Helping out Mario
Mario explains:
To summarize, I have made 4 objections:
1. To declare that Obama is a “natural born Citizen,” ALJ Masin found that Obama was born in Hawaii. But there is absolutely no evidence before the court that he was so born. Obama’s lawyer stipulated and the court agreed that there is no evidence before the court showing where Obama was born, including no evidence of the alleged Certificate of Live Birth that Obama released on the internet on April 27, 2011.
It is common public knowledge that President Obama was born in Hawaii. No contrary evidence was presented. Next question…
Mario versus Stothers v Martini 6 N.J. 560 (1951)
During his oral arguments, Mario raised the case of Stothers v Martini 6 N.J. 560 (1951), 79 A.2d 857 (incorrectly cited by some as Strothers, including Mario when citing the case to the Judge) in support for his belief that the Secretary of State is affirmatively required to determine eligibility of the candidate.
However, the case does not support this finding. In Stothers, the clerk, Martini, rejected Stother’s petition as he failed to meet the eligibility requirements. Since both sides filed for summary judgments, the only issue before the court was whether or not the requirements were Constitutional. The Court found that they were, although in MATTHEWS v. ATLANTIC CITY 84 N.J. 153 (1980), the Court revisited Stothers as there was a stricter scrutiny requirement. The Court found the requirements to be unconstitutional.
Plaintiff contends that an examination of developments in constitutional law since Stothers leads to a result contrary to that reached in 1951. Specifically, he urges that the United States Supreme Court decisions in Bullock v. Carter,405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), and Dunn v. Blumstein,405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), require application of a more stringent standard of review to the statute in question — a standard which plaintiff claims N.J.S.A. 40:72-1 cannot meet. Accordingly, we begin our inquiry by considering those two decisions
NJ – Purpura v Obama – Apuzzo FAIL
This is just too good to ignore. I wonder how Purpura is doing…
“The second objection involves the meaning of the Constitutional phrase, “natural born Citizen.” Discussion and consideration of this issue is of course relevant only on the understanding that Mr. Obama was born in Hawaii. This issue has been the subject of litigation concerning Mr. Obama’s candidacy in several jurisdictions. No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born Citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here; the subject has been thoroughly reviewed and no new legal argument on this issue has been offered here. While there are several decisions that could be cited, the decision issued by the Court of Appeals of Indiana in 2009 in Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009), is representative of the position taken by courts and other agencies who have considered the merits of the issue. As the court therein noted, and as the petitioners here have contended, the thrust of the argument against Obama’s status as natural born is that there is a “clear distinction between being a ‘citizen of the United states’ and a ‘natural born Citizen.” Id. at 685. The decision notes that the petitioner therein, as here, cites to an eighteenth century treatise by Emmerich de Vattel, “The Law of Nations” and to various early sources for support for their argument that one who is the child of a non-citizen cannot be natural born even if born in the United States. But the Ankeny court, relying upon the decision of the United States Supreme Court in U.S. v. Wong Kim Ark, 169 U.S.649, 18 S. Ct. 456, 42 L. Ed. 890 (1898), rejected that position.2 In Wong Kim Ark, Justice Gray wrote at great length about the understanding of the term “natural born” and its common law meaning, probing English authorities and concluding that the “law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, . . . every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.” This position as to the common law meaning is in accord with Justice Joseph Story’s statement, concurring in Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99,7 L. Ed. 617 (1830), “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents reside there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” See Wong Kim Ark, 160 U.S. at 660, 18 S. Ct. at 461. In Wong Kim Ark, the Court also cited Justice Swayne’s comment in United States v. Rhodes, 1 Abbott 26,40, 41 (1860) “All persons born in the allegiance of the king are natural-born subjects, and all person born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” The Wong Kim Ark Court then stated “We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions [children of ambassadors, etc.], since as before the Revolution. [Wong Kim Ark, supra, at 169 U.S. 662-663, 18 S. Ct. at462]. The Georgia Secretary of State recently denied a similar challenge to Mr. Obama’s status as a natural born citizen in Farrar, et al. v. Obama, OSAH-SECSTATE-CE-1215136-60-MAHIHI, where Georgia State Administrative Law Judge Mahili relied upon Ankeny and Wong Kim Ark for his ruling that the President was indeed a natural born Citizen.”
NJ – Purpura v Obama – Denined…
Poor Mario, still no respect for his ‘legal’ opinions… Well, now it is official… Oh, and the lawyer he allegedly beat is a first year associate, fresh out of Georgetown University.. That must hurt…
Time does not allow for the fullest discussion of the case law addressing these issues, but suffice it to say that the status of “natural born Citizen” for Mr. Obama has not been denied by any court or administrative agency that has addressed the merits of the issue. This is not the place to write a law review article on the full analysis of the subject, but there is no legal authority that has been cited or otherwise provided that supports a contrary position. The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a “natural born Citizen” regardless of the status of his father.
Another ‘win’ for Mario… I am sure…
NJ – Purpura v Obama – Ballot Challenge Filed
The actual document has finally been made available and it involves Mario Apuzzo as the lawyer for two objectors: Purpura, well known for his Healthcare Act failures and Theodore Moran, a democratic voter.
The problem they are facing is that N.J.S.A 19:25-3 outlines the requirements. The document – choice for President is to be filed before 4PM on the 64th day before the primary election and requires 1000 signatures
19:25-3 Presidential candidates.
1.Not less than 1,000 voters of any political party may file a petition with the Secretary of State on or before the 64th day before a primary election in any year in which a President of the United States is to be chosen, requesting that the name of the person indorsed therein as a candidate of such party for the office of President of the United States shall be printed upon the official primary ballot of that party for the then ensuing election for delegates and alternates to the national convention of such party.
The petition shall be prepared and filed in the form and manner herein required for the indorsement of candidates to be voted for at the primary election for the general election, except that the candidate shall not be permitted to have a designation or slogan following his name, and that it shall not be necessary to have the consent of such candidate for President indorsed on the petition.
