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

Kerchner Appeal Filed with Third Circuit Court of Appeals in Philadelphia PA

This is to give notice that today, Tuesday, October 27, 2009, at 2:19 p.m., I filed a Notice of Appeal to the Third Circuit Court of Appeals in Philadelphia PA of Judge Jerome B. Simandle’s dismissal of the Kerchner et al. v. Obama & Congress et al. case.

Recently, the Hon. Jerome B. Simandle decided the Kerchner case, granting the defendants’ motion to dismiss the case. As I explained, through the dismissal, Judge Simandle avoided having to reach the merits of the question of whether Obama is an Article II “natural born Citizen” and eligible for the Office of President and Commander in Chief.

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

A court cannot refuse to hear a case on the merits merely because it prefers not to due to grave social or political ramifications. As I have shown in my essay entitled, The 'Real' Kerchner v. Obama & Congress Case Is On Its Way to the Higher Courts of Justice, the Court’s opinion dismissing the Kerchner complaint/petition did not address the real Kerchner case but rather looked for a way to dismiss the case without having to reach the merits of the question of whether Obama is an Article II “natural born Citizen.” It is my hope that the public will take the time to read the Kerchner complaint/petition and the legal briefs that were filed supporting and opposing the defendants’ motion to dismiss so that it can learn first hand what the Obama ineligibility case is really about and draw an intelligent and informed decision on whether Obama is constitutionally qualified to be President and Commander in Chief of the Military.

The case is now with the Third Circuit Court of Appeal in Philadelphia, PA, which court we hope will decide the real Kerchner case and thereby reverse the decision of the Federal District Court. The American people deserve to know whether Obama was in fact born in Hawaii. More importantly, even if he is born in Hawaii, given that he was born with dual allegiance and citizenship, the American people deserve to know whether he is an Article II “natural born Citizen” which would make him eligible to be President and Commander in Chief of the Military. It is our position that because Obama was born with conflicting allegiances and citizenships at birth (British and U.S., if he was born in Hawaii), he cannot be President and more so Commander in Chief of our military men and women.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
October 27, 2009

P.S. Here is a link to educational information on Understanding the Federal Courts Appeal Process.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MommaE Radio Rebels - BlogTalkRadio - 8:30 PM EDT, Wednesday, 21 Oct 2009

Mario Apuzzo, Attorney, and Charles Kerchner, Lead Plaintiff, of the Kerchner et al vs. Obama and Congress et al lawsuit will be appearing on the radio show, MommaE Radio Rebels - BlogTalkRadio - 8:30 PM EDT, Wednesday, 21 Oct 2009, and will be discussing the decision out today on their case from Judge Simandle of the Federal District Court, Camden NJ.

Show link: http://www.blogtalkradio.com/mommaEradioRebels/2009/10/22/Momma-E-and-the-Radio-Rebels

Lawsuit Overview: http://www.scribd.com/doc/19914488/Kerchner-v-Obama-Congress-Table-of-Contents-2nd-Amended-Complaint

Tune in and join us or listen to it in the re-run via podcast. During the live show a chat room is open for listener dialog and questions. And a call-in number is listed for those who wish to call in questions.

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

Judge Simandle Has Granted the DOJ's Motion to Dismiss

Re. Kerchner et al vs. Obama & Congress et al lawsuit filed January 20th, 2009.
http://www.scribd.com/doc/19914488/Kerchner-v-Obama-Congress-Table-of-Contents-2nd-Amended-Complaint

Judge Simandle Has Granted the DOJ's Motion to Dismiss. We will appeal.
http://puzo1.blogspot.com/2009/10/judge-simandle-has-granted-dojs-motion.html

Attorney Mario Apuzzo called me a few minutes ago. Judge Simandle has granted the DOJ's motion to dismiss. More on this later. Mario will post some initial comments in the blog but he still has to read the Judge's decision in full. I also need to read the full decision. But we will definitely appeal.

Like in the Battle of Long Island in the Revolutionary War, we have lost a battle. But we have not lost the war. The real decision on this will ultimately be made by the U.S. Supreme Court on the real crux of this matter ... which is a legal issue, i.e., the legal question of what is a Natural Born Citizen per Article II of our Constitution per original intent, and is Obama one. I say he is not. Read this as to why:

http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

Attorney Apuzzo will comment further once he has had a chance to read the full decision.

We have lost at this initial step. But now Attorney Apuzzo can move the case up the ladder in the court system and file an appeal.

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

P.S. Links to the Judge's Opinion and his Order are now uploaded to SCRIBD.com and convenient links to them are found in the right frame of this blog. Just scroll down a bit to find a list of links to all the court documents for this case. The docket file at SCRIBD.com has also been updated to show the new documents entered today.

Letter of Inquiry by Atty Apuzzo Sent to Judge Simandle 1 Oct 09 re Delayin Deciding 2 Motion Decisions Since Jul 09 and Judge's Response 2 Oct 09

Letter of Inquiry by Atty Mario Apuzzo Sent Electronically to Judge Jerome Simandle on 1 Oct 2009 About No Decision Having Been Made Yet for the Two Motions Before Him Since July 2009.

Letter of Inquiry, Kerchner v Obama & Congress, Filed October 1st 2009:
http://www.scribd.com/doc/20480245/

Response from Judge Simandle to Atty Apuzzo's Letter of Inquiry, Filed October 2nd, 2009:
http://www.scribd.com/doc/20547848/

Court Docket Report, Kerchner v Obama & Congress , Updated October 2nd, 2009:
http://www.scribd.com/doc/17748032/
Table of Contents for Kerchner v Obama & Congress Lawsuit:
http://www.scribd.com/doc/19914488/
Copy of Lawsuit, 2nd Amended Complaint:
http://www.scribd.com/doc/11317148/
An Important Essay by Attorney Mario Apuzzo on Natural Born Citizenship:
http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html
Obama is a Brit and is Not an Article II Natural Born Citizen of the USA:
http://www.scribd.com/doc/19480286/

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