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Monday, December 14, 2009

Obama is an Unconstitutional Illegal Putative President - 21 & 14 Dec 2009 Issues of Washington Times National Weekly Edition. Obama was Born British

Obama is an Unconstitutional Illegal Putative President - 21 & 14 Dec 2009 Issues of the Washington Times National Weekly Edition - page 5 & 15 respectively. Obama was born a British Subject and is a dual-citizen to this day. Under the Constitutional meaning of "natural born Citizen", dual-citizens are not eligible to be President and Commander-in-Chief of our military.

http://www.scribd.com/doc/24392974/Obama-an-Unconstitutional-Illegal-President-20091221-Issue-Wash-Times-Natl-Wkly-pg-5

http://www.scribd.com/doc/24087943/Obama-an-Unconstitutional-Illegal-President-20091214-Issue-Wash-Times-Natl-Wkly-pg-15

Obama is a usurper. Obama is an unconstitutional illegal putative president. See the above linked to issues of the Washington Times National Weekly edition. To be a "natural born Citizen" as is required in the U.S. Constitution, Article II, Section 1, Clause 5, the person must be born in the country to parents who both are Citizens of the country when the child was born. Obama's father was a British Subject when Obama was born in 1961. Obama's father was never a U.S. Citizen nor was he even an immigrant to the USA. We are a nation of immigrants but Obama Sr. was not one. And under the British Nationality Act of 1948 and international law, Obama (Jr.) was also born a British Subject and thus is a dual-citizen Citizen to this day, if he was born in Hawaii as he claims. To date, he has not conclusively proved exactly where he was born to any investigative controlling legal authority. Photoshop'd digital images and pictures of computerized summary data put on the internet proffered by Obama proves nothing. Computerized records say his birth was "registered" in the Hawaii birth system. That computer data registration record could have been based on false birth location registration testimony by a family member using a simple mail-in form available in 1961. GIGO - false location of birth registration into a data base yields false data out today on a computer print out. The original "ribbon copy" long-form birth records with the names and signatures of medical attendants and of witnesses, if any, to the alleged birth in Hawaii must be examined by experts as well as all his other hidden and sealed records of his early life. If he was born in Kenya as his relatives and news account there claim, then Obama could even be an illegal alien since his mother was not old enough under U.S. laws at that time to convey U.S. citizenship to her child born of a foreign father if the child is born in a foreign country. Obama had dual allegiance at birth if he was born in Hawaii - British via his father and U.S. via his mother. Just like John McCain is a U.S. Citizen because when he was born in Panama his father was a U.S. Citizen, Obama was a British Subject when born since his father was a British Subject.

Put emotions and progressive (anything should be allowed) ideas aside and stop and think about it. Our founders fought a Revolutionary War to get break away from Great Britain. They insisted that after their initial generation of original citizens (who were British Subjects prior to the Revolutionary War) were gone from this life that only a "natural born Citizen" of the new USA could serve in the Office of the Presidency and Commander-in-Chief of our military. After their initial original generation no one who was born subject to the King of England would ever be allowed to serve as President. How can a person born a British Subject and a dual-citizen ever be considered a "natural born Citizen" (a person born with the sole allegiance to the USA). How can a dual-citizen be allowed to be the Commander-in-Chief of our military. Having sole allegiance and unity of citizenship at birth to only the USA was the intent of our nation's founders and framers for the office of the Presidency and command of our military, to constitutional standards? The answer is ... a dual citizen at birth is not constitutionally eligible to be the President. Obama is not a natural born citizen of the USA.

If a football team scores a touch down due to an ineligible player on the field or by breaking the rules of the contest, should that touch down count? No it should not? Elections have rules too. Thus, Obama is should not be allowed to stay in the office of the President and Commander-in-Chief simply because he was able to get away with breaking the rules (The U.S. Constitution) and crossed the goal line. That fact that he has hidden his true legal identity long enough to fool a simple majority of the American people into voting for him and making it across the goal line and getting sworn in due to legions of attorneys running interference for his illegal plays does not make him legally eligible under the rules (the Constitution). Since he broke the rules (the Constitution) he is a usurper and must be removed.

See this graphic depiction of The 3 Enablers who have allowed this trampling of our Constitution and who will allow our Liberty to be destroyed if we do not put an end to this usurpation by Obama. Let others know about this. Pass this on to friends and family. Send it to your Congress person. Write letters to the editors of your newspapers. And if you personally know any federal Judge anywhere in your neighborhood, in your club, or at your church, use your 1st amendment freedom of speech while you still have it. Tell them what a disgrace the federal judicial system has become in this matter in not allowing a simple fact-finding trial on the merits of the charges and to uncover the hidden original birth record information that Obama has sealed along with all his other early life, college, passport, and travel records. What is Obama hiding and using the Department of Justice lawyers and taxpayer's money to help him hide it? Show them the current new ad above and this quote by Chief Justice John Marshall ad too and other ads in our series. Synergy at work! If we all do a little, together we will accomplish a lot! The truth and our Constitution will win in the end if we all do our part. If not, the future of our nation is in great danger.

For more information as to why Obama is an illegal putative president, see:

~Natural born citizenship requires both your parents to be Citizens when you are born:
http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

~Obama was a British Subject when Born and is Still a British Overseas Citizen:
http://puzo1.blogspot.com/2009/12/obama-putative-president-of-us-was-born.html

~The 3 Enablers of Obama's Usurpation of Office:
http://puzo1.blogspot.com/2009/11/obamas-lack-of-eligibility-three.html

Charles F. Kerchner, Jr., Commander USNR (Retired)
Lead Plaintiff, Kerchner v Obama & Congress
http://puzo1.blogspot.com/
Do you want this ad to run again? If so, please help the cause to fund more ads to educate the People about Obama's usurpation of his office: http://www.protectourliberty.org/
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Sunday, December 6, 2009

What Is Putative President Obama’s Current U.S. Citizenship Status?

We have seen that Obama cannot be an Article II “natural born Citizen” because when he was born, regardless of what place that may be, he was not born to a United States citizen father and mother. The "natural born Citizen" clause of our U.S. Constitution requires that both of the child’s parents be U.S. Citizens at the time of birth. Rather, if Obama was born in Hawaii as he claims, then under the liberalized and questionable meaning of “subject to the jurisdiction thereof,” he can be a born Fourteenth Amendment “citizen of the United States” and a “citizen of the United States at birth” under 8 U.S.C. Sec. 1401 (a). Again, that citizenship status does not make him an Article II “natural born Citizen.” But what would Obama's citizenship status be if he was not born in the United States? First, let us examine why there is still existing doubts as to whether Obama was born in Hawaii. Second, let us examine what law would apply to determine Obama’s citizenship status should he not be born in Hawaii or any other part of the United States and what his citizenship status would be under that law.

These are the reasons for the existing doubts regarding Obama's place of birth:

1. What Obama or some other unknown person posted on the internet is not a birth certificate (BC). Rather, he/she posted a digital image and picture of a questionable "certification of live birth" (COLB) which at best is only prima facie evidence of the place of his birth. The prima facie value of this document fails in light of numerous existing factual circumstances which contradict the COLB's validity and which have not been adequately explained by Obama.

2. According to Obama and his Press Secretary, Mr. Gibbs, this digital document alone is supposed to allow Obama to qualify to be President of the United States and Commander in Chief of the Military. According to them, this electronic image alone is sufficient to prove that Obama is a U.S. citizen and therefore qualified to have the full power of the executive vested in him. It is unbelievable that Obama would expect the American people to grant him such license over their lives based simply upon an electronic image on a computer screen. It is even more unbelievable that the Electoral College, our Congress, political institutions, security forces, and media would allow him to get away with it. This document, which in its paper form is undoubtedly a legal document, has no probative value given that it was posted by some unknown person on the internet as a digital image without following any prescribed electronic media security protocols. We know that digital images can be easily manipulated through computer technology. See http://technology.findlaw.com/articles/01102/010555.html for an explanation of the need to follow defined federal and state standards when it comes to electronic/digital information transmittal of legal documents. If Obama expects this digital image of a COLB to have such unprecedented value which allows him to be President of the United States, then he should at least show that the electronic image he posted meets electronic/digital security standards.

3. While not officially confirmed, the authenticity of the COLB computer image has been questioned by at least two digital image experts who have concluded that the COLB image is a forgery.

4. Obama says he was born in a hospital. A birth certificate provides the name of the hospital where the birth occurred and the name of the doctor delivering the baby. The COLB does not have this vital corroborating information.

5. The key point that Obama supporters are redirecting attention away from is that the underlying foundational information supporting his Certification of Live Birth is unknown. This unknown information may not matter much when it comes to an ordinary person. But for someone running for President of the United States and currently sitting in that Office it is of crucial importance.

6. When Obama was born in 1961, Hawaii had in effect the Certificate of Hawaiian Birth Program which it established in 1911 and which it terminated in 1972. Someone could under Act 96 get a certificate claiming a Hawaiian birth even if he was physically born in a foreign country by an adult or parent falsely claiming to the director of health that he was born in Hawaii when in fact he was born abroad. Hence, because of the contradictory evidence that exists such as statements made by relatives and newspaper reporters in Kenya and elsewhere regarding where he was born, plaintiffs are entitled to pierce the alleged COLB and examine the file that is in the possession of the Hawaiian Secretary of State which may contain a sworn application/petition in which some party set forth circumstantially all the facts upon which the application rested and supporting sworn affidavits of witnesses. The file could also contain the results of the Secretary or his designee examinations under oath of the applicant or other person who may have been cognizant of the alleged facts regarding the application/petition along with other documentary evidence that they may have obtained as a result of issuing subpoenas for books and other papers.

7. The DoD 5220.22-M, "National Industrial Security Program Operating Manual," 2/28/2006 (NISPOM) provides baseline standards for the protection of classified information released or disclosed to industry in connection with classified contracts under the “National Industrial Security Program (NISP). It prescribes the requirements, restrictions, and other safeguards to prevent unauthorized disclosure of classified information. It also states at 2-209 that only U.S. citizens are eligible to receive a security clearance. The Manual requires a contractor to show proof of U.S. citizenship. It states at 2-208: “For individuals born in the United States, a birth certificate is the primary and preferred means of citizenship verification.” http://www.dtic.mil/whs/directives/corres/pdf/522022mchaps.pdf. Surely, we should require such documentation of someone seeking to occupy the Office of President of the United States.