Then there are the nominating petitions for delegates candidates for the Democratic National Convention which are governed by N.J.S.A. 19:23-7 and N.J.S.A 19:3-3
19:3-3 Election of delegates, alternates at primary election.
19:3-3. Delegates and alternates to the national conventions of the political parties shall be elected at the primary election to be held on the Tuesday next after the first Monday in June in that year.
19:23-7. Signers; certificates of candidates
19:23-7. Each such petition shall set forth that the signers thereof are qualified voters of the State, congressional district, county, or county election district, municipality, ward or election district, as the case may be, in which they reside and for which they desire to nominate candidates; that they are members of a political party (naming the same), and that they intend to affiliate with that political party at the ensuing election; that they indorse the person or persons named in their petition as candidate or candidates for nomination for the office or offices therein named, and that they request that the name of the person or persons therein mentioned be printed upon the official primary ballots of their political party as the candidate or candidates for such nomination. The petition shall further state the residence and post-office address of each person so indorsed, and shall certify that the person or persons so indorsed is or are legally qualified under the laws of this State to be nominated, and is or are a member or members of the political party named in the petition.
Accompanying the petition, each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition, that he is a member of the political party named therein, that he consents to stand as a candidate for nomination at the ensuing primary election of such political party, and that, if nominated, he consents to accept the nomination, to which shall be annexed the oath of allegiance prescribed in R.S.41:1-1, duly taken and subscribed by him before an officer authorized to take oaths in this State.
The requirements for this office are:
- shall have attained the age of 18 years
- a United States Citizen
- a resident of New Jersey
- a resident of the delegate district
- a registered Democrat
In addition:
Candidate(s) must sign a “Certificate of Acceptance” and an “Oath of Allegiance.” (N.J.S.A. 19:23-15). Note: Oath of allegiance must be notarized.
Candidate(s) refers to the delegates, not the Candidate for Presidency. Remember, the primary election elects the delegates.
Furthermore, any objections can only include statutory provision of N.J.S.A Title 19. Since the primary elections involve the election of the delegates/electors, the eligibility of the Presidential candidate is of no relevance, and furthermore, there are no statutory requirements under Title 19 regarding Presidential eligibility, such eligibility requirements come from the US Constitution.
So not only is the burden of proof on the side of the objectors, but they will be unable to find any statutory requirement in Title 19, relevant to the primary elections.
Purpura et al refer to the following N.J.S.A Title 19 statutes
19:29-1.b- b. When the incumbent was not eligible to the office at the time of the election; which is not relevant since President Obama will not be elected for office during the primary.
19:13-11 -The officer with whom the original petition was filed shall in the first instance pass upon the validity of such objection in a summary way unless an order shall be made in the matter by a court of competent jurisdiction and for this purpose such officer shall have power to subpoena witnesses and take testimony or depositions. He shall file his determination in writing in his office on or before the ninth day after the last day for the filing of petitions, which determination shall be open for public inspection.
19:23-7 - Which applies to the delegates not the Candidate whose nomination is covered by 19:25-3
19:23-15 – Which applies to the delegates not the Candidate whose nomination is covered by 19:25-3
None of which appear particularly relevant
Mario Apuzzo is not taking it too well
Our friend Mario, attorney in the failed case Kerchner v Obama, is not happy that the President released his Long Form Birth Certificate. Convinced that the document must be fraudulent, he is now moving the goalposts to documents from the Kapi’olani Hospital. I kid you not, next they want to inspect the placenta…
Here is my challenge to Obama’s enablers. Why don’t we just cut to the chase. They profess to know so much about Obama. Let’s see a document from Kapi’olani Hospital (not the Hawaii Health Department) that confirms that Obama was born there.
One would think that Mario would have grown used to being wrong time after time 
Fascinating behavior especially since, according to Mario’s novel interpretation, the place of birth does not even matter… Perhaps his appeal to Vattel is not as solid? Oh wait…
Commenters on his blog are similar not very impressed…
gobillgo said…
How many times are you going to move the goal post?
You don’t think most Americans can see right through this stuff?
You can almost hear the eye rolling as the birthers stretch their conspiracy further and further.
Everyone knows that even if you got the “new” records that you now demand, if they didn’t show what you wanted…you will simply demand different records.
And on and on it goes…
Mario
Puzo1 said…
gobillgo,
I am not interested in your Obot goal post talk. The on-line alleged Certificate of Live Birth is a forgery. Just produce the real evidence. Like I said, “no excuses, please.”
ROTFL….
Dr C – Apuzzo fulminates against Fukino
Dr Conspiracy discusses Mario’s recent outburst when Fukino stated that she had indeed seen Obama’s birth records which were signed by a Doctor.
Unable to face the fact that he may have wasted good time and money with his lawsuits, which went nowhere, Mario ‘fulminates’ spouting poor logic, which our good Doc documents for our amusement.
Poor Mario…
Mario’s conflicting ‘logic’
Our friend Mario has not been quiet in the last few weeks as he has continued to undermine his case on CAAFlog. After losing his case when the Supreme Court refused to hear it, and arguing that he never lost the case because there was no case because his client was found to lack standing, he now has ventured in other shady areas of ‘logic and reason’. The latest incident is one in which Mario is arguing at the same time that “Citizens of the United States” include all natural born citizens and that they don’t. Such a conflict in logic is necessary for Mario to be able to argue that the 14th Amendment ‘naturalized’ children born on US soil when born to one or more alien parents.
