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Eligibility lawyer says 'standing' a no-brainer

Posted By Bob Unruh On 03/17/2010 @ 11:25 pm In Front Page | Comments Disabled

An attorney handling one of the appellate-level challenges to Barack Obama’s occupancy of the White House – under the dispute that involves the Constitution’s demand a president be a “natural born citizen” and Obama’s unwillingness to document that – says the most common reason judges have used for dismissing cases is just wrong.

Most of the dozens of cases that have been filed over Obama’s eligibility have been dismissed by judges who have cited a lack of “standing” on the part of the plaintiffs. In fact, the government’s most recent filing in the case being handled by Mario Apuzzo argues almost exclusively that it should be dismissed for that reason.

But Apuzzo, whose case is pending before the 3rd U.S. Circuit Court of Appeals and in which he will file a further brief within the next few days, says the federal standard for having standing – a concrete and particularized injury potential imminent for an individual – should be a no-brainer for judges.

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“How can you deny he’s affecting me?” he asked during an interview with WND. “He wants to have terror trials in New York. He published the CIA interrogation techniques. On and on. He goes around bowing and doing all these different things. His statements we’re not a Christian nation; we’re one of the largest Muslim nations. It’s all there.”

The case was brought by Apuzzo in January 2009 on behalf of Charles F. Kerchner Jr., Lowell T. Patterson, Darrell James Lenormand and Donald H. Nelson Jr.

Named as defendants are Barack Hussein Obama II, the U.S., Congress, the Senate, House of Representatives, former Vice President Dick Cheney and House Speaker Nancy Pelosi.

The case alleges Congress failed to follow the Constitution, which “provides that Congress must fully qualify the candidate ‘elected’ by the Electoral College Electors.”

The complaint also asserts “when Obama was born his father was a British subject/citizen and Obama himself was the same.” The case contends the framers of the U.S. Constitution, when they adopted the requirement that a president be a “natural born citizen,” excluded dual citizens.

According to a statement on Apuzzo’s weblog, the government’s latest statement will be answered by the scheduled deadline of March 22.

When the government’s dismissal demand was filed, Kerchner wrote, “What a lame and empty defense.”

He continued, “Basically they’re saying Obama and Congress can totally ignore the U.S. Constitution and there is nothing ‘We the People’ can legally do about it. No one has standing to right the wrong when Obama & Congress illegally violate Article II of the Constitution and seat illegally an ineligible person as president and commander in chief of our vast military power.”

The government brief informs the appeals court judges, “The district court correctly held that plaintiffs possess no concrete and particularized injury sufficient to satisfy the standing requirements. … To establish such an injury, plaintiffs must show ‘an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’ Any injury based on an interest of this kind, shared among all members of the public, is ‘too general for the purposes of article III.’”

Apuzzo, however, told WND the nation doesn’t need the “concrete and particularized” injury of a nationalized health-care system or an individual’s job loss.

“Let’s back up to the Constitution,” he said. “The president is in a singular and all-powerful position. He’s given tremendous power. What’s fascinating, or scary, is that he affects our lives whether he exercises his powers or not.”

He speculated if Russia is installing an attack system, and the president does nothing, “he’s affecting our lives.”

“Our Founding Fathers warned about a foreign influence infiltrating the office of the commander in chief. They knew if you have somebody [with divided loyalties] in the president’s seat, that singular and all-powerful position, that person can steer you in the wrong direction.”

“He’s making decisions every day that affect my clients in a concrete and particularized way. It’s real,” he said. “And they have every right to protect themselves.”

Of course, he said, not everyone across the nation has the same “concrete and particularized” danger of injury. He said those who support Obama don’t care “he’s not a natural born citizen. … His Marxist-communist buddies have full faith in the guy. They want him to trash the whole country, punish the country for the ills of the past.”

That means, he said, that his clients – those who fear Obama’s policies and are unwilling to accept on faith his assertions of eligibility – are a subset of the American citizenry with the possibility of actual injury from the president.

“The Founders told us a foreigner in that office could cause tremendous havoc on our country,” he said. “There’s the standing.”

He said he’ll also raise the issue before the appellate judges, who earlier granted him permission to file an extra-long brief to describe the implications of the case, of a trial judge who concluded that the case had been “twittered” and therefore resolved.

His reference was to a ruling released by a Washington District Judge, James Robertson, in a separate case.

The case cited retired military officer Gregory S. Hollister and said he was subject to being recalled to duty and therefore would need to know the legitimacy of any order coming from Obama.


