July 31, 2009 by drkate4justice @TexasDarlin

© 2009 drkate/drkate4justice

“Obama wants to be President and the burden is on him to prove his loyalty to the United States as well as freedom from conflicting allegiances and potential for coercion.”

The deliberate use of these words  in Kerchner v. Obama and Congress describe succinctly the constitutional crisis that Barack Hussein Obama has brought upon the United States.  It is the crucible of anxiety that we fear the Commander in Chief is a foreign national who is not loyal to the United States.

In fact, Barack Obama is the ‘poster child’ for why the Founding Fathers insisted that the President be a natural born citizen having only one allegiance–to the United States. And why they provided that Congress take the time to certify the eligibility of the president-elect.  Obama failed his first test of loyalty by refusing to disclose his complete citizenship status, birth papers, and college, senatorial, and medical records.  To date, Obama has not produced and no one has examined these documents, if they exist.

In July 2008, he failed is second test of loyalty.  Obama admitted that his birth was governed by the British Nationality Act of 1948, that his father was a British subject, and that he himself was a British subject by descent from his father.  These are disqualifying admissions for POTUS and should have been the end to his candidacy. If Obama had any love of or loyalty to  Country, he would have withdrawn from the race then. Instead he took advantage of Americans’ honor system of assuming the presidential candidate meets all the requisite qualifications for POTUS, and continued his false run for office and ridiculing any dissent as ‘racist’.

He failed his third test of loyalty when he took the oath of office (three times) knowing there was a question about his eligibility:

Obama –  the famed brilliant Constitutional scholar – had to be aware that the most directly on point U.S. Supreme Court case in our nation’s history directly stated that there were doubts as to his NBC status.  Yet, regardless of these doubts expressed by the highest court in the land, Obama went ahead and swore – under oath – that he was eligible to be President.

There are other serious reasons to question his loyalty that go beyond his defiant refusal to prove his eligibility for POTUS. For example, his shocking behavior in Kenya as a Senator– openly interfering with the Kenyan elections and the Kenyan government–a U.S. ally. He openly supported his cousin Odinga, whose supporters went on to murder women and children when he lost the election. Odinga had made a secret deal to impose sharia law in Kenya if he had won the election.

 

Obama bowing to Saudi King

Obama bowing to Saudi King

Currently prancing around on the world stage playing the eloquent apologizing clown, he daily demonstrates his disdain for and failure  to articulate or manifest any kind of loyalty to Americans or America.  He doesn’t even know American history.  When off his teleprompter, he speaks like English is his second language.

However, now that he sits in the chair he wanted, there is arguably a greater burden on him to demonstrate his loyalty to the American people by disclosing his identity and documentation.  Especially in light of his professed disloyalty on the world stage.  And, much to his dismay I am sure, the ‘birther’ issue has now exploded into the mainstream media.’   And yes, we all know it is not just about the birth certificate….and further, we know that to make it about the birth certificate only is to ‘dumb down’ the very serious concept of ‘natural born citizen’  enumerated in the Constitution.

This issue is not going away, and in fact the more Obama does as pResident, the more opportunities there are for legal action enjoining his directives and, under Quo Warrantorequiring he prove himself eligible to wield the authority of the office before any law can have any effect.

Kerchner v. Obama et al

One of the thirty-five (35)  lawsuits on the eligibility issue is a relatively quiet, but powerful, lawsuit that was filed at 2:50 a.m. on January 20, 2009 against president-elect Obama, House Speaker Nancy Pelosi, and Vice President Dick Cheney. The timing is critical to the suit as it was after Congress had ‘certified’ Obama but before Chief Justice Roberts swore him in.

I choose to write briefly about this case not only to pass on information, but to highlight key arguments that draw upon the best of the research and experience of the last year completed by many people including articles and comments here at TDblog.  The case filings, which can all be seen at attorney Mario Apuzzo’s website, are a treasure trove of federal case law information and the Apuzzo filings are extremely well written.  In addition, rather than dismiss other legal arguments, the Kerchner case builds upon all arguments set forth, and similarly, learns from the procedural errors in previous cases.

The Kerchner case, and its outcome, will be a further test of the judiciary’s courage and independence in addressing head-on an issue it has never addressed in its history, and whether it will ‘cowboy up’ (sorry, western slant here!) and resolve the issue constitutionally.  And that outcome will then determine what our path must be as American patriots.

The Kerchner Complaint (Kerchner v. Obama, Congress, Senate, Pelosi & Cheney)

The original 10-count complaint was in the form of an injunction, and later a petition and mandamus, and alleges the following major elements:

  • Obama has not proven he meets the qualifications of POTUS citing (a) citizenship at birth and (b) failure to provide long form birth certificate and other records and (c) indonesian citizenship;
  • Congress violated plaintiff’s First Amendment rights and the 20th Amendment by failing to certify Obama on January 8th
  • The Senate violated the equal protection clause of  Article V and the 14th Amendment by not conducting an investigation of Obama’s qualifications and  by investigating John McCain but not Obama.
  • House Speaker Nancy Pelosi failed to perform her constitutionally mandated duty to certify Obama’s eligibility on January 8th under the 20th Amendment, and has violated Kechner’s First Amendment rights.
  • Vice President Dick Cheney failed to perform his constitutionally mandated duty to call for objections to the electoral college vote under the 20th Amendment.