Mario Apuzzo:
All “natural born Citizens” are necessarily also “Citizens of the United States,” for they satisfy the requirements to be such one way or another, i.e. by satisfying either the jus soli or jus sanguinis and jurisdictional requirements of being a “Citizen of the United States” under the 14th Amendment, a treaty, or a Congressional Act. But no “citizen of the United States” by definition is a “natural born Citizen,” for he or she only satisfies the law that provided him or her with that status (e.g., the 14th Amendment, treaty, or Congressional act) and not also the natural law and law of nations definition of a “natural born Citizen.” For example, statutory naturalized citizens after birth and children born in the U.S. to one or two alien parents who under the 14th Amendment are naturalized “at birth” are “citizens of the United States,” but they are not “natural born Citizens.” Finally, all “natural born Citizens” and “citizens of the United States” are U.S. citizens.
So it is only a logically confused individual who would conclude that under my definitions of a “citizen of the United States” and “natural born Citizen,” a “natural born Citizen” could not be eligible to be a Representative or Senator because Article I says that a “Citizen of the United States” is eligible for those positions.
Yes, logic in Mario’s world allows the simultaneous existence of two exclusive and contradictory claims.
Now, it has already been pointed out to Mario, that according to the drafters of the 14th Amendment, the amendment merely reflected what was already the case under the Original Constitution, namely that there exist two kinds of citizens: born on soil, or naturalized on soil and together they are called “Citizens of the United States”. But since Mario has to argue that Wong Kim Ark was merely naturalized at birth, even though such naturalization was explicitly forbidden by statute, and contradicted by both the majority ruling as well as the dissenting Judge, we have now entered what I call “the twilight zone of the birthers” where rules of logic are to be abandoned.
Enjoy…
The Apuzzo Files – Ankeny v Daniels
Mario Apuzzo, the lawyer in Kerchner v Obama has been less than consistent on the ruling in Ankeny v Daniels where the Appeals’ Court addressed the meaning of the term “natural born citizen” to show how English Common Law defines the term to mean “born on soil, regardless of the citizenship of the parents”. Clearly the Ankeny Court was rejecting the concept that it was Vattel’s two citizens’ parents which defined the term.
We realize that the Ankeny case is a state court decision and not binding on the federal courts. We nevertheless cite to it because it is the only case in the United States that, although not necessary to its decision and without considering or even discussing much case law and authorities showing otherwise and by improperly conflating the clauses “natural born Citizen” of Article II and “citizen of the United States” of the Fourteenth Amendment, has reached the merits of the constitutional question of what is an Article II “natural born Citizen,” finding that “persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents….” Id. at 688.
Source: Kerchner v Obama Appeal – Motion for Leave to File Supplemental Appendix Filed 10 Apr 2010
Mario: Earlier I said that there has not been any U.S. Supreme Court case that has yet to decide the question of what is a “natural born Citizen” within the context of whether a person is eligible to be President. There has, however, been a state court case that has reached the merits of that question as it applies to Obama. That is the Indiana state case of Ankeny v. Governor of the State of Indiana. That court decided that anyone born in the United States (except for the children of diplomats or of invading armies), regardless of the citizenship of his or her parents, is not only a Fourteenth Amendment “citizen of the United States” but also an Article II “natural born Citizen.”
It is telling that the Indiana court felt compelled to rule that Obama was not only a Fourteenth Amendment born “citizen of the United States” but also an Article II “natural born Citizen.” Hence, the court does concede that there is a difference between the two.
Source: The Post and Email, The Post & Email’s exclusive interview with Eligibility Attorney Mario Apuzzo, June 9, 2010
It is also telling that Mario still has problems accepting that a citizen born on US soil is by definition a natural born citizen and thus eligible to be our President.
However, on December 6, 2010 Mario claimed
You did not meet my challenge which clearly shows that I was correct that the Ankeny court did not find that Obama was born in the United States and that he is a “natural born Citizen.”
Source: CAAFLog, December 6, 2010
The issue before the Court was not the location of birth but Mario’s pet idea that Natural Born requires birth to two US citizens. The Ankeny Court, citing Wong Kim Ark, laid to rest that foolish idea.
Mario goes on:
MRS. RONDEAU: What could be done with the case of Ankeny v. Governor of the State of Indiana?
ATTY. APUZZO: Well, it’s not a federal opinion; it’s not binding on the federal court, and I really don’t give much value to it myself, personally, based on what I’m saying now as well as other things. They really didn’t get into all the case law, all the evidence, all the history; they just used Wong Kim Ark and said, “He’s a natural born Citizen.” The Indiana court used Wong’s holding that under colonial English common law Wong was a “citizen of the United States” under the Fourteenth Amendment and expanded it to give the meaning of an Article II “natural born Citizen” which is the standard to be eligible to be President. Clearly, the Wong decision did no such thing. On the contrary,Wong distinguished a “natural born Citizen” from a “citizen of the United States.”
Source: The Post and Email, The Post & Email’s exclusive interview with Eligibility Attorney Mario Apuzzo, June 9, 2010
It is patently untrue that Wong distinguished a natural born citizen from a “citizen of the United States” other than to observe that the term “citizen of the United States” includes naturalized citizens. I am still surprised that Mario fails to comprehend this simple fact.
MRS. RONDEAU: And yet there’s no real evidence that he was even born in this country.
ATTY. APUZZO: Exactly. That’s another thing with the Ankeny court. They didn’t even get into that. They just assumed without citing to any evidence that Obama was born within the borders of the United States. They had to make that finding in order to apply the jus soli Wong decision to Obama’s situation. But there was absolutely no evidence before the court that Obama was in fact born in the United States. The defendants did not produce for the court any birth certificate or any other evidence proving Obama was born in the United States. Even without any such evidence, the court ruled that he was born in the United States and therefore a “natural born citizen.” In fact, none of the defendants including Obama himself has ever produced his birth certificate for any court which dismissed all cases against him.
Source: The Post and Email, The Post & Email’s exclusive interview with Eligibility Attorney Mario Apuzzo, June 9, 2010
Of course, they did not address the location of birth since that was not claimed to be a reason for Obama to not be eligible.