James Robertson

Robertson has declined to schedule any hearing in the case and sarcastically wrote, “The plaintiff says that he is a retired Air Force colonel who continues to owe fealty to his Commander-in-Chief (because he might possibly be recalled to duty) and who is tortured by uncertainty as to whether he would have to obey orders from Barack Obama because it has not been proven – to the colonel’s satisfaction – that Mr. Obama is a native-born American citizen, qualified under the Constitution to be president.

“The issue of the president’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year campaign for the presidency, but this plaintiff wants it resolved by a court,” Robertson wrote. But Robertson refused, dismissing the complaint.

WND reported when the government’s response was filed in the Kerchner case that Obama’s representatives are counting on a no-”standing” decision by the court, since they did not address the numerous other issues raised by the case.

According to Apuzzo, the Obama brief “is a presentation of general statements of the law of standing.”

“Appealing to what other courts have done, the defendants basically tell the court that the Kerchner case should be dismissed because all the other Obama cases have been dismissed. Its main point is that the Kerchner plaintiffs have not proven that they have standing because they failed to show that they have suffered a concrete and particularized injury,” he continued. “The brief does not even acknowledge our factual allegations against Obama which are that he is not and cannot be an Article II ‘natural born Citizen’ because his father was a British subject/citizen and not a United States citizen and Obama himself was a British subject/citizen at the time Obama was born and that he has failed to even show that he is at least a ‘citizen of the United States’ by conclusively proving that he was born in Hawaii.

“It is strange,” Apuzzo continued, “as to why the brief does not even contain these factual allegations within it, giving the appearance that the Justice Department does not want such allegations to be even included in any official court record. Nor does the brief acknowledge let alone address what all our legal arguments are on the questions of standing and political question. Rather, it merely repeats what the federal District Court said in its decision which dismissed the Kerchner case for what it found was lack of standing and the political-question doctrine and asks the Court of Appeals to affirm the District Court’s decision dismissing our complaint/petition.”

The brief was signed by Assistant Attorney General Tony West, U.S. Attorney Paul Fishman, Mark Stern and Eric Fleisgi-Greene.

WND reported earlier when the appeals court indicated it was listening to arguments in the case – granting special permission for an extra-long document to be filed.

The judges approved Apuzzo’s request to submit arguments totaling 20,477 words, when the normal limit is 14,000 words.

He said the arguments are not complicated.

“We maintain that Obama is not an Article II ‘natural born citizen’ because he lacks unity of citizenship and allegiance from birth which is obtained when a child is born in the United States to a mother and father who are both United States citizens at the time of birth,” he said.

“Obama’s father was only a temporary visitor to the United States when Obama was born and never even became a resident let alone a citizen. Not being an Article II ‘natural born citizen,’ Obama is not eligible to be president and commander in chief,” he said.

He also argues Obama has failed to prove that he was born in Hawaii by revealing his documentation.

“If he fails to do so, the alleged fact is not proven, even if the opposing party produces no further evidence,” he said.

WND has reported on dozens of legal challenges to Obama’s status as a “natural born citizen.” The Constitution, Article 2, Section 1, states, “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.”

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama’s American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

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petition campaign to make President Obama reveal his long-form,
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Other challenges have focused on Obama’s citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born. And still others contend he holds Indonesian citizenship from his childhood living there.

Adding fuel to the fire is Obama’s persistent refusal to release documents that could provide answers and the appointment – at a cost confirmed to be at least $1.7 million – of myriad lawyers to defend against all requests for his documentation. While his supporters cite an online version of a “Certification of Live Birth” from Hawaii as his birth verification, critics point out such documents actually were issued for children not born in the state.

WND also has reported that among the documentation not yet available for Obama includes his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.

Because of the dearth of information about Obama’s eligibility, WND founder Joseph Farah has launched a campaign to raise contributions to post billboards asking a simple question: “Where’s the birth certificate?”


“Where’s The Birth Certificate?” billboard at the Mandalay Bay resort on the Las Vegas Strip

The campaign followed a petition that has collected more than 495,000 signatures demanding proof of his eligibility, the availability of yard signs raising the question and the production of permanent, detachable magnetic bumper stickers asking the question.

The “certification of live birth” posted online and widely touted as “Obama’s birth certificate” does not in any way prove he was born in Hawaii, since the same “short-form” document is easily obtainable for children not born in Hawaii. The true “long-form” birth certificate – which includes information such as the name of the birth hospital and attending physician – is the only document that can prove Obama was born in Hawaii, but to date he has not permitted its release for public or press scrutiny.

Oddly, though congressional hearings were held to determine whether Sen. John McCain was constitutionally eligible to be president as a “natural born citizen,” no controlling legal authority ever sought to verify Obama’s claim to a Hawaiian birth.

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