerchner case is really all about and what the Court did to avoid having to reach the merits of the question of whether Obama is an Article II “natural born Citizen” and eligible for the Office of President and Commander in Chief.

In the Kerchner complaint/petition, we allege that Obama has not conclusively proven that he was born in Hawaii. More importantly, we also allege that he is not an Article II "natural born Citizen" because when Obama was born his father was a British subject/citizen and Obama himself was the same, citing E. Vattel’s, The Law of Nations and Natural Law (1758) and John Jay’s letter of 1787 to then-General George Washington regarding providing a strong check on keeping foreign influence out of the Office of Commander in Chief by requiring that only a “natural born Citizen” occupy that critical and powerful office. As a naturalized citizen cannot be President because of being born subject to a foreign power, neither can Obama. It is important to understand that the Court did not rule in the Kerchner case that Obama has conclusively proven that he was born in Hawaii. It is also important to understand that the Court did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction (Article III standing and prudential standing) and the political question doctrine without commenting on the underlying merits of whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. The Court also did not rule that the plaintiffs’ claims are frivolous. By the Court finding that plaintiffs do not have standing and that their claims present a political question, the Court was able to avoid having to address the underlying merits of the Kerchner case. With such a decision, the American People unfortunately still do not know where Obama was born and whether he is an Article II “natural born Citizen” and therefore constitutionally eligible to be President and Commander in Chief.

On the question of Obama’s place of birth, Obama and Congress did not argue that plaintiffs fail to state a valid claim upon which the Court can give them any relief because Obama was in fact born in Hawaii. They could have simply produced for the Court simple evidence showing that Obama was born in Hawaii. The most important piece of simple evidence would have been Obama’s original, long-form birth certificate from Hawaii. They could have mounted their offensive by using the two Hawaiian newspaper birth announcements, affidavits from any persons with personal and relevant knowledge of Obama’s birth events, and medical records from Kapi’olani Medical Center, where Obama says he was born. They then could have argued that in light of such insurmountable evidence, plaintiffs’ birth-place claim lacks any merit. With such evidence in the record, they then could have asked the Court to dismissed plaintiffs’ birth-place claim with prejudice. If the Court would have granted their motion, that would have probably been the end of the birth-place issue not only in this Court but in all Courts throughout the country. But why did Obama and Congress not do such a simple thing like produce for the Court his original, long-form birth certificate and other readily available evidence and ask the Court that it dismiss the birth-place claim with prejudice once and for all? Any reasonable person must ask himself or herself what is Obama and his enablers in codependency with him ( http://www.asktheinternettherapist.com/counselingarchive-enabler-and-codependency.asp) hiding about his birth from the American people?

On the plaintiffs’ argument that Obama is not and cannot be an Article II “natural born Citizen” even if he was born in Hawaii, in our brief we cited for the Court the following cases and authorities in support of our definition of what a “natural born Citizen” is: E. de Vattel, The Law of Nations, bk 1, c. 19, sec. 212 (1758) (1759 first English translation); The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring) (cites Vattel’s definition of natural born citizens); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (same definition without citing Vattel); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (same definition without citing Vattel); Ex parte Reynolds, 1879, 5 Dill., 394, 402 (same definition and cites Vattel); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites Vattel); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (only declared under the Fourteenth Amendment a child born on U.S. soil to foreign parents and subject to the jurisdiction of the United States a “citizen of the United States” and not an Article II “natural born Citizen” and Fuller, C.J, dissenting confirming Vattel’s definition of a “natural born Citizen” ); Keith v. U.S., 8 Okla. 446; 58 P. 507 (Okla. 1899) (common law rule that the offspring of free persons followed the condition of the father was applied to determine the citizenship status of a child); Rep. John Bingham (in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment: "[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” Cong. Globe, 39th, 1st Session, 1291 (1866)); Sen Jacob Howard (the framer who co-wrote the Fourteenth Amendment citizenship clause stating in 1866 that the citizenship clause of the Fourteenth Amendment excluded persons born in the United States who were foreigners, aliens, or who belonged to the families of ambassadors or foreign ministers. Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p.2895, 2nd col.)) We requested that the Court enforce the United States Constitution, the supreme law of the land, and, given that Obama was not born in the country to a mother and father who were themselves United States citizens at his birth, not allow Obama to amend the Constitution by usurpation. U.S. Const. art. VI, cl. 2; George Washington, Farewell Address, 1796.