8. At the time that Obama was sworn in as President, not even the Hawaii Department of Home Lands accepted a certification of live birth (COLB) as conclusive evidence of being a native of Hawaii for its Homeland program. From its web site: "In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL."

9. Since the controversy over Obama’s alleged birth certificate, Hawaii has changed its web page to read as follows:
"Birth certificates (Certificates of Live Birth and Certifications of Live Birth) and Certificates of Hawaiian Birth are the primary documents used to determine native Hawaiian qualification.The Department of Hawaiian Home Lands accepts both Certificates of Live Birth (original birth certificate) and Certifications of Live Birth because they are official government records documenting an individual’s birth. The Certificate of Live Birth generally has more information which is useful for genealogical purposes as compared to the Certification of Live Birth which is a computer-generated printout that provides specific details of a person’s birth. Although original birth certificates (Certificates of Live Birth) are preferred for their greater detail, the State Department of Health (DOH) no longer issues Certificates of Live Birth. When a request is made for a copy of a birth certificate, the DOH issues a Certification of Live Birth."http://hawaii.gov/dhhl/applicants/appforms/applyhhl.

10. Despite the numerous law suits that have been filed against Obama, he continues to refuse to release his original birth certificate and has opted rather to spend large sums of money using lawyers to defend himself and to cause the courts and litigants to expend large amounts of time and resources pursuing litigation against him and other third parties. He relies on procedural and other threshold arguments such as jurisdiction, justiciability, standing, political question, separation of powers, mootness, and ripeness rather than simply produce his original birth certificate and make a motion for summary judgment with prejudice as to the merits so that no other future cases can be brought against him and others which would then put an end not only to the ongoing drain of money, time, and other resources but also to the great public outrage that continues to increase over time regarding his constitutional eligibility.

11. For some unknown reason and relying on federal and state privacy laws, Obama has refused to publicly release his original Certificate of Live Birth (BC) even though in his book, Dreams from My Father, he stated that he had it.

12. Obama and his half-sister, Maya, have each stated that he was born in different hospitals in Hawaii. In November 2004, in an interview with the Rainbow Newsletter, Maya told reporters her half-brother, Sen. Barack Obama, was born on August 4, 1961, at Queens Medical Center in Honolulu. But Obama has said he was born at Kapi'olani Medical Center for Women & Children, also in Honolulu. Changing her story, in February 2008 Maya then told reporters for the Honolulu Star-Bulletin that Obama was born at the Kapi’olani Medical Center for Women and Children.

13. On February 5, 2008, Madelyn Dunham was still alive, but the Obama campaign did not make her available for interviews with the media. Obama's maternal grandmother surely would have known where her grandson was born but Obama refused the media access to her. http://seattletimes.nwsource.com/html/localnews/2004164387_brodeur05m.html.

14. Neither of the two or any other hospital in Hawaii or anywhere in the world has been willing to come forward and claim its place in history as being the hospital where the first African-American U.S. President was born. There is no Hawaiian hospital that has confirmed that Obama and/or his mother were present in any such hospital at the time of Obama's alleged birth in Honolulu. Not a single person has come forward, not a doctor, nurse, hospital administrator, nor any one else to confirm Obama's birth in Hawaii. "We don't have plans to do anything," said Kapi’olani Medical Center spokeswoman, Claire Tong, when asked how the center plans to commemorate the soon-to-be 44th U.S. president, who, according to Obama's family and other sources, was born at that hospital on Aug. 4, 1961. "We can't confirm or deny it — even though all the information out there says he was born at Kapiolani Hospital. And that's because of the HIPA law." Tong acknowledged that the center has received daily inquiries from news agencies far and wide asking for confirmation of Obama's birthplace. Despite her wanting to do so, Tong said it is not possible. "Our hands are tied," she said. http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. I wonder why Tong said that “even though all the information out there says he was born at Kapiolani Hospital.” He surely did not even slightly hint that any information in the hospital supported such a claim. One would think that Obama would do a simple thing and give the hospital permission to release the information to the news-thirsty public. After all, what harm to his privacy would he suffer from authorizing the hospital to simply confirm that the President of the United States was born there?

15. Attorney Philip Berg has served subpoenas on the hospitals mentioned by Obama and his half sister as the place where Obama was born to obtain the medical records which would show the fact of Obama being born in either one of them but Obama has refused to sign the consent that the hospitals need to release the documents.

16. “Birthplaces and boyhood homes of U.S. presidents have been duly noted and honored for nearly as long as America has been a nation. In the case of such towering figures as Thomas Jefferson, Abe Lincoln and Teddy Roosevelt, those early locations have been deemed national treasures and historic sites, visited annually by the multitudes.” http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. But we have not seen any movement by any public charity or foundation, non-profit organization, or government agency to commemorate Obama's place of birth in Hawaii.

17. We have not seen any media events or news conferences at the hospital where Obama was born which I am sure is a place the location of which is highly news worthy not only to the American people but to the whole world. Hence, we do not even know in which hospital Obama was born.

18. Other than the COLB and the two newspaper announcements whose basis for information is the same single source, there does not exist one known corroborating medical or other document of any kind which shows that Obama was born in Hawaii. The Honolulu Advertiser, on Sunday, August 13, 1961 contained the following short announcement: "Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Highway, son, Aug. 4." The Honolulu Star-Bulletin, an unaffiliated, competing publication, carried the exact same notice the following day. The numerous birth announcements above and below the Obama listing also were identical in both papers. Advertiser columnist and former Star-Bulletin managing editor, Dave Shapiro, was not at either paper in 1961, but he remembers how the birth notices process worked years later when both papers were jointly operated by the Hawaii Newspaper Agency, which no longer exists. He states: "Those were listings that came over from the state Department of Health . . . . They would send the same thing to both papers." http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. Hence, we can see that the information for those birth notices comes straight from the state Health Department’s Vital Records Division. Hence, the birth announcements, not having their source of information in some other place, do not add any corroboration to the COLB. Other secondary evidence may include baptismal or circumcision certificates, hospital birth records, or affidavits of persons having personal knowledge about the facts of birth. Other documentary evidence can be early census, school, or family bible records, newspaper files, or insurance papers. No such documents have been produced for the American public. Furthermore, no one has been able to confirm that Obama’s mother and father in fact ever lived at 6085 Kalaniana’ole Highway, Honolulu.

19. Although Obama has had a first-class education that spanned 25 years, there is only a single document that has ever been released, the application for entrance to the Franciscus Assisi Primary School in Indonesia. That document was discovered by independent investigators. That documents shows that Obama was an Indonesian citizen. It is also reported that his Kindergarten records are missing. Needless to say how probative these kindergarten records would be since they would contain his legal name, parents’ names, date of birth, place of birth, and vaccination records.

20. No public official in Hawaii has publicly confirmed with any conclusive and credible evidence that Obama was born in Hawaii. Whatever statements Director of Hawaiian Department of Heath, Fukino, has made are not conclusive on the question of whether Obama was born in Hawaii. What is lacking is what information the Department is relying upon to make its statements. Just from her statement alone, we also do not know what evidence exists in the Department of Health file to corroborate what is stated in the “original birth certificate.”

21. We have not heard from one international, federal, state, or local police or security agency that Obama's birth place has been officially confirmed.

22. On June 27, 2004, the East African Newspaper, The Sunday Standard, in its article entitled, Kenyan-born Obama all set for US Senate, declared in its newspaper that Obama is Kenyan-Born. This long pre-dates Obama's decision to run for President when the truth about his birth location was not being hidden. This is not the only African paper that made such statements during a time that Obama’s birth place was not an issue.

23. An Investigator working for Philip Berg, Esq. learned the following which is contained in the investigator's affidavit dated October 30, 2008, that was filed with a Federal District Court in the case of Berg v. Obama, 08-cv-04083: Obama's step-grandmother, Sarah Obama, told Bishop McRae, who was in the United States, during a telephonic interview on October 12, 2008, while she was in her home located in Alego-Kogello, Kenya, that was full of security police and people and family who were celebrating then-Senator Obama's success story, that she witnessed Obama's birth in Kenya, not the United States (the English and Swahili conversation is recorded and available for listening). She was adamant about this fact not once but twice. The conversation which was placed on speaker phone was translated into English by "Kweli Shuhubia" and one of the grandmother's grandsons who were present with the grandmother in the house. After the grandmother made the same statement twice, her grandson intervened, saying "No, No, No, He [sic] was born in the United States." During the interview, the grandmother never changed her reply that she was present when Obama was born in Kenya. The fact that later in the same interview she change her statement to say that Obama was born in Hawaii does not change the fact that she at first stated twice that she was present when Obama was born in Kenya. I cannot imagine a grandmother not knowing whether she was present or not at the birth of her American Senator and U.S. Presidential candidate grandson.

24. The investigator then personally went to the hospital in Mombasa, Kenya. He spoke with the Provincial Civil Registrar and he learned that there were records of Ann Dunham giving birth to "Barack Hussein Obama, III" in Mombassa, Kenya on August 4, 1961. The investigator then "spoke directly with an Official, the Principal Registrar, who openly confirmed the birthing records of Senator Barack H. Obama, Jr. and his mother were present, however, the file on Barack H. Obama, Jr. was classified and profiled. The Official explained Barack Hussein Obama, Jr. [sic] birth in Kenya is top secret. [H]e was further instructed to go to the Attorney General's Office and to the Minister in Charge of Immigration if [he] wanted further information."