Because the parties changed status after the first filing, the complaint was amended two more times, with the second amended complaint served on the United States.  The entire complaint is absolutely well worth the read.

It is important to note that because of the status change of Obama, instead of his campaign dollars paying for his defense, we taxpayers are now picking up the tab.  Obama, Congress, Pelosi, and Cheney all have the U.S. Department of Justice representing them as defendants.  We cannot count on the Justice Department to do the ethical thing here, it seems, and pass this off-at least in Obama’s case-to private representation.

The ‘Typical Government’ Response

Interestingly, the government couldn’t figure out what to do and asked for several extensions to respond to the complaint.  The Judge clearly indicated this was a serious matter and required the government’s response.  After two extensions,  in June the government responded, typically, with a motion to dismiss the case based on:

  • Standing–said the court had no Article III (or constitutional) subject matter jurisdiction, and no prudential standing (judicially imposed self limits on exercise of federal jurisdiction)
  • Immunity–sovereign, absolute, and qualified by virtue of their positions
  • Procedural violation of ’short and plain statement’ rule in the Federal Rules of Civil Procedure (FRCP 8 (a)(2))
  • Procedural violation of multiple complaints before the defendants were served and had time to respond.

These government objections are a variation on previous objections by Obama’s lawyers, and are now sprinkled with the ’sovereign immunity’ claim which Obama did not have before, and raise procedural violations which, in my view, are ‘hail mary passes’.

The standing issue has vexed all the eligibility cases, and has been used by judges to conveniently avoid having to address this issue.  The lack of standing has applied in all cases where the litigant has failed to prove an obligation owed (e.g., secretaries of state), or when the litigant has failed to prove ‘particularized harm.’  Importantly, Obama has never responded to any charges and has relied entirely on the ‘lack of standing’ issue, and the ‘lack of subject matter jurisdiction’ (particularlized harm must be alleged and a particular remedy available) to constantly use the motion to dismiss tactic.  For the most part Obama has prevailed, but has been unable to dispose of this issue.

The government’s response ridicules the people:

The fact that the Plaintiffs allege that they have the right to be governed by a constitutionally qualified President is not the type of particularized harm that confers standing…

Indeed, the government has not waived its sovereign immunity for violations of federal law, including the United States Constitution. F.D.I.C. v.Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States simply has not rendered itself liable . . . for constitutional tort claims.”).

And regarding the Speaker’s immunity:

Likewise, Plaintiffs fail to allege a constitutional violation based on an act of Speaker Pelosi. Plaintiffs allege that Speaker Pelosi signed documents nominating President Obama for President without verifying his citizenship. See Docket Entry 3, ¶¶ 89-91.Yet, Plaintiffs do not explain how that act translates into any particular constitutional violation.

This is why everyone refers with disdain to ‘legal tricks’ and ‘legalese’.  May be ‘good lawyering’ but it is ignorant and obtuse from a common sense standpoint. And sooner or later, you run out of those options.

Indeed, a further examination of ’standing’ reveals that it is no where considered in the Constitution, and seems to be an invention of  ‘modern law’. On the concept of standing, some have argued that it is “either a judicial mask for the exercise of prudence to avoid decision-making or a sophisticated manipulation for the sub rosa (secret, hidden from the public) decision of cases on their merits.”  Others

challenge the historical assumption that the Constitution speaks to the question ordinarily thought to be comprehended within the rubric of standing. Rather, a painstaking search of the historical material demonstrates that — for the first 150 years of the Republic — the Framers, the first Congresses, and the Court were oblivious to the modern conception either that standing is a component of the constitutional phrase “cases or controversies” [“Article III standing”]or that it is a prerequisite for seeking governmental compliance with the law [“prudential standing”].  I will show that the modern doctrine of standing is a distinctly twentieth century product that was fashioned out of other doctrinal materials largely through the conscious efforts of Justices Brandeis and Frankfurter.  I am not so heretical as to suggest that there is no such thing as an article III “case or controversy” requirement that limits the judicial power to actual disputes. But a fuller account of our history shows that article III was not limited to the kinds of private disputes characterized by standing. I argue that there are serious negative consequences to the idea that the legal system is or should be circumscribed by such a concept.

So while all of Obama’s people, the government, and now the courts are using standing to deny the American people “a right to be governed by a constitutionally qualified President”, one of Obama’s czars advocates giving trees standing to sue the government. For what, the paper the constitution was written on?

Obama’s stand on standing will fail under the weight of sheer hypocrisy.  The government’s treatment of the people is inexcusable.

The Kerchner response up next.

These men proved their loyalty, why can't Obama?

These men proved their loyalty, why can't Obama?




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