Wednesday, November 25, 2009

Kerchner v Obama & Congress - 3rd Circuit Court of Appeals Briefing Notice Issued

Kerchner v Obama & Congress - 3rd Circuit Court of Appeals Briefing Notice Issued

24 Nov 2009: BRIEFING NOTICE ISSUED. Brief on behalf of Appellant Charles F. Kerchner Jr., Appellant Darrell James Lenormand, Appellant Donald H. Nelsen Jr. and Appellant Lowell T. Patterson due on or before 01/04/2010. Appendix due on or before 01/04/2010. (TMK)

26 Dec 2009 UPDATE: Due date for Appeals Court briefs rescheduled to Tuesday, 19 Jan 2010.

Charles F. Kerchner, Jr., CDR USNR (Retired)
Lead Plaintiff, Kerchner v Obama & Congress
http://puzo1.blogspot.com/
http://www.protectourliberty.org/

40 comments:

DixHistory-dot-com said...

God speed!

As you know justice is slow but sure.

DixHistory.com

roderick said...

What is a briefing notice?

Puzo1 said...

roderick,

It means that my brief and appendix are due on or before January 4, 2010.

James said...

In your appeal you want to hammer on Standing Standing Standing and Juristication Juristication Juristication. Forget about arguing the merits of your case. If you can't get past standing and juristication then the merits are useless. Your appeal should entirely focus on matter of standing and jurstication why the people have it and why the courts can hear the case. Once you get by standing and juristication, you can hit the courts with both barrels on the merits.

jayjay said...

Mario:

If you get the brief and appendix filed by, say, Dec. 10, 2009 does that likewise force the defendants time to shorten up to Jan 10, 2010???

They might have to get some temporary help from ACORN to meet such a schedule!!

Michael Dixon said...

What I don't get about this lawsuit and the others challenging his eligibility: The burden of proof is on the plaintiffs. How can they prove he is NOT eligible?

Puzo1 said...

Michal Dixon,

This blog contains a lot of information on how we seek to meet our burden of proof that Obama is not eligible to be President and Commander in Chief of the Military.

jayjay said...

Michal Dixon:

Obama is the one who has never shown himself to legally hold the office he now occupies so I would say that the burden is on him to do so. That's a Constitutional requirement and neither he (nor anyone else) has done so in a court setting.

You seem to be saying that the man may freely thumb his nose at the black letter law of the US - the Constitution.

Or perhaps you're saying that the Judicial Branch no longer has to interpret the meaning of the Constitution but merely selectively pick and choose what may be ignored depending upon the political winds of the moment.

I - and, I think, most Americans - disagree.

avodlp said...

Thomas Jefferson to J.Cartwright 1824

It(Our Revolution)….presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those(laws) of nature…

Puzo1 said...

Leo Donofrio, Esq. has posted his reply to my quo warranto article at
http://naturalborncitizen.wordpress.com/2009/11/26/misconceptions-about-quo-warranto/#comment-16214

This is my reply which I have just posted at his blog:

Leo,

I am surprised that you state that I missed the Newman statement: "there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard." I did not miss this point.

First, I will remind you that during our 5-hour, March 3, 2009 meeting in my office, I was the one who pointed that language out to you and suggested that it may be a means by which a plaintiff could gain standing otherwise than by being interested in the Office of President. When I raised that point with you, you even complimented me on my theory.

Second, you are under the mistaken impression that a case involving the civil service laws would be a quo warranto action. On the contrary, any case involving the civil service laws would not be a quo warranto action, for the plaintiff would be challenging Obama's action related to some employment situation and indirectly attacking his title to office. Such an attack would be an indirect attack (a collateral attack), not a quo warranto action which is a direct attack against the title to office. With such an indirect attack, the plaintiff would have to overcome the de facto officer doctrine among the many other issues that would be involved in the case. Hence, the Newman statement only has relevancy if one were planning to bring an indirect attack involving an employment matter which is not a quo warranto action. You fail to recognize that the employment case is not a quo warranto action. Rather, you advocate dressing a civil service employment case with quo warranto clothing when Andrade clearly states that such an employment case does not belong in the quo warranto matrix but rather is a collateral attack to a person’s right to hold a particular office. Hence, you are mistaken in stating that I missed the most important part of the Newman holding.

