mario apuzzo - quo warranto

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Mario Apuzzo Quo Warranto

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Quo W arranto and the Kerchner v. Obama andCongress Case

By: Mario Apuzzo, Monday, November 9, 2009

http://puzo1.blogspot.com/2009/11/quo-warranto-and-kerchner-v-obama-and.html

Leo Donofrio, Esq. wants the right plaintiff to bring a quo warranto

action against putative President Obama under 16 D.C.Code Secs. 3501-3503 in the FederalDistrict Court for the District of Columbia. He in effect maintains that quo warranto is anexclusive remedy available to remove Obama from office. He maintains that Obama may beremoved from office only through a quo warranto action and that the DC District Court is theonly court in the United States where such an action may be brought. I recently wrote anarticle about this issue, entitled The DC Dis t r i c t Cou r t I s N o t t h e On l y Cou r t I nW h i ch t o F ile a Q u o W a r r a n t o A c tio n (http://tinyurl.com/ygkm2o7). I explainedthat given the causes of action that I have raised in the Kerchner action(http://tinyurl.com/y8avk9d ), I can also file a quo warranto claim in the Third Circuit. Mr.Donofrio recently posted his disagreement with my article at his blog,(http://tinyurl.com/yhcbhoz ). I will now address Mr. Donofrios response to my article.

Before we begin, we must understand that a quo warranto action is a direct attack on an officeholder, questioning his qualifications to hold an office and therefore his warrant andauthority to occupy that office. It does not challenge any action taken by that person whilehaving been in office. This type of action is to be distinguished from one where the plaintiffbrings an indirect attack (collateral attack) against that office holder, arguing that someaction taken by him or her is invalid because he or she is not qualified to hold the office fromwhich the action is taken. Natl Assn of Greeting Card Publishers v. U.S. Postal Service, 569F.2d 570 (D.C.Cir.1976) (per curiam), vacated and remanded on other ground, 434 U.S. 884(1977); Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinctionis important, for it can be argued that direct attacks must satisfy the requirements of a quo

warranto action while indirect attacks must satisfy the requirements of the de facto officerdoctrine. Mr. Donofrio does not explain which one of these approaches he proposes to takeagainst Obama. The Kerchner action does not challenge any action taken by Obama. Rather itchallenges his Article II eligibility (that he is not a natural born Citizen) to hold the office ofPresident and Commander in Chief of the Military. Hence, it is a direct attack on Obamastitle to hold the Office of President, contending that he is not Article II eligible to occupy thatoffice.

Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack


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against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quowarranto procedure that he advocates. Under the common law, only the United States canbring a quo warranto action. Wallace v. Anderson, 18 U.S. 5 Wheat. 291, 292 (1820). Congresscan, however, pass a statute allowing a private person to bring such an action. Johnson v.Manhattan Railway Co., 289 U.S. 479 (1933). Hence, it would appear that the DC DistrictCode would solve the problem for a private person wanting to bring such an action against

Obama. But the DC District Code presents a cumbersome procedure that has to be followedand which renders the very statute inapplicable to a quo warranto action against a sittingputative President such as Obama.

This procedure starts by requiring that the quo warranto issue in the name of the UnitedStates. It compels a concerned citizen to apply to the Attorney General or the United StatesAttorney to bring the action on his behalf in the District Court for the District of Columbia (16D.C. Code Secs. 3501-3502. These officials have broad discretion. It is not realistic that theywould file a quo warranto action in the name of the United States against a sitting putativePresident, their own boss and the same person who appointed them. It is also unrealistic thatthey would file such an action in a case in which among the list of defendants are the UnitedStates itself along with the U.S. Congress, Senate, and House of Representatives. Evenappointing a special prosecutor would present a problem, for who would appoint him or her?We have already seen how the Executive and Congressional branches of government are bothdefending Obamas stance that he is constitutionally eligible to be President. Especiallyshocking is how the Justice Department has taken the side of Obama rather than support anddefend the Constitution and support the plaintiffs who argue that he is not an Article IInatural born Citizen and therefore not eligible for the Office of President and Commanderin Chief of the Military. How does Mr. Donofrio expect to get any cooperation from either ofthese two branches of government which he would need to sanction and support his quowarranto action?

