Kerchner v. Obama Appeal to the Third Circuit to Be Decided on the Briefs with No Oral Argument

puzo1.blogspot.com ^ | 6/15/2010 | Mario Apuzzo, Esq

[rxsid]

"Tuesday, June 15, 2010
The Kerchner et al v. Obama/Congress et al Appeal to the Third Circuit to Be Decided on the Briefs with No Oral Argument

The Third Circuit Court of Appeals which sits in Philadelphia has notified me today by letter dated June 15, 2010 that there will not be any oral argument on the Kerchner appeal to that Court. The case will be submitted on the briefs on Tuesday, June 29, 2010. Our presence is therefore not required.

The Court also informed me that the Third Circuit Panel that will decide the appeal will be comprised of Circuit Judges Sloviter, Barry, and Hardiman.

The court can call for oral argument when it has questions. As we know, the Federal District Court granted Obama’s/Congress’s motion to dismiss the complaint/petition for lack of standing and political question. The Kerchner plaintiffs have appealed that decision to the Third Circuit Court of Appeals. On a motion to dismiss the complaint on its face for lack of standing and political question, both the trial and the appeals courts are supposed to accept the facts alleged in the complaint/petition as true and in a light most favorable to the non-movant. We have alleged and shown that Obama is not and cannot be an Article II "natural born Citizen" because he was born a subject of Great Britain through descent from his British subject/citizen father who was never a U.S. citizen, making Obama born with dual and conflicting allegiances if he was born in the U.S. or with sole allegiance to Great Britain if he was born in Kenya. We have also alleged and shown that Obama has not conclusively proven that he was even born in Hawaii. Obama and Congress have presented no evidence or argument to the Federal District Court or to the Court of Appeals contesting these arguments. The issues of standing and political question are well briefed. We have presented in our briefs how the Kerchner plaintiffs have standing and how the Obama eligibility issue does not present any objectionable political question for the Court. Hence, the Court might not have any questions and so it did not see any need for oral argument.

Of course, it is our hope that the Third Circuit Court of Appeals reverses the decision of the Federal District Court which dismissed the complaint/petition for lack of standing and political question and returns the Kerchner case to the District Court for discovery and trial. If the Third Circuit Court affirms the District Court, we will then be filing a petition for certiorari with the United States Supreme Court which will have the final word in any event.

Mario Apuzzo, Esq."

http://puzo1.blogspot.com/2010/06/kerchner-et-al-v-obamacongress-et-al.html

[jamese777]

When this stuff first began, I ran across this from justice.gov:

A Sitting President’s Amenability to Indictment and Criminal Prosecution

Going after a sitting President criminally seems to be an even higher legal hurdle....but good luck.

---

As we learned from the situations with Richard Nixon and Bill Clinton, criminal convictions are not politically necessary, only the likelihood of indictments. The constitutional legal process then becomes impeachment, and rightly so.
If Obama committed fraud or forgery or if those crimes were committed by others in his name, the political fallout would be astronomical.

[TexasVoter]

I asked: “What do you think the Framers intended by using the phrase ‘natural born citizen?’”

You said: The one and only definition there’s ever been: people born citizens.

I didn't ask for a definition; I asked for intent. That is, what did they want to accomplish?

However, since you brought it up... That definition of NBC, which you suggest is more than common, I have never never heard of nor seen in print. Could you cite your source(s)? (You've seen plenty of citations here from those with whom you disagree. So, in case you don't know what that means, maybe you can take it from context.)

Meanwhile, please try again. What do you think the Framers intended by using the NBC phrasing?

Please note that the Constitution provides for increasingly restrictive eligibility requirements for the offices of House Rep., Senator and finally POTUS - the only office that stipulates the NBC requirement. Please feel free to consult the Constitution, even if it is for the very first time in your life.

Do you have proper Tea Party attire?:

[conservativegramma]

Okay thanks, looks like its headed for SCOTUS then. Not holding my breath.

[danamco]

He gave the correct oath to him later. Get over it.

It was reported that there was a screw up there as well, and no Bible(?) (or Koran) was used!!!

Get over it. What's your agenda???

[danamco]

But you don’t like Obama, so you’ll say anything.

Translated that you really like him!!!

[Mr Rogers]

A piece written in 1881, citing what appears to be the 1863? translation of Vattel - and you consider THAT authoritative on the original intent? Knowing that Vattel didn’t use the phrase NBC?

I’m not the one obtuse, nor am I the one trying to deceive others...

[Red Steel]

I’m not the one obtuse, nor am I the one trying to deceive others...

You have a total of squat that jus soli was the meaning behind the natural born citizen clause. You think that Morse made up the NBC definition in 1881 to deceive people and it wasn't the same definition in 1787? You're coo coo bird nuts if you think that.

[Irish Eyes]

Is an “anchor baby” considered a “natural born” citizen?