In fact they clearly outlined what they did state:
As to President Obama’s status, the most common argument has been waged by members of the so-called “birther” movement who suggest that the President was not born in the United States; they support their argument by pointing to ‘the President’s alleged refusal to disclose publicly an official birth certificate’ that is satisfactory to [the birthers]. (citation omitted)
The Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.
Specifically, the crux of the Plaintiffs’ argument is that “[c]ontrary to the thinking of most People on the subject, there’s a very clear distinction between a “citizen of the United States” and a natural born Citizen,” and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance.” Appellants’ Brief at 23. With regard to President Barack Obama, the Plaintiffs posit that because his father was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the Office of the President.
Ouch
Source: Ankeny v Daniels, Court of Appeals Indiana
While Mario appears to be having some significant problems with what the Ankeny Court did rule, it did not rule that President Obama was born in the United States, as that was not an issue before the Court, raised in the Appeal. Thus is focused on the claim that Obama failed to be a Natural Born Citizen because he was not born to two US citizen parents and the Court rejected this based on their analysis of legal precedent, historical scholarship as well as logic and reason.
Slartibartfast: “[I]f any court rules on the definition of ‘natural born citizen’ that they will come to the same conclusion as the (non-binding) precedent set by the Indiana court in the Ankeny decision.”
Apuzzo response: As you correctly point out, the Indiana State court decision of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 679 (2009), is not binding on a federal court. But more important is that the decision is wanting in legal analysis and historical and legal support. It basically took Wong Kim Ark’s definition of a Fourteenth Amendment “citizen of the United States” and used it to also define an Article II “natural born Citizen.” Hence, the court conflated the two terms into the former. In so doing, the court obliterated the presidential eligibility clause “natural born Citizen” from the Constitution. Such doing has no support in logic, history, historical sources, and United States Supreme Court case law. In fact, it is contrary to sound constitutional interpretation as taught by Chief Justice John Marshall. It is of critical importance that the Framers included in the Constitution the status of “natural born Citizen” and “Citizen of the United States.” There must be a reason for their including these two separate and distinct classes of citizenship. “It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Marbury v. Madison, 5 U.S. 137, 175 (1803). Use of different language in different parts of a statute suggests that the words used have a different meaning. E.g. Bates v. United States, 522 U.S. 23, 29-30 (1997). Hence, every clause in the Constitution must be given its own independent meaning. The Framers were very specific in including both these terms into the Constitution. The unambiguous text and structure of the Constitution show that the terms each describe a different type of citizen and each are ascribed to different political offices. Hence, conflating “natural born Citizen” and “Citizen of the United States” is therefore simply not allowed and “inadmissible.” Moreover, apart from a strict textual interpretation of the meaning of the two terms, there is no United States Supreme Court decision holding or even suggesting in dicta that the two terms mean the same thing. On the contrary, the historical record, Supreme Court cases, and Congressional Acts all show that the two terms are separate and distinct with their own meaning.
Source: Puzo’s Blog, Responses to an Obama Supporter’s Comments on Obama’s Eligibility to be President
Yes Mario is still conflating the term natural born citizen and citizen of the united states, where the latter includes, as anyone knows, naturalized citizens. Since Wong Kim Ark could however not be naturalized due to anti-Chinese laws, there remains but one alternative namely that Wong Kim Ark was a natural born citizen.
Both the Government which appealed the ruling as well as the dissenting Judge clearly understood that under the ruling, Wong Kim Ark was indeed natural born and, eligible to run for the Presidency.
Recently Mario has shown that his positions on Ankeny are evolving and contradictory.
For instance
I do not know why you feel you won the Obama eligibility battle. How the Kerchner case ended does not give any legitimacy to Obama. Moreover, all the victories that the Obots so proudy count and tell the world about are nothing more than false victories, for there is not one court in the United States that has ruled that Obama was born in the United States and that he is a “natural born Citizen.” That includes the advisory opinion of Ankeny v. State of Indiana, 916 N.E.2d 678 (2009).
Source: The CAAFlog, Dec 5, 2010
and
Since you are feeling so smart these days, maybe you can explain to me why Justice Gray in Wong Kim Ark, in search of support for his thesis that English common law defined the new U.S. citizenship, cited Justice Story’s concurring opinion in Inglis Trustee of Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99 (1830), advocating jus soli citizenship, and not the majority (which included Chief Justice Marshall) which advocated jus sanguinis citizenship, and did not tell us that the majority did not agree with Justice Story.
Source: CAAFLog, December 8, 2010
As Greg however explains, Mario is wrong:
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
Source: CAAFLog, December 9, 2010
As Ballantine explains
Justice Gray said Wong was a citizen under the 14th Amendment. However, one has to look at his rationale in arriving at such conclusion to understand what the case stands for. Gray obviously had to define the 14th Amendment and determined it was simply declaratory of the existing law under the original constitution. Hence, he could not determine Wong’s status under the 14th Amendment without examining the original constitution. Hence the ratio decidendi of the case is that both the original constitution and the 14th Amendment are based upon the English common law, the latter simply being declaratory of the former. To argue the NBC definition is dicta, one has to show how he could have declared Wong a citizen under a declaratory law without showing the basis of existing law.
Source: CAAFLog, Dec 6, 2010
Kerchner v Obama – SCOTUS Denied
SCOTUS refused, as expected, to hear Kerchner’s case. Mario is licking his wounds with a “perfect record”
10-446 KERCHNER, CHARLES, ET AL. V. OBAMA, PRESIDENT OF U.S., ET AL.
The motion of Western Center for Journalism for leave to file a brief as amicus curiae is granted.The petition for a writ of certiorari is denied.
But the Birthers are, in spite of the facts, still hopeful:
The fact that they accepted the amicus from Western Journalism indicates that SCOTUS is gathering information to rule on the eligibility cases and I expect that they will rule against bo on the eligibility issue, boCare, immigration et al in 2011.