It is true that the DC statute provides a private litigant with a mechanism by which he can still

bring the quo warranto action even if the government refuses to do so. But if thesegovernment officials refuse to institute a quo warranto proceeding as they have thus far sodemonstrated, only an interested person may petition the court for leave to have the writissued in the name of the United States on the relation of the interested person. 16 D.C.Code Sec. 3503. At common law, a private person had no such right to bring the quo warrantoaction and this DC statute is the only statute passed by Congress that permits such aprocedure. Blackburn v. OBrien, 289 F.Supp. 289 (D.C.W.D.Va. 1968). Nevertheless, thecourt has broad discretion to deny the writ. Under the standard for being an interestedperson as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in acase involving a public office one would have to have an interest in the office itself peculiar tohimself and be filing an action against another who allegedly usurped that office. Indeed,

Newman requires that the plaintiff be actually and personally interested in the office andthat there be another person against whom the action is brought who has unlawfully occupiedthe office in question. In other words, the plaintiff must himself make a claim to the office inorder to qualify to bring the action. Are there any available plaintiffs at this time who fill thisbill or will there be any in the future who will do so? I know that Mr. Donofrio is now lookingfor a plaintiff to retain him to bring a quo warranto action in the DC District Court. But has headvised the public that any would-be plaintiff has to have an interest in the office itselfpeculiar to himself and that he be actually and personally interested in the office? We mustkeep in mind that the quo warranto action is only an attack on the title of the office holder


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and not an attack on any action taken by that person. A suit based on alleged illegal actiontaken by an office holder provides many more possibilities to establish standing (e.g. illegalfirings from employment, illegal takings of property rights, breach of contract, etc.), but as wewill see below must satisfy the requirements of the de facto officer doctrine, unless groundedon a constitutional violation in which case it does not. Even if the quo warranto plaintiff couldshow that he was an interested person, the court would still have to grant him its

permission to bring the quo warranto action. Can we reasonably expect the DC District Courtto give its permission to a plaintiff to bring an eligibility action against Obama whom as wehave seen the court views to be a legitimate sitting President? For all of these proceduralreasons, it is highly doubtful that the DC District Code even applies to a quo warranto actioninvolving a President.

But there is a more serious problem with what Mr. Donofrio proposes and that is one ofconstitutional dimensions. Mr. Donofrio claims that Congress has delegated its powers toremove a sitting President to the DC District Court by passing the DC District Code statute.First, I maintain that Congress in passing the DC statute did provide private litigants with astatutory mechanism for bringing quo warranto actions in the DC District Court, but it didnot intend for it to apply to ousting sitting Presidents. Under the Appointments Clause(Article II, Sec. 2, cl. 2), it is the President that is given the power to make, with the adviceand consent of the Senate, appointments of Officers of the United States and other positionsthat are not considered inferior. Given the Presidents power to fill these offices, it is doubtfulthat Congress meant to include the Office of the President itself when it wrote public office ofthe United States in Section 16-3501. Hence, as written and only interpreting it as though theOffice of the President is not included in its sweep, the DC statute would pass constitutionalmuster. Second, if the DC statute were to be read as Mr. Donofrio does so as to be used as atool to oust from office a sitting putative President, then I doubt such an application of thatstatute would be constitutional. It is highly doubtful that Congress, a co-equal branch ofgovernment to the Executive, has the constitutional power to pass a statute which wouldallow a federal district court to alone directly remove a sitting President. See Marbury v.