Despite having raised and argued the “natural born Citizen” issue as such in our complaint/petition and brief (born in the country to citizen parents), the Court's decision fails to even acknowledge that this argument is part of plaintiffs’ case. On the defendants’ motion to dismiss, the court must accept as true all factual allegations made by plaintiffs in their complaint/petition and interpret that complaint in a light most favorable to them. While devoting almost 4 pages of its 11-page opinion to a recitation of background facts, there is not one word in the Court’s opinion about plaintiffs alleging that Obama has admitted that under the British Nationality Act of 1948 at Obama’s birth his father was a British subject/citizen and therefore not a United States citizen and that Obama himself was born a British subject/citizen. We even requested in our opposition brief to the defendants’ motion to dismiss that the Court take judicial notice of Obama’s admission. Such a failure by the Court to acknowledge these facts and this argument in its opinion prevents the public from having an official record of such immensely important facts and only gives fuel to those who vilify the “birthers” for filing what they call frivolous law suits that they say present nothing but conspiratorial theories that deserve at least a $20,000.00 court sanction upon dismissal. Recognition of these facts is critical to our national security, for just like a naturalized citizen cannot be President because he/she is born subject to a foreign power, Obama who was born subject to a foreign power also cannot be President and leader of our military men and woman. The question then is why did the Court not even make any mention in its opinion of these uncontested facts which clearly show that Obama was born subject to a foreign power and which are the basis of the most important part of the Kerchner action?

Not only did the Court not reveal for the public’s benefit in its decision the factual basis for plaintiffs’ argument that Obama is not and cannot be an Article II “natural born Citizen,” but it ridiculed plaintiffs’ case by stating that “[t]he harm alleged for all of these constitutional violations is that Plaintiffs have been deprived of their right to know whether President Obama is a ‘natural born citizen’ and to have a president who is truly a ‘natural born citizen.’” The Court again repeated: “Plaintiffs allege that they have been injured because defendants have not adequately established that the President is truly a ‘natural born citizen…’” Note the Court said “all” of these constitutional violations. This is to mean that even with all these constitutional claims, in total they really do not amount to anything. Of course, no reasonable person would care about whether the plaintiffs are personally satisfied (their right to know which is nothing more than a subjective feeling) that the President is a “natural born Citizen.” But plaintiffs’ action has nothing to do with their personal satisfaction about whether Obama is a “natural born Citizen” and everything to do with whether Obama meets the requirements of Article II that a presidential contender must be a “natural born Citizen” to be eligible for that position. It is clear from the complaint/petition and our brief that the plaintiffs argued that Article II of the Constitution provides in pertinent part that no person may be President unless he/she is a “natural born Citizen” and that the objective definition of that clause may be found in legal authorities of the Founding era and in the subsequent decisions of the United States Supreme Court. We also argued it is this objective Constitution standard that must be respected and satisfied regarding presidential eligibility requirements. We never presented any case suggesting that plaintiffs have some subjective need to satisfy themselves that the president is “truly” a “natural born citizen.”

Furthermore, the Court stated that the plaintiffs want to know that the President is “truly” a “natural born citizen.” By characterizing plaintiffs’ claim as such, the Court has not only subtly expressed an indefensible hostility to the merits of plaintiffs’ “natural born Citizen” argument but further denigrated plaintiffs’ argument on the constitutional need that Obama must be a “natural born Citizen” in order to be President. No where did the plaintiffs ever distinguish as the court accuses them of between a “natural born Citizen” and a “truly” “natural born Citizen.” To ascribe to plaintiffs the desire to want to know that Obama is a “truly” “natural born Citizen” is to mock their argument. The Constitution textually requires that a would-be president be a “natural born Citizen.” This is all plaintiffs ever argued. For the Court to state that the plaintiffs want a “truly” “natural born Citizen” is to mislead the public into believing that the plaintiffs have their own laughable, cooky subjective standard (of course not the constitutional one) of what a “natural born Citizen” is, and that they maintain that Obama is not good enough to meet that standard. By emphasizing the word “truly” not once by twice, the Court has tacitly ascribed at best a nutty and at worst a discriminatory purpose to plaintiffs’ cause of action. If it is the latter, given that Obama is the first African-American President (although putative), such statements could cause civil unrest. The misleading nature of the Court’s characterization of plaintiffs’ “natural born Citizen” argument is compounded by the fact that as seen above the Court did not even reveal in its decision what plaintiffs’ argument is regarding Article II’s “natural born Citizen” requirement (again, born in the country to citizen parents which is neither wacky nor discriminatory).