25. The Kenyan Ambassador to the United States, Peter N.R.O. Ogego, confirmed on November 6, 2008, during a radio interview with Detroit radio talk-show hosts Mike Clark, Trudi Daniels, and Marc Fellhauer on WRIF's "Mike In the Morning," that "President-Elect Obama" was born in Kenya and that his birth place was already a "well-known" attraction. The radio interview went as follows:
Clark: “We want to congratulate you on Barack Obama, our new president, and you must be very proud.”
Ogego: “We are. We are. We are also proud of the U.S. for having made history as well.”
Fellhauer: “One more quick question, President-elect Obama’s birthplace over in Kenya, is that going to be a national spot to go visit, where he was born?”
Ogego: “It’s already an attraction. His paternal grandmother is still alive.”
Fellhauer: “His birthplace, they’ll put up a marker there?”
Ogego: “It would depend on the government. It’s already well known.”
http://my.wrif.com/mim/index.php?s=Ogego
Later on, Ogego’s assistant, denying that Obama was born in Kenya, insisted Ogego was speaking about Barack Obama Sr., and not President-elect Obama.She said she could not say why Ogego responded the way he did. Listening to the radio interview in its entirety, it is very obvious the interviewers were all talking about President-elect Barack Obama and not his father. It is doubtful that Obama’s father’s paternal grandmother (Obama’s great-grandmother) was still alive. We would also expect that Ogego would have said that Obama was not born in Kenya, but there is an attraction there to honor his father. If it were true that Ogego was referring to Obama’s Sr. and not Obama Jr., we should have heard about and received credible evidence as to what preparatory steps had already been taken in Kenya to honor the birth place of Obama Sr. In evaluating Ogego’s statement, we have to also remember that Obama’s grandmother also said that Obama Jr. was born in Kenya. Hence, Ogego’s assistant’s claim that Ogego thought they were talking about Obama’s father does not appear credible.

26. It is alleged that the Kenyan government authorities have refused to cooperate and have thwarted all efforts by anyone to obtain any documents concerning Obama.

27. Obama has refused all effort to have him release the following documents, relying on sealing of records and/or privacy laws: Punahou High School records, Occidental College records, Columbia College records, Columbia Thesis paper, Harvard College records, Selective Service Registration, medical records, Illinois State Senate records, Illinois State Senate schedule, Law practice client list, Certified Copy of original Birth Certificate, Harvard Law Review articles that were published, University of Chicago scholarly articles, exit and entry immigration records covering all of Obama's travels out of the United States; passports; and record of baptism, if any.

28. Fightthesmears.com and factcheck.org have since maintained silence on the birth place issue after the questionable COLB was posted on the internet.

29. Other than a digital composite image representation on the internet of a questionable letter dated January 24, 2009 that he allegedly wrote to Kapi’olani Medical Center congratulating the hospital on its centennial celebration (it is reported that he refused to confirm that the letter was genuine, http://www.wnd.com/index.php?fa=PAGE.view&pageId=103503), Obama has remained silent and has not declared publicly after his COLB and place of birth were questioned that he was born in Hawaii.

30. No member of the media, any political party, the Executive Branch of Government, Congress, any political institution, the Judiciary, or any law enforcement entity, has publicly stated that he or she has independently confirmed that Obama was born in Hawaii. Nor has House Speaker, Nancy Pelosi, the Chair of the Democratic National Convention, publicly announced that she confirmed that Obama was born in Hawaii.

Given all this evidence, Obama should come forward with competent evidence to conclusively prove that he was born in Hawaii. To date, he has failed to produce such evidence. Hence, under these circumstances, how can the American people in good faith conclude that Obama was born in Hawaii? How did Obama in good conscience twice take the oath to be President on January 20th when so many Americans have put forward all this contradictory evidence regarding where he was born and he refuses to come forward with any other convincing evidence (like a certified copy of his original birth certificate) showing that he was born in Hawaii?

If Obama was not born in the United States, then a completely different legal scenario would apply regarding his current citizenship status. There is much confusion regarding what role Obama’s mother plays in giving him United States citizenship. With his father not being a U.S. citizen, Obama would need his mother to make him a citizen only if he was not born in the U.S. If he was not born in the United States, his mother would, however, for the following reasons not be able to transmit United States citizenship to him because she was too young at the time Obama was born.

The law governing the citizenship of children born outside the U.S. to one or more Unites States-citizen parents may be found at 8 U.S.C. Sec. 1401 to Sec. 1409. What could apply to Obama are Sec. 1401 (Nationals and citizens of United States at birth), 1405 (Persons Born in Hawaii), 1409 (Children born out of wedlock). Sec. 1405 would apply to make him a “citizen of the United States at birth” only if he was born in Hawaii in 1961. With proof of the place of his birth lacking, we cannot now say that this statute would be applicable. Obama has maintained that his parents were married when he was born. They even obtained a divorce. Hence, it does not appear that Sec. 1409 would apply to him. So the only statute which would apply to him to make his a “citizen of the United States at birth” would be Section 1401. But Obama, if not born in the United States, also cannot satisfy any part of Section 1401.

The only part of Sec. 1401 that could apply to Obama is subsection (g). A child born in wedlock and abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 1401(g) (Section 301(g) INA), provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child). http://travel.state.gov/law/info/info_609.html. Hence, the Immigration and Nationality Act 1952, 8 U.S.C. 1401(g), Sec. 301 (g) [Effective November 14, 1986] does not apply to Obama because he was born in 1961. What does apply to Obama is the Nationality Act of 1940, as Revised June 1952, which was in effect when he was born. But under this older version of the statute, for birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. for the United States citizen parent to transmit United States citizenship to the child. United States of America v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002) (citing United States v. Gomez-Orozco, 188 F.3d 422, 426-27 (7th Cir. 1999)) and Drozd v. INS, 155 F 3d 81, 85-88 (2d Circuit 1998).

Hence, this is the scenario that would apply if Obama was not born in the United States. Obama’s father was not a United States citizen. Obama can therefore only rely on his United States citizen mother to make him a “citizen of the United States at birth.” But as we can see from 8 U.S.C. Sec. 1401(g) (the only applicable statute), a mother had to be at least 19 years old when she gave birth to the child born abroad in order to transmit her United States citizenship to him. Obama’s mother, born on November 29, 1942, was 18 years old when she gave birth to Obama on August 4, 1961. She was 117 days short from being 19 years old. But she had to be at least 19 years old (14 years old plus 5 years of U.S. physical presence) to satisfy the legal requirement of Sec. 1401(g) (INA Section 301(g)). Therefore, Obama cannot benefit from Sec. 1401(g).

Hence, if Obama was not born in the United States, under the Fourteenth Amendment he is neither a United States citizen by birth on United States soil nor one by naturalization. (There is no existing evidence that Obama was ever naturalized.) Nor would he qualify to be a United States citizen by any act of Congress by being born abroad to a United States citizen parent. If this scenario were proven to be true (being neither a born nor a naturalized citizen), it can be reasonably argued that Obama is an undocumented alien. Obama has refused to release his identity documents to the public which causes such theories to exist. It is this reason which shows the importance of the American people being able to access Obama’s records (birth certificate, travel, education, and employment records) to intelligently learn his exact citizenship status. Surely, the United States cannot have a possible undocumented alien be its President. People must keep pressing Obama that he releases his personal documents so that they may at least learn that the President is at least a “citizen of the United States” which again still does not make him an Article II “natural born Citizen.”

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

December 6, 2009

Video - Obama's Dreams for America - Merry Christmas OmeriKa!

Video - Obama's Dreams for America - Merry Christmas OmeriKa!

http://www.youtube.com/view_play_list?p=B278681E23614868

A video was created and produced by a commenter in our group. The above link is to his Play List section. Scroll down to find the new video. Bravo Zulu on a good job.

Also see this excellent graphical presentation by Erica of the JeffersonsRebels blog:
http://jeffersonsrebels.blogspot.com/2009/11/graphic-obama-unconstitutional-usurper.html

There is also a new "side banner" style box ad running on the front page of the The Post & Email online newspaper. It's a spin off the original "Three Enablers" ad that ran in the Washington Times:
http://www.thepostemail.com/

To further help our publicity and education campaign visit this site: http://www.protectourliberty.org/

Synergy at Work! If we all do a little, together we can accomplish a lot!
Charles Kerchner, CDR USNR (Ret), Lead Plaintiff, Kerchner v Obama & Congress
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Thursday, December 3, 2009

Obama, the Putative President of the U.S., was Born a British Subject

This essay was originally posted by Atty Mario Apuzzo in this blog on 7 April 2009. An excellent piece by Atty Apuzzo and well worth reading again. And Obama being born subject to a foreign power, he is not Constitutionally eligible to serve as President and Commander-in-Chief of our military. See this related August 2009 essay by Atty Apuzzo: http://puzo1.blogspot.com/2009/08/being-born-subject-to-foreign-power.html

The below essay re-posted here by: Charles Kerchner, CDR USNR (Retired), Lead Plaintiff, Kerchner v Obama & Congress, Contributor and an Editor.

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Obama, the Putative President of the U.S., was Born a British Subject Governed by the British Nationality Act of 1948, and is Currently also a British Protected Person and/or a British Citizen to This Day

by: Mario Apuzzo, Esq.

Written: April 7, 2009
Updated: July 29, 2009
Minor Edits: August 6, 2009
Printed Wash Time Natl Wkly: August 10, 2009


Assuming that Obama was born in the United States, he was not only born a dual national of the United States and Great Britain, but at present he continues to be such. Some maintain that American law on citizenship cannot be subjected to any foreign law. But such an argument does not resolve the question of Obama’s dual nationality, for each nation has the sovereign right to make its own citizenship laws and one nation cannot deny another nation that right. This point can be better understood when we consider that McCain was born in Panama to U.S. citizen parents and U.S. citizenship law declared him a U.S. citizen even though he was born in Panama and Panamanian law may have declared him a citizen of Panama. Neither Panama nor any other nation questioned the United States' right to pass a law that gave McCain U.S. citizenship by descent from his parents even though he was born in Panama. Great Britain, being a sovereign nation, has the same right as does the United States to pass such citizenship laws. Now let us examine the British law that applies to Obama and his father and which makes Obama a British citizen not only at the time of his birth in 1961 but still today.

The British Nationality Act of 1948 provides in pertinent part as follows:

"4. Subject to the provisions of this section, every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth:

Provided that a person shall not be such a citizen by virtue of this section if at the time of his birth—
(a) his father possesses such immunity from suit and legal process as is accorded to an envoy of a foreign sovereign power accredited to His Majesty, and is not a citizen of the United Kingdom and Colonies; or
(b) his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.

5.—(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth ...."

Under the British Nationality Act of 1948, Obama's father became a British citizen under Section 4 by being born on the soil of an English Colony, Kenya. Under Section 5, when Obama was born in 1961 in Hawaii or some other place, he automatically became a British citizen by descent from his father who was a British citizen under Section 4.

