So, the Constitution is up for a vote?

©2009 drkate

why+worryIn 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 party leaders — 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 the Constitution tells 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.

Judicial Tyranny

America in Distress

America in Distress

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.

Next Steps

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.

50 Responses to “So, the Constitution is up for a vote?”

  1. 1 ramjet767 October 22, 2009 at 12:37 am

    Excellent essay.


  2. 2 Quantum Leap October 22, 2009 at 1:31 am

    ACORN Philadelphia Prostitution Investigation Part I

  3. 3 jtx October 22, 2009 at 8:50 am

    It’s great that Dr. Kate grasps the situation and is not put off by Simandle’s silly reasoning. The Judicial branch has gone the way of the Legislative AND Executive it seems.

    Pewerhaps all 3 need a purging??

  4. 4 susan h October 22, 2009 at 9:29 am

    Very interesting read below: Story from John Charlton re: a debate in 2004 in Illinois in which Obama ADMITS to Alan Keyes (his republican senatorial opponent) that he is not a natural born citizen. OMG!!!

  5. 5 Tony Stark October 22, 2009 at 9:57 am

    Diasppointing decision,but not surprising according to Leo Donofrio, who has insisted all this time that exotic lawsuits that do not properly utilize the quo warranto option in the DC District Court will have similar fates.

    • 6 drkate October 22, 2009 at 9:59 am

      I wonder when Leo is going to get behind some of these cases, refile one of his own (Hawaii) and stop critiquing everyone elses? At some point Mr. Donofrio must decide whose side he is on.

      I like his work, I just wish he would accept and assist others, rather than shooting them down. Not very effective imho

      • 7 Tony Stark October 22, 2009 at 11:46 am

        According to his last post, he is going to do exactly that and stop blogging until he has real news to report about litigation.

        • 8 drkate October 22, 2009 at 12:38 pm

          Excellent, Tony, thank you. I apologize for being a little tart this morning but I am pretty distressed about Kerchner. Thanks for your patience.

    • 9 drkate October 22, 2009 at 10:03 am

      I wish it were that simple, but it is not. This is JUDICIAL TYRANNY, and even quo warranto cases will be thrown out under this court system. The sooner we realize this, the more effective we can be.

    • 10 reps October 22, 2009 at 10:42 am

      If I understand Leo’s perspective on quo warranto filings in DC, he states that all eligibility suits outside of DC will fail because of subject matter jurisdiction which leads to lack of standing.

      But quo warranto filed in DC should work because any “individual” can file this type of action. There are no standing issues because DC has the proper subject matter jursidiction for this type of action.

      This assumes a DC Federal District judge has the guts to carry it forward on merits and doesn’t find some other wimpy excuse to dismiss any and all cases.

      • 11 drkate October 22, 2009 at 10:47 am

        quo warranto has failed in DC so far. I know there is an issue with the type of client, but lets get real. If Leo believes this then he should be filing a lawsuit right now.

        • 12 Tony Stark October 22, 2009 at 12:07 pm

          Which case was this that failed?

          • 13 drkate October 22, 2009 at 12:39 pm

            Berg’s cases on quo warranto–i think he used a plaintiff that had no chance of being recalled. I think it was the Hollister case. Orly has also had quo warranto dismissed but I think that was because it was the wrong venue for the case. Not sure.

            Again, I apologize for being a little tart! 😳

            • 14 reps October 22, 2009 at 1:08 pm

              If I remember correctly, Berg’s Hollister v. Soetoro and was a writ of mandamus filing, not quo warranto.

              Orly’s wrong venue on quo warranto is exactly to the point Leo makes. Should be filed in DC, not in California.

              All eligibility cases should just flood DC with quo warranto. I remember reading the statutes that Leo posted and it was clear as day…DC was the venue for quo warranto and standing would not be an issue. The DOJ in their motion to dismiss in Barnett v. Obama (Orly’s) admitted as much that DC was the only venue for a quo warranto filing.

  6. 16 Captain Steve October 22, 2009 at 10:09 am

    Most judges have already made up their minds re Barry. I think the key is getting into the right court/appeals court combo. We need some manner of court-case shotgun approach.

  7. 17 alforhill50 October 22, 2009 at 10:41 am

    drkate, have you read the book entitled (Second Edition), Dynamic Freedoms, compiled by Harold K. Johnson, , General,U.S. Army, Retired Former Director of Educaion and Americanism. Revised by William G. Sizemore, Rear Admiral, U.S. Navy, Retired Director of Education and Americanism. It was given to my huband at a Scottish Rite meeting when he was active in the Free Masons. I have some portions which I would like to share with you and other readers here. It is quite long summary. If you have read it, I won’t post it. It is scary and one sections is entitled How Communism Conquers. It is exactly what is about to happen to us.