Regarding standing, upon reading the Court’s decision one comes away with the belief that plaintiffs’ claim for standing rested upon lead plaintiff Charles Kerchner, Jr. being a retired U.S. Navy reservist subject to recall to active duty and as such that he would then need to know if his orders were emanating from a legitimate commander in chief. This conclusion is erroneous. In fact, the recall to active duty argument was the last of several arguments that we made in the complaint and brief to prove standing. On the contrary, in our complaint and brief to prove that my clients have standing we also alleged and argued that my clients have suffered an infringement of individual constitutional rights by Obama’s violating their substantive 5th Amendment unalienable rights to liberty, safety, security, and tranquility by occupying the Office of President when he is not constitutionally eligible for that all powerful office and by Congress violating their 5th Amendment rights to substantive and procedural due process and equal protection, and 1st Amendment rights to redress of grievances, by allowing Obama to occupy the Office of President when he is constitutionally ineligible to hold that position. We submitted to the Court that these specific facts which give rise to violations of the cited constitutional provisions set our plaintiffs apart from other Americans. But despite our presenting such arguments to support standing based on the 1st, 5th , and 9th Amendments and the Court stating that it was compelled by law on defendants’ motion to dismiss to accept as true plaintiffs’ factual allegations contained in the complaint, the Court ignored and did not address our arguments. Other than saying by way of footnote that Congress is not constitutionally obligated to respond to plaintiffs’ petition to determine that their President and Commander in Chief of the Military is constitutionally eligible for that office (which the Plaintiffs' filed for the sake of their liberty, safety, security, and tranquility), no where in the Court’s opinion will one find any discussion of these crucial points which plaintiffs made to show that they have standing.

For some unknown reason, Judge Simandle decided to pick the military recall argument as his focus and did not address the main and much stronger standing arguments we made. We have already seen other Courts ridicule the attempt to gain standing through the military recall argument. Needless to say, this decision invites those who may have the pleasure to do so to also ridicule the Kerchner case for making such an argument. In fact, it has already happened that those who have been waiting to denigrate the Kerchner case have focused on this part of Judge Simandle’s decision on standing to show that the case deserved to be dismissed without hesitation because it was just another “birther” law suit presenting nothing but speculation about the possible consequences of some future military duties. One can only wonder why the Court focused only on the weakest of plaintiffs’ standing arguments to support its dismissal for lack of standing. Hence, the Court's decision does not acknowledge for some unknown reason the critical issue about Obama's constitutional eligibility (born in the country to parents who are citizens) nor does is address the main and most powerful arguments made in the brief regarding my clients’ standing to bring their action.

Let us now examine what else the Court said about standing. The Court did not say that plaintiffs’ injuries are not concrete. The President and Commander in Chief wields enormous power over the plaintiffs’ lives. As the Chief Executive and Commander of all the military force, he has the constitutional obligation to protect them from enemies both foreign and domestic. Hence, given that the President regularly makes life and death decisions, it cannot be denied that plaintiffs are personally and directly affected in a concrete way by everything the President does and does not do. Concerning Obama, we are not attacking the wisdom or soundness of government action or asking the Court to assume any authority over some other co-equal branch of government. Plaintiffs’ action against him is not an action against the government. We are not suing him because plaintiffs do not like him, because of a generalized feeling of discomfort about his occupying the Office of President, or because plaintiffs have suffered psychological harm. Rather, we are questioning whether he meets the textual “natural born Citizen” eligibility requirements of Article II, a requirement that he must meet prior to executive power legitimately vesting in him. He must meet this objective constitutional requirement regardless of what the plaintiffs may personally believe or how the plaintiffs may feel about him. As it applies to Congress, we are alleging that it failed to protect plaintiffs by making sure that Obama meets that textual eligibility requirement which not only provides them with individual protection but also serves a national security purpose. We can see that the Court did not say that the plaintiffs did not sufficiently allege that they have suffered an injury. The Court did not say that plaintiffs only alleged that they have some general interest in how government should behave. The Court did not say that the plaintiffs have not been and do not continue to be sufficiently injured by the actions of Obama and Congress.

The Court did, however, say that plaintiffs’ injuries are not particularized as to them. The Court stated: “[W]hile Plaintiffs feel themselves very seriously injured, that alleged grievance is one they share with all United States citizens. . . .” The Court went on to state: “In the present case, assuming as the Court must that Plaintiffs’ allegations are true for the purposes of deciding this jurisdiction motion, the injury, if any, suffered by Plaintiffs is one that would be shared by all the American people,” that “the alleged harms apply equally to all United States residents,” that the “harm is equally applicable to all American citizens….” The Court said that because the type of injury that plaintiffs allegedly suffered is also suffered by “all United States citizens,” “all the American people,” “all United States residents,” the plaintiffs do not have standing. In other words, the Court said that if one is injured and suffers alone, one has standing. But if one is injured and suffers along with “all” the rest of the American “citizens,” “people,” or “residents,” one does not have standing.

