Posted on 07/02/2010 1:23:04 PM PDT by BuckeyeTexan
SLOVITER, Circuit Judge.
Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J. LeNormand, and Donald H. Nelsen, Jr. (hereafter "Appellants") filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligible to hold his Office as President. They rely on Article II, Section 1, Clause 4 of the United States Constitution which provides that "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. ..." U.S. Const., art. II, § 1, cl. 4. Appellants challenge the District Court’s order dismissing their complaint. We will affirm the order of dismissal and direct Appellants’ counsel to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.
(snip)
Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution “increase[ ] their adversarial posture,” Appellants’ Br. at 56, no court has found that a plaintiff established “injury in fact” simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath “swear[ing] . . . [to] support and defend the Constitution of the United States.”). Kerchner’s assertion of standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an “extreme national emergency,” Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural.
(...)
(Excerpt) Read more at scribd.com ...
I disagree. The words “The Court acknowledges Plaintiffs’ frustration” leap off the page as atypical and borderline prejudicial.
The Court is supposed to be neutral and apply the facts to the law without any regard whatsoever to the feelings (frustration) of any party. By even mentioning the feelings (frustration) of the Plaintiffs, the Court, in my view, is signaling an empathy of its own as a tiny but notable offset to the adverse ruling.
Didn't we have a big debate during the Sotomayor hearings over whether “empathy” was a proper consideration in judging? Obama said it was, but most conservative legal scholars said “NO.”
Now you are contending that when the Court acknowledges frustration, an act that can only be describes as an expression of empathy for the feelings of the Plaintiff, you contend that this is “typical and studiously neutral.”
I say no. I would not expect the Court address the feelings (frustration) of any party.
Tired of conservatives will never admit to any truth that denotes potential damage to 0thugga.
Yes, the judiciary is the third branch of our government. Google “judicial immunity.”
So to acknowledge that homosexuals perceive they’re being discriminated against and believe they have a right to marry is to express empathy for same-sex marriage and validate their perceived discrimination?
Get real!
That’s only because you have no idea what you’re talking about. But if it comforts you, by all means believe as you please.
(1) His overbearing handling of the health care issue annoyed a number of people who will vote in November.
(2) The situation in Afghanistan has the potential to fray further, although I hope for the sake of our soldiers it won't.
(3) He has antagonized parts of his base, as every President does when they inevitably start compromising.
(4) His preference for government solutions is still antithetical to a significant part of the country.
(5) He will be poorly positioned to defend his ideological preferences, as he should be, if the economy doesn't turn around by 2010.
That's just off the top of my head. What you folks refuse to grasp is that we are not defending Obama. On the birther subject, we are defending basic rationality and simple sanity.
We may see it come about, but not quickly.
Hundreds of Chrysler dealerships were dealt a death blow by the Obama administration. These people were definitely harmed by Obama.
THEY HAVE STANDING. See the following for further details.
* * * * * * * * * *
http://naturalborncitizen.wordpress.com/2010/03/11/re-chrysler-dealers-and-quo-warranto/
Re: Chrysler Dealers and Quo Warranto
Posted in Uncategorized on March 11, 2010 by naturalborncitizen
Just a quick update on the Quo Warranto aspect of our representing the Chrysler dealers. Both Steve Pidgeon and I agree that our clients should exhaust all possible remedies pertaining to the Chrysler bankruptcy before seeking Ex Relator status in the DC District Court. Filing a petition now in the DC District Court would be premature as we’ve recently filed a Notice of Appeal with the Southern District of New York. But we do represent 82 former Chrysler dealers – led by James Anderer – who support a future quo warranto action.
Furthermore, it’s important to note that the bankruptcy action does not allege the Government sought dealer rejections. Our case relies on the record of the entire bankruptcy proceeding which unequivocally exhibits that – while dealer restructuring was a future goal of New Chrysler – all key witnesses, including Old Chrysler’s CEO and Fiat executive Alfredo Altavilla, testified that neither the US Government nor Fiat ever requested dealer restructuring as a condition precedent to the deal closing. The record is crystal clear on that issue. Judge Gonzalez changed Alfredo’s answer in his Rejection Opinion by an act of judicial ventriloquism. [Judge Gonzalez committed fraud. He was rewarded by Obama with a promotion.]
Therefore, the record exhibits that the Government was not directly involved in the decision to reject the Chrysler dealers. Whereas, the quo warranto will be based on a “but for” argument pertaining to unconstitutional use of TARP funds. But for the improper use of TARP funds, the Government would not have gifted Chrysler to Fiat and our clients would not have had their businesses ripped from them.
It’s an important legal distinction between the underlying bankruptcy case and the pending quo warranto.
* * * * * * * * * *
To answer your other question, concerning why lawyers don’t go directly to the District Court, it may be due to ignorance of the law.
Turning to the courts may seem like the correct path, but Constitutionaly it is not. Congress has removed usurpers from office before; twice from the Senate during the 19th century.
Thanks again for your response. I googled judicial immunity and read that Judges were gods, I should have known that! The question would be, are you suiing a Judge privately.
I also read the next web page in the search results, Judicial immunity is not absolute. And I read this statement,
“CASE NOTE: “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509-516”
An argument can be made that avoiding the eligibility issue is a violation of one’s civil rights.
I was asking about suiing the Supreme Court as a body, not suiing the Justices personally.
Thanks for bringing that to my attention.
What do you think about the standing issue I raised? The remedy for the injured soldier would be money for his injury he got from the war. It would be the burden of the President to prove that he was eligible to be President when he gave the order for the soldier to go to war.