I remind you that in my article I did mention that an indirect attack challenging Obama's action would have a better chance of getting standing than would a quo warranto direct attack under the DC Code in the DC District Court. As I explained in my article, the latter presents procedural and constitutional roadblocks which most probably cannot be overcome. In my article, I explain how the quo warranto DC Code cannot for constitutional reasons be used to remove a putative sitting President. In your three-part series brief you state that the DC Code used in the DC District Court is the only way to remove such a person. This is the biggest difference between us. I would have thought that you would have addressed this point in your response to my article rather than the other tangential issues.

I will also inform you that the reason for my writing my quo warranto article is that you attacked me and the Kerchner case, publicly stating that we will fail in the courts, and criticized me for filing an "exotic" case rather than a quo warranto case under the DC code in the DC District Court. I do not know what could possibly be your motivation for attacking my work. I do not understand why you would attempt to undermine the efforts of others who are earnestly working to bring the Obama eligibility issue to justice.

Puzo1 said...

At Dr. Conspiracy's blog, he is running a contest for the best original limerick on an Obama conspiracy theory or fringe idea theme. Of course, they are taking shots at the various eligibility attorneys, including myself. I offered my own limerick in response:

There once was a man named Obama
Whose true name was really Korana
Neither citizen born
Nor natural born
In the courts we all met and debated.

Puzo1 said...

At Citizenwells blog,

http://citizenwells.wordpress.com/2009/11/27/doug-hoffman-ny-23-election-new-york-election-statutes-ny-law-impossible-numbers-certified-richard-hayes-phillips-phd-st-lawrence-county-board-of-elections-negative-numbers-phantom-voters-c/

jbjd comments as follows on the quo warranto debate currently going on between Mr. Donofrio and me:

"I cannot comment on the exchanges between Leo and Mario – their personal relationship is none of my business – but, as always, I will clarify the law for lay people.

As I explained in a previous post, the only person the Newman court found sufficiently interested so as to be able to prosecute a case in quo warranto (when the state refused to initiate this ‘criminal’ prosecution) is a person who either 1) was kicked out of office before his term expired, and is trying to oust the person who now holds that office; or 2) could have a civil service claim to that office now filled by another person.

The court made clear: no relater has sufficient interest to proceed on a quo warranto cause of action where s/he fails to establish any possible entitlement to the job s/he claims is being usurped.

In other words, a person claiming ‘I hold a civil service position from which you have no authority to fire me’ does not file a quo warranto but rather, files a wrongful discharge complaint, citing as one of the bases for claiming unlawful discharge, ‘the person who fired me has no lawful right to hold his job.’

http://supreme.justia.com/us/238/537/case.html"

Leo Donofrio insists that a civil service action against Obama would give someone standing to bring a quo warranto action against him. I explained to Mr. Donofrio that such a civil service action is not a quo warranto action but rather an employment action which includes an indirect attack against Obama's title to the Office of President. I also explained to him that such an employment action can easily establish standing to bring the matter to court.

jbjd's statement is entirely supportive of what I have said that a wrongful discharge suit is not a quo warranto action but rather an indirect attack (a collateral attack) on Obama's title to his office.

Puzo1 said...

I was just over to Mr. Donofrio's blog and noticed that jbjd's comment does not appear there. I would like to hear from jbjd to learn whether he did so post his comment on Mr. Donofrio's site and at what time.

Mr. Donofrio has posted on his blog his response to my latest comment that I posted on his site and which I also reproduced in this thread. In his response, he disputes my being the one who told him about using the civil service laws to establish standing during our 5-hour meeting at my office on March 3, 2009. Rather, he says that he came to my office to tell me that the Kerchner case was filed in the wrong court. In his explanation, he conveniently makes no reference to if and how the matter of the civil service laws came up during our meeting. How nice of him to avoid having to explain how the issue came up and what was said. I even remember talking to Charles F. Kerchner, Jr. the same day or the next day and telling him about what I told Mr. Donofrio about using the civil service laws to establish standing. Hopefully, Mr. Kerchner will remember this point and can vouch for what I am saying.

