August 1, 2009 by drkate4justice
Any federal office holder who denies the supremacy of the Constitution destroys the legitimacy of his own authority.
From the previous article on this subject, and from our collective knowledge, the government, the judiciary, and Obama are basically hiding behind legal procedure to avoid having to address Obama’s eligibility. In not one of the 35 lawsuits has Obama addressed the facts of the challenge. This legal battle has reached its peak, we are very close, and the shrillness of the Obama response just reveals their fear. This was not something they could contain.
Lying in wait is the Kerchner case.
The government and Obama’s motion to dismiss is based on (a) lack of Article III standing, (b) sovereign immunity of the defendants (c) and two procedural issues involving the length of the complaint and the amendment of the claims prior to serving the defendants. This article focuses on Kerchner’s effective response to the standing and immunity issues.
Kerchner’s response to Obama and the government’s motion to dismiss is incisive, brutal, on point, and makes me proud to be an American. It gives Obama, the government, and the judicial system no quarter for their collective refusal to follow the constitution. And it is eloquently written.
Using his own trick against him, Kerchner asks the court to “take judicial notice” of the fact that Obama has admitted through his Fight the Smears web site that his birth was governed by the British Nationality Act of 1948 and that Obama was, at his birth, a British subject by descent from his father…”. In addition, Kerchner states unequivocally, and with considerable legal support, that
The word ’standing’ is not found anywhere in the Constitution. Rather, the test for ’standing’ is a judicial invention. In deciding this case, the “court must only consider the allegations of the complaint and documents referenced therein and attached , in the light most favorable to the Plaintiffs“. This Court’s threshold inquiry into standing in no way depends on the merits of the plaintiff’s contentions… (emphasis added)
Remember that in the Hollister case (brought by Berg), the judge ruled the claims were ‘frivolous’ and therefore Hollister had no standing because Obama had been vetted through ‘twitter’‘ and was ‘blogged’ for months. Thus Kerchner’s legally based point that, for the purposes of deciding standing, a judge cannot guess or weigh the merits of the claims.
The government cites all of the other cases that were dismissed for lack of standing, but Kerchner incisvely eviscerates that point:
Each one of these cases do not apply in this action because Obama was sued only as a candidate, and had therefore not yet become bound to the Constitution… (emphasis added)
The government’s desperate argument that Kerchner is just ‘one of millions’ trying to redress a ‘generalized grievance’ is for the purpose of arguing that a court cannot deal with a generalized claim that has no redress. Kerchner argues:
Plaintiffs have not brought a ‘citizen suit’ against the defendants in which they seek to vindicate a general public interest. They do not seek a redress of a ‘generalized grievance’ but of their own grievances and injuries. Indeed Obama’s failure to satisfy the requirements of Article II and the Congressional defendants failure to adhere to the obligations of the Twentieth Amendment and 3 U.S.C. Sec. 15 are procedural injuries which directly tie to an underlying, particularized injury.
And, using the government’s own argument against them, “that Obama as the president represents a broad national interest does not control the question of whether he has specifically harmed the plaintiffs by refusing to conclusively prove that he is an Article II natural born citizen, for harm to the whole does not mean the there is no harm to the parts making up the whole”. The government’s use of ‘broad national interest’ means in effect, the popular vote, which cannot overrule the Constitution and the protection of the minority against the majority.
Chastising the government and Obama’s reliance on ‘lack of Article III standing’,
With all post 1789 Presidents being Article II “natural born citizens”, never in the history of the United States has our nation had to address the meaning of an Article II ‘natural born citizen’. Plaintiff’s claims are historic, unprecedented, and constitutional in nature…in defendants not addressing the causation prong of Article III standing, defendants concede this issue. There is little doubt that plaintiff’s injury is directly linked to defendants’ conduct…
On standing, Kerchner begins by stating that the Constitution is a “contract between the people and the government”, and as such, the people have a right to enforce the contract. In addition, Kerchner argues that because the defendants have not addressed the underlying facts, they cannot challenge standing of the plaintiffs:
In addressing standing, we must remember that it is a fact-intensive analysis (504 US at 555 1992). Defendants have completely failed to address the factual aspects of the plaintiff’s case. Defendants, without commenting on the factual aspects of plaintiffs’ claim, simply place plaintiffs among those ‘millions’ of Americans and state they have no standing to bring their claim regarding whether Obama is an Article II ‘natural born citizen’.
In short, Kerchner effectively argues that his liberty interest–an interest in freedom from governmental deprivation of liberty especially without due process- has a basis in law. In the contract between the people and the government, Kerchner’s liberty interest is frustrated when
the person who assumes that governmental power not be eligible to hold that power, for one cannot be sure that the person will truly protect them and all the official acts of that person on behalf of the plaintiffs are null and void and of no effect and have no force in law.
Kerchner also demonstrates a particularized injury because he is a retired military officer subject to recall.
Plaintiffs in bringing this action are protecting their own security, safety, and liberty and this Court must give them standing to be able to protect themselves from any foreign threat which has yet to be ruled out within the minimum requirements of Article II.
I find this a persuasive argument, one which reflects the anxiety I have as an American on a constant basis. Yet I do expect Obama and the government to insist otherwise and use more (perfectly legal) procedural gimmicks to delay consideration of this case, and I have to admit that I don’t expect the judiciary to step up to the plate, and stand by the Constitution.