No matter what anyone says, you are guilty until proven innocent in our court system. When an allegation is made by the prosecution, it is up to the defense attorney to counter it with something very convincing.
Regarding the Justice Thomas thing. There is apparently a running joke between Serrano and the Court regarding Serrano’s eligibility as a Puerto Rican to serve as POTUS ...
On March 13, 2008, the House Appropriations Committee had that year’s hearing on the Supreme Court’s fiscal year budget. Serrano was committee chairman, Thomas was a witness. Here is the transcript.
The relevant excerpts:
SERRANO: Although I must say on a personal level that for about 10 years I’ve been trying to get out of you an unofficial comment on whether or not someone born in Puerto Rico can serve as president. And from what I understand from a California case, you may have to decide on Mr. McCain.
So if you do, I’ll try to get myself included in the same...
(LAUGHTER)
It’s nice to have you here.
SERRANO: I’d like to remind you that your full testimony will be inserted into the record, so we would appreciate, to allow for questions during these difficult voting times, if you could keep your remarks down to five minutes.
However, I’m not about to gavel a member of the Supreme Court, especially before the ruling on my presidency...
KENNEDY: Thank you, Mr. Chairman, Mr. Vice Chairman. Justice Thomas joins me in thanking you for the opportunity to appear before the committee, as is our custom and our pleasure....
Oh, incidentally, I can give you a ruling right now. You’re eligible to come to the Supreme Court.
SERRANO: I’m eligible to serve on the Supreme Court? Is that what you just said?
KENNEDY: There’s no problem with that, so if your presidential ambitions subside, you can always (OFF-MIKE)
SERRANO: But president is kind of cool.
(LAUGHTER)
And the hearing ended with:
SERRANO: And once again, on behalf of the committee and all members of the Appropriations Committee and the Congress, we thank you for your service to our country. We thank you for your work.
And all I can personally say is if you have to rule on McCain, make sure you include me.
(LAUGHTER)
Only Plaintiffs who have had provable and tangible damages as a direct result of Obama’s actions would have standing.
Like the car dealers, for instance.
Or, maybe even the people who have lost jobs because of him.
I'd have to disagree with that. Voting is a privilege. We have a choice for whom we vote.
Regarding the injured soldier - his orders are presumed lawful. Obama's eligibility is irrelevant in that case. (e.g. LTC Terry Lakin court martial)
In our legal system, the burden of proof is always on the plaintiff/prosecution. A defendant isn't required to defend himself. (It's in his best interest to do so but not required.) IANAL, but I don't think a defendant even has to show up in Court to answer the accusations. I'm sure one of our FR attorneys will correct me on that if I'm wrong.
Exactly! Injuries that are a direct result of Obama’s actions.
You old troll! /s
Let me clarify one thing: defendants must show up to answer criminal charges. Otherwise they’ll be arrested.
... and distinctly unique.
“An argument can be made that (the Supreme Court) avoiding the eligibility issue is a violation of one’s civil rights.”
“I’d have to disagree with that. Voting is a privilege. We have a choice for whom we vote.”
I don’t follow your logic. I did not choose to vote for the Supreme Court Justices.
On the standing issue. I can only see a fine line between the car dealers, those who lost jobs and an injured soldier. In the first example it was Obama’s policy and in the second example a soldier is injured as a direct result of Obama sending him to war.
The LTC Lakins case appears to be different because he disobeyed orders which caused a court martial. In that case the military does not have to address why he disobeyed orders, just that he did. (Remember the Mike News case with the blue beret thing.)
In the second case, a soldier obeys the order, goes to war and then is injured. He finds out later that there is evidence that President is not eligible to be President. He presents evidence showing that the President is not eligible and that a fraud has been committed. He has a clear case of an injury (literally) and avoids the court martial routine and protects his career. Maybe he is retired from the military at that point. The government cannot make the argument that the order was lawful without addressing the eligibility issue. The government has to show that no fraud had been committed. The soldier did not disobey orders. The military can’t do anything to him. He was injured because he followed Obama’s orders, that he now believes were unlawful due to a fraud that was committed.
Humor me and lets play this hypothetical out.
This standing issue is driving me nuts.
If President Obama or the Congress for that matter passed a law that homes were a threat to the environment and ordered all homes to be burned down or condemed,
we couldn’t do anything because we all suffered the same injury?
To what extent does standing go? Didn’t ALL Chicago residents suffer the same injury when they banned guns there? Didn’t the Supreme Court just rule that it was unconstitutional?
If the Supreme Court rules that it is unconstitutional to limit free speech on the internet. How many were injured waiting for their ruling.
I am not getting something here. When is standing used and when is it not used or required?
See my post here. The eligiability issue is very much alive.Maybe we need to call Rush and point out the facts.
The state electoral commission challenges are coming from Hillery Democrats!
See:
http://www.freerepublic.com/focus/news/2545978/posts?page=66#66
Rush has already received calls and e-mails by the thousands upon thousands concerning Obama’s eligibility.
If he can’t defend the **all** of the Constitution NOW when all he faces is a little ridicule from the mainstream media, I **KNOW** that he can not be counted on to defend the Constitution in the face of firing squads, jack boots, and concentration camps.
When faced with real tyranny, Rush will sell his talents to the fascist oligarchy and lick the jack boots crushing our necks.
Your example is basically what I had in mind, that a direct chain of consequences exist between an injury of fact - not a hypothetical one - and the decision made by CIC Obama to send the soldier out in combat.
Where I have a question is whether Obama illegally acquiring the position of President also means that he illegally acquired the position of CIC.
If the charges are brought by the soldier, would the illegal CIC be tried by a military tribunal, and not Congress?
Now, that would be interesting.
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