Mr. Donofrio continues to insist that an employment discharge case is a quo warranto action. That is an absurd statement. He does not realize that to make an employment case a quo warranto case would only doom the case to failure, for standing in an employment case is rarely an issue but in quo warranto is always an issue. He should read Andrade v. Lauer, again and he will see that the defendants there were arguing that the plaintiff's case was a quo warranto direct attack case and that the plaintiff had no standing and that it was the court that said it was not a quo warranto case and that those plaintiffs who had been discharged from their employment could easily establish standing.

With the Obama eligibility issue, standing under a DC District Code in the DC District Court is virtually impossible to establish, for the plaintiff would have to be one with a real interest in the office. Note that Judge Carter recently ruled, whether rightly or wrongly, that not even Alan Keyes, who ran for President against Obama, had standing. With such insurmountable obstacles, I cannot fathom why Mr. Donofrio would want to take an employment discharge case and make it a quo warranto case.

In his response, Donofrio says that he is right because the Court dismissed the Kerchner case. What a ridiculous statement. The Court dismissed the Kerchner case because of standing and the political question doctrine. Neither the Justice Department nor the Court ruled that my quo warranto action was filed in the wrong court.

Mr. Donofrio now proclaims his answers to my comment to be the Gospel of the Lord. He establishes himself the winner and leaves it at that. He will only allow me to post a response to his ramblings only if I admit the errors of my ways. He closes his response as follows:

"[ed. My motivation as a legal blogger is to tell the legal truth, not to undermine your case. But if your case is undermined by the truth that is not my problem. As to your criticism of my work, I am more than confident the record supports that you are mistaken in your approach.

Now, I've given you the chance to respond and I have printed your response in full. Please do not bother responding again unless you are willing to correct yourself on the obvious mistake you've made in interpreting the Newman and Andrade holdings. The stakes are much too high to grant any respect at all to your obviously mistaken analysis.]"

Unfortunately, I have seen Mr. Donofrio take this self-righteous attitude with others who disagree with him. He is the one who attacked my work and when I defend my work, he says that I am the one who attacked his work. I will not continue his sophomoric debate and will let other legal scholars, commentators, and the courts decide who is right and who is wrong.

Mario Apuzzo, Esq.

Chris said...

"I do not understand why you would attempt to undermine the efforts of others who are earnestly working to bring the Obama eligibility issue to justice."

Thank you Mario. That's what I was wondering. It seems your precious time is better spent on the actual case, and the public attacks by someone I thought to be an ally annoy me greatly.

If other attorneys are truly on the side of finding the truth, you'd think private constructive criticism would be most helpful, rather than public criticism or attempts to discredit you that comes across as chest-puffing or Alinsky-esque.

DixHistory-dot-com said...

Mario,

I posted on Leo's site that I as a lay person don't know who has a better case but I am glad that not all eggs are in one basket.

I have now taken the time to read both blogs again. In my mind, your logic seem to make better sense of this matter.

That is from a person that knows nothing about this legal stuff.

Texo-web page

equadar said...

Mr. Apuzo,

To me, Leo's opinions are closly patterned to that of the judges (dishearting to the deepest degree).
By making things seem relative when they are not. Maybe intentionally to isolate and discredit our NBC protection. Who knows? What one can be sure of, is the similarities.

jbjd said...

MP, you write, "I was just over to Mr. Donofrio's blog and noticed that jbjd's comment does not appear there. I would like to hear from jbjd to learn whether he did so post his comment on Mr. Donofrio's site and at what time." I do not post on Leo's site and, unless compelled to do so, do not view that site, either, for reasons not meriting discussion here. However, when readers on CW's blog (or any other blog) announce that Leo claims in his latest post to have come up with a way to 'out' Bo, directing readers to his blog for this solution, I do click on these links. Because unless I read about Leo's recurring epiphanies, I cannot de-bunk for lay people his latest mistaken interpretation of either statutory or case law. And I hate to see their hopes for an end to this dilemma of BO's eligibility get dashed again and again. (BTW, I am "she," and not "he.")

tigerzhou said...