Obama has deflected attention to his British citizenship by focusing the public’s attention on his former Kenyan citizenship. Notwithstanding what Obama may lead the public to believe, this British citizenship is not a type of citizenship that he has since lost. Moreover, this citizenship did not expire with Obama's 21st birthday nor is it one that had to be registered in any specified period of time.

Chapter VI, Section 87 of the Kenyan Constitution specifies that:

“1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…2. Every person who, having been born outside Kenya. [sic] is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall. [sic] if his father becomes. [sic] . . . a citizen of Kenya by virtue of subjection (1). [sic] become a citizen of Kenya on 12th December. [sic] 1963.”

Under the Kenyan Constitution of 1963, Obama’s father and Obama became citizens of Kenya. But neither Kenya’s independence from Great Britain, nor the Kenyan Constitution, nor the Kenyan Independence Act of 1963, as amended, caused Obama to lose his British citizenship with which he was born. Obama concedes that his citizenship converted from British to Kenyan but he adds that he then lost this Kenyan citizenship when he did not confirm it upon reaching the age of 21. There are no known statements from either Obama or his campaign contending that he eventually lost his British citizenship. Rather, the statements have been that his British citizenship converted to Kenyan citizenship when Kenya obtained its independence from Great Britain in 1963 and that he then lost Kenyan citizenship under the Kenyan constitution and laws when he did not renounce U.S. citizenship at age 21. But since Obama never lost his British citizenship, it does not matter that Obama may have lost his Kenyan citizenship as he contends.

Let us now see how Obama did not lose his British citizenship. The Kenyan Constitution which came into effect in 1963 at Article 97 provides the following:

"97. Dual citizenship
1. A person who, upon the attainment of the age of twenty-one years, is a citizen of Kenya and also a citizen of some country other than Kenya shall, subject to subsection (7), cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was born outside Kenya made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament."

While the Kenyan Constitution prohibits dual citizenship for adults, it allows dual citizenship for children. Kenya’s Constitution does, however, specify that at age 21, Kenyan citizens who possess citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship, swear an oath of allegiance to Kenya, and in the case of a person who was born outside Kenya made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament. It may be true that Obama did not take any action to preserve his Kenyan citizenship as was required by the Kenyan constitution. But there is no evidence that Obama ever renounced his British citizenship which he originally acquired at his birth under Section 5 of the British Nationality Act of 1948 and which he did not lose under the Kenyan Independence Act of 1963, as amended. Whatever his father may have done regarding his Kenyan and/or British citizenship did not affect Obama’s British citizenship with which Obama was born. Hence, under the Kenyan Constitution, Obama presumably lost his Kenyan citizenship by not renouncing his U.S. (assuming he was born in the U.S.) and British citizenships, by not taking an oath of allegiance to Kenya, and by not registering his declaration to take up residence in Kenya. But under British law, he did not lose his British citizenship because he never renounced that citizenship.

The fact that Obama still has British citizenship is further supported by the following:

"Under United Kingdom law as it has been since the British Nationality Act, 1948, the acquisition of another nationality by a citizen of the United Kingdom and Colonies, of whatever age, makes no difference whatever to his status as a citizen of the United Kingdom and Colonies, and, therefore, he remains a British subject.

Moreover, it is not possible, under United Kingdom law, for the nationality of a child who is a citizen of the United Kingdom and Colonies to be changed by the decision of his parents. Only the child, when he reaches the age of 21, can renounce his citizenship of the United Kingdom and Colonies if he is then in possession of another nationality, but during the child's minority neither the child nor his parents can do anything to forfeit his birthright of British nationality."
Children Bill [Lords], HC Deb 27 June 1958 vol 590 cc743-830.

"It is now the law that all persons born in the United Kingdom or its Colonies, or in countries which were Colonies at the time when they were born, have British nationality whether they are legitimate or illegitimate. . . .

Also, it is part of our law that children of a British male born abroad can have British nationality."
British Nationality, HC Deb 16 July 1963 vol 681 cc341-3.

Additionally, if one examines the British Nationality Act of 1981, as amended, there is nothing there which shows that Obama, once having the British citizenship that he acquired by descent from his father at the time of his birth, automatically lost it at age 21. On the other hand, the act contains provisions concerning "declaration of renunciation" at Section 10, 12, and 13. Not that doing so would make Obama an Article II natural born Citizen,” there is no evidence that Obama ever filed any "declaration of renunciation" of his British citizenship.

What does this mean? Under the Kenyan Constitution, Obama is presumably no longer a Kenyan citizen because he did not renounce at age 21 his British citizenship and his U.S. citizenship (assuming he was born in the U.S.). Obama is still however a British citizen not only under English common law (in the words of Coke and Blackstone, a natural-born subject of the United Kingdom) but also under British citizenship statutes. Neither Kenya's 1963 constitution nor any statute erased the consequences of the British common law and nationality statutes that were in effect at the time of Obama’s and his father’s birth. Obama’s continuing British citizenship is further confirmed by English law which provides that persons born in countries which were Colonies at the time when they were born are still British citizens. Hence, Obama continues to be a British citizen despite Kenya’s independence and new constitution.

This all leads to the question of how can Obama be an Article II natural born Citizenif he was at birth both a U.S. citizen (assuming he was born in the U.S.) and a British citizen which alone disqualifies him from having that status? But to make matters worse, Obama continues to be a British citizen at a time that he is currently the President of the United States. Can we reasonably conclude that the Founding Fathers, who had just fought a war with Great Britain and who did not want a foreigner to occupy the Office of President, would have allowed a British citizen born after 1789, who carries that status not only from birth but also to the time he occupies the Office, to be President of the United States and Commander in Chief of its Military? Another question is how can a would-be President and Commander in Chief of the Military with current dual citizenship obtain a security clearance which he should have to access classified U.S. government information needed by him to carry out the sensitive functions of that Office?

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: apuzzo [AT] erols.com
TEL: 732-521-1900 ~ FAX: 732-521-3906
BLOG: http://puzo1.blogspot.com
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And For More About What Obama, His Online Obot Trolls, and Heavy-Weight Backers of Obama Such as Google Want to Hide About Obama's Citizenship Issues See:
http://puzo1.blogspot.com/2009/07/citizen-at-birth-cab-does-not-equal.html

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Tuesday, December 1, 2009

United States v. Low Hong, 261 F.73 (5th Cir. 1919) Is No Precedent on the Question of What is an Article II “Natural Born Citizen”

There are some blogs that are citing the case of United States v. Low Hong, 261 F.73 (5th Cir. 1919), as the latest word on what a “natural born Citizen” is. Their position is that this case proves that a child born in the United States even to alien parents is a “natural born Citizen.” The issue that was before the Fifth Circuit Court of Appeals was whether a petitioner was entitled to be discharged from immigration custody on his habeas corpus petition when he showed that the government was holding him in custody pending a deportation hearing before the Secretary of Labor (who handled immigration matters then) under the Immigration Act, § 17 (Comp. St. 1918, § 4289 1/4ii), and other sections relating to excluding and deporting persons from the country, which is expressly applicable only to aliens. Affirming the judgment of the district court which granted the petition and his release, the Court held that since the government had admitted that the petitioner was a citizen (which the government did not), it could not hold him in immigration custody and had to release him.

Low Hong alleged in his amended habeas petition that he was born in the United States and that he was a citizen thereof. The government did not deny his allegation that he was born in the United States. But it also did not admit that he was a citizen. The government’s position was that there was no factual dispute and that the case dealt with only a legal question as to petitioner’s citizenship which was not properly before the Court on a habeas corpus petition which it said petitioner filed prematurely. The Court ruled that the government did not dispute that petitioner was born in the United States. It therefore also ruled that the government admitted petitioner was a citizen. The Court also ruled that the statute allowing excluding and deporting aliens applied only to aliens. The Court found that the government’s admission that Low Hong was a citizen was also an admission by the government that he could not be held in immigration custody pending a deportation hearing before the Secretary of Labor. The Court said that since the government admitted Low Hong was a citizen, the Secretary of Labor had no jurisdiction or authority to detain him in immigration custody pending his deportation hearing. Low Hong therefore had to be released.

There are two errors with the Low Hong decision. First, the government never admitted that petitioner was a citizen. Rather, it only admitted that he was born in the United States and took the position that the status of his citizenship was “nothing but a question of law” yet to be decided. While the decision does not make any mention of petitioner’s parents, they were probably Chinese aliens who could not naturalize in the United States because of the Chinese Exclusion Act of 1882 (among other things, made Chinese immigrants who were in the United States permanent aliens by prohibiting them from becoming citizens through naturalization) which were not repealed until the 1943 Magnuson Act which permitted Chinese who were already in the United States to naturalize and thereby become United States citizens under the Fourteenth Amendment. We also do not know if petitioner’s parents met the same factual scenario as did the parents of Wong Kim Ark in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (the Court decided the case based only “upon the facts agreed by the parties” and that the “necessary effect” of its decision was to declare “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States”). Id. 169 U.S. at 705. Hence, the Court on its own took the conceded fact that the petitioner was born in the United States and added that the government also conceded that he was a citizen.

The second error that the Court made is in declaring the petitioner a “natural-born citizen” on the record that it had before it. In Low Hong, the issue was not whether the petitioner was an Article II “natural born Citizen.” Rather, the issue was whether he could be held in immigration detention pending deportation if he was an admitted citizen as the Court perceived the government to have conceded. The Court in dicta then said that “[t]he averments of the amended petition show that the appellee is a natural-born citizen of the United States,” citing United States v. Wong Kim, 169 U.S. 649 (1898). The reference to “natural-born citizen” was dicta because the question of whether Low Hong was a “natural born Citizen” was not before the Court. Without any opportunity for the government to even address the issue, the Court concluded that Low Hong was a citizen because the government did not contest the petitioner’s allegation that he was born in the United States. Low Hong only needed to be a born United States citizen under the Fourteenth Amendment or some Congressional Act to avoid detention and deportation. There was no need for Low Hong to also be declared an Article II “natural born Citizen.”

The Low Hong Court’s citing Wong Kim Ark also does not make the decision a precedent for the meaning of Article II “natural born Citizen.” Wong Kim Ark, also presented with a person born in the United States to alien Chinese parents, did not declare Wong a “natural born citizen” but rather only a “citizen” of the United States under the Fourteenth Amendment. The Wong Kim Ark Court never connected Wong’s citizen status to an Article II “natural born Citizen.” The Court also did not say that there was no difference between a Fourteenth Amendment born citizen and an Article II “natural born Citizen.”