If the judiciary does not respond here, it will not be because of the quality, on point, well documented Kerchner case and arguments.
Defendants Obama and the government raised three defenses of sovereign immunity against Kerchner’s allegations: sovereign, absolute, and qualified. Kerchner once again raised the ‘contract’ nature of the Constitution in addressing the sovereign immunity claim:
The sovereign power in our Constitutional Republic lies with the people and the Constitution they established to limit the power of the Federal government and thus the Congress and its members who are part of that government (Chisholm v. Georgia). If the people have the right to elect and place people in these positions of trust, then they must also have the right to petition the court for their removal in the event they are not eligible for the position sought or are not exercising their duties as prescribed by the Constitution.
The Constitution of the United States is a contract between the people and the federal government, the plaintiffs have every constitutional right to demand that the contract be enforced by the judicial branch of government. Sovereign immunity does not apply to plaintiffs’ claim to enforce the contract between them and the defendants.
As to the government’s claim that they don’t have to follow the constitution, Kerchner punches back:
Any federal office holder who denies the supremacy of the Constitution destroys the legitimacy of his own authority.
Kerchner also argues that defendants Pelosi and Cheney do not have absolute immunity under the Speech and Debate Clause of Article I, section 6, clause 1 of the Constitution. The government’s defense of Pelosi and Cheney is shredded because the case is not about their personal liability, nor claims any access to the treasury of the United States, and is not a ‘tort claim‘ against the government. It is an allegation of violation of pertinent parts of the Constitution–not discretionary actions–but constitutionally-mandated ministerial actions required by the Twentieth Amendment.
Since Kerchner’s action is in the form of both a petition and a mandamus, the Kerchner case is:
asking for a court order that Obama be compelled to conclusively prove that Obama is an Article II natural born citizen and that the Congressional defendants conduct an investigation and hearings to determine whether he is such after the Court declared what an Article II natural born citizen is. Defendants do not have immunity from such action.
Citing Cheney’s failure to count the electoral votes and ask for objections as he was constitutionally required to do under the 20th Amendment, and statutorily required to do under 3 U.S.C. Section 15, Kerchner asks the court for declaratory relief from the congressional confirmation vote in favor of Obama based on the procedural defect in how the vote was taken.
As music to my ears, Kerchner also faults Speaker Pelosi for failing to perform her duty to the American people to properly certify Obama. Mis-representing Obama’s eligibility,
“she allowed party politics to trump her duty to plaintiffs to assure that Obama was eligible for the office”.
Hers were not discretionary responsibilities, they were constitutionally-mandated ministerial duties and hence she has no qualified immunity.
The government claims in its response to the Kerchner petition that the federal court has no jurisdictional authority over the case because Kerchner did not present remedies that are actionable. However, Kerchner presents several remedies that discount that argument, and really challenge the court to behave as its predecessors have:
But Marbury v Madison (5US 137) tells us that if an obligation is defined by law and not by executive discretion, then that obligation becomes a subject for the court to examine. We simply cannot reasonably expect a person to vindicate his individual constitutional rights by going to the pols. It is exactly for this reason that the Constitution protects individual rights…plaintiffs constitutional rights must be valued individually and not in a collective sense…
The remedies suggested include the order to compel Obama to prove himself eligible as an Article II natural born citizen, for the court to define natural born citizen, and for Congress to conduct an investigation pursuant to the Court’s definition of natural born citizen to certify Obama’s eligibility. If Obama is found to be ineligible, the remedy is to remove him from office, and possibly Vice President Biden, as without the the constitutional eligibility secure, Obama’s appointments have no merit. It is doubtful, in my view, that Speaker Pelosi will be able to serve as President as she is permanently damaged by this lawsuit.
The government suggested that if Kerchner had a problem with the election, accusing him of being part of a ‘disgruntled set of voters unhappy with Obama’, that the resolution resided in the Legislative branch. Countering, Kerchner laid it out:
The defendants would also like to see plaintiffs stuck in a never-ending Catch-22, between the judicial and legislative branch of government. This Court should not allow the defendants to treat the Constitution and plaintiffs with such contempt and ridicule.
I personally think that if this court hears this case and makes any ruling, then it will be appealed to the U.S. Supreme Court, which will be hard pressed to dismiss this case on an issue of ’standing’ without being so transparently derelict in its duties.
I also think Obama wants this to get to the Supreme Court so he can argue his 14th amendment claim. I don’t believe he should be allowed to act as President while a case like this is heard, be represented by government lawyers in his effort to subvert the constitution, nor should he be reinstated retroactively. That would not be the ‘constitutional resolution’ of this issue.
But then again, he doesn’t seem to want any ‘constitutional’ anything, especially regarding his legitimacy to serve. Getting around the constitution and declaring it finally irrelevant appears to be Obama’s goal.
Now if the Cabinet had any sense and was following this case, or even read the Kerchner filings, they could exercise the 25th Amendment and declare Obama unable to serve. Vice President Biden could then step in.
Yes, it is time for Obama to prove his loyalty to the United States of America. To do that, he will have to be honest, probably for the first time in his life.