hi, jay-jay, you know me back then as capedeh, during those days I could said much for I'm still an Indonesian; since now I already renounce my Indonesian nationality ( I had Singaporean and canadian nationality)and for they were speeding up the national secret law to prevent any leak of information that could harm Indonesia especially in this info that I were about to told you. But first thing first; mr appuzo could the dual nationality that being obtain during the child hood could truly hammered the natural born status? For I had seen there's no limitation of age for US citizen to obtain the dual nationality as result of being forced to withdraw US citizenship like if you're adopted by marriage to your mother by an Indonesian male citizen before 2006. For it this could now I had a long listed of the law that hopefully could be use to prove either he is a natural born or not a natural born citizen at all. feel free to contact me at tigerzhou771@yahoo.com. To any one that like to had this prove please had a mail box that could contain up to 10 MB attachment.

jayjay said...

tigerzhou:

Hello again under the new nic (nickname).

Are you saying that you have some sort of demonstrated proof that Barach Obama was an Indonesian citizen when he lived there with his mother and stepfather and attended school??

I sometimes find it a challenge to follow your posts exactly. Do you perhaps have a friend who might help you clarify the intended meaning of them??

I'm trying to determine if you think the man is (or was) an Indonesian citizen by adoption or by any other operation of Indonesian law.

I also wonder is you know of any way (perhaps through friends still in that country) that you might be able to obtain any information about the man's passport history, if any, with Indonesia?

cfkerchner said...

Mario's recollection of events is completely correct. Mario spoke to me briefly the night before after a radio show we did and then in-depth about the meeting with Leo Donofrio on the 3rd, the next day on 4 March. This was after Leo made some totally premature and presumptive posts on his blog about what transpired. I then had the opportunity to speak directly with Leo and during that phone call I told Leo what I thought of what he tried to pull in that visit to my attorney and his blog post about it and I also told Leo I believed he was engaging in unethical activities in trying to subvert my case with his suggestions to my attorney during the meeting. Leo during that phone call told me he did not care at all what happened to my lawsuit as he thought it was a loser. He told me he was going to convince Mario to drop my lawsuit and file a new one with him. I told Leo "we'll see about that" in addition to other comments about what I thought of him engaging in such unethical & unprofessional efforts to get my lawyer to drop my case and file a new one with Leo. I also told Leo during that phone call what a scoundrel I thought he was for encouraging active duty military people to become plaintiffs in various lawsuits & then abandoning them. I could still file a bar association complaint against Leo if I so choose to do so for what he tried to pull off that day in trying to get my case dropped. I had not done it then since I did not think that internecine fighting was good for the cause and thus I have tried to avoid it. But Leo just seems hell bent on muck raking and routinely disparages every attorney filing a lawsuit against Obama and every lawsuit they have filed. What Leo's exact personal motivations are at this point are quite suspect to me from my perspective in observing his recent m.o, this year. Did someone send Leo to Mario's office in very early March of this year to try and get my case dropped? Or was that idea all Leo's own idea to try and get Mario to drop my case? Leo has always been quite the braggart about his own legal abilities. But he seems to have changed his m.o. quite a bit in other ways since he lost his own case and at times I myself even wonder whose side he is really on at this point in time.

cfkerchner said...

DixHistory posted ...

-------------------
"Mario, I posted on Leo's site that I as a lay person don't know who has a better case ... "
---------------------

Leo does not have an active "case" at this time, to my knowledge. And he's been a lawyer in these matters but not an attorney with clients. My attorney makes his living practicing law every day. Leo make his reason for living apparently to be the oracle of all truth in his blog. I once heard Leo comment or say or write at some point that he cannot practice law because he does not like dealing with people and clients. As I mentioned, Leo had a case over a year ago which he lost after which he left the scene of legal battle and said he was done with it and not coming back. He abandoned everyone who was working with him and trying to help them. He left them high and dry. Now he's back and Leo keeps talking about what is wrong with everyone's cases and their lawyer's knowledge and ability, and Leo keeps talking that he is considering filing a new case for month after month after month after month, but he has not filed one. And during those months, he has also quit the scene of the legal battle time and again and abandons people that he got stirred up and routinely saying he's not going to post again, then comes back again. He's unreliable and I would not want him covering my "6". He's done this on again, off again over and over again. He's an alka-seltzer roll, ... an online self-proclaimed legal expert. His self proclaimed own ideas this year are mostly a lot of fizz and bubbles as to what he's done with them ... and no action in the courts where it really counts. And even worse of late, instead he seems bent on disparaging the efforts of others in his blog and portraying himself as the "only one" and the all knowing legal expert and the oracle of all truth. What Leo is up to lately is very strange from my perspective and at times even suspicious as to his real motives. JMHO.