The Low Hong Court did not explain what made Low Hong a “natural born citizen” as opposed to just a plain “citizen” which is what he alleged in his amended habeas petition. Hence, the Court’s gratuitous statement that Low Hong was a “natural-born citizen” was not only not addressed by the parties or analyzed in any way by the Court but also has no basis in law or fact. In Low Hong, the Court did not even perceive citizenship to be in issue. We surely cannot use the decision for any precedent on the meaning of an Article II “natural born Citizen.” Its conclusory statement regarding Low Hong being a “natural- born citizen” is therefore not binding on any court.

The Constitution, Congressional Acts, United States Supreme Court decisions, and the Fourteenth Amendment itself also show that the Low Hong court was wrong in declaring the petitioner a “natural born Citizen.” We cannot reasonably deny that the Constitution makes a distinction between a “citizen” and a “natural born Citizen.” Article II itself, in specifying the eligibility requirements, clearly spells out that there is a difference between a “citizen” and a “natural born Citizen,” for the former was grandfathered eligible to be President up to the time of the adoption of the Constitution and the latter represented the new standard for Presidential eligibility for births after the adoption of the Constitution. The “Citizen” grandfather clause is now obsolete. The Constitution at Article I, III, IV and at Amendment XI, XIV, XV, XIX, XXIV, and XXVI also mentions “Citizen” and not “natural born Citizen.” Hence, the only place that the Constitution refers to a “natural born Citizen” is in Article II, Section 1, clause 5.

Even Congress, throughout our history has distinguished between a “Citizen” and a “natural born Citizen.” See the Naturalization Act of 1790 (children born abroad to citizen parents were deemed “natural born citizens”), 1795 (repealed the 1790 act and deemed the children born abroad to citizen parents just “citizens”), and all such acts that followed to the present (8 U.S.C. Section 1401 to 1409). Except for the Act of 1790, Congress has never legislated on the status of “natural born Citizen.” Some members of Congress have made various attempts to define “natural born Citizen,” but except for Senate Resolution 511 (declared McCain who was born in Panama to military United States citizen parents a “natural born citizen” but which is non-binding), these attempts have all failed. One of these attempts is worth mentioning because it pertains to children born in the United States. After H.J. Res. 88 failed to make it out of committee, Sen. Nickles (OK) along with Landrieu (LA) and Inhofe (OK) brought forward S. 2128 in February 25, 2004, the Natural Born Citizen Act, a bill to define the term “natural born Citizen” as used in Article II of the Constitution of the United States to establish eligibility for the Office of President. Paragraph (1) of the bill repeats the same language that is found in the Fourteenth Amendment that pertains to born citizens and declares those persons “natural born citizens.” This attempt at amending Article II’s “natural born Citizen” clause by declaring that Fourteenth Amendment born citizens are also “natural born citizens” shows that there are members of Congress who recognize that there is a difference between an Article II “natural born Citizen” and a Fourteenth Amendment born “citizen of the United States.”

The meaning of an Article II “natural born Citizen” has been addressed by various United States Supreme Court and other court cases. These cases show that the Framers did not use English common law to define what a “natural born Citizen” was but rather natural law and the law of nations which became federal common law. English common law continued to be used in the several states to provide the law on property, contracts, torts, inheritance, criminal substance and procedure, and other areas, but not the law on federal matters such as national citizenship. In defining a “natural born citizen,” these cases made specific reference to the citizenship of the child’s parents at the time of the child’s birth. Low Hong did not cite any of these cases or even explain why their definition of a “natural born Citizen” should not be followed. These cases have defined a “natural born Citizen” as a child born in the country to citizen parents which is the definition provided by Emer de Vattel in his influential and celebrated treatise, The Law of Nations, Or, Principles of the Law of Nature, bk 1, c. 19, sec. 212 (1758 French edition) (1759 first English translation). These cases are The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring) (“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, 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. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.'”) (emphasis in the original); Dred Scott v. Sandford, 60 U.S. 393 (1857) (which also took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, when it quoted Vattel thus: “ ‘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.’” Again: “ ‘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.)” (emphasis in original); 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) (favorably citing Minor v. Happersett).

The case of Minor v. Happersett, 88 U.S. 162 (1874) deserves special attention. It distinguished between “natives, or “natural born citizens” on the one hand and “citizens” on the other. The United States Supreme Court in Minor said that “[a]t common-law, with the nomenclature of which the framers of the Constitution were familiar,” the “natives, or natural-born citizens” were “all children born in a country of parents who were its citizens…” It added that “[s]ome authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first….” The Court was very specific in defining “natives, or natural born citizens” as requiring not only birth in the country but also citizen parents and in stating that the Framers would have defined the terms as such. In mentioning “some authorities” going further in defining “citizens” (without reference to the citizenship of the child’s parents), the Court surely did not say that the Framers maintained any such position on citizenship. Rather, the Court was referring to “some” commentators who had made such an argument. The Court also did not say that these other “authorities” considered these other children to be “natural born citizens.”

As we can see, these cases adopted the natural law and law of nations definition of a “natural born citizen.” Reliance on this definition would have been expected, for the Framers were heavily influenced by natural law and the law of nations as expounded upon by Cicero, Grotius, Pufendorf, Burlamaqui, and their favorite, Vattel. The law of nations which was based on natural law was received and adopted by the new nation as its federal common law after the Constitution was adopted. Citizenship being a topic that affected the relations among nations, the Founder and Framers would have, as did the United States Supreme Court, looked to the law of nations as the authoritative and binding source for providing any definition of national citizenship. There is no United States Supreme Court case that to this day has changed this original definition of a “natural born Citizen” provided by Vattel and recognized and confirmed by these Supreme Court cases.

Nor did the Fourteenth Amendment change the meaning of an Article II “natural born Citizen.” It did not modify "natural born Citizen" status as originally conceived by the Framers and as confirmed by the above-cited Supreme Court cases. Article II mentions "natural born Citizen" and "Citizen" while the Fourteenth Amendment mentions "Citizen." The Constitution must be read as one whole document and all its words must be given meaning. The framers of the Fourteenth Amendment were well aware of the Constitution using the words “natural born Citizen” and “Citizen.” Hence, when the Fourteenth Amendment says "Citizen," it must be referring to the same "Citizen" found in Article II and in other parts of the Constitution and not to Article II's "natural born Citizen." The words “natural born” must be given a meaning all of their own. Also noteworthy in understanding the amendment is Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated: "[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. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866). Additionally, we cannot simply assume that the Fourteenth Amendment amended Article II. There is simply no such evidence that the Fourteenth Amendment framers did or even intended to amend the meaning of an Article II "natural born Citizen." Amending the Constitution is a very serious and solemn undertaking. We surely cannot have constitutional amendments by assumptions or implications. Rather, Article V of the Constitution must be followed to have any such amendments to the Constitution.

Obama has claimed that he is a “native born citizen.” The above-cited authorities and case law show that under natural law and the law of nations which became federal common law, "native born citizen" meant the same thing as "natural born citizen." But over the years, "native born citizen" took on a different meaning. It was later used to show that under the Fourteenth Amendment someone became a citizen by being born on U.S. soil rather than by being naturalized. Hence, when used in the modern sense, "native born citizen" does not necessarily mean the same thing as a "natural born Citizen." Hence, Obama stating that he is a “native born citizen” does not necessarily mean that he is saying that he is a “natural born Citizen.”

We know that an Article II "Citizen" was grandfathered to be eligible to be President and that the grandfather clause is now obsolete. Hence, today one must be a "natural born Citizen" to be eligible to be President. Being a "Citizen" is not sufficient. A "Citizen" is defined by the Fourteenth Amendment and Congressional Acts. An Article II "natural born Citizen" is defined by federal common law (emanating from natural law and the law of nations) which provides that it is a child born in the country to a citizen mother and father.

Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (where ever that may be), he was not born to a United States citizen mother and father. At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he becomes even a legal resident or immigrant to the United States.

Obama may be a plain born “citizen of the United States” under the Fourteenth Amendment (if he was born in Hawaii). But he is not an Article II "natural born Citizen," for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks Unity of Citizenship and Allegiance to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen who despite taking an oath later in life of sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
December 1, 2009

Saturday, November 28, 2009

Obama's Lack of Constitutional Eligibility - The Three Enablers - 30 Nov 2009 Issue of Washington Times National Weekly - page 9

Obama's Lack of Constitutional Eligibility - The 3 Enablers - 30 Nov 2009 Issue of Washington Times National Weekly - page 9

http://www.scribd.com/doc/23299370/Obama-s-Lack-of-Eligibility-The-Three-Enablers-20091130-issue-Wash-Times-National-Weekly-pg-9

The ad depicts "The Three Enablers" of Obama's usurpation of the Office of the Presidency and Commander-in-Chief of our military in violation of the eligibility clause of Article II, Section 1 of the U.S. Constitution. Despite the pleas and petitions of the hundreds of thousands of Americans for a serious in-depth investigation of Obama's sealed and hidden early life records, the Congress will not "look" at or investigate the merits of the charges against Obama despite holding hearings and investigations of John McCain in April 2008 on similar eligibility charges thus violating our right to equal protection under our Constitution. The Courts will not "hear" in a trial the merits of the charges against Obama. And the Main Stream Media will not "talk" about the merits of the charges against Obama and investigate his hidden early life records and thoroughly discuss with the American people the legal and Constitutional issues involved. The Three Enablers are not being responsive to questions and concerns of We the People and have placed a "cone of silence" over this issue to the detriment of Constitution and the Republic. Their ignoring the concerns of the People on a matter as serious as this and allowing Obama to completely seal and hide all his early life records and not requiring him to conclusively prove his constitutional eligibility to a controlling legal authority endangers our system of government. We are supposed to be a nation of laws not men. The Constitution is the fundamental law of our land and guarantor of a representative Republic form of government. With an arrogant, indifferent, and imperial Congress, complacent Judiciary, and a silent main stream media and press, our freedom and liberty and the future of our Republic is in great danger.