Kerchner v Obama – Scotus – Government waives right to respond
The ultimate show of disdain for the filing
Nov 3 2010 Waiver of right of respondents Barack H. Obama, President of the United States, et al. to respond filed.
Kerchner Petition for Cert with comments
… what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Source: Billy Madison (1995)
As I see it, there is only one issue to be decided by the Court: Did the lower Courts make an error in finding that Mario’s clients lacked standing? The rest is just unnecessary ‘dressing’. Sadly enough it appears that Mario has spent more effort on making a poor case for his interpretation of ‘Natural Born’ which goes against Supreme Court Established precedents, than on explaining why his plaintiffs have standing. In fact, Mario has weakened his clients’ case by arguing that the issues he brings have relevance to everyone in the US. As such, the complaint is generalized and thus his clients lack standing.
It will take me a few days to work my way through the 80+ pages, perhaps there are some arguments I have not yet seen. So far nothing new, in fact, Mario has failed once again to explain why his plaintiffs’ injuries are not just hypothetical, and conjectural, or are shared with all others. In either case, the Constitution protects defendants from having to respond to cases where plaintiffs clearly lack in standing. As Mario himself has shown, countless courts have all found the same, thus failing to create a cross circuit disagreement, which could provide the Supreme Court with a reason to grant cert. Now, Mario’s petition for Cert will likely follow the 8 or so petitions for Cert the Court has denied before.
That Mario appears to have missed to cite US v Wong Kim Ark is unfortunate but perhaps he presumed that the Court is familiar with the ruling. Not surprising, as the case has been cited close to a hundred times, approvingly, by US Courts, most recently in Ankeny v Daniels, a state case in Indiana. As far as I can tell, Mario also overlooked this case. But then again, the issue of eligibility is not on the table here. The only issue is: Were the Courts correct or did they err when they ruled that the plaintiffs lack standing.
But I am not a lawyer and I am looking forward to those smarter and better informed than me to provide their feedback, comments, suggestions and even their disagreements.
IN THE
Supreme Court of the United States
_______________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
232184
A
(800) 274-3321 • (800) 359-6859
CHARLES F. KERCHNER, JR., et al.,
Petitioners,
v.
BARACK HUSSEIN OBAMA, II, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
MARIO APUZZO
Counsel of Record
QUESTIONS PRESENTED
[NBC: Mario presents 4 questions but there is only really one, and that is "Do the petitioners have standing", the other 3 questions are looking for an advisory opinion from SCOTUS]
1. Whether petitioners sufficiently articulated a case or controversy against respondents which gives them Article III standing to make their Fifth Amendment due process and equal protection claims against them.
[NBC: The courts have been consistent here in finding that plaintiffs lack standing. Mario's brief includes a myriad of such rulings and I doubt that the Supreme Court, which has had the opportunity to rule on several of these cases already and refused, will get involved in an issue which has been so well and consistently resolved at the Federal circuit levels.]
Kerchner v Obama – Petition for Writ of Cert
Finally, and as expected, missing the foundations necessary for success.. More later but Mario fails to establish a foundation for standing, and under Lujan, there is no hope that there is standing to sue Congress for failure to do its duty under the 20th Amendment.
Worse, no mention of US v Wong Kim Ark when discussing natural born status while mentioning Vattel. Of the 4 issues raised, only one is reviewable by the Supreme Court: Standing. The others involve requests for SCOTUS to provide advisory opinion.
What a waste of good paper. But he tried.
Kerchner v Obama – What now?
Now that the 3rd Circuit Court of Appeals has ruled that the appeal was frivolous, Mario appears to be left with only a limited number of possibilities.
1. Forget about the case which has become a precedential ruling in the 3rd Circuit, making any future birther lawsuits far more unlikely to succeed than 0-71…
2. File a motion for reconsideration in front of the full 3rd Circuit (en banc). Remember that the 3rd Court’s order informed Mario that “His request that the Court reconsider its opinion is denied, as the appropriate procedure for that issue is through a Petition for Rehearing.”
3. Appeal the ruling to the Supreme Court and explain why one is appealing a filing that was found to be somewhat frivolous and set a true precedent.
4. Participate in a “Reality Check” episode where Mario gets to explain and defend his position.
What do you think Mario will do? (WWMD)
NBC Added: or 5. Petition the Court to reissue a ruling which does not mention its concerns about Mario and the NJ Rules of Professional conduct.
Kerchner v Obama – No Sanctions
A minor victory for Mario. Onwards to SCOTUS rejection
“ORDER (SLOVITER, BARRY and HARDIMAN, Circuit Judges) On July 2, 2010, this Court filed an Order to Show Cause directing Appellants’ counsel to show cause in writing why he should not be subject to an Order pursuant to F.R.A.P. 38 for pursuing a frivolous appeal. In response, Mario Apuzzo filed a 95-page statement that contains, inter alia, numerous statements directed to the merits of this Court’s opinion, which the Court finds unpersuasive. His request that the Court reconsider its opinion is denied, as the appropriate procedure for that issue is through a Petition for Rehearing. However, based on Mr. Apuzzo’s explanation of his efforts to research the applicable law on standing, we hereby discharge the Order to Show Cause, filed. Sloviter, Authoring Judge. (PDB).”
Mario: Golden Oldie
Mario Posted:
On June 29, 2010, the U.S. Third Circuit Court of Appeals will receive for decision the Kerchner et al. v. Obama/Congress et al. appeal to that Court of the Federal District Court’s dismissal of the case for what it said was lack of standing and political question. Putative President Obama’s supporters are out and about arguing that the Kerchner v. Obama/Congress case is exactly like the Berg v. Obama case and therefore the Third Circuit Court of Appeals should affirm the District Court’s dismissal of the case for lack of standing. This is not only an incredible statement but an outright lie.
