In a disappointing, but not unexpected ruling, the federal Judge dismissed the Kerchner v. Obama case, based on lack of Article III standing (jurisdiction), prudence, and the ‘political question’. The decision will be appealed.
In an exclusive for The Post and Email, plaintiff Charles Kerchner made initial remarks, a portion of which are reprinted here:
Moments ago, Commander Charles F. Kerchner, U.S. Naval Reserve (Ret.) issued the following statement — exclusive to The Post & Email — in response to Judge Jerome B. Simandle’s dismissal of his case:
The monarchy/federal government has now spoken, with the complicity of the Main Stream Media and the major political parties and their respective but especially the Progressive Caucus members of the DNC and their cohorts and sycophants and other Marxist supporters of Obama — has now placed “We the People” in the proverbial Catch 22 position.
Congress told the People it was up to the Courts. Now the Federal Court system which is supposed to be the guardian of thetells the We the People it is up to the Congress. And even worse, the federal court in my case just told the People that as long as the Congress and the Executive Branch usurp and ignore the Constitution in such a way as to injure all Citizens and everyone in this nation equally, it is quite OK with them and they will not intervene to protect the Constitution or We the People.
In a press release, Kerchner further explained the deep significance of this disappointing decision:
The decision issued today by Judge Simandle of the federal court in Camden NJ was a disgrace and a usurpation of the inalienable rights of We the People to hold our government accountable. We the People are the Sovereign and we retain the inalienable right to demand our government follow the Constitution under the 9th and 10th Amendments. But the courts have chosen to not listen and take the case. According to this Judge’s ruling today if the Executive or Legislative branch does something that injures all the People and that usurps the Constitution and violates it and injures all the People in common, there is nothing any one citizen or one group of citizens can do about it until the next election. So in effect he is saying throw the Constitutional rules out and let the rule of the simple majority in an election rule the day as to what is Constitutional and what is not. This is a disgrace and in the words from the past from Chief Justice Marshall, treason to the Constitution.
What we have just witnessed in the dismissal of Kerchner v. Obama is the consequence of judicial tyranny. At the root of this failure of the judiciary is the lack of courage to uphold the Constitution.
In Federalist Paper 78, The Judiciary Department, Hamilton argued that a strong and independent judiciary was essential to a limited Constitution. He further argued that an independent judiciary is necessary to protect liberty, and would function to guard against tyranny of the other branches of government. Thus judicial review arose and is based upon historical precedent that it is one of the non-violent ways to fulfill a duty to resist tyranny.
Indeed how can one ignore the dictates of Article III of the Constitution?
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…
Chief Justice Warren E. Berger, remarking on the history of the Supreme Court, noted that:
…As the system worked, one of the functions exercised by the Supreme Court involves measuring executive or legislative action – or that of the states – against the Constitution whenever a challenge to such action is properly brought within the framework of a “case” or “controversy.
… But when a case or controversy is properly brought before the Court on a claim that some governmental action is contrary to the Constitution, someone must decide the issue: the Court must decide.
The phrase ‘properly brought before the Court’ is, in my view, the way the Judiciary actually finds a way to avoid cases that it should hear, as someone must decide.
Notice that in the dismissal of this case, the Judge did not rule what a ‘natural born citizen’ is; he did not confirm Obama’s eligibility…in fact the Judge said nothing about the facts of the case. Indeed, the Department of Justice’s argument for dismissal dealt only with the surface, or facial issues–and the Court employed those judicial inventions known as ‘standing‘, ‘jurisdiction’, ‘prudence’, ‘failing to prove an injury’, and ‘the political question‘–as easy excuses arguments to dismiss the case. The Court never got to the merits or facts of the case. Again.
The accusation that Commander Charles Kerchner (Ret), failed to prove an injury is the most arrogant dismissal of the American people and the Constitution I have ever heard. And it’s a damned thin excuse.
Of note is that this Judge could have issued his dismissal, especially based on such arguments, in early August when he said he would. Plaintiff Kerchner and Attorney Appuzzo would be well on their way through an appeal by now. This is October 21st. This is another form of what I am calling ‘tyranny’, which is unnecessary delay in decision-making.
The Danger of ‘Prudence’ and the ‘Political Question’
The two elements of this decision that bother me most involve the use of ‘judicial prudence’ and the ‘political question’. The two concepts are related…if something is ruled a ‘political question’–to be resolved by another branch of government, then the Court must be ‘prudent’ in its decision-making. ‘Judicial prudence’ here would mean ‘carefulness, precaution, attentiveness and good judgment applied to conduct’ (Blacks Law Dictionary), aka, don’t cross the Legislative or Executive Branch.
In ruling the case dismissed on the basis of ‘the political question,’
The Court said that there simply is no room for judicial review of political choices made by the Electoral College and the Congress when voting for and confirming the President. The Court added that the plaintiffs’ remedy against Congress may be achieved by voting at the polls.
- the Electoral College–who was denied any information on Obama by the tactics of Obama campaign, Nancy Pelosi, Howard Dean, the DNC–unknowingly voted for a fraud. Check.
- This was accomplished through the fraudulent actions of many, check.
- The non-discretionary duties of the legislative branch–to vet the President via the 20th Amendment–were not completed. check
- The Court implied Congress’ behavior was inappropriate, but sent it back to the voters, aka, ‘majority rule’, to change Congress, as if America was a democracy and not ruled by a Constitution. check.
Hello? The Court is supposed to weigh the actions of the Executive and the Legislative branches against the Constitution, not the popular vote! Lawless behavior is now the ‘rule’? 😯
And we’re paying him what for a life-time appointment?
I say that refusing to take this case is ducking the issue, and consequently shirking the Court’s responsibility under Article III of the Constitution. The Court unfortunately employed the simplest of tools to dismiss the case…and it took the Court in excess of three months to make its decision.
Of course, Mr. Kerchner will appeal and I am sure that Attorney Appuzzo will draft once again an excellent brief. What you can do is to continue to support this vital effort and do not dismay: as Mr. Kerchner said earlier, ‘we have lost the battle, but not the war’. Patriots march on.
I think there may be a role for the Continental Congress 2009 as well. One of the hopeful outcomes is a series of state-based actions that can address a number of areas where redress is required, especially regarding the failure of the Executive to meet the qualifications of the Constitution and Congress’ enabling him to do so. Consider these possibilities (and add your own!):
- Resolution from at least 38 state legislatures requesting their Congressional delegation to require the development of a Congressional process to vet Presidential candidates to be effective for the 2012 elections;
- Addition to Secretary of State authority and requirement in each state of verifying all Presidential candidates’ qualifications under Article II, Section 1.
- 10th Amendment and Article IV actions by each state: legally challenge federal legislation that interferes with States rights.
- State-based legislation on voting integrity–paper receipts, ssn, etc.
- State-citizen combined actions, described below.
I also believe there is a role for increasing pressure on Congress and Speaker Pelosi to investigate this issue. Like the 5 million pink-slips, we need the same kind of constant reminder to Congress that WE KNOW about the tyranny.
We need a strong and effective ‘regime change’ in Congress in 2010.
This is NOT over.