The Court’s reasoning leaves one thinking how the Court knows that so many other Americans have also suffered an injury like the plaintiffs have. “All” these other American citizens were surely not before the Court to be examined about whether they even care about Obama’s eligibility for the Office of President let alone to determine if they suffered deprivation of their 1st, 5th, and 9th Amendment rights as the plaintiffs alleged they have. Have these other millions of Americans asserted to Congress their 1st Amendment right for a redress of grievances? Have they suffered a deprivation of their 5th Amendment rights to substantive and procedural due process and equal protection? What evidence do we have that they have suffered these injuries as plaintiffs have? On the contrary, there are millions of Americans who welcome Obama to continue to be sitting as President regardless of whether he is eligible for the office? We can not possibly contend that these other millions of Americans have been injured by Obama’s lack of eligibility and Congress’s allowance of Obama to occupy the Office of President when he is not constitutionally qualified to do so.

More importantly, where is the soundness or logic of a judicial concept as expressed by the Court which provides that if you suffer an injury alone, the court can help you, but if you suffer that same injury with “all other American citizens,” “people,” or “residents,” the court cannot. Is it controlling on the question of standing and whether a specific party has a right to judicial relief that other persons have also been injured by the defendant’s conduct? If someone suffers an injury, does that injury lose its concrete character or become not particularized because others may also suffer the same injury? Does a cut on one’s arm caused by a defendant become not concrete and not particularized because the defendant has also caused the same cut on the arm of a million other people? If someone is a victim in a mass fraud or mass tort situation, does that person lose his right to bring a legal action because a million other people also share the same harm? Does not the law allow an individual injured by an unsafe product to sue the manufacturer in products liability and recognize that he/she has standing even though whether the product is safe affects in a substantial way millions of other consumers and users who may benefit from the results of the law suit? Contrary to the Court’s ruling, a party who adequately shows his own injury is entitled to establish standing “even though the court’s judgment may benefit others collaterally” or “even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin, 422 U.S. 490, 499, 501 (1975). As long as plaintiffs adequately show their own injury, it is also perfectly acceptable for them to “invoke the general public interest in support of their claim.” Id. at 501. A careful reading of the Kerchner complaint/petition shows that plaintiffs are asserting violations of their own constitutional rights and not just the rights of third persons.

One can only wonder how a standing concept as expressed by the Kerchner Court can be consistently and honestly applied by the courts to the myriad of public interest law suits that are brought before it. I submit that such a notion is not a correct statement of the law of standing, for how can such a position be correct if the plaintiffs are themselves injured but due to no fault of their own they also happen to be among the injured? On the contrary, plaintiffs should have standing even if they are also among the injured. The United States Supreme Court in Warth makes this perfectly clear. Given the Court’s finding that plaintiffs have sufficiently alleged an injury, how can it be reasonably argued that my clients have not been and are not continuing to be directly affected by Obama’s ineligibility and Congress’s inaction? Our appeal will ask the appellate court to agree with us on these points.

The Court said that it cannot exercise jurisdiction over plaintiffs’ claims because they present a “political question.” The Court used this finding to support both its conclusion that plaintiffs have failed to satisfy prudential standing concerns and to separately show that the plaintiffs’ case does not present the court with a political question. A claim that presents a “political question” is not justiciable in federal court because of separation of powers provided for in the Constitution. As we can see, what is the definition of an Article II “natural born citizen” as intended by the Framers and whether Congress carried out its textually prescribed constitutional obligations under the 20th Amendment to make sure that Obama met that definition and was therefore qualified to occupy the Office of President are not “political questions” but rather legal constitutional questions requiring the Court to interpret the text of the Constitution with the aid of the many existing historical sources and applying that interpretation to uncontested facts. It is this textually demonstrable constitutional provision itself which the Court can use to determine Obama’s duty, whether he breached that duty, and the appropriate remedy for that breach which can be declaratory, mandamus or injunctive relief. Article II, Section 1, clause 5 also requires that a person must be 35 years old to qualify to be President. Would we say that whether a presidential contender is 35 years old is a political question that a court of law could not decide? Of course not. It is abundantly clear that the judicial branch of government can decide the eligibility issue by utilizing the text of Article II itself along with the many other legal and historical sources to help it interpret that clause without interfering with any of the other branches of government. Additionally, the Constitution does not give to either Congress or the Executive the authority to interpret the “natural born Citizen” clause of the Constitution. It is true that Congress has the constitutional power under the 20th Amendment to determine if Obama met Article II’s eligibility requirements, but the scope of that constitutional commitment does not include Congress having the power to define those eligibility requirements. If Congress were to confirm someone for President who is not qualified under Article II, clearly Congress would impermissibly exceed the authority given to it under the 20th Amendment to confirm someone who satisfies the Presidential eligibility requirements. So if the Constitution does not give a power to Congress but rather gives it to the Court, there is no separation of powers problem when the Court exercises that power. Also, we cannot expect Congress and the Executive to police and sanction themselves for violating the Constitution and to come clean on the Obama constitutional eligibility question. Hence, if those branches of government cannot and should not be expected to rectify our constitutional crisis who but the judicial branch can? Moreover, the Court’s interpretation and application of the “natural born Citizen” clause would not involve the Court interfering with the Executive Branch. Obama was constitutionally compelled to prove that he was qualified for the Office of President when he was still a private person. Hence, to challenge him on his constitutional eligibility is to challenge him as a private person and not as the President in whom executive power has vested under Article II, Section 1, clause 1.