Now that the Court has ruled and found that indeed Berg’s precedential ruling was not just relevant but guiding precedent
Examination of this precedent would have made it “obvious to a reasonable attorney that an appeal from the District Court’s order was frivolous, [as no] law or facts . . . support a conclusion that the District Court judge had erred.”
Will Mario retract his claim of “an outright lie”?
So far the Appeals Court ruling suggest that Mario was too hasty in making his ‘claims’
In their Reply Brief, Appellants assert that their case differs from Berg in several ways, including, among others, that the plaintiff in that case filed his claim against then-candidate Obama before the election and before the “Electoral College and Congress had . . . acted on Obama’s qualifications. . . .” Appellants’ Reply Br. at 25. On the contrary, the Berg court addressed standing based on those same assumed facts. Berg, 586 F.3d at 238-39. Just like the plaintiff in Berg, Appellants’ alleged injuries are too generalized to be cognizable in Article III courts. As the District Court found, the requirement that an injury be “concrete and particularized” precludes claims based on “harms that are suffered by many or all of the American people.” Kerchner, 669 F. Supp. 2d at 481 (quotation marks omitted) (citing Lujan, 504 U.S. at 573-74).
Not only did the Court rule that Berg v Obama was precedential and guiding to Kerchner v Obama, but the Court also asked Mario to explain why the Court should not award him with sanctions for his filing.
Overview Mario’s Legal Arguments
Tes, at politijab.com has provided us with the following, in-depth analysis of:
APUZZO’s SHOW CAUSE LEGAL ARGUMENT
I. The Court should reconsider its opinion and (a) find that the appeal was not frivolous or (b) provide a hearing on the record before finding that he did.
A. The Rule 38 Standard
Discussion here and here
B. The Court should reconsider and find that the appeal was not frivolous.
1. Factual allegations of the complaint must be taken as true.
Discussion here
2. The case law regarding who has standing under Article III is not clear.
Discussion here
3. The Third Circuit’s opinion in Berg was not an absolute bar to filing an appeal in Kerchner.
Short analogy discussion here
a. The facts in Kerchner are substantially different than the facts in were Berg.Discussion here
b. The legal theories advocated in Kerchner are different than the legal theories advocated in Berg. Discussion here
4. The Court must grant due process to Apuzzo before it can order that he pay damages.
Discussion here and here and here
5. The Court’s threat of Rule 38 damages is chilling on Apuzzo’s and others’ right to pursue unpopular political and civil rights cases and, therefore, is unwarranted.
Discussion here
C. Apuzzo is entitled to a hearing on the question of whether he filed a frivolous appeal.
Discussion here
II. Even if Rule 38 damages are appropriate, the Court should not impose such damages without providing Apuzzo (a) a fair opportunity to challenge the amount of damages through discovery and (b) a hearing on the record to show that defendants have failed to mitigate their damages.
Discussion here
III. Apuzzo did not violate N.J. Rule of Professional Conduct 3.3(A)(3) and, therefore, the Court should correct its decision by removing footnote 5.
Discussion here
Apuzzo on Standing and Precedent
A poster on Politijab posted the following analysis which shows that sufficient lower court precedents exist which all addressed the question of a citizen’s standing to enforce Article II’s clause. I found her analysis to be quite insightful as it relates to the issue the Court had placed in front of Mario: to explain why a reasonable attorney would considered filing an appeal given the precedents in both the 3rd Circuit (Berg v Obama) as well as the countless suits filed in other circuits.
Apuzzo Brief at 9 wrote: There is no United States Supreme Court precedent on the question of a citizen’s standing to enforce Article II’s “natural born Citizen” clause.
Well, no, the Supreme Court has not directly addressed whether a citizen (or voter, or oathtaker) has standing to challenge a President’s qualifications under Article II. However …. (I) multiple courts in multiple jurisdictions have squarely addressed the issue; and (II) The Supreme Court (and appellate courts) have ruled on the principles behind Apuzzo’s arguments.
I. More than ten courts, in the First, Second, Third, Sixth, Ninth, Eleventh, and DC Circuits, have dismissed similar Article II challenges on the same grounds as the District Court did in the Kerchner case — and not a single court in any jurisdiction has held that a citizen (or voter or oathtaker) has standing to make such a challenge.*
- *See, e.g., Barnett v. Obama, — F. Supp. 2d —-, 2009 WL 3861788 (C.D. Cal. Oct. 29, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III in case filed on behalf of active and former military personnel, state representatives, taxpayers, relatives, and political candidates), recons. denied (Dec. 4, 2009), appeal pending (9th Cir.); Patriot’s Heart Media Network, Inc. v. Soetoro , No. 1:09-mc-00442-RCL (D.D.C. Sept. 10, 2009) (rejecting request to convene grand jury to investigate Obama’s eligibility; dismissing petition for lack of jurisdiction because plaintiff did not have standing under Article III); Hamblin v. Obama , No. 09-17014, 2009 WL 2513986 (D. Ariz. Aug. 14, 2009) (dismissing case challenging Obama’s and McCain’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III), appeal dismissed, No. 09-17014 (9th Cir. Nov. 6, 2009); Cook v. Good , 2009 WL 2163535 (M.D. Ga. July 16, 2009) (denying TRO seeking stay of military orders pending confirmation of Obama’s eligibility; dismissing case for lack of jurisdiction because plaintiff did not have standing under Article III), appeal dismissed, No. 09-14698-CC (11th Cir. Nov. 24, 2009); Essek v. Obama , No. 08-379-GFVT (E.D. Ky. Jan. 15, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III); Dawson v. Obama , 2009 WL 532617 (E.D. Cal. Mar. 2, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III); Cohen v. Obama , 2008 WL 5191864, (D.D.C. Nov. 21, 2008) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III), aff’d, 332 F. App’x 640 (D.C. Cir. Sept. 8, 2009) (per curiam), reh’g denied (D.C. Cir. Nov. 25, 2009), reh’g en banc denied, slip copy (D.C. Cir. Nov. 25, 2009); Strunk v. N.Y. State Bd. of Elections , No. 1:08-cv-04289-ARR-LB (E.D.N.Y. Oct. 30, 2008) (dismissing case challenging, among other things, Obama’s eligibility and finding that plaintiff lacked standing to sue), appeal dismissed, No. 08-5422 (2d Cir. Nov. 14, 2008); Berg v. Obama , 574 F. Supp. 2d 509 (E.D. Pa. Oct. 24, 2008) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III; characterizing various plaintiff’s claims as frivolous), aff’d, 586 F.3d 234, (3d Cir. Nov. 12, 2009); Robinson v. Bowen , 567 F. Supp. 2d 1144, slip copy (N.D. Cal. Sept. 16, 2008) (dismissing case challenging McCain’s eligibility); Hollander v. McCain , 566 F. Supp. 2d 63, (D.N.H. July 24, 2008) (dismissing case challenging McCain’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III).
