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Supremes punt on Obama eligibility again

Posted By Brian Fitzpatrick On 11/29/2010 @ 9:51 pm In Front Page | Comments Disabled

WASHINGTON – The U.S. Supreme Court announced today it would not hear Kerchner v. Obama, a case challenging whether President Barack Obama is constitutionally eligible to serve in the Oval Office.

The case is the latest in a lengthy series of cases in which U.S courts have refused to hear any arguments about Mr. Obama’s eligibility.

The court effectively killed the Kerchner case with one terse statement: “The motion of Western Center for Journalism for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.”

“I don’t think the court helped heal the country,” said Mario Apuzzo, the New Jersey attorney who argued the case on behalf of retired Navy CDR Charles Kerchner. “We still don’t know Mr. Obama’s status. … The court is supposed to take cases that are important, and I can’t imagine a case more important than this one.”

“You need justice to resolve conflicts between people, and when justice is denied people continue to go after each other in a savage way. We did not get justice, ” Apuzzo told WND. “For the court to deny our justice sets the country back terribly.”

“This decision did not help Mr. Obama,” Apuzzo added. “It did not bring legitimacy to his office. Mr. Obama does not have legitimacy of office by the court or by the consensus of the nation, because many people question whether he is a natural born citizen. How does our nation go forward with this kind of result?”

“This matter should have been addressed by the media and political parties early in the spring of 2008 during the primaries. It wasn’t,” wrote Kerchner Monday morning. “Congress should have addressed this when asked and when constitutionally it was required to. It didn’t. The courts should have addressed the merits of the questions when appealed to early on. They didn’t. Everyone in our system of government chose appeasement over confrontation and punted the ball to someone else.”

“Now it is far worse,” Kerchner continued. “The Supreme Court has chosen appeasement and inaction over action and dealing with the issue and questions openly in a court of law under the rules of evidence and law. Our constitutional republic and legal system is now compromised and broken.”

Kerchner v. Obama argued that Mr. Obama is not a “natural born citizen,” which article II, section 1 of the constitution requires any U.S. president to be. According to Swiss political theorist Emer de Vattel, whose writings heavily influenced the founding fathers, an American “natural born citizen” must be the child of two parents who were both American citizens. Mr. Obama’s father was a British subject, a Kenyan student living temporarily in the United States.

“A person gains allegiance and loyalty and therefore attachment for a nation from either being born on the soil of the community defining that nation or from being born to parents who were also born on that same soil or who naturalized as though they were born on that soil,” Apuzzo explained to CNN. “It is only by combining at birth in the child both means to inherit these two sources of citizenship that the child by nature and therefore also by law is born with only one allegiance and loyalty to and consequently attachment for only the United States.”

“If they wanted to they could have taken this up,” Apuzzo told WND. He surmised the court decided, “I don’t want to rock the boat too much because that will make it worse, let me be nice and things will go away.”

“None of this is moot. If he runs again in 2012, people will want to know” [whether Mr. Obama is a legitimate president], said Apuzzo. “The issue is not going away. … You’re going to have a lot of states that are going to be on this, they will want to see that birth certificate.”

Like previous cases challenging Obama’s eligibility, Kerchner v. Obama foundered in lower courts on the question of “standing.” Mr. Obama’s attorneys have avoided addressing the merits of an eligibility case. Instead, they have repeatedly succeeded in persuading courts to dismiss cases because the plaintiffs lacked standing to sue because they could not prove they were directly harmed by Mr. Obama’s occupation of the Oval Office.

Another case currently before the Ninth Circuit Court of Appeals, however, Barnett v. Obama, may not be stopped by the standing problem, according to United States Justice Foundation Executive Director Gary Kreep. Kreep, author of the Western Center for Journalism amicus curiae brief cited above by the Supreme Court, represents two plaintiffs in the Barnett case.

Kreep explained that one of the plaintiffs in Barnett v. Obama, former U.S. Ambassador to the United Nations Alan Keyes, was a presidential candidate in 2008.

“According to case law, candidates have standing to challenge the eligibility of other candidates,” Kreep told WND. “The Department of Justice, which is handling Obama’s defense, is not even addressing standing. They’re saying it’s a political question,” and therefore shouldn’t be decided by the courts.”

Apuzzo and Kreep both suggested that Supreme Court Justices Elena Kagan and Sonia Sotomayor should have recused themselves from the Kerchner case.

“We’ve seen Justice Kagan recuse herself in various cases, and here’s a case where she did not recuse herself, and also Justice Sotomayor, which struck me as really odd because they were appointed by President Obama,” said Apuzzo.

“If he’s not eligible to be president, he never was, and it could jeopardize their appointments,” said Kreep. “An argument could have been made that they should have recused themselves.”

“If either of them had anything to do with any of the eligibility decisions, they should have recused themselves,” Kreep added. Kagan, as President Obama’s Solicitor General, was “probably” involved in planning his legal strategy in earlier eligibility cases.

Apuzzo suggested Kagan’s and Sotomayor’s participation might have changed the outcome of the court’s deliberations.

“We don’t know what the vote was,” Apuzzo pointed out. “If it was a dog of a case, you don’t need Kagan’s or Sotomayor’s votes. Why did they leave this ethical cloud hanging in history? For what? For a dog of a case?”



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