Madison, 1 Cranch, 137 (1803) (shows that Congress in enacting laws must do so within theconfines of power given to it in the Constitution and held that Congress had no power to givethe Supreme Court original jurisdiction in cases not described in the Constitution). Surely, ifCongress cannot give the Supreme Court power which the Constitution does not give to thatCourt, Congress also cannot give to a federal district court any power not belonging to itunder the Constitution.

The Constitution itself textually provides the means by which to remove a sitting Presidentand Congress has no constitutional authority to legislate a different way to do it. See Article I,Section 8 which prescribes the legislative powers given to Congress. The Constitution itselfdoes not give Congress any authority to create by legislation any such quo warranto actions

that may be used to oust a sitting President let alone any authority to delegate that removalpower to the judicial branch of government. It is also doubtful that Congress would attemptsuch a delegation of power given that the Constitution itself provides for a mechanism toremove a President for misconduct or prevent a person from becoming or continuing asPresident who is not Article II qualified. The Constitution at Article I, Sec. 2 and 3 givesCongress the power to impeach the President which only applies to a duly elected andconfirmed sitting President who is convicted of Treason, Bribery, or other Crimes andMisdemeanors As we can see, impeachment would only apply to a duly elected Presidentwho has intentionally committed a serious criminal offense.


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To prevent an ineligible person who has won the Electoral College vote from becomingPresident, the Constitution requires that Congress itself qualify and confirm a President Electunder the Twentieth Amendment. To remove a person who may have improperly gotten pastCongresss qualification and confirmation function, who is not eligible for the Office, and whohas not necessarily intentionally committed any serious criminal offense, the Twenty Fifth

Amendment provides a procedure for the Vice President and a majority of either the principalofficers of the executive departments or of such other body as Congress may by law provide toinitiate removal of the President should they deem him unable to discharge the powers andduties of his office. The amendment does not limit the scope of the President being unableto function, suggesting that such inability can included physical, mental, or legal inabilities.Inability to discharge the powers and duties of an office surely includes the lack of legalcapacity to perform those powers and duties. Lack of legal capacity in that regard can beestablished if one is not qualified to hold that office. Lack of qualification surely includes notbeing eligible for an office. Not being Article II eligible to be President then shows that Obamais not qualified for the office, lacks legal capacity to perform what is required of him whileoccupying that office, and is therefore unable to discharge the powers and duties of his office.

A Court presented with a case or controversy could decided and declare that Obama iscurrently not Article II eligible to be President and therefore constitutionally unable todischarge the powers and duties of this office and transmit that declaration to the VicePresident and a majority of the executive department officers who would then initiate theremoval procedure prescribed by the Twenty Fifth Amendment. Such a procedure respectsseparation of powers concerns that a court may have with a notion as Mr. Donofrio espousesof being asked to directly remove a sitting putative President. This procedure, with both thejudicial and legislative branches of government involved in the process, also provides checksand balances which are necessary to prevent one branch of government from abusing orusurping powers at the expense of the People. The Kerchner complaint/petition(http://tinyurl.com/y8avk9d ) has asked the court to take this exact approach to the eventual

removal of the Article II constitutionally ineligible Obama. This approach to Obamas removalalso shows that there is no redressablity (one of the Article III standing requirements)problem should the court want to act.

Mr. Donofrio insists that I file the quo warranto action in Washington. But as we have seen,Mr. Donofrios approach is fraught with procedural and constitutional obstacles which maybe very difficult if not impossible to overcome in a case brought by a plaintiff who challengesthe Article II constitutional eligibility of a sitting putative President and who brings his actionin the United States District Court for the District of Columbia under the District of ColumbiaCode, but who does not have any personal interest in that Office. Indeed, even if a plaintiff isan interested person, such a plaintiff would probably be unsuccessful in utilizing that

procedure to remove a sitting putative President because of the procedural requirements itdemands. Finally, to use the DC District Code in the manner that Mr. Donofrio proposes isprobably unconstitutional for want of power in Congress in passing such legislation ifCongress intended the DC statutes to work as Mr. Donofrio would want them to work, forbeing an illegal Congressional delegation of powers to the judicial branch if Congress has suchpower and for being a violation of separation of powers. Hence, these obstacles would onlyprevent persons like the Kerchner plaintiffs and others who may be interested in pursuing theObama eligibility issue from vindicating their individual constitutional rights under the dueprocess clause of the Fifth Amendment to have only a constitutionally qualified President take