    • 18 drkate October 22, 2009 at 10:43 am

      I have not read this, and yes, I would love to see portions of it reprinted here. Perhaps it would also be a good discussion for an article, which you are welcome to write and contribute here, or otherwise.

      Thank you!

      • 19 alforhill50 October 22, 2009 at 11:07 am

        drkate you can use it as you wish. I am not so good at writing. As matter of fact please be kind to my errors if you find them. It has been a while since I did much typing.

    • 20 susan h October 22, 2009 at 3:48 pm

      Try They have access to many many out-of-print books and hard to find copies. I have ordered a lot of books from them and from third party sellers through their web-site and Amazon is totally reliable.

  8. 21 alforhill50 October 22, 2009 at 11:12 am

    Idrkate the foreword was written by the sovereign grand commander. He states in one part, ” The choice is ours. We are free. Given the action of good men, we will remain free. No society is stronger than the sum of its individual citizens.

    The chapter is entitled:


    “Past experiences show that the communists exploit their presence in governing bodies to foster their ultimate objective of seizing total power, followed by liquidation of all opposition, suppression of freedom of the press, speech and worship and transformation of a country into a totalitarian police state.”

    This is just one step of nine classic steps used to take over a target country. Step 2) Saturate target country with propaganda. Step 3) is mass agitation. Stirring up hatred and violence between races. Civil turmoil over religion. Widespread stoppages of work, laborers’ violence. Divide and conquer. Step 4 is infiltration. Step 5 is demoralization. Sometimes called the “scare technique.” 6) is intimidatilon. 7) gain confidence of the people. 8) subversion. The scary part is it explains how Lenin took over Russia’s 175,000 000 people with 17 supporters and 40,000 followers. It permeates every cracy and crevice. It destroys men’s spiritual force, it robs them of the stardards and principles, it stupifies them with alcohol and drugs, it encourages every vice and sin and it renders them easy marks for betrayal and well nigh helpless as defenders of their freedoms. Already slaves to drugs, sex gambling, treachery and fearful of riots and threats-the defenders of freedom are virtually helpless when the “Trojan, Horse” suddenly bursts open and reveals the communist enemy in their midst. Step 9 This is the End. It is voluntary surrender to Communism and the loss of all freedoms.

    Steps after take-over. Fulfill all promises to gain people’s confidence. 2) Disarm everyone and confiscate all weapons. At the same time activate a powerful secret police system. The secret police as in Latvia for example, “recruited youth to report on their friends and schoolmates.

    Sorry so long everyone but this all sound scarily familiar. There is alot more. I intend to read it all.

    Step 2) After taking over country, use ruthless terror against those who can stand in their way or lead resistance in order to paralyze the human mind and make the citizens subservient to Communist rule. 3) Shoot all the leaders and all potential leaders. Step 4. Take over all communications and transportation systems. Step 5.
    Set up new govt as the only employer or source of jobs. Everyone will be forced to work where the govt dictates, doing what the govt dictates and receiving for wages only what the govt dictates. ^) Take back anything given to people. 7) Set up a forces internal spy system- with everyone spying on everyone else and reporting to the secret police. 8) Register everyone. forbid all travel outside of a small area- such as a ten mile circle.

    Let me know later if you can get a copy of this book drkate. I wish I could get Glenn Beck a copy.

    • 22 alforhill50 October 22, 2009 at 11:24 am

      drkate, I do not know where those little faces came from. I don’t know how to do that. Did you do it?

      • 23 drkate October 22, 2009 at 11:29 am

        alforhill, thanks for this information! I will look for this book.

        The little faces I had nothing to do with! must have been put in the text somehow??!! scary!

        • 24 brityank October 22, 2009 at 9:19 pm

          drkate and alforhill50: Those “silly faces” – 8) – are a result of the underlying HTML adding the characters 8 and ) together to give you the Smiley 8) for cool.       🙂

      • 25 Jan October 22, 2009 at 8:04 pm

        I think the face is from putting an 8 with a ) right after it. The computer reads that as a code for the cool shades smiley.

        8) is 8 ) with no space in between.

  9. 29 foxyladi14 October 22, 2009 at 1:46 pm

    how is Orley doing???