[rolling_stone]

not in my book, if they were then so would foundlings of unknown parentage be nbc

[83Vet4Life]

This is good news, onto the SCOTUS ASAP. Ignore the after-birthers crowing about all the past cases that failed, this one should get in and O will be getting out!

[edge919]

Vattel didn’t have to use the phrase NBC. He was writing about being a native and having natural citizenship at birth, BOTH of which were contingent on being born in the country of citizen parents (but more strictly of a citizen father). Thus, native-born meant the same thing, to be born in the country of a citizen father. In Minor v. Happersett, the Supreme Court tells us this is the only definition of natural born citizen for which there is no doubt. Since this decision occurred AFTER the 14th amendment, they are telling us that the 14th amendment is not sufficient to make a person a natural born citizen ... otherwise, it would have removed the doubt of being born in the country of noncitizen parents.

[Mr Rogers]

Did Vattel use NBC?

No.

Did any translation of Vattel insert NBC prior to the Constitution being written?

No.

Are there English words that are transliterations of the words Vattel used?

Yes.

Are those words ‘natural born citizen’?

No.

You are the one peddling tales. And the courts aren’t buying them - not because everyone else in the world is corrupt, but because you are WRONG.

[patlin]

Where did the founders get the word “citizen” came from? Why was that chosen? There had to be a meaning behind it.

[Mr Rogers]

Citizen: “a native or naturalized member of a state or nation who owes allegiance to its government and is entitled to its protection ( distinguished from alien).”

Dates back to around 1300.

Natural born is a phrase from English common law. It used subject, but America had no king - so a different word than subject was needed.

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” - Zephaniah Swift, A system of the laws of the state of Connecticut (1795)

[Mr Rogers]

See post 134. Vattel was writing philosophy, not law, and taking one sentence from his book that used ‘native’ and ‘indigenous’ and turning it into the one and only accepted legal definition of NBC is dishonest.

[Mr Rogers]

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.”

St. George Tucker, BLACKSTONE’S COMMENTARIES (1803)

[danamco]

When John Roberts was grilled by the Senators before his appointment he was praised as one of the most articulate and prepared justice they had ever been sparring with, yet he screwed up two Oath takings facing the Devil himself eye to eye, hmmmm!??!

[old republic]

A piece written in 1881, citing what appears to be the 1863? translation of Vattel - and you consider THAT authoritative on the original intent? Knowing that Vattel didn’t use the phrase NBC?

IMHO, if the French text posted earlier of this quote is correct, then it would read "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens" In this sentence the adjective naturels is used as a substantive noun, that in context is modifying the word "citoyens." Literally the sentence would read "The Natural, or indigenous (citizens), are those who are born in the country of citizen parents." It appears from the context of the sentence that the word naturels and indigens are modifying the same implied noun, "citoyens", which is not repeated over and over because it would be redundant. The relationship of the naturals and indigenous/born citizens are tied together and defined as those who are born from citizen parents.

I don't know if this passage was the inspiration for Article II or not, but I think that it is pretty clear, that the Founders could have been inspired by this passage in Vattel and it is possible that its sentiments could have been incorporated into the Constitution. Regardless, of where the inspiration for the NBC clause came from, we know from the notes of the Constitutional Convention and John Jay's letter to George Washington, that the point of the NBC clause was to completely remove foreign influence from the Commander in Chief. Dual citizenship and split allegiances at birth is totally anathema to the letter and spirit of the NBC Clause. You cannot be both a NBC and a foreigner simultaneously. A man cannot serve two masters.

[PA-RIVER]

NBC is a constitutional provision, as written and never amended. The founding Fathers have it documented as born of two US citizens. David Ramsay, a founding Father documented it immediately after the constitution was created.

Obama, from the founding fathers own words, is not qualified. That is now established fact.

[Spaulding]

Bushpilot1, rsxid, Starwise, this thread has really awakened the trolls! From the nature of troll responses, the White House have assigned more attorneys to the task. The trolls who attempt to use ridicule are easy to ignore, but it is worth paying a little attention to the theme of the attacks.

If we still believe in the Constitution, it is more useful to quote, as many have done here, the framers and the authoritative jurists and legislators who have used the Vattel definition for almost two hundred fifty years.

It is also relevant to quote Patrick Leahy playing politics with the Vattel definition in 2008, when he, Clair McCaskill, and co-sponsors, Clinton, Obama, Webb, and others worked frantically in 2008 (McCaskill’s second attempt in three months of 2008) to make McCain seem eligible so that no Republican would challenge Obama.

U.S. SENATOR PATRICK LEAHY
CONTACT: Office of Senator Leahy, 202-224-4242 VERMONT
Senators: McCain Is A ‘Natural Born Citizen’
Senators Introduce Resolution To Make Clear Senate’s Position On Candidate’s Status
WASHINGTON (Thursday, April 10, 2008) – Sens. Patrick Leahy (D-Vt.) and Claire McCaskill (D-Mo.)
today introduced a resolution expressing the sense of the U.S. Senate that presidential candidate and current
Senator John McCain (R-Ariz.) is a ‘natural born Citizen,’ as specified in the Constitution and eligible to run
for President.