Charles

DixHistory-dot-com said...

Charles,

I hear you, poor choice of words on my part.

Texo-

jbjd said...

MA, I need to revise my previous comments on Newman, in light of Andrade v. Lauer. Yes, Leo still gets it wrong; but you and I were not completely right, either. First, let me state unequivocally - I have expressed this view before but I should have repeated this in my previous comments - I have always maintained that no POTUS, including BO, may legally be removed from office except through the process of Impeachment. But as for whether a civil service appointee may have a cause of action in quo warranto for direct attack against the person who fires him, when the appointment of that person doing the firing is covered under the Constitution's Appointment Clause then, this Constitutional claim that the person was not lawfully appointed and, therefore, has no authority to fire the civil service employee; CAN POSSIBLY BE LITIGATED AS A SEPARATE AND DIRECT ATTACK, subject to restrictions as to time of filing AND notice to the affected agency that the 'firer' in question has a suspect appointment.

avodlp said...

B.O. JR. RETAINS, TO THIS DAY, A FORM OF BRITISH CITIZENSHIP. RECONCILE THAT, WITH THE U.S. CONSTITUTION'S PRESIDENTIAL ELIGIBILITY PROVISION

jayjay said...

jbjd:

I've seen a good bit of your reasoning on several blogs and generally pretty much agree.

In this case, I cannot honestly believe that a POTUS who has never shown himself to be eligible to hold the office he now occupies can validly be impeached (under the black-letter law of the United States) since he is not a lawful president. After all, the NBC requirement is a mandatory requirement due to the word "shall" specifying it and there are grave and serious doubts as to the man's citizenship status as well as the legal definiton of the natural born citizen clause.

He has himself (along with one or more compliant political parties and a large body of domestic communists) refused to divulge any of the myriad of paperwork that would shed light on the matter. It is clear that he must have some reason for such continued refusal, yet he persists.

Impeachment presumes in and of itself that the person is a legal holder of the office and it seems highly doubtful that he meets the Constitutional requirement.

Having said that, this seems to be "ripe" for a first impression decision by SCOTUS to guide posterity on the matter (the NBC definition). NOT doing so will leave a great void between the Government and We The People - a distrust that will persist for, most likely, a number of generations. Not doing so would also open the door for many other "suspect" pursuits of the office by "anchor babies", terrorist offspring, etc. That seems exceedingly unwise and fruitless.

There has never been a man elected to the office of President that offered any serious concern about that person not being a natural born citizen and this is most surely not the time (if there even IS any such time) to establish such a precedent.

If a usurper persists in the office of the presidency while being widely challenged on eligibility then he is, in effect, unilaterally amending the United States Constitution by his own actions. In addition, those compliant with him in such a matter are also complicit in that evasion of the law. I doubt that a founder (or most other reasonable citizens, for that matter) would accede to that as a satisfactory idea since it would lead to chaos and unlawfulness as we see in the history of numerous other societies.

After all, our Constitution was written and adopted by the founders while keeping these very ideas in mind.

DixHistory-dot-com said...

jayjay,

I agree with every word you said in the below post. I wish our congress and judges could see it this way.

" jayjay said...
jbjd:

I've seen a good bit of your reasoning on several blogs and generally pretty much agree.

In this case, I cannot honestly believe that a POTUS who has never shown himself to be eligible to hold the office he now occupies can validly be impeached (under the black-letter law of the United States) since he is not a lawful president."

Tex-o at DixHistory

Jackie Smith said...

Have you all seen this.....

Walter Fitzpatrick testifies before a Grand Jury in Tenneessee on Tuesday. He is presenting evidence that Obama has committed Treason against the United States. Read about it here:

http://canadafreepress.com/index.php/article/17303

Nickname unavailable said...

Can James explain what he means by "juristication"? I am afraid I've never heard of that phrase. And I've been a lawyer for an awfully long time.