  10. 31 Mimi October 22, 2009 at 3:24 pm

    Mario Apuzzo explained very well, very succinctly on one of the radio programs why a lot of these jurisdiction rulings are bad law and why it’s unconscionable that his case showuld be thrown out because of jurisdiction objections.

  11. 33 ramjet767 October 22, 2009 at 5:26 pm

    Hi Mimi,

    I agree. That was a very good radio show and Mario Apuzzo explained the bad decision by the judge very well. If any one wants to listen to it there is a link to the Pod Cast of the show in Mario Apuzzo’s blog. You can listen to it via that link or down load it and listen later.


  12. 34 ramjet767 October 22, 2009 at 10:25 pm

    Hi guys and gals,

    Just posted on the Post n Email blog is a critique and analysis of the decision. I think the writer hit the nail on the head pretty good about Simandle. See this link.


    • 35 drkate October 22, 2009 at 11:12 pm

      This is an excellent post, well worth the read. I’ve put that link on my blogroll for the excellent work he’s doing.

        • 37 drkate October 23, 2009 at 9:10 am

          WTF? What happened between those two?

          Is this a real problem or something donofrio made up?

          • 38 d2i October 23, 2009 at 12:31 pm

            great question, drkate – when Leo’s tantrum first appeared over at CWs I couldn’t believe it. But it did and speaks horribly of Leo and his professional demeanor.

            • 39 drkate October 23, 2009 at 12:38 pm

              And, Donofrio is a ‘faculty member’ for the continental congress 2009! And Taitz is a delegate from CA!!!

              Looks like a little baby sitting will be in order.

            • 40 Ali October 23, 2009 at 2:01 pm

              I didn’t print the link to dismiss Leo — in fact, Leo is the ONLY one in whom I have faith as being true to the cause. It is Leo’s professional expertise which led to his reaction. I find his interpretation of the event to be accurate — read, again, the paragraph in charlton’s letter (and subsequent write-up on his site) to hawaii health dept and you will see the “out” charlton gave them.

              • 41 drkate October 23, 2009 at 2:05 pm

                I understand, and I agree that Leo’s work is very good. I do not agree with his take on Charlton, and do not like the tone of his response. Just because he IS good at what he does doesn’t give him license, imho, to trash people in public.

              • 42 Ali October 23, 2009 at 2:07 pm

                Clarification: I find Leo’s interpretation of the charlton event to be accurate — read, again, the paragraph in charlton’s letter (and charlton’s subsequent post on charlton’s postnemail website) to hawaii health dept and you will see the “out” charlton gave the hawaii health dept.

  13. 43 kj October 23, 2009 at 8:58 am

    Dr. Kate,

    It has become apparent that the political party machines cannot be trusted to vet the Presidential candidates, and no one in the Federal Government seems willing to do so. I think that Justin Riggs has presented the best approach to the eligibility problem. It won’t work now, but it will work in the future. With the yellow streak in the Courts, his approach may be the best that we can accomplish.

    The vetting must come from the States if the Federal Government will not act and the political parties do not exercise due diligence. We the People can work for State level laws to require proof that Presidential Candidates and maybe all candidates are eligible for the offices they seek. EVERYONE needs to pressure their state representatives and senators to introduce the relevant legislation at the State Level. This legislation would need to describe a detailed procedure and any documents required to verify that any declared candidate for President is eligible for the job that he/she seeks before his/her name can be placed on the ballot in that State. I believe that the State should vet all candidates for placement on both primary and Election Day ballots.

    Justin Riggs mentioned that different laws and procedures concerning vetting required by different States will probably result in candidates filing lawsuits. Some candidates, of course, would have standing to challenge any State laws that they feel are unfair to them. Hopefully, these lawsuits could proceed to the Supreme Court, forcing the Supreme Court to define “natural born citizen” as it appears in the Constitution.

    If you agree, please spread this idea in any way possible. If you are in Texas, please contact me at the email address provided with this comment.

    • 44 drkate October 23, 2009 at 12:39 pm

      I wholly agree with this. The government is a machine now unto itself, and the states are going to have to step up.

    • 45 brityank October 23, 2009 at 2:34 pm

      OK, I’ll play a little ‘Devils Advocate’ here:

      kj wrote:
      The vetting must come from the States if the Federal Government will not act and the political parties do not exercise due diligence.

      We already know that there are moves afoot to remove the Electoral College procedure from the Presidential election, and the dumbed-down populace at present is very likely to approve it should it be put up to a vote. Without that, there would be a very good probability that the fewer more populous States would override the majority less populated States by pure numbers. No longer would the Parties need to pass their candidates across the current Primary sessions, but merely concentrate on the ant-hill areas where Acorn and other Walking-Around-Money hold sway.

