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. 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, 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
November 9, 2009


Erica said...

Wow! This must be what it's like to sit in a courtroom and hear two attorneys argue, and then wait for the jury's decision.

Your reply to Donofrio is much appreciated and timely. For now I will set aside my plan to create a graphic about quo warranto on hold.

Even though you and Leo have notable differences in your interpretations of the law, it is abundantly clear that both of you want to honor the Constitution, and for that I'm grateful.

Today on my blog someone raised a question about adoption that sparked another question in my mind.

Our Founders knew nothing about in vitro fertilization and surrogate mothers. And what about infants born from rape by a stranger? Do you see future difficulties assessing the NBC status of children born in these situations? And to address my commentator's question, what about adopted babies?

Robert said...

Thank you very much for taking the time to keep us informed. I have the greatest respect for you and Mr. Donofrio. Reading both of your columns is like going to a golf clinic featuring Nicklaus and Woods. Wow!!

While your case is proceeding we must understand that Mr. Obama's unconstitutional actions were not committed in a vacuum. Our elected officials have all with malice and forethought conspired to undermine our constitution. They were all informed fully and in a timely manner - prior to the election - by many sources including Mr. Obama's own statements that Mr. Obama is not a natural born citizen and is therefore not qualified to hold the office of President and Commander in Chief. They all refused to act.

While you, Mr. Donofrio, et al are busy taking on Mr. Obama what action(s) can the rest of us take against our Senators and Representatives who have, in this instance and others, violated their oaths of office, willfully ignored their prescribed duties, and committed treason against he Constitution?

How can they be removed from their offices before the next election? Can we bring them before a grand jury? Can they be sued? Can they be recalled or impeached by the citizens?

How do we enable and encourage our state representatives to act in preservation of our state and personal liberties?

What can we do to hold responsible the political parties, who have also conspired against us?

How do we address the judges who have forgotten that their authority comes from We the People?

Perhaps if we pick off enough of the rotten fruit from the vine the remainder will get the message and our constitutional republic can be restored.

showhank said...

what does the prohibition of the writ of quo warranto in the Federal Rules of Civil Procedure mean to the case, I was not quite able to follow WILDER v. BRACE and Ames predates FRCP

Mario Apuzzo, Esq. said...


"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)."

F.R.C.P. 81(a)(2) shows that all the rules of civil procedure apply to quo warranto actions to the extent that there is no Congressional statute providing for a different procedure. It also shows that the writ existed at common law and continues to so exist to the extent that a Congressional Act does not provide otherwise.

The two cases show that the writ existed at common law and may be lodged in any federal court in conjunction with other actions over which the federal court has origianal jurisdiction.

jayjay said...


An excellent and enlightening QW discussion!!

Kudos extraordinaire (and Bon Appetit)!!

Unknown said...

I pray Congress and the courts soon realize when the People cannot get any redress to their grievances through either, revolution becomes the only viable alternative.

FollowTheConstitution said...

I don’t understand all this talk about removing a “Sitting President”? If this was about any other issue other than Obama NOT being constitutionally eligible then I can understand that argument. But in this case Obama is NOT a sitting President. He is a usurper merely posing as a President which he is not.

The mere fact he won a majority vote by fraud through a general election that he was never qualified to even be listed on the ballot should not allow for him to be referred to as a sitting President. That would seem to be as if we were acknowledging him as the President but we merely think he may not be eligible. We KNOW he is not constitutionally eligible by his own admitance to the fact and there is no possible legal way he could be considered a sitting President until proven otherwise. It seems to me it is the exact opposite where he is not a sitting President until HE proves otherwise, which we all know he can not possibly do!

So why is he being referred to as a sitting President when legally he not the President at all and merely an imposter?

It would seem to be that the question of the courts shouldn't about removing a sitting President, but about having an imposter arrested and prosecuted for impersonating the Presidency and committing treason!

Am I off base and missing something with this line of thinking?

BTW, Mario, I really admire your brilliant legal analogies on everything. Outstanding job!

Mario Apuzzo, Esq. said...


In my article, I refer to Obama as a "sitting putative President." Putative means reputed or supposed. Hence, I am not acknowledging that he is a duly elected and confirmed President. Rather I am saying that Obama appears to be one because of fact and not because of law.

I am delighted that you can find my articles useful and interesting. The reason I write them is so that the public can have information on the Obama eligibility issue which will help it make up its own mind as to what is or ought to be.

Andy said...

I discovered that natural born doesn’t just apply to Presidents in this country. it also applies to the governor’s office in some states and more importantly it applied to the ability to inherit property. See this case:

M’creery’s lessee v. Somerville

Only natural born can inherit property and it seems that this case points out that these persons cannot inherit property because their father was not a citizen.

“The title of the lessor of the plaintiff to recover in this case, depends upon the question, whether she can claim as one of the coheirs of her deceased uncle, her father being an alien, and alive at the commencement of the present suit. It is perfectly clear that, at common law, her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III. ch. 6. is admitted”

I wonder if we all shouldn’t be digging through property rights cases from the early 1800’s when it seems that only the natural born could inherit lands. I may, of course, be misinterpreting this, but then again there may be good precedent here.

warning voice said...