Charles F. Kerchner, Jr., Commander USNR (Retired)
Lead Plaintiff, Kerchner v Obama & Congress
http://puzo1.blogspot.com/
Please help the cause to fund more ads to educate the People about Obama's usurpation of his office: http://www.protectourliberty.org/
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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/

Saturday, November 21, 2009

Video About Natural Born Citizen - Three Little Words

Video About Natural Born Citizen - Three Little Words

http://www.youtube.com/view_play_list?p=B278681E23614868

This excellent video was created and produced by a commenter in our group. Thank you Sir.


Also see another great new graphical presentation by Erica of the JeffersonsRebels blog:
http://jeffersonsrebels.blogspot.com/2009/11/graphic-obama-unconstitutional-usurper.html

To further help our publicity and education campaign visit this site: http://www.protectourliberty.org/

Synergy at Work! If we all do a little, together we can accomplish a lot!
Charles Kerchner, CDR USNR (Ret), Lead Plaintiff, Kerchner v Obama & Congress
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Friday, November 20, 2009

One Important Congressional Effort to Amend the "Natural Born Citizen" Clause

Members of Congress have over the years made various attempts to change the meaning of "natural born Citizen" as it is found in Article II. One of these attempts is most noteworthy because it pertains to children born in the United States. After H.J. Res. 88 failed to make it out of committee, Sen. Nickles (OK) along with Landrieu (LA) and Inhofe (OK) brought forward S. 2128 in February 25, 2004, the Natural Born Citizen Act, a bill to define the term “natural born Citizen” as used in Article II of the Constitution of the United States to establish eligibility for the Office of President. http://www.govtrack.us/congress/bill.xpd?bill=s108-2128.

This bill provided as follows:

"A BILL
To define the term ‘‘natural born Citizen’’ as used in the Constitution of the United States to establish eligibility for the Office of President.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Natural Born Citizen Act’’.
SEC. 2. DEFINITION OF ‘‘NATURAL BORN CITIZEN’’.
(a) IN GENERAL.—Congress finds and declares that the term ‘‘natural born Citizen’’ in Article II, Section 1, Clause 5 of the Constitution of the United States means—
(1) any person born in the United States and subject to the jurisdiction thereof; and
(2) any person born outside the United States-- (A) who derives citizenship at birth from a United States citizen parent or parents pursuant to an Act of Congress . . ."

Paragraph (1) repeats the same language that we find in the Fourteenth Amendment. But if a Fourteenth Amendment born citizen is automatically an Article II "natural born Citizen," why would such a bill be needed? This attempt at amending the “natural born Citizen” clause shows that there are members of Congress who understand that just being a Fourteenth Amendment born citizen does not make one an Article II “natural born Citizen.” Congress also tried such changes with S. 2678 (2008); H. J. RES. 15 (2005); H. J. RES. 104 (2004); H. J. RES. 47 (2001), and approx. 25 other times since the 1870s. If a Fourteenth Amendment born “citizen” was the same as an Article II “natural born citizen,” why would members of Congress see a need for this bill? Hence, it can be seen that just being born in the United States and being declared a “citizen” under the Fourteenth Amendment does not automatically make one an Article II “natural born Citizen.”

It is also noteworthy to examine the Natural Born Citizen Act Summary that accompanied the bill which states in pertinent part: “The bill is intended to clarify the term and end uncertainty about the eligibility requirements to run for the Office of the Presidency. The definition of this term is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. Congress should be the institution that defines this term, not the courts.” http://www.jcics.org/natural%20born%20summary%20%28word%29.doc. The same information was expressed by Senator Nickles of February 25, 2004 when he addressed the Senate on the bill and which statements are contained in the Congressional Record. Sen. Nickles, in his speech when introducing the S. 2128, announced that: “There is obviously a need for clarification. In the absence of judicial interpretation, Congress can express a legislative interpretation of Constitutional terms. We should not wait for an election to be challenged and the courts to decide what ‘natural born’ means.” Sen. Inhofe referred to the repealed Naturalization Act of 1790 and used it to argue that in the absence of any judicial interpretation, Congress has the authority to define what a “natural born Citizen” is. Among other things, the bill provided that “any person born in the United States and subject to the jurisdiction thereof” is an Article II “natural born Citizen.” Hence, the Senator recognized that simply being born in the United States and being subject to the jurisdiction thereof does not necessarily make one an Article II “natural born Citizen.” The bill did not advance and met the same fate as other similar Congressional proposals to amend Article II’s “natural born Citizen” clause.

What is important is that this “natural born Citizen” issue as it pertains to children born in the United States existed in Congress as far back as February 2004 and has yet to be resolved. What is also important is that this bill would have directly impacted Obama’s eligibility to run for President of the United States. Whether or not this bill if enacted into law would have been Constitutional is another question.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
November 20, 2009

Sunday, November 15, 2009

New "Citizen vs. Natural Born Citizen" Pictorial Advertisement in Washington Times National Weekly - pg 5 - Monday 16 Nov 2009 Issue

New "Citizen vs. Natural Born Citizen" Full Page, Full Color, Pictorial Advertisement in Washington Times National Weekly - pg 5 - Monday 16 Nov 2009 Issue:

http://www.scribd.com/doc/22586923/Citizen-vs-Natural-Born-Citizen-Advertorial-in-20091116-Issue-of-Wash-Times-National-Weekly


Many people do not know there is a difference between a "Citizen" and a "natural born Citizen." Being a "Citizen" of any type, whether an Article II natural born Citizen, 14th Amendment born Citizen, 14th Amendment naturalized Citizen, or statutory born Citizen under a Congressional Act, means you are a member of the society and entitled to all its rights and privileges. But under our Constitution to serve in the singular most powerful office in our government, that is to be the President and Commander-in-Chief of our military under our Article II, Section 1, Clause 5, of our Constitution you need to be a "natural born Citizen." Being a "natural born Citizen" cannot be conveyed by any laws of man and can only be conveyed by the facts of nature at the time of your birth and circumstances of your birth, i.e., being born in the country to two citizens of the country. (Legal Treatise "The Law of Nations - Principles of Natural Law" Section 212 by E. Vattel 1758, SCOTUS Decision Venus 1814, SCOTUS Decision Minor v Happersett 1874). This new advertorial is designed to help educate the public pictorially about the fact that Obama is NOT a Natural Born Citizen of the USA and thus is ineligible under our Constitution to the office he sits in. He is a Usurper who was allowed to be put there by millions in foreign money, a corruptly lead Congress, and an enabling main stream media. This is a constitutional crisis and a national security concern that must be addressed by the U.S. Supreme Court or our Republic, Constitution, and Liberties are in great danger.

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

P.S. A special thanks to "Erica" at the http://jeffersonsrebels.blogspot.com/ site for the concept and idea.
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Saturday, November 14, 2009

Kerchner v Obama & Congress - U.S. 3rd Circuit Court of Appeals - Philadelphia PA - Docket Report - Docket# 09-4209

Kerchner v Obama & Congress - U.S. 3rd Circuit Court of Appeals - Philadelphia PA - Docket Report - Docket# 09-4209

http://www.scribd.com/doc/22556305/Kerchner-v-Obama-U-S-3rd-Circuit-Court-of-Appeals-Philadelphia-PA-Docket-09-4209


Charles Kerchner, CDR USNR (Ret)
Lead Plaintiff, Kerchner v Obama & Congress
http://puzo1.blogspot.com/ ... help the cause: http://www.protectourliberty.org/
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Monday, November 9, 2009

Quo Warranto and the Kerchner v. Obama and Congress Case

Leo Donofrio, Esq. wants the “right” plaintiff to bring a quo warranto action against putative President Obama under 16 D.C.Code Secs. 3501-3503 in the Federal District Court for the District of Columbia. He in effect maintains that quo warranto is an exclusive remedy available to remove Obama from office. He maintains that Obama may be removed from office only through a quo warranto action and that the DC District Court is the only court in the United States where such an action may be brought. I recently wrote an article about this issue, entitled The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action. http://puzo1.blogspot.com/2009/10/dc-district-court-in-not-only-court-in.html. I explained that given the causes of action that I have raised in the Kerchner action, I can also file a quo warranto claim in the Third Circuit. Mr. Donofrio recently posted his disagreement with my article at his blog, http://naturalborncitizen.wordpress.com/2009/10/29/judge-carter-the-writ-of-quo-warranto-must-be-brought-within-the-district-of-columbia-because-president-obama-holds-office-within-that-district/. I will now address Mr. Donofrio’s response to my article.

Before we begin, we must understand that a quo warranto action is a direct attack on an office holder, questioning his qualifications to hold an office and therefore his warrant and authority to occupy that office. It does not challenge any action taken by that person while having been in office. This type of action is to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken. Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Service, 569 F.2d 570 (D.C.Cir.1976) (per curiam), vacated and remanded on other ground, 434 U.S. 884 (1977); Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that direct attacks must satisfy the requirements of a quo warranto action while indirect attacks must satisfy the requirements of the de facto officer doctrine. Mr. Donofrio does not explain which one of these approaches he proposes to take against Obama. The Kerchner action does not challenge any action taken by Obama. Rather it challenges his Article II eligibility (that he is not a “natural born Citizen”) to hold the office of President and Commander in Chief of the Military. Hence, it is a direct attack on Obama’s title to hold the Office of President, contending that he is not Article II eligible to occupy that office.

Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates. Under the common law, only the United States can bring a quo warranto action. Wallace v. Anderson, 18 U.S. 5 Wheat. 291, 292 (1820). Congress can, however, pass a statute allowing a private person to bring such an action. Johnson v. Manhattan Railway Co., 289 U.S. 479 (1933). Hence, it would appear that the DC District Code would solve the problem for a private person wanting to bring such an action against Obama. But the DC District Code presents a cumbersome procedure that has to be followed and which renders the very statute inapplicable to a quo warranto action against a sitting putative President such as Obama.

