On the contrary, the court has been clear in stating that an interested party may, when granted permission, institute quo warranto proceedings in the name of the United States. Orly was refused permission. Thank goodness.
For your reference, here are the links to Donofrio's three-part legal brief on Quo Warranto and a couple of relevant excerpts. Part 1, Part 2, and Part 3.
§ 16-3502. Parties who may institute; ex rel. proceedings.The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application ...
In Newman v. United States ex Rel. Frizzell, 238 U.S. 537 at 546 (1915), the Supreme Court interpreted the role of the AG and US attorney as follows:The District Code still treats usurpation of office as a public wrong which can be corrected only by proceeding in the name of the government itself. It permits those proceedings to be instituted by the Attorney General of the United States and by the attorney for the District of Columbia. By virtue of their position, they, at their discretion and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper. But there are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office that the Code not only does not authorize a private citizen, on his own motion, to attack the incumbent’s title, but it throws obstacles in the way of all such private attacks. It recognizes, however, that there might be instances in which it would be proper to allow such proceedings to be instituted by a third person, but it provides that such “third person” must not only secure the consent of the law officers of the government, but the consent of the Supreme Court of the District of Columbia before he can use the name of the government in quo warranto proceedings.
Taitz didn't get the consent of the relevant law officers of the government, and she didn't even make an effort to get the consent of the Supreme Court of DC before she filed.
I was paraphrasing Lamberth who was paraphrasing his own DC Appeals Court when he said:
"The Court of Appeals for this Circuit has held that a quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney. Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (Wright, J.) (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945)). The Court of Appeals reasoned that this must be the case because challenges to authority by which a public office is held 'involve a right belonging to the whole body of the public which can be protected only by a public representative.' Carmody, 148 F.2d at 685."
I then went to Andrade where I found what appears to me to be the "equity" exception to the requirement that Lamberth cited:
"The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court."
"Given these restrictions, quo warranto is an extremely difficult and uncertain remedy for the type of claim at issue in this case. This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate. Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532."
http://bulk.resource.org/courts.gov/c/F2/729/729.F2d.1475.82-1880.html
The parallel between the hypothetical situation as framed by the Andrade Court where the AG has a conflict of loyalty to the people he appointed under him is clearly analogous to the current AG or US Attorney who not only were appointed by Obama but who can be fired by Obama "at his pleasure" with no reason given. The Andrade Court says it "will not be barred from issuing" an "equity" injunction to protect quo warranto plaintiffs from having to submit to the discretion of an AG or US Attorney with a conflict of loyalty.
Thanks for posting Donofrio's three part quo warranto legal brief. I am going back through it to see how it compares to Lamberth's ruling.
When Donofrio first suggested that quo warranto was available to "attack" Obama, it was very controversial and Donofrio was elated when Judge Carter was the first federal judge to affirm that a quo warranto could be used against Obama (given that statutory procedures were followed and the plaintiff had standing) and the DC District Court was the proper venue.
How many times have Obots and "anti-birthers" declared that "impeachment is the only constitutional means of removing a sitting president"?
As of now two federal judges say that impeachment is NOT the only means of removing a president and that a proper quo warranto is available. These judges may, of course, be overruled by a different DC District judge, the DC Court of Appeals or SCOTUS if a subsequent case comes before the DC Circuit. But as of now I see Lamberth's ruling as a big win for Donofrio and for all eligibility challengers.