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action against them that significantly and profoundly affects their fundamental individualconstitutional rights to liberty, safety, security, protection, and tranquility. Indeed, thetechnical statutory requirements and the unconstitutionality of a DC District Code quowarranto action against a sitting putative President would most likely render theconstitutional eligibility requirements of Article II virtually unenforceable by a person injuredthereby. These virtually insurmountable hurdles show that the DC District Code quo warranto

action is not adequate for the Kerchner plaintiffs needs. Not being adequate it cannot be theexclusive procedure available to them. United States v. Machado, 306 F.Supp. 995(D.C.N.D.Cal. 1969).

Our Constitutional Republic is based on the Constitution and the rule of law whichguarantees individuals due process of law. A denial of all judicial forums and remedies may bea denial of due process. Hence, our judicial branch of government should not allow such aresult and rather should use its Constitutional and equitable powers to give a deservingplaintiff the requested constitutional relief he or she seeks. Given these virtuallyinsurmountable procedural and constitutional obstacles, I have therefore taken a differentapproach to the removal of the Article II ineligible Obama which Mr. Donofrio does notaddress or refuses to recognize. I have shown that the DC District Court would have exclusiveoriginal jurisdiction over a quo warranto petition only if a party is not able to prove that adistrict court other than the DC District Court has original jurisdiction in the case any otherway. If a party wants to avoid having to file its action under the DC code in the DC DistrictCourt, a party must show the forum court that it has original jurisdiction by way of someother constitutional or federal statutory provision. If the party can prove that the court hasoriginal jurisdiction otherwise by showing that it has an underlying claim based on someother constitutional or federal statutory provision which gives that court original jurisdiction,the party is neither compelled to use the DC statute nor the DC District Court but rather canfile the partys common law quo warranto petition in any district of the United States seekingquo warranto remedies in conjunction with that underlying constitutional or federal statutoryprovision which is the basis for the court to assert original jurisdiction in the first instance.

See F.R.C.P. 81(a)(2) (does not provide for a substantive quo warranto proceeding but ratheronly allows federal courts to use the already existing common law quo warranto action); Seealso Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449, 471-72 (1884) (holding that quowarranto was a civil action properly heard by any federal court having federal questionjurisdiction); Wilder v. Brace, 218 F.Supp. 860, 863-65 (D.Me. 1963) (a federal court withdiversity jurisdiction can hear quo warranto action). Because of the unique nature of aPresidential constitutional eligibility action, the court should not require that a plaintiff bringthe action in the name of the United States or that the Attorney General or the United Statesattorney institute the action or that the court itself grant the plaintiff leave to file the action. Aquo warranto action when first created was a civil action, became a criminal one, and now isback to being a civil one. Also, the Kerchner plaintiffs are only asking for quo warranto

remedies that will be exercised not directly by the Court but rather by Congress with theassistance of the Court in defining the rights and obligations of the parties to the controversy(e.g. defining what an Article II natural born Citizen is). Hence, there exists noconstitutional problem (no political question or separation of powers problem) in a courtproceeding in this fashion.