      In that scenario, the popular vote of just the dozen or so most inhabited States would provide the margin to win, and the fact that some States had refused to place the candidate on the ballot due to a legitimate infirmity wouldn’t count.

      The only thing that could possibly save that policy – without the Electoral College – would be to stipulate that the Winning Vote must be 50% +1 vote of All Registered Voters, unlike the current system of 50%+1 of the current Voter Totals.

      Thank you, Dr. Kate and All, for an interesting and enlightening Blog/Commentary site. 8)

    • 46 jbjd October 23, 2009 at 7:41 pm

      Justin Riggs gets his best ideas from me.

      Justin Riggs
      to me

      show details Aug 27


      I’m glad to hear that people are gravitating towards your line of attack. The conjecture about Mr. Obama’s citizenship is sensational, which makes people feel good, but there are real, substantive, practical issues that can be dealt with here and now.

      On a sidenote, I’m eager to see your draft legislation. (comments deleted) I’d like to compare/contrast to see if we’re forgetting anything.

      Good to hear from you, and please let me know if there’s ever anything I can do for you. I’m eager to be of service.


      Here is my reply.

      to Justin

      show details Aug 27


      Have you read the few comments I wrote about my ideas for such state legislation? Keeping in mind I want to avoid any triggering of First Amendment concerns, etc., I came up with the idea of a candidate screening panel. (Details to be worked out.) And if party nominees don’t want to submit to these, no problem; then we won’t pay to put your name on our ballots. But you can still be the nominee…In those states that only print the name of the nominee and not those of the Electors, this means, no name next to the D or R.

      Thank you for your genuine offer to help. This is getting real ‘heavy.’


      Then, there was my comment to g. amos on “THE END GAME,” on my blog.

      And once a state enacts new election laws, for example, utilizing eligibility panels to vet the candidates, I would anticipate a court challenge that would result finally, in a definition. That is, states can define NBC any way they want, for the purpose of establishing the names of which candidates they will print on the ballot. If the major political parties object to the definition of NBC applied by the state on the grounds this violates the Constitution, let them take the state to court.)

      And this reply to bob strauss on, “THE CHEESE STANDS ALONE.”

      bob strauss: Know what’s funny? When we set up eligibility panels in the states, we can define NBC any way we want. If the party wants to use our state ballots then, their candidate has to fulfill our definition of NBC. If they don’t like our definition, they can take us to court; or stay off our ballots. Because until the federal appeals court defines NBC then, one definition is as good as another. And we will do this by the next general election. But at a minimum, NBC certainly means, born in the U.S.A. ADMINISTRATOR

      Incredible. So many people are banking on my work, for free.

      • 47 jbjd October 23, 2009 at 8:03 pm

        …and on my blog on August 4, “THEORIZING HOW TO PROVE BO IS NOT A NBC.”

        I am going to work on writing model legislation for the states, for vetting candidates; just as soon as I give up trying to get citizens to get their state government – A’sG – to investigate election fraud perpetrated by the DNC to get BO onto state general election ballots.

        And this.

        This is where we have the power. Our state money pays for the primaries/caucuses for the major political parties. More voters are registered as “Independent” or “Unenrolled” than as D or R. Off the top of my head, I would propose we can pass laws that say something like this: No candidate will have her/his name printed on the ballot who has not first received Certification from a panel… as to eligibility for the job.’ Mind you, this does not bar a political party from getting its D or R on the ballot. This just means, voters will know the Party did not subject its candidate to the scrutiny of the eligibility panel.

        drkate, you are not the only person whose ‘edges’ slice the paper when your sensitivities have been assaulted.

        • 48 KJ October 24, 2009 at 12:38 pm


          The idea is probably the most workable that we have now. Now it must be implemented wherever possible and that is where the effort needs to be expended. The efforts need to start soon to get anything passed anywhere before 2012.

          Have you written the model legislation for state vetting? Is it posted on your blog? If so, please provide a link.

          I would like to see the requirements for all federal offices include some test of whether the candidates understand the Constitution and what it means to swear to support and defend it. Apparently, many legislators don’t know what is in it and they frankly don’t care. (Kinda like their attitude to legislation!) Promises and oaths are not taken as seriously now as in the past. The oath to defend the Constitution shouldn’t be considered in the same frame of mind as a “campaign promise”.

          Thank you for your thoughtful contributions to the effort, i.e., sue Pelosi, demand information from secretaries of state, military plaintiffs would have standing, etc.


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