Finally the Court has reduced plaintiffs’ injuries to nothing more than their “belie[fs],” “right to know,” “feel[ings],” “motivations,” “satisfaction[s],” “frustration,” and “perce[ptions]” about Obama’s eligibility to be President and the Congress’s actions. Furthermore, in suggesting to plaintiffs a remedy, the Court expects plaintiffs to assuage their frustration by going to the polls and voting. Apart from the fact that we are concerned with a constitutional objective standard applicable to the question of whether Obama is constitutionally eligible to be President, we cannot realistically expect that plaintiffs can find any redress for their grievances and claims by casting their few votes at the polls. We cannot honestly expect the plaintiffs to mount their constitutional attack by bringing their eligibility argument to the streets and convincing enough voters about it to be able to garner sufficient support to win the next election. Do we even know if Obama is running for President again? Is it realistic to expect that the plaintiffs could vindicate their constitutional rights all in the next election? Should the plaintiffs have to wait without any remedy other than the political process to run its course through the various future elections? As is self evident, not only is it not realistic to expect plaintiffs to heal their constitutional injuries through the election process, but to expect them to go to the polls to find constitutional solace and relief would be tantamount to abandoning our Constitutional Republic and abdicating the rule of law to democratic mob rule.

The judiciary is the ultimate interpreter of the Constitution. Hence, we cannot reasonable deny that under our system of government it is only the judicial branch of government that can provide plaintiffs with any real and legitimate relief on these textually existing constitutional issues. As Chief Justice John Marshall explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Courts are well suited for undertaking such a constitutional task given its constitutional obligation to provide judicial review of the actions of the other branches of government when its jurisdiction is established. Indeed, the judicial branch of government must diligently and courageously do its part if the checks and balances that are so important to preventing tyranny and abuse of power are to work. Hence, the Court is not prevented from deciding the Obama eligibility issue because of any political question problem. On the contrary, the court is constitutionally duty bound to take jurisdiction over the Kerchner case.

It is important to bring these failings of the Court’s decision to the public’s attention because this vital information is not in the decision and is therefore buried from public view. When other cases comment and the media reports on the Kerchner case, they will most likely only look to see what the court said in the opinion and not also what the plaintiffs presented to the Court. By looking only to the Court’s decision itself, other courts and the media will fail to report to the public the most important arguments made in the case regarding Obama’s constitutional ineligibility and the plaintiffs’ standing to bring their action. Inaccuracy only becomes worse when there is a hidden bias in favor of Obama or an antipathy for those bringing the Obama eligibility law suits.

A court cannot refuse to hear a case on the merits merely because it prefers not to due to grave social or political ramifications. As we have seen, the Court’s opinion dismissing the Kerchner complaint/petition did not address the real Kerchner case but rather looked for a way to dismiss the case without having to reach the merits of the question of whether Obama is an Article II “natural born Citizen.” It is my hope that the public will take the time to read the Kerchner Complaint/Petition (Complaint/Petition Table of Contents), the legal briefs that I filed supporting the complaint and opposing the Defendants’ Motion to Dismiss, and my Cross Motion Reply so that they can learn first hand what the Obama eligibility case is really about and draw an intelligent and informed decision on whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. We are now working on filing our appeal to the Third Circuit Court of Appeal in Philadelphia which court we hope will decide our case dispassionately.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
October 24, 2009