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WASHINGTON - JULY 07: U.S. President Barack Obama talks about his administration's promotion of exports in an attempt to grow the economy and support jobs in the East Room of the White House July 7, 2010 in Washington, DC. Obama named 18 U.S. executives, including Boeing Company Chairman, President and CEO Jim McNerney, Ford Motor Co. CEO Alan Mulally and Walt Disney Co. CEO Robert Iger, to an advisory group that will be focused on increasing U.S. exports. (Photo by Chip Somodevilla/Getty Images)

A decision by Judges Dolores Sloviter, Maryanne Trump Barry and Thomas Hardiman of the 3rd U.S. Circuit Court of Appeals may have opened the door to questions on the record about President Obama’s birth documentation and eligibility to be president, according to an attorney in the case.

The judges’ opinion recently dismissed as “frivolous” an appeal of a lower-court decision throwing out questions about whether the British Nationality Act of 1948 made Obama, at his birth to an American mother and Kenyan father, a subject of the British crown, thus possibly making him ineligible under the Constitution’s requirement that a president be a “natural born citizen.”

The case filed was against Obama, Congress and others, just before Obama was sworn into office, arguing that Obama was a British subject and not a U.S. citizen.

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“We further contend that Obama has failed to even conclusively prove that he is at least a ‘citizen of the United States’ under the Fourteenth Amendment as he claims by conclusively proving that he was born in Hawaii,” the lawsuit claimed.

Attorney Mario Apuzzo represented 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, the 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.”

A lower court dismissed the action, claiming the plaintiffs lack “standing” to make a claim about an alleged violation of the Constitution – meaning they weren’t personally “injured” by the act.

The 3rd Circuit agreed.

“It is axiomatic that standing to sue is a prerequisite to Article III jurisdiction,” the opinion said. “This constitutional mandate requires that appellants show, inter alia, an ‘injury in fact.’”

Apuzzo noted that the court refused to find the merits of the case “frivolous” but did find the appeal “frivolous.”

“The court found that the plaintiffs did not establish that they suffered an ‘injury in fact.’ They said that the injury that plaintiffs allege is … not concrete or particularized enough to satisfy Article III standing. They found that these injuries are ‘too generalized’ for Article III courts. They added that plaintiffs’ injuries are not ‘concrete and particularized’ because they are ‘harms that are suffered by many or all of the American people,’” he said. 

But the court also announced it would “order counsel for appellants to show cause why just damages and costs should not be imposed.”

“Neither the federal district court nor Obama/Congress et al. argued that our case was frivolous. Nevertheless, the appeals court on its own gave me notice that it wants me to show cause why I should not have to pay for the defendants’ damages and costs incurred in defending the action,” Apuzzo confirmed.

“I am now preparing my response to the court’s show-cause order, which I will be filing before the deadline of July 16, 2010. As to what other action my clients may take regarding the underlying claims against Obama and Congress, we will be discussing that aspect and acting accordingly,” Apuzzo said.

He told WND he definitely will explore the issue of “standing” now because of the possible penalties, which might be considered an “injury.”

He confirmed such circumstances could change the balance of the arguments.

“I’m going to address that in the papers [to be filed],” he told WND.

Apuzzo has explained that the case maintains that while the term “natural born citizen” is not defined in the Constitution, “under the law of nations, Obama is not eligible to be president and commander in chief of the military because, being born with conflicting allegiance to Great Britain, which he inherited from his non-United-States-citizen father, and possibly to the United States if he was born in Hawaii as he claims but has not shown, he cannot meet the Founders and Framers’ constitutional definition of an Article II ‘natural born Citizen,’ which requires the president and commander in chief of the military to have unity of citizenship and allegiance from birth only to the United States, which status is acquired at birth only if the child is born in the United States (or its equivalent) to a citizen mother and father.”

The issue of sanctions against attorneys for bringing challenges to Obama’s presidency has been raised in previous cases. The 3rd Circuit cited Hollister v. Soetero and Rhodes v. MacDonald.

In the Hollister case, attorney John Hemenway was threatened by a federal judge with financial penalties for bringing a court challenge to Obama’s presidency.

The Hollister case ultimately was dismissed by Judge James Robertson, who notably ruled during the 2008 election campaign that the federal legal dispute had been “twittered” and, therefore, resolved.

Robertson 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.

Then the judge suggested financial penalties against Hemenway for bringing the case. Hemenway responded that the process then would provide him with a right to a discovery hearing to see documentation regarding the judge’s statements – not supported by any evidence introduced into the case – that Obama was properly “vetted.”

Hemenway warned at the time, “If the court persists in pressing Rule 11 procedures against Hemenway, then Hemenway should be allowed all of the discovery pertinent to the procedures as court precedents have permitted in the past.

“The court has referred to a number of facts outside of the record of this particular case and, therefore, the undersigned is particularly entitled to a hearing to get the truth of those matters into the record. This may require the court to authorize some discovery,” Hemenway said.

The court ultimately backed off its threat of financial penalties and instead issued a statement critical of the attorney.

In the Rhodes case, attorney Orly Taitz was ordered penalized with a $20,000 fine for bringing the challenge. The penalty remains under challenge.

Apuzzo said the issue of standing should have been more than clear to the judges: “How can you deny he’s affecting me?” Apuzzo told WND during a previous interview. “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 before Obama took office. 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.

Apuzzo said it is “self-evident” under the Constitution that “anyone aspiring to be president has to conclusively prove that he or she is eligible to hold that office. Part of that burden is conclusively showing that one is a ‘natural born citizen.’ Hence, the citizenship status of Obama is critical to the question of plaintiffs having standing, for it is that very statute which is the basis of their injury in fact.”

“At this time he was still a private individual who had the burden of proving that he satisfied each and every element of Article II, Section 1, Clause 5. That plaintiffs filed their action at this time is important for it not only sets the time by which we are to judge when their standing attached to their action against Obama, Congress and the other defendants … but also to show that Obama has the burden of proof to show that he is a ‘natural born citizen’ and satisfied the other requirements of Article II,” Apuzzo wrote.

“At no time in these proceedings or in any other of the many cases that have been filed against him throughout the country has Obama produced a 1961 contemporaneous birth certificate from the state of Hawaii showing that he was born there … We must conclude for purposes of defendants’ motion that since Obama is not a 14th Amendment ‘Citizen of the United States’ let alone an Article II ‘natural born citizen,’ he is not eligible to be president and commander in chief. Not being eligible to be president and commander in chief he is currently acting as such without constitutional authority. It is Obama’s exercising the singular and great powers of the president and commander in chief without constitutional authority which is causing plaintiffs’ injury in fact.”

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 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.

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 to the questions.

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.


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Previous stories:

Appeals panel considers whether Obama is even American

3rd Circuit picks June 29 for eligibility case

Court told ‘citizen’ Obama actually may be alien

Eligibility lawyer says ‘standing’ a no-brainer

‘Twittered’ eligibility case lawyer faces threat of sanctions

Obama banks on ‘no standing’ decision

Appeals court told Obama ‘security risk’

Obama’s eligibility becomes war among the states

Appeal filed in Obama eligibility argument

Judge tosses eligibility case against Congress

Plaintiff: Courts must hear eligibility arguments

Judge sets ‘final’ calendar for eligibility challenge

THE FULL STORY: See listing of more than 200 exclusive WND reports on the eligibility issue

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