This procedure starts by requiring that the quo warranto issue in the name of the United States. It compels a concerned citizen to apply to the Attorney General or the United States Attorney to bring the action on his behalf in the District Court for the District of Columbia (16 D.C. Code Secs. 3501-3502. These officials have broad discretion. It is not realistic that they would file a quo warranto action in the name of the United States against a sitting putative President, their own boss and the same person who appointed them. It is also unrealistic that they would file such an action in a case in which among the list of defendants are the United States itself along with the U.S. Congress, Senate, and House of Representatives. Even appointing a special prosecutor would present a problem, for who would appoint him or her? We have already seen how the Executive and Congressional branches of government are both defending Obama’s stance that he is constitutionally eligible to be President. Especially shocking is how the Justice Department has taken the side of Obama rather than support and defend the Constitution and support the plaintiffs who argue that he is not an Article II “natural born Citizen” and therefore not eligible for the Office of President and Commander in Chief of the Military. How does Mr. Donofrio expect to get any cooperation from either of these two branches of government which he would need to sanction and support his quo warranto action?

It is true that the DC statute provides a private litigant with a mechanism by which he can still bring the quo warranto action even if the government refuses to do so. But if these government officials refuse to institute a quo warranto proceeding as they have thus far so demonstrated, only an “interested person” may petition the court for leave to have the writ issued in the name of the United States on the relation of the “interested person.” 16 D.C. Code Sec. 3503. At common law, a private person had no such right to bring the quo warranto action and this DC statute is the only statute passed by Congress that permits such a procedure. Blackburn v. O’Brien, 289 F.Supp. 289 (D.C.W.D.Va. 1968). Nevertheless, the court has broad discretion to deny the writ. Under the standard for being an “interested person” as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a public office one would have to have “an interest in the office itself peculiar to himself…” and be filing an action against another who allegedly usurped that office. Indeed, Newman requires that the plaintiff be “actually and personally interested” in the office and that there be another person against whom the action is brought who has unlawfully occupied the office in question. In other words, the plaintiff must himself make a claim to the office in order to qualify to bring the action. Are there any available plaintiffs at this time who fill this bill or will there be any in the future who will do so? I know that Mr. Donofrio is now looking for a plaintiff to retain him to bring a quo warranto action in the DC District Court. But has he advised the public that any would-be plaintiff has to have an interest in the office itself peculiar to himself and that he be actually and personally interested in the office? We must keep in mind that the quo warranto action is only an attack on the title of the office holder and not an attack on any action taken by that person. A suit based on alleged illegal action taken by an office holder provides many more possibilities to establish standing (e.g. illegal firings from employment, illegal takings of property rights, breach of contract, etc.), but as we will see below must satisfy the requirements of the de facto officer doctrine, unless grounded on a constitutional violation in which case it does not. Even if the quo warranto plaintiff could show that he was an “interested person,” the court would still have to grant him its permission to bring the quo warranto action. Can we reasonably expect the DC District Court to give its permission to a plaintiff to bring an eligibility action against Obama whom as we have seen the court views to be a legitimate sitting President? For all of these procedural reasons, it is highly doubtful that the DC District Code even applies to a quo warranto action involving a President.

But there is a more serious problem with what Mr. Donofrio proposes and that is one of constitutional dimensions. Mr. Donofrio claims that Congress has delegated its powers to remove a sitting President to the DC District Court by passing the DC District Code statute. First, I maintain that Congress in passing the DC statute did provide private litigants with a statutory mechanism for bringing quo warranto actions in the DC District Court, but it did not intend for it to apply to ousting sitting Presidents. Under the Appointments Clause (Article II, Sec. 2, cl. 2), it is the President that is given the power to make, with the advice and consent of the Senate, appointments of “Officers of the United States” and other positions that are not considered inferior. Given the President’s power to fill these offices, it is doubtful that Congress meant to include the Office of the President itself when it wrote “public office of the United States” in Section 16-3501. Hence, as written and only interpreting it as though the Office of the President is not included in its sweep, the DC statute would pass constitutional muster. Second, if the DC statute were to be read as Mr. Donofrio does so as to be used as a tool to oust from office a sitting putative President, then I doubt such an application of that statute would be constitutional. It is highly doubtful that Congress, a co-equal branch of government to the Executive, has the constitutional power to pass a statute which would allow a federal district court to alone directly remove a sitting President. See Marbury v. Madison, 1 Cranch, 137 (1803) (shows that Congress in enacting laws must do so within the confines of power given to it in the Constitution and held that Congress had no power to give the Supreme Court original jurisdiction in cases not described in the Constitution). Surely, if Congress cannot give the Supreme Court power which the Constitution does not give to that Court, Congress also cannot give to a federal district court any power not belonging to it under the Constitution.

The Constitution itself textually provides the means by which to remove a sitting President and Congress has no constitutional authority to legislate a different way to do it. See Article I, Section 8 which prescribes the legislative powers given to Congress. The Constitution itself does not give Congress any authority to create by legislation any such quo warranto actions that may be used to oust a sitting President let alone any authority to delegate that removal power to the judicial branch of government. It is also doubtful that Congress would attempt such a delegation of power given that the Constitution itself provides for a mechanism to remove a President for misconduct or prevent a person from becoming or continuing as President who is not Article II qualified. The Constitution at Article I, Sec. 2 and 3 gives Congress the power to impeach the President which only applies to a duly elected and confirmed sitting President who is convicted of “Treason, Bribery, or other Crimes and Misdemeanors…” As we can see, impeachment would only apply to a duly elected President who has intentionally committed a serious criminal offense.

To prevent an ineligible person who has won the Electoral College vote from becoming President, the Constitution requires that Congress itself qualify and confirm a President Elect under the Twentieth Amendment. To remove a person who may have improperly gotten past Congress’s qualification and confirmation function, who is not eligible for the Office, and who has not necessarily intentionally committed any serious criminal offense, the Twenty Fifth Amendment provides a procedure for the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide to initiate removal of the President should they deem him “unable to discharge the powers and duties of his office.” The amendment does not limit the scope of the President being “unable” to function, suggesting that such inability can included physical, mental, or legal inabilities. Inability to discharge the powers and duties of an office surely includes the lack of legal capacity to perform those powers and duties. Lack of legal capacity in that regard can be established if one is not qualified to hold that office. Lack of qualification surely includes not being eligible for an office. Not being Article II eligible to be President then shows that Obama is not qualified for the office, lacks legal capacity to perform what is required of him while occupying that office, and is therefore unable to discharge the powers and duties of his office.

A Court presented with a case or controversy could decided and declare that Obama is currently not Article II eligible to be President and therefore constitutionally unable to discharge the powers and duties of this office and transmit that declaration to the Vice President and a majority of the executive department officers who would then initiate the removal procedure prescribed by the Twenty Fifth Amendment. Such a procedure respects separation of powers concerns that a court may have with a notion as Mr. Donofrio espouses of being asked to directly remove a sitting putative President. This procedure, with both the judicial and legislative branches of government involved in the process, also provides checks and balances which are necessary to prevent one branch of government from abusing or usurping powers at the expense of the People. The Kerchner complaint/petition has asked the court to take this exact approach to the eventual removal of the Article II constitutionally ineligible Obama. This approach to Obama’s removal also shows that there is no redressablity (one of the Article III standing requirements) problem should the court want to act.

Mr. Donofrio insists that I file the quo warranto action in Washington. But as we have seen, Mr. Donofrio’s approach is fraught with procedural and constitutional obstacles which may be very difficult if not impossible to overcome in a case brought by a plaintiff who challenges the Article II constitutional eligibility of a sitting putative President and who brings his action in the United States District Court for the District of Columbia under the District of Columbia Code, but who does not have any personal interest in that Office. Indeed, even if a plaintiff is an “interested person,” such a plaintiff would probably be unsuccessful in utilizing that procedure to remove a sitting putative President because of the procedural requirements it demands. Finally, to use the DC District Code in the manner that Mr. Donofrio proposes is probably unconstitutional for want of power in Congress in passing such legislation if Congress intended the DC statutes to work as Mr. Donofrio would want them to work, for being an illegal Congressional delegation of powers to the judicial branch if Congress has such power and for being a violation of separation of powers. Hence, these obstacles would only prevent persons like the Kerchner plaintiffs and others who may be interested in pursuing the Obama eligibility issue from vindicating their individual constitutional rights under the due process clause of the Fifth Amendment to have only a constitutionally qualified President take action against them that significantly and profoundly affects their fundamental individual constitutional rights to liberty, safety, security, protection, and tranquility. Indeed, the technical statutory requirements and the unconstitutionality of a DC District Code quo warranto action against a sitting putative President would most likely render the constitutional eligibility requirements of Article II virtually unenforceable by a person injured thereby. These virtually insurmountable hurdles show that the DC District Code quo warranto action is not adequate for the Kerchner plaintiffs’ needs. Not being adequate it cannot be the exclusive procedure available to them. United States v. Machado, 306 F.Supp. 995 (D.C.N.D.Cal. 1969).

Our Constitutional Republic is based on the Constitution and the rule of law which guarantees individuals due process of law. A denial of all judicial forums and remedies may be a denial of due process. Hence, our judicial branch of government should not allow such a result and rather should use its Constitutional and equitable powers to give a deserving plaintiff the requested constitutional relief he or she seeks. Given these virtually insurmountable procedural and constitutional obstacles, I have therefore taken a different approach to the removal of the Article II ineligible Obama which Mr. Donofrio does not address or refuses to recognize. I have shown that the DC District Court would have exclusive original jurisdiction over a quo warranto petition only if a party is not able to prove that a district court other than the DC District Court has original jurisdiction in the case any other way. If a party wants to avoid having to file its action under the DC code in the DC District Court, a party must show the forum court that it has original jurisdiction by way of some other constitutional or federal statutory provision. If the party can prove that the court has original jurisdiction otherwise by showing that it has an underlying claim based on some other constitutional or federal statutory provision which gives that court original jurisdiction, the party is neither compelled to use the DC statute nor the DC District Court but rather can file the party’s common law quo warranto petition in any district of the United States seeking quo warranto remedies in conjunction with that underlying constitutional or federal statutory provision which is the basis for the court to assert original jurisdiction in the first instance. See F.R.C.P. 81(a)(2) (does not provide for a substantive quo warranto proceeding but rather only allows federal courts to use the already existing common law quo warranto action); See also Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449, 471-72 (1884) (holding that quo warranto was a civil action properly heard by any federal court having federal question jurisdiction); Wilder v. Brace, 218 F.Supp. 860, 863-65 (D.Me. 1963) (a federal court with diversity jurisdiction can hear quo warranto action). Because of the unique nature of a Presidential constitutional eligibility action, the court should not require that a plaintiff bring the action in the name of the United States or that the Attorney General or the United States attorney institute the action or that the court itself grant the plaintiff leave to file the action. A quo warranto action when first created was a civil action, became a criminal one, and now is back to being a civil one. Also, the Kerchner plaintiffs are only asking for quo warranto remedies that will be exercised not directly by the Court but rather by Congress with the assistance of the Court in defining the rights and obligations of the parties to the controversy (e.g. defining what an Article II “natural born Citizen” is). Hence, there exists no constitutional problem (no political question or separation of powers problem) in a court proceeding in this fashion.