Mr. Donofrio does not address my argument that under such circumstances, the district courtwould obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec.1651(a) (the All Writs Act), for the court would already have original jurisdiction over


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plaintiffs other constitutional or federal statutory claims. See United States of America ExRel. State of Wisconsin, Plaintiff-appellant, v. First Federal Savings and Loan Association andFederal Home Loan Bank Board, Defendants-appellees, 248 F.2d 804 (7th Cir. 1957). In thescenario described, the quo warranto jurisdiction is said to be ancillary to the court's originaljurisdiction that rests on a separate and distinct constitutional or federal statutory provisionin the first instance. Under such circumstances, the district court would obtain ancillary

jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Actwhich authorizes the court to "issue all writs necessary or appropriate in aid of theirrespective jurisdictions and agreeable to the usages and principles of law"), for the courtwould already have original jurisdiction over plaintiffs other federal claims. Under suchcircumstances, the All Writs Act may be used because the party is not using the act toaugment the jurisdiction of the court but rather only petitioning the court that it issue the quowarranto writ as an aid to the court's already existing original jurisdiction. Indeed, [u]nlessappropriately confined by Congress, a federal court may avail itself of all auxiliary writs asaids in the performance of its duties when the use of such historic aids is calculated in itssound judgment to achieve the ends of justice entrusted to it. Adams v. United States ex relMcCann, 317 U.S. 269, 273 (1942). Hence, the court can avail itself of the quo warranto writto provide the plaintiffs with authority to discover the facts and Obamass legal positionconcerning his Article II eligibility to be President. Finally and critically important, in theKerchner proceeding the quo warranto action does not stand alone(http://tinyurl.com/y8avk9d ) which in the context of attempting to remove a sitting putativePresident under the DC District Code would present the procedural and constitutionalproblems that I have explained above, but also with other constitutional causes of actionagainst Obama and Congress that give the court the ability to fashion the appropriate remedy(solving any redressability problems) and to satisfy separation of powers and checks andbalances concerns.

Use of the quo warranto remedy has already come up in the Third Circuit Court of Appeals inPhiladelphia in the case of United States v. Malmin, 272 F. 785 (3rd Cir. 1921). While the

Court decided the case by issuing a peremptory writ of mandamus to a federal district courtjudge sitting in the Virgin Islands of the United States rather than a writ of quo warrantotesting his title to the office, it did leave open the possibility that in the future a quo warrantoaction may be needed to test that title. The Court did not state that such action could not bebrought in the Third Circuit and that such an action would have to be brought in the DCDistrict Court under the DC statute.

Mr. Donofrio also argues that Congress through the DC District Code has given the DCDistrict Court exclusive jurisdiction over any quo warranto action filed in the federal courtsagainst Obama. He wants to give the DC district court exclusive jurisdiction over any quowarranto action existing in any place of the United States by way of Article I, Sec. 8, cl. 17,

which provides: The Congress shall have power[t]o exercise exclusive Legislation in allCases whatsoever, over such Districtas maybecome the Seat of the Government of theUnited States First, the statutes themselves no where say that Congress gave such exclusivejurisdiction to that court alone over any quo warranto action against any federal officer letalone a sitting President. Mr. Donofrio does not read Article I, Sec. 8, cl. 17 correctly, for it isdesigned only to establish who shall have jurisdiction over this specially created piece of 10-square-miles piece of land, not to restrict in any way the powers of the federal courts of theUnited States to that specific location. Starting with the Judiciary Act of 1789, c. 20 (1 St. 73)we can readily see that Congress has always been very careful about how it assigns


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jurisdiction to the federal courts and if that were its intent, it would have clearly said that thejurisdiction in the DC District Court is both original and exclusive. See Ames v. State ofKansas ex rel. Johnston, 111 U.S. 449 (1884). For example, some state legislatures have putlanguage in their quo warranto statutes indicating that quo warranto jurisdiction is exclusivewith a certain court of the State. See Henning v. Village of Waterford, 78 Wis.2d 181, 253N.W.2d 893 (1977) (Wisconsin). Second, Mr. Donofrios argument cannot be correct given