Kerchner v Obama – Sanctions
Perhaps Mario would like to comment?
Let’s look at the issue the Court asked Mario to address, which are basically the standing requirements as outlined in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in light of the Court’s precedential ruling in Berg v Obama 586 F.3d 234, 237 n.1 (3d Cir. 2009)
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” -an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); 1 and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95,102 (1983)).
Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly … trace[able] to the challenged action of the defendant, and not … thee] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare
Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Kerchner v Obama – Appeal – Precedential Opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
CHARLES F. KERCHNER, JR.; LOWELL T. PATTERSON; DARRELL JAMES LENORMAND; DONALD H. NELSEN, JR.,
Appellants
v.
BARACK HUSSEIN OBAMA, II, President Elect of the United States of America, President of the United States of America, and Individually; UNITED STATES OF AMERICA; UNITED STATES CONGRESS; UNITED STATES SENATE; UNITED STATES HOUSE OF REPRESENTATIVES; RICHARD B. CHENEY, President of the Senate, Presiding Officer of Joint Session of Congress, Vice President of the United States and Individually; NANCY PELOSI, Speaker of the House and Individually
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No.1-09-cv-00253) District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a) June 29, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges (Filed: July 2, 2010)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J. LeNormand, and Donald H. Nelsen, Jr. (hereafter “Appellants”) filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligible to hold his Office as President. They rely on Article II, Section 1, Clause 4 of the United States Constitution which provides that “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . . .” U.S. Const., art. II, § 1, cl. 4.1 Appellants challenge the District Court’s order dismissing their complaint. We will affirm the order of dismissal and direct Appellants’ counsel to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.
Kerchner v Obama – Response to OSC
_____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________________________________________________
Case No. 09-4209 CHARLES F. KERCHNER, JR. et al.,
Plaintiffs-Appellants, v.
BARACK HUSSEIN OBAMA II et al., Defendants-Appellants.
_____________________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY _____________________________________________________________
ATTORNEY MARIO APUZZO’S RESPONSE TO THE COURT’S ORDER THAT HE SHOW CAUSE WHY THE COURT SHOULD NOT IMPOSED DEFENDANTS’ DAMAGES AND COSTS AGAINST HIM FOR FILING A FRIVOLOUS APPEAL _____________________________________________________________
On the Brief:
Mario Apuzzo
MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue Jamesburg, New Jersey 08831 (732) 521-1900
PROCEDURAL STATEMENT
On July 2, 2010, the Third Circuit Court of Appeals issued its decision affirming the New Jersey Federal District Court’s dismissal of the Kerchner et al v. Obama/Congress et al case for lack of Article III standing. Dkt. Document No. 003110204058. The Court ordered that I show cause in 14 days why the Court should not find me liable for just damages and costs suffered by the defendants, not in having to defend against the merits of plaintiffs’ underlying claims that Putative President Obama is not an Article II “natural born Citizen,” that he has yet to conclusively prove that he was born in Hawaii, that Congress failed to exercise its constitutional duty to properly vet and investigate Obama’s “natural born Citizen” status, and that former Vice President and President of the Senate, Dick Cheney, and current Speaker of the House, Nancy Pelosi, were complicit in that Congressional failure, but rather in having to defendant against what the court considers to be a “frivolous” appeal of the District Court’s dismissal of their claims on the ground of Article III standing. Opinion at p. 3 and 9.
Kerchner v Obama – Appeal – Response to order to show cause
07/19/2010 Open Document ECF FILER: Response filed by Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson to court order no relief list. Certificate of Service dated 07/19/2010. (MA)
Fascinating ‘arguments’ nevertheless, and I am looking forward to a more thorough analysis. Arguing that standing requires analysis of the merits is an interesting one. So far I am not too impressed by Mario’s suggestion that in order to determine standing one has to first look at the merits of the case. Standing logically precedes the merits. Mario provides an example of someone hurt in an automobile accident bringing a case under the doctrine of civil rights. The case would not be rejected based on the concept of standing.
[I]t may be said that [j]urisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case …; standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction …; cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the “preconditions” for such equitable remedies./1/
[1] Davis v. Passman, 442 U.S. 228, 239-40 n.18 (1979)
Source: Federal Practice Manual
Remember that under Lujan v Wildlife standing requires
There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
Kerchner v Obama – Reply to Order to Show Cause nearing deadline
Although the original deadline was last Friday, the Court’s electronic filing system was off line and the deadline for filings was extended to Monday, July 18th, 2010. We are nearing the filing deadline and so far the docket shows no evidence of any filings. In addition, Mario’s blog fails to provide any updates on this.
Popcorn anyone?
Mario following Orly’s path?
Mario apparently told WND
He told WND he definitely will explore the issue of “standing” now because of the possible penalties, which might be considered an “injury.”