As for standing, I know what that means. And there isn't any in these challenges. The only way to proceed is to bring an action in a state court challenging qualifications before the 2012 election.

Puzo1 said...

jbjd,

I still believe that you and I were completely right. Let me explain. Mr. Donofrio’s position is that only a quo warranto under the D.C. District Code filed in the D.C. District Court can remove Mr. Obama. I said that any such action is doomed to fail because of standing (“interested person” standing under the D.C. District Code), and procedural (the need for the government and the courts to consent to the action) and constitutional problems (only the Constitution can prescribe how to remove a putative sitting president, not a Congressional Act such as the D.C. District Code whose design is not to apply to the President and if Congress meant that it could be used to remove a putative sitting President it would be a violation of separation of powers by Congress). I argued that an action to remove Obama must be based on equity (declaratory, mandamus, and injunctive relief), constitutional claims, and the quo warranto remedy working together, which can be filed in any District Court of the United States. Hence, the point is that a quo warranto action alone under the D.C. District Code will not work, not whether any successful action will include or not include a direct attack against Obama’s title to the Presidency.

Andrade did not use quo warranto to provide those plaintiffs with relief. The court said that quo warranto presented standing (“interested person” requirement under the DC District Code and Frizzell) and procedural (Government and court consent) hurdles that plaintiffs could not overcome. The court also said that the de facto officer doctrine would normally prevent persons such plaintiffs who challenged the office holder’s employment action solely on the ground that he did not legitimately hold his office. The court believed that plaintiffs should not be deprived of a remedy given their substantial Appointment Clause constitutional claims. The court also said that the constitutional eligibility requirements would be rendered unenforceable if persons like plaintiffs could not bring an action such as theirs. Since the quo warranto remedy was not adequate, the court fashioned an equitable remedy based on injunction to allow those plaintiffs to vindicate their substantial constitutional claims.

The court also said that the plaintiffs, since they were doing an indirect attack on the defendant’s title to his office, did have to overcome the de facto officer doctrine. But the court found that they were able to do so by filing a timely suit soon after the illegal action occurred and by showing that the appropriate government agency or department was aware of the claim that the defendant office holder did not legitimately hold his office.

Mario Apuzzo, Esq.

al said...

Anyone who views gambling as a "career", is unstable in all his ways.

Wordwaryor said...

Mr. Appuzo :

The first three words of the Constitution are "We the People". This means that WE OWN the Constitution.

How then can any judge rule in a matter governed only by the Constitution (such as the eligibility of our President).....
That We the People have no standing ?

Please present this argument to the courts and especially to the Supreme Court regarding the issue of Standing !!!

The courts are ruling on the eligibility of We the People under the Constitution..... when denying us the right to question the eligibility of the president under OUR own Constitution.

This must be challenged..... and rightly so...... You are the attorney in best position to do it.

Please ask the question I have just written.

Thank you

Wordwaryor
R. Jones
Bartlett, TN

craigwalser said...

I have spent many exhaustive hours researching and have no doubt that Obama is not a citizen of the United States. My question is, has anyone considered going after Obama's college transcripts? Is is legally possible to go after his college transcipts? That would definitely prove the point that this man is a citizen of Indonesia. How else could this man who was very poor at the time got into the high priced Universities he attended? I am sure most of you know that this imposter has spent between 2 - 3 million dollars to secure his birth certificate and college transcripts.

jayjay said...

craigwalser:

Yes, both Orly Taitz and AND Gary Kreep tried this and the attorney Bauer (before he was "promoted" to be the White House barrister) gought it tooth and nail threatening gross things. the case (as has been true to date) was never heard on merit but dismissed on the self-serving judicial fictions - standing, justicibility, etc.

That information is in Kerchner et al and was there even before the action just mentioned. You might read the action by attorney Apuzzo - it's quite thorough.

whistleblower said...

Mario,

You seem pretty sure of yourself when it comes to quo warranto. As such, let me ask you this:

Let's say we had an election. A candidate won the election, but there were claims of significant voter fraud. Investigations take a long time. The President-Elect is sworn into office. The investigation is completed in March of the same year, and the fraud exposes that the elected president did not actually win the election. However, the person sworn into office is not connected to any of the voter fraud. Therefore he did not commit an impeachable offense.