that Article III, Section 2 of the Constitution provides that [t]he judicial Power shall extendto all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,and Treatise made, or which shall be made, under their Authority. This broad grant ofjudicial power extends to all the federal courts in the United States, not to just any specificones. The Kerchner action (http://tinyurl.com/y8avk9d) is not only based on a federalstatutory infraction, but also a constitutional violation. I established jurisdiction in the ThirdCircuit under, among other statutes, 28 U.S.C. Sec. 1346(a)(2) and 28 U.S.C. Sec. 1331.Moreover, I established venue in the Third Circuit by satisfying 28 U.S.C. Sec. 1391(e). SeeAmes, 111 U.S. at 462 (it has never been doubted that a case is presented which arises underthe laws of the United States, citing Cohens v. Virginia, 6 Wheat. 379, Gold Washing & WaterCo. v. Keyes, 96 U.S. 201, Railroad Co. v. Mississippi, 102 U.S. 140). Third, as I have shownabove, original and exclusive jurisdiction is lodged in the DC District Court only if a litigantdoes not have any other constitutional or federal statutory cause of action. The Kerchneraction does have independent constitutional and federal statutory causes of action andtherefore is not bound by the DC District Code to be filed only in the DC district court. Fourth,as I have shown above, it is doubtful that Congress has the constitutional power to pass astatute such as the DC District Code if it were to be used to remove a sitting President.

Mr. Donofrio curtly dismisses the Kerchner action as an exotic concept. But there is nothingexotic about it. Indeed, in the words of Chief Justice Waite in United States v. Cruiksahank,92 U.S. 542 (1875): Citizens are the members of the political society to which they belong.They are the people who compose the community , and who , in their associated capacity,have established or submitted themselves to the dominion of a government for the promotion

of their general welfare and the protection of their individual as well as their collective rights.For sure, Obama, if he were a legitimate President and regardless of whether they voted forhim or note, would have the constitutional duty to provide for the Kerchner plaintiffs generalwelfare and to specifically provide for their protection. In return, they would consent tosubmit to his legal authority over them. I have included in the complaint/petition variousoriginal jurisdiction constitutional claims. These claims are based on the First (redress ofgrievances), Fifth (deprivation of liberty, safety, security, protection, and tranquility withoutprocedural and substantive due process of law and denial of equal protection), and NinthAmendment (denial of rights retained by the people), all of which support the independentquo warranto action and which provide the original jurisdictional foundation on which thequo warranto rests. The Ninth Amendment to the United States Constitution guarantees to

the People rights not granted in the Constitution to the Federal government and reserves tothe People certain rights as they were understood at the time that Constitution was adopted in1789. The guarantee of those rights is a matter of compact or contract between the Federalgovernment and the People of the United States as of the time that the compact or contractwith the United States was agreed upon and adopted by the People in 1789. Quo warranto isan ancient common law writ which existed at the time the Constitution was adopted. TheNinth Amendment, which preserves for the People their ancient common law remedies andwrits, along with the common law and principles of equity therefore take the place of the D.C.statute which is not needed to give the Kerchner plaintiffs a right to seek quo warranto


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remedies through the judicial and legislative branches working together, provided the forumcourt has original jurisdiction otherwise.

Moreover, if quo warranto is not available because of some procedural obstacle, the remedy ofquo warranto may be asked for in a declaratory judgment action which also seeks injunctiveand mandamus relief. In such a case, declaratory judgment is permitted because the common