An injury unrelated to the claims that President Obama is not eligible. The possible sanctions as are was the appeal, relate only to the issue of Standing and there is nothing that can change the issue of standing or the clear precedents in Berg v Obama, which would allow Mario to get discovery…
If Mario hopes that the sanctions will get him standing to discovery then he may be surprised how such a frivolous claim could double the sanctions. Funny how desperate the “arguments” have become.
Mario is also still arguing his meritless claim that it was the Law of Nations which guided the definition of natural born, even though Courts have well documented that it was Common Law practices which defined natural born to mean ‘any child born on US soil”.
Mario, away from his lair, is suddenly unable to stem the criticisms of his position… Read and enjoy
Kerchner v Obama – Judgment Affirmed
Ouch, poor Mario… Not only was the lower court’s ruling affirmed but the court has asked Mario to explain why he should not be sanctioned. What a great present so close to the 4th of July…
07/02/2010 Open Document NOT PRECEDENTIAL OPINION Coram: SLOVITER, Authoring Judge, BARRY and HARDIMAN, Circuit Judges. Total Pages: 9. (TMK)
07/02/2010 Open Document JUDGMENT Affirmed. Costs taxed against Appellants. (TMK)
,Edit: As a separate document I am adding the Entry of Judgment07/02/2010 Open Document ORDER (SLOVITER, Authoring Judge, BARRY and HARDIMAN, Circuit Judges) Appellant’s counsel shall show cause in writing within fourteen days of the date of this Order why he should not be subject to an order pursuant to FRAP 38 setting just damages and costs for pursuing a frivolous appeal, filed. (TMK)
Mario the entertainer
Mario is not giving up and I have come to conclude that he may be working on a career as a professional entertainer:
Please do not answer my questions by telling me that the burden of proof is on me and not Obama or that my questions are intrusive of Obama’s privacy. After all, we are talking about Obama wanting to be the President and Commander in Chief of the Military of the United States of America and leader of the free world and our Constitution requires that in order to be eligible for those powerful and singular civilian and military offices he produce such information for the people he is supposed to serve and protect in that capacity.
What are these ‘questions’ Mario would like to have answered? And why does he believe that a different standard of proof exists for Obama?
Birther math (part 3)
Dr Conspiracy has published his third contribution to ‘Birther math’ in which he explores the vacuous statements and assertions by Mario Apuzzo.
Mario fails again… Close to losing his Kerchner v Obama case, Mario seems to have abandoned attention to detail…
Is Mario confused about standing?
Mario seems rather upset at those who have pointed out that the only issue before the Court of Appeals is the issue of standing and political question.
On June 29, 2010, the U.S. Third Circuit Court of Appeals will receive for decision the Kerchner et al. v. Obama/Congress et al. appeal to that Court of the Federal District Court’s dismissal of the case for what it said was lack of standing and political question. Putative President Obama’s supporters are out and about arguing that the Kerchner v. Obama/Congress case is exactly like the Berg v. Obama case and therefore the Third Circuit Court of Appeals should affirm the District Court’s dismissal of the case for lack of standing. This is not only an incredible statement but an outright lie.
Mario may not have realized that the lack of standing will end ANY legal proceedings, no matter what claims are raised. In fact, when the Court observes that there exists a lack of subject matter jurisdiction, it has no choice but to dismiss the case.
In other words, the issue of standing has no relevance to the actual claims raised, standing either exists or it doesn’t and when it does not exist, no case can exist and no claims can survive. In fact, when deciding on standing, the Court has to presume that all the claims are true and determine if the case meets the requirements of standing.
In both cases, there appears to be a lack of a “concrete and particularized injury” and hypothetical rather than actual. Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), both cases fail.
The argument is not that the two cases are the same at the level of the claim, the argument is that in both cases the plaintiff is lacking standing.
Glad to help…
Educating Mario – Oral arguments and the Standing Issue
Mario Apuzzo is spinning the ruling that the court is not interested in oral arguments in his Appeal of Kerchner v Obama
The court can call for oral argument when it has questions. As we know, the Federal District Court granted Obama’s/Congress’s motion to dismiss the complaint/petition for lack of standing and political question. The Kerchner plaintiffs have appealed that decision to the Third Circuit Court of Appeals. On a motion to dismiss the complaint on its face for lack of standing and political question, both the trial and the appeals courts are supposed to accept the facts alleged in the complaint/petition as true and in a light most favorable to the non-movant. We have alleged and shown that Obama is not and cannot be an Article II “natural born Citizen” because he was born a subject of Great Britain through descent from his British subject/citizen father who was never a U.S. citizen, making Obama born with dual and conflicting allegiances if he was born in the U.S. or with sole allegiance to Great Britain if he was born in Kenya. We have also alleged and shown that Obama has not conclusively proven that he was even born in Hawaii. Obama and Congress have presented no evidence or argument to the Federal District Court or to the Court of Appeals contesting these arguments. The issues of standing and political question are well briefed. We have presented in our briefs how the Kerchner plaintiffs have standing and how the Obama eligibility issue does not present any objectionable political question for the Court. Hence, the Court might not have any questions and so it did not see any need for oral argument.
Why did the Government not present any evidence about president Obama’s eligibility? Because they understand that this was not the issue in front of the court. Remember that the lower court rejected the case based on lack of standing and political question. While Mario was wasting the Court’s time (and patience) with his filings, he only incidentally focused on the real issue. Lack of standing.
The Court realizes that the question before them does not require an oral argument about Vattel’s influence on the US Constitution and other novel arguments that Mario may have hoped to present.
As Mario explained, in reaching the conclusion to dismiss, the Court had to accept all the ‘arguments’ presented by Mario, so there was no need to further expand on them in the brief to the appeal’s court.
Kerchner v Obama – No Oral Arguments
Letter of Notification dated 2010-06-15 – No Oral Arguments. Appeal to be Decided on Briefs Filed
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