What do we do?

Puzo1 said...

Whistleblower,

This is a fast answer without doing any research. The whole process to elect the President would be void, including the popular vote, Electoral College vote, the Congressional confirmation under the 20th Amendment, and the President's oath of office. Hence, executive power in the President would not vest under Article II for failure to satisfy a condition precedent, i.e., to be validly elected to office.

If the putative President would not resign, then Congress can proceed against him under the 25th Amendment, as he would be declared as "unable" to continue in power.

Hence, there is no need to resort to any quo warranto.

mgdimarco58 said...

My question deals with the other reason most claims have failed the jurisdiction test. The judges stated that the claimant failed to state a fiduciary harm or violation of their Constitutional rights.

Would not a claim framed as a class action denying (state-by-state) the rights of the citizens to be able to select/elect a qualified candidate? And what to the fraud when registering with the state as a candidate for President when knowingly not qualified to serve?

whistleblower said...

"Mr. Mills, of Texas, said : * * The exercise of the power by the Forty-fifth Congress over the question of the election of President of the, United States is a usurpation. We have no power over that question at all. By the Constitution of the United States that power to inquire as to who was elected President of the United Srates was vested in the Forty-fourth Congress, and when that Congress spoke or failed to speak on that question, when it made a law by which it abdicated that power conferred upon it by the Constitution of the United States, it parted with it forever, and so far as this, the Forty filth Congress, is concerned, there remains not a shadow of authority to investigate the election of the President."

"Resolved, That no subsequent Congress, and neither House has jurisdiction to revise the action at such joint meeting, and any attempt by either House to annul or disregard such action or the title to office arising therefrom would be revolutionary and is disapproved by this House."

http://books.google.com/books?id=n-sUAAAAMAAJ&dq=1878+%2Bquo+warranto&as_brr=1&source=gbs_navlinks_s

The above quotations are from 1877. The discussion was the result of claims of election fraud.

Though it wasn't until twenty-five years later that the DC Quo warranto became law, the catalyst for such law must be acknowledged.

Puzo1 said...

Whistleblower,

The Obama situation is not an election fraud case. Rather, Obam's case involves an allegation that he does not meet Article II's "natural born Citizen" requirement. The former is an election activity issue the latter is a constitutional issue.

The President must qualify as President for executive power to vest in him. The Courts have the power to enforce the Constitution. That includes making sure a person elected to be President meets the consitutional requirements. There is not separation of powers or political question problem with the court simply doing its job.

Also, the DC Code quo warranto is not designed for removing the President who is responsible under Article II for appoining Federal Officers. The President must be removed under the Constitution itelf, not by a Congressional Act. To use the latter to do so would be a violation of separation of powers by Congress. Quo warranto remedy can be used together with equitable claims under the constitution to achieve removal.

Let us move forward said...

The 1876-1877 election was tainted both by election fraud (a political question) and the unConstitutional process chosen to determine who would become President (a Constitutional question).

When the election fraud was discovered, the Congress took it upon itself to determine which electoral votes would be counted and to whom these questionable votes would be awarded, abandoning the Constitutional requirement of directly electing the President in the House and the Vice President in the Senate if the Electoral vote did not determine who was elected.

The question became, Who would decide how the electoral votes were to be counted? There were two approaches proposed in the Congress.
One group advocated that the Constitution placed the power of determining which votes were to be counted with the President of the Senate (Republican VP, Democrats not in favor).
The other group advocated appointing a panel of Congressmen, Senators, and Supreme Court Justices to determine which votes were legitimate and to be counted. This latter approach was clearly unConstitutional, but adopted for its perceived partisan advantage. Unfortunately for the Democrats, one Justice did not vote the way they had hoped, and the Republican Hayes was installed in the White House.

This 1877 violation of the Constitution was not forgotten nor ignored by the public. Worries that the 1877 Electoral situation would reoccur appeared in the newspapers of 1880 and 1881. Even as late as 1880, at least one democratic paper editor refused to openly acknowledge Hayes as President and addressed him as "President" Hayes in quotes, just as some citizens today address Mr. Obama as pResident or usurper.

Workndawg said...

I am glad to see that this is still alive. I am sick of Judges and the media ignoring justice.