law requirement that quo warranto be brought by the attorney general (at common law aprivate individual has no standing to institute a quo warranto action) limits the availabilityand adequacy of the remedy. Bochard, Declaratory Judgments, 2d ed., p. 362; Anderson,Declaratory Judgments, 2d ed., sec. 195, p. 385; United States v. Machado, 306 F.Supp. 995(N.D.Cal.1969). Hence, a court can provide a plaintiff with equitable remedies that includethose offered by a quo warranto action. There is no reason why the court should not exerciseits equitable powers to do justice when warranted by the special circumstances of the casewith which it is presented. It is only right that plaintiffs not be left with no remedy should quowarranto relief not be available because of its cumbersome requirements which probably cannot be satisfied in a case challenging a sitting putative President. Declaration, mandamus,and injunction based on constitutional violations can include the quo warranto remedies eventhough the quo warranto remedies might not be available if the quo warranto action stoodalone. See United States ex rel. Noel v. Carmody, 148 F.2d 684 (D.C.D.C. Cir. 1945) (if quowarranto does not provide plaintiff with an effective remedy, plaintiff would be limited torelief by way of bill in equity). In the Kerchner action, in addition to quo warranto remedies, Ihave asked for equitable relief in the form of declaration, injunction, and mandamus. SeeAndrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holdersaction and his title to the office, the court explained that such equitable remedies can replacequo warranto remedies, provided a plaintiff can show he has standing and that he has met therequirements of the de facto officer doctrine by showing that he took timely action against theoffice holder and that the government agency had reasonable notice of the claimed defect inthe officers title to the office so as to have the opportunity to remedy any such defects). Eventhough the Kerchner case is not one that challenges any action taken by Obama but only his

Article II constitutional qualifications to hold the title to the Office of President, wenevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger casecompelling equitable relief.

First, I filed the Kerchner complaint/petition (http://tinyurl.com/y8avk9d ), seekingdeclaratory, injunctive, and mandamus relief, before Obama was sworn in as President onJanuary 20, 2009. Hence, my action is surely timely. Second, Obama and Congress have hadnotice of the challenge to Obamas Article II eligibility well before the election and eventhrough the Kerchner action itself. Hence, they have had an opportunity to address andremedy the challenge to Obamas constitutional eligibility to fill the Office of President. Butdespite this opportunity, they have both refused to acknowledge the natural born Citizen

issue (that Obama has not conclusively proven that he was born in Hawaii and even if he washe is not a natural born Citizen because he was not born in the United States to a motherand father who were at his birth United States citizens) let alone address and remedy thisserious constitutional crisis. On the contrary, both Congress and the Executive have sidedwith Obama, who being sued not only in his official capacity but also in his private capacityhas the burden to show that he is constitutionally qualified for the Office of President, andhave taken every possible step to deny any plaintiffs their day in court. Additionally, it can besuccessfully maintained that given that the Kerchner plaintiffs have raised substantialconstitutional questions involving whether Obama is eligible under Article II to fill the Office


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of President, the de facto officer doctrine cannot be used against them in the first place.Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177(1995).

On October 20, 2009, the Federal District Court for the District of New Jersey dismissed theKerchner case on the defendants motion to dismiss. The Court did not rule that Obama has

conclusively proven that he was born in Hawaii. The Court also did not rule that Obama is anArticle II natural born Citizen. Rather, the Court dismissed the plaintiffs case because ofjurisdiction (Article III and prudential standing) and the political question doctrine withoutcommenting on the underlying merits of whether Obama is constitutionally qualified to bePresident and Commander in Chief of the Military. The Court also did not rule that theplaintiffs claims are frivolous. Additionally, unlike in the Keyes/Barnett v. Obama case inCalifornia, the defendants did not argue that the Kerchner quo warranto action was filed inthe wrong court. Judge Simandle also did not rule that it was incorrectly filed. By the Courtfinding that plaintiffs do not have standing and that their claims present a political question,the Court was able to avoid having to address the underlying merits of the Kerchner case.With such a decision, the American People unfortunately still do not know where Obama wasborn and whether he is an Article II natural born Citizen and therefore constitutionallyeligible to be President and Commander in Chief. The Kerchner action is now on appeal to theThird Circuit Court of Appeals in Philadelphia where it is hoped the Kerchner plaintiffs willreceive the judicial and public attention that their case so rightfully deserves.

Mario Apuzzo, Esq.185 Gatzmer AvenueJamesburg, New Jersey 08831http://puzo1.blogspot.com/November 9, 2009///

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