I was curious as to whether the standing issue could be overcome by showing the courts that they are undeniably the last resort for remedy to this issue of eligibility that in your words involves a "sitting putative President" ...

I, like many others, sent letters, signed petitions, contacted the various SoSs, our senators and congressmen and women and many I believe even tried to contact the electoral delegates before the GE vote and were denied any redress despite all of the above attempts and then even before the electoral vote count was ratified many were contacted again by the same means to again plead to have them vett Barack before he was sworn in !

Could the collection of all these unheeded pleas to all of the officials that should have heeded the pleas because they were elected and appointed to represent their constituents and do so because of all of the
e-mails, petitions, and letters to our elected and appointed officials that fell on deaf ears from constiuents that demanded that Barack be vetted and when these alleged representitives of the people didn't do so...

Wouldn't that amount to some sort of unremedied injury instigated by the very elected and appointed officials that were sworn to uphold and defend the constitution but didn't do so despite being asked and asked and asked by there constituents to do so and that be a cause to let the plaintiffs have a 1st ammendment right to have their unheeded petitions heard in court and satisfy the 10th ammendment requirement for standing because the courts would be the last resort to which the citizens that were ignored by the above mentioned officials could go to have their 1st ammendment rights protected since the congress and sentae didn't do so ?
certification to have them vett Barack Obama ?

Mario Apuzzo, Esq. said...


The M'creery's case involves issues regarding inheritance in the State of Maryland. Justice Story applied common law and an English statute that was in force in Maryland to resolve those state issues. If the issue were national citizenship (a federal issue), of course Justice Story would not have applied those English statutes and common law which were in force in Maryland but rather, the law of nations and federal common law which would have been applicable to resolve federal issues.

As I have explained, the English common law continued to have effect in the States on local issues (e.g., inheritance, property, contracts, tots, criminal procedure, etc.). As can be seen from decisions that I have cited from our United States Supreme Court, it did not apply to defining what an Article II "natural born Citizen" is.

Unknown said...

Pelosi sent Hawaii a letter to inform Hawaii that Obama was their candidate for the DNC. In that letter as I recall they stated he was a Natural Born Citizen. The other 49 states they did not make this claim on those letters. Since Pelosi is a public official, can't she be held accountable on how she determined Obama was a Natural Born Citizen? Similiar to the department of health when she stated Obama was a NBC. Or, since a Notary Republic signed the document, didn't that Notary Republic have to confirm the documents that prove he is a natural born citizen? Maybe she is accountable?

Someone is accountable and responsible, but who is it? Said another way, somebody lit the match that started the fire. It seems we the people are left with proving that there was even a fire. It seems backwards to me that we have to approach this whole situation from the end of the story instead of the beginning (i.e. the person with the match). Pelosi seems the most likely.

Thanks for your blog. If there is an oppty to slip a paragragh in the future in laymen terms, please do. I am not a lawyer so I find it difficult to fully comprehend and appreciate the topic. I try, I read it twice. A "for you laymen" paragraph would be great.

Thank you for taking this on and in the process giving democracy a chance.

Edward said...

After about 30 some cases there must certainly be a case behind the Obama eligibility issue that is greater than just the eligibility issue itself. At least 30 attorneys agree with the legal issues involved. The real underlaying issue is the unquenchable government thirst for power, and their quest to erode the rights of the people, be they Consititutional or other rights.

"The definition of insanity is to do that which does not work, over and over again." -Albert Einstein.

There must be some form of variation that will work. It would be nice if it was in the courts, but it may have to be settled out of court. Such as a Recall Vote or Constitutional Convention.

The Founding Fathers many of us so proudly refer to, did not try to settle in court. They had a Revolution and they did not hedge the issue. When is it time to follow the real example of the Founding Fathers, or is modern America drugged on prosperity, 2 cars and a martini, have become more important than freedom. Perhaps America needs a "diet" and a bit of sacrifice.

Christinewjc said...


I have nominated your blog in the "Best Law Blog" category for the 2009 Weblog Awards. Here is the link to the nominations page:

It is my hope that this nomination will draw more attention to the Obama ineligibility issue.

Carlyle said...

I agree at least partially with "i" above. Every Obama lawsuit that I know of is quite complex and hard to follow.

In order to add breadth and weight to the claim, many individual items are inserted.

Would it make sense? And how and where might one file? Just ONE direct and simple thing: Get Pelosi to release or describe the documents or mechanism by which she was able to determine that Obama was constitutionally eligible.

It seems to me (highly educated, but no lawyer) that simple principles of transparent government and existing statutes would make that easy.

Since it has not been done yet, perhaps it is not that straight forward. Can anyone enlighten me on this?

Let us move forward said...