Mr. Donofrio does not address my argument that under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act), for the court would already have original jurisdiction over plaintiffs’ other constitutional or federal statutory claims. See United States of America Ex Rel. State of Wisconsin, Plaintiff-appellant, v. First Federal Savings and Loan Association and Federal Home Loan Bank Board, Defendants-appellees, 248 F.2d 804 (7th Cir. 1957). In the scenario described, the quo warranto jurisdiction is said to be ancillary to the court's original jurisdiction that rests on a separate and distinct constitutional or federal statutory provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act which authorizes the court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"), for the court would already have original jurisdiction over plaintiff’s other federal claims. Under such circumstances, the All Writs Act may be used because the party is not using the act to augment the jurisdiction of the court but rather only petitioning the court that it issue the quo warranto writ as an aid to the court's already existing original jurisdiction. Indeed, “[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Adams v. United States ex rel McCann, 317 U.S. 269, 273 (1942). Hence, the court can avail itself of the quo warranto writ to provide the plaintiffs with authority to discover the facts and Obamas’s legal position concerning his Article II eligibility to be President. Finally and critically important, in the Kerchner proceeding the quo warranto action does not stand alone which in the context of attempting to remove a sitting putative President under the DC District Code would present the procedural and constitutional problems that I have explained above, but also with other constitutional causes of action against Obama and Congress that give the court the ability to fashion the appropriate remedy (solving any redressability problems) and to satisfy separation of powers and checks and balances concerns.

Use of the quo warranto remedy has already come up in the Third Circuit Court of Appeals in Philadelphia in the case of United States v. Malmin, 272 F. 785 (3rd Cir. 1921). While the Court decided the case by issuing a peremptory writ of mandamus to a federal district court judge sitting in the Virgin Islands of the United States rather than a writ of quo warranto testing his title to the office, it did leave open the possibility that in the future a quo warranto action may be needed to test that title. The Court did not state that such action could not be brought in the Third Circuit and that such an action would have to be brought in the DC District Court under the DC statute.

Mr. Donofrio also argues that Congress through the DC District Code has given the DC District Court “exclusive” jurisdiction over any quo warranto action filed in the federal courts against Obama. He wants to give the DC district court exclusive jurisdiction over any quo warranto action existing in any place of the United States by way of Article I, Sec. 8, cl. 17, which provides: “The Congress shall have power…[t]o exercise exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the Government of the United States…” First, the statutes themselves no where say that Congress gave such exclusive jurisdiction to that court alone over any quo warranto action against any federal officer let alone a sitting President. Mr. Donofrio does not read Article I, Sec. 8, cl. 17 correctly, for it is designed only to establish who shall have jurisdiction over this specially created piece of 10-square-miles piece of land, not to restrict in any way the powers of the federal courts of the United States to that specific location. Starting with the Judiciary Act of 1789, c. 20 (1 St. 73) we can readily see that Congress has always been very careful about how it assigns jurisdiction to the federal courts and if that were its intent, it would have clearly said that the jurisdiction in the DC District Court is both original and exclusive. See Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449 (1884). For example, some state legislatures have put language in their quo warranto statutes indicating that quo warranto jurisdiction is exclusive with a certain court of the State. See Henning v. Village of Waterford, 78 Wis.2d 181, 253 N.W.2d 893 (1977) (Wisconsin). Second, Mr. Donofrio’s argument cannot be correct given that Article III, Section 2 of the Constitution provides that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatise made, or which shall be made, under their Authority….” This broad grant of judicial power extends to all the federal courts in the United States, not to just any specific ones. The Kerchner action is not only based on a federal statutory infraction, but also a constitutional violation. I established jurisdiction in the Third Circuit under, among other statutes, 28 U.S.C. Sec. 1346(a)(2) and 28 U.S.C. Sec. 1331. Moreover, I established venue in the Third Circuit by satisfying 28 U.S.C. Sec. 1391(e). See Ames, 111 U.S. at 462 (it has never been doubted that a case is presented which arises under the laws of the United States, citing Cohens v. Virginia, 6 Wheat. 379, Gold Washing & Water Co. v. Keyes, 96 U.S. 201, Railroad Co. v. Mississippi, 102 U.S. 140). Third, as I have shown above, “original and exclusive” jurisdiction is lodged in the DC District Court only if a litigant does not have any other constitutional or federal statutory cause of action. The Kerchner action does have independent constitutional and federal statutory causes of action and therefore is not bound by the DC District Code to be filed only in the DC district court. Fourth, as I have shown above, it is doubtful that Congress has the constitutional power to pass a statute such as the DC District Code if it were to be used to remove a sitting President.

Mr. Donofrio curtly dismisses the Kerchner action as an “exotic concept.” But there is nothing “exotic” about it. Indeed, in the words of Chief Justice Waite in United States v. Cruiksahank, 92 U.S. 542 (1875): ‘Citizens are the members of the political society to which they belong. They are the people who compose the community , and who , in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.” For sure, Obama, if he were a legitimate President and regardless of whether they voted for him or note, would have the constitutional duty to provide for the Kerchner plaintiffs’ general welfare and to specifically provide for their protection. In return, they would consent to submit to his legal authority over them. I have included in the complaint/petition various original jurisdiction constitutional claims. These claims are based on the First (redress of grievances), Fifth (deprivation of liberty, safety, security, protection, and tranquility without procedural and substantive due process of law and denial of equal protection), and Ninth Amendment (denial of rights retained by the people), all of which support the independent quo warranto action and which provide the original jurisdictional foundation on which the quo warranto rests. The Ninth Amendment to the United States Constitution guarantees to the People rights not granted in the Constitution to the Federal government and reserves to the People certain rights as they were understood at the time that Constitution was adopted in 1789. The guarantee of those rights is a matter of compact or contract between the Federal government and the People of the United States as of the time that the compact or contract with the United States was agreed upon and adopted by the People in 1789. Quo warranto is an ancient common law writ which existed at the time the Constitution was adopted. The Ninth Amendment, which preserves for the People their ancient common law remedies and writs, along with the common law and principles of equity therefore take the place of the D.C. statute which is not needed to give the Kerchner plaintiffs a right to seek quo warranto remedies through the judicial and legislative branches working together, provided the forum court has original jurisdiction otherwise.

Moreover, if quo warranto is not available because of some procedural obstacle, the remedy of quo warranto may be asked for in a declaratory judgment action which also seeks injunctive and mandamus relief. In such a case, declaratory judgment is permitted because the common law requirement that quo warranto be brought by the attorney general (at common law a private individual has no standing to institute a quo warranto action) limits the availability and adequacy of the remedy. Bochard, Declaratory Judgments, 2d ed., p. 362; Anderson, Declaratory Judgments, 2d ed., sec. 195, p. 385; United States v. Machado, 306 F.Supp. 995 (N.D.Cal.1969). Hence, a court can provide a plaintiff with equitable remedies that include those offered by a quo warranto action. There is no reason why the court should not exercise its equitable powers to do justice when warranted by the special circumstances of the case with which it is presented. It is only right that plaintiffs not be left with no remedy should quo warranto relief not be available because of its cumbersome requirements which probably can not be satisfied in a case challenging a sitting putative President. Declaration, mandamus, and injunction based on constitutional violations can include the quo warranto remedies even though the quo warranto remedies might not be available if the quo warranto action stood alone. See United States ex rel. Noel v. Carmody, 148 F.2d 684 (D.C.D.C. Cir. 1945) (if quo warranto does not provide plaintiff with an effective remedy, plaintiff would be limited to relief by way of bill in equity). In the Kerchner action, in addition to quo warranto remedies, I have asked for equitable relief in the form of declaration, injunction, and mandamus. See Andrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holder’s action and his title to the office, the court explained that such equitable remedies can replace quo warranto remedies, provided a plaintiff can show he has standing and that he has met the requirements of the de facto officer doctrine by showing that he took timely action against the office holder and that the government agency had reasonable notice of the claimed defect in the officer’s title to the office so as to have the opportunity to remedy any such defects). Even though the Kerchner case is not one that challenges any action taken by Obama but only his Article II constitutional qualifications to hold the title to the Office of President, we nevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger case compelling equitable relief.

First, I filed the Kerchner complaint/petition, seeking declaratory, injunctive, and mandamus relief, before Obama was sworn in as President on January 20, 2009. Hence, my action is surely timely. Second, Obama and Congress have had notice of the challenge to Obama’s Article II eligibility well before the election and even through the Kerchner action itself. Hence, they have had an opportunity to address and remedy the challenge to Obama’s constitutional eligibility to fill the Office of President. But despite this opportunity, they have both refused to acknowledge the “natural born Citizen” issue (that Obama has not conclusively proven that he was born in Hawaii and even if he was he is not a “natural born Citizen” because he was not born in the United States to a mother and father who were at his birth United States citizens) let alone address and remedy this serious constitutional crisis. On the contrary, both Congress and the Executive have sided with Obama, who being sued not only in his official capacity but also in his private capacity has the burden to show that he is constitutionally qualified for the Office of President, and have taken every possible step to deny any plaintiffs their day in court. Additionally, it can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

On October 20, 2009, the Federal District Court for the District of New Jersey dismissed the Kerchner case on the defendants’ motion to dismiss. The Court did not rule that Obama has conclusively proven that he was born in Hawaii. The Court also did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction (Article III 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. Additionally, unlike in the Keyes/Barnett v. Obama case in California, the defendants did not argue that the Kerchner quo warranto action was filed in the wrong court. Judge Simandle also did not rule that it was incorrectly filed. 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. The Kerchner action is now on appeal to the Third Circuit Court of Appeals in Philadelphia where it is hoped the Kerchner plaintiffs will receive the judicial and public attention that their case so rightfully deserves.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
November 9, 2009