In February, The New York Times published a report calling into question the legality of McCain’s
presidential run. McCain was born to American citizens stationed on an American Naval base in the Panama
Canal Zone. He has since served in the U.S. Navy, and, since 1983, has served in the U.S. Congress.
“Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural
born citizen,” said Leahy. “I expect that this will be a unanimous resolution of the Senate.”
“It is silly for anyone to argue that Senator McCain is not eligible to become president,” said McCaskill. “I
would hope that this is something we can all agree on, for goodness sakes.”

At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff,
himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.
“My assumption and my understanding is that if you are born of American parents, you are naturally a
natural-born American citizen,” Chertoff replied.

“That is mine, too,” said Leahy.

Trolls will tell you that a resolution has no power to define terms of the Constitution and they are correct. This is politics. This was a quid-pro-quo to cover congress's don't-ask-don't-tell policy concerning McCain's ineligibility, while protecting Obama's obvious ineligibility.

Thomas Jefferson, fluent in French, initiated the first law school in the the U.S. at William and Mary in 1779, inaugurating the first curriculum and basing it upon Law of Nature and of Nations. Vattel, by far the most cited legal reference between 1789 and 1820, remained the text for the course until 1841.

Dr. David Ramsay, a president of the Continental Congress (Congress United), wrote a short “Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen,” (see quotation below) explaining the meaning of natural born citizen, without using the Vattel definition. John Marshall used Vattel, as he said in the Venus, because Vattel's statement of the definition was the most concise. Vattel was, after all, the most cited legal reference in all jurisprudence in the U.S. for about the forty years after the ratification, and was the first book referred to by George Washington on his first day in office in New York in 1789. The definition was just the sort of meaning James Madison referred to as essential to preserving the protections afforded by the Constitution - our common law.

Chief Justice John Marshall, who was fluent in French, having been an Envoy to France, cited Vattel in The Venus, 12 U.S. 253, and used the French terms to associate the phrase “born on the soil of citizen parents.”

Some trolls like to claim that were were still guided by English common law, and a natural born subject means the same as a natural born citizen. That too is nonsense, but I'll quote the wonderful Dr. Ramsay, signer of the Declaration and interim President in 1785:

“A citizen of the United States, means a member of this new nation. The principle of government being radically changed by the revolution, the political character of the people was also changed from subjects to citizens.

The difference is immense. Subject is derived from the Latin words, sub and jacio, and means one who is under the power of another; but a citizen is an unit of a mass of free people, who, collectively, possess sovereignty.”

“Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them a pleasure; but citizens possess in their own right original sovereignty.”

Since Dr. Ramsay wrote so clearly about the difference between subjects and citizens, here is the definition of natural born citizenship, written in 1789, and without reference to Vattel:

None can claim citizenship as a birth-right [natural born citizenship], but such as have been born since the declaration of independence, for this obvious reason: no man can be born a citizen of state or government, which did not exist at the time of is birth. Citizenship is the inheritance of the children of those who have taken a part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens. Those who died before the revolution, could leave no political character to their children, but that of subjects, which they themselves possessed. If they had lived, no one would be certain whether they would have adhered to the king or to congress. Their children, therefore, may claim by inheritance the rights of British Subjects, but not of American citizens.”

So the "birthright" citizenship of Ramsay in 1789 refers to the same principle called natural born citizenship by John Jay, Marshall, Waite, Bingham, Jefferson, Franklin. Ramsay had certainly read Vattel by that time since framers had referred to it often, and justices cited Vattel at least 6 times when referring to natural born citizenship. Vattel's Law of Nations is his compendium of law of nations (lower case) which derived from law of nature, and had a long history from Greek and Roman writers, to Leibniz, Grotius, Pufendorf, Wolfe and others. Some claim it was the clarity of Vattel's writing and organization that made his version so useful. But our framers only used the ideas, the definitions upon which the ratification committees could agree upon. Natural born citizen replaced a less constrained definition which appeared in the 1786 version of executive requirement written by Madison and Hamilton.

Look to our founders for clarity. There is no point in arguing with trolls. For them, as for Muslims exercising “Taquia,” there is an objective beyond truth. For whatever reason, they wish to protect a preacher of collective rather than individual rights. The "Preacher" must therefore derogate our Constitution which was written to found our republic upon core ideas documenting rights of individuals, and protecting the individuals from the greatest danger to their freedom, their government. The Preacher wants the power to determine for his subjects (not citizens anymore) which of those rights we are to be granted, and from whom the resources to be granted the subjects will be taken, because "the Preacher" and his cadre don't themselves produce anything to redistribute, but feel that they know better how common subjects should live their lives.