Carlyle and i

jbjd has proposed suing Pelosi for her act of certifying of Mr. O's nomination (without vetting him) as a party official. She has immunity from lawsuits addressing her official acts as a member of Congress but not immunity from lawsuits connected with her acts as a party official. According to jbjd, Pelosi is vulnerable for her certification of Mr. O without vetting.

Now jbjd is blogging about how Pelosi committed fraud to steal the nomination.

It is all at

Anonymous said...

Mario, I'm watching the live stream of Continental Congress 2009 at and Dr. Taitz is on there and made the erroneous statement that you did not file a motion of reconsideration in Kerchner et al v. Obama, when you did in fact file an appeal (I'm not saying that she did this on purpose; just that she said it). Perhaps you should contact the New Jersey delegates and make that point to them, i.e., that you did appeal. Of the five people listed at all except for Robert Leustek were elected delegates. Samuel B. King is the alternate, and the other three are full delegates. See

Dixhistory said...

Mr. Puzo Bravo!

Well thought out and written in a way the lay person can understand.

You put a light on things I as a lay person had trouble understanding.

I am in hope your action will bear the sweet fruit of sucess.

James said...

We got Bad News Guy!! A State Court has finally ruled that Obama is a "Natural Born" Citzen.

While this a state court, I doubt the Federal Court would see it any differently.

Having said this, I do believe the courts have it WRONG.

Obama is NOT a "Natural Born" citizen.

But appears that a court has now ruled such which is very unfortunate.

It looks like it is back to Square 1.

Unknown said...

Mr. Apuzo,

No devil in those details!

jayjay said...


You've misunderstood the Indiana case you mention. Their hyping of WKA and English Common Law show how eroneous they are and how misinformed on the issue.

No state court gets to define the term "natural born citizen" nor to determine who is and who is not. They are not the arbiters of the US Constitution. That should be clear to you if you've read very much of the excellent essays on this blog.

James said...

Perhaps there may be hope afterall. Leo did a smashing review of their decision:

I think Leo and Mario have the "Natural Born" argument covered.

Mario and Leo really should combine their talents and file a DC Quo Warranto.

The real trick though is getting through the Standing and Jurstication Barrier.

I believe that barrier can be broken.

Anonymous said...

Mario wrote:

"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."

Mario, my original legal brief on quo warranto which I published way back in March 2009 thorougly discussed the difference between collateral attacks and direct attacks as was discussed in the case Andrade Vs. Lauer.

Here's the link

I expect you will correct your publication as I know you are an honorable attorney.

Leo C. Donofrio

Mario Apuzzo, Esq. said...


I did not say that you did not recognize the difference between a direct and indirect attack. I only said that you did not say which mode of attack you proposed for me to pursue. It is important to know that information because I believe it is much easier to establish standing with an indirect attack than with a direct attack.

As you know, I filed a quo warranto action on January 20, 2009 in the Federal District Court for the District of New Jrsey. On your blog, you said that only the DC District Court can hear a quo warranto action because Congress passed the DC code to give that court exclusive jurisdiciton over such actions. Hence, your postion is that my quo warranto action is filed in the wrong court and will be dismissed for that reason. My position which I explain in my article is that I can also file my quo warranto action in the New Jersey Federal District Court, provided I show that the Court has originial jurisdiction other than through the quo warranto action itself. I also explain how neither the Justice Department nor the Court in my case objected to how I filed the quo warranto action.

You also said you want me to file a quo warranto action in the DC circuit under the DC code. That is a direct attack, not an indirect attack. My article asks the question of how you want me to satisfy the standing requirements of the direct attack, i.e. having clients who are personally interested in the Office of President, which the DC Code requires for action brought thereunder. I do not believe that it is possible for me to meet the DC Code requirement given the types of clients I have. Hence, I was wondering whether you really meant for me to do a quo warranto in the DC Court or rather wait for a client who can challenge some action taken by Obama and thereby do an indirect attack which provides more possiblities for establishing standing.

Please note that my quo warranto is filed along with other constitutional challenges. Hence, I am arguing for standing not with my clients having a personal interest in the Office of President but rather by being constitutionally damaged by Obama and Congress violating their constitutional rights under the 1st Amendment (Congress, right to redress of grievances) and 5th and 9th Amendment (Obama and Congress, right to liberty, safety, security, and tranquility). I also have a 5th Amendment equal protection claim against Congress for investigating McCain but not Obama.

Leo, also, thank you for having faith in me that I would do the honorable thing and clear up any confusion on this issue.

Mario Apuzzo, Esq.

Mario Apuzzo, Esq. said...

Leo Donofrio, Esq. has posted his reply to this article at

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


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

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

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

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

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

Mario Apuzzo, Esq.

Mario Apuzzo, Esq. said...

At Citizenwells blog,

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

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

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

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

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

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

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

Mario Apuzzo, Esq. said...

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

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

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

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

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

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

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

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

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

Mario Apuzzo, Esq.

Mario Apuzzo, Esq. said...

jbjd said... at "Kerchner v Obama & Congress - 3rd Circuit Court of..." which I repeat in this thread:

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