Kerchner v. Obama update
By Linda Bentley | July 29, 2009
Question is ‘historic, unprecedented and constitutional in nature’
CAMDEN – Last week, Attorney Mario Apuzzo filed a brief on behalf of his clients Charles Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand and Donald Nelson, Jr., in opposition to defendants’ (Barack H. Obama/Barry Soetoro, U.S. Congress, Dick Cheney and Nancy Pelosi) motion to dismiss his second amended complaint.
The heart and soul of plaintiffs’ claims is the question of whether President Barack H. Obama is an Article II “natural born Citizen,” which Apuzzo declares is “historic, unprecedented and constitutional in nature.”
Plaintiffs claim Obama is not an Article II ‘natural born Citizen’ because his father Barack Obama, Sr., who was never a U.S. citizen or even a permanent resident at the time of Obama’s birth in 1961, was a British subject under the jurisdiction of the United Kingdom until 1963, which is when Kenya received its independence and both Obama and his father became Kenyan citizens.
Apuzzo adds, “If Obama was not born in the United States, there exists a possibility that Obama could be an illegal alien.”
The subject of standing, which defendants argue plaintiffs lack, has become one of great interest, as other complaints challenging Obama’s eligibility have been tossed out because plaintiffs did not having standing.
Because the word “standing” in not found anywhere in the Constitution, Apuzzo maintains the test for “standing” is a judicial invention and stated, “In deciding this case, the court must only consider the allegations of the complaint in the light most favorable to the plaintiff,” adding, “All a litigant must do to demonstrate standing is allege personal injury fairly traceable to the … allegedly unlawful conduct and likely to be redressed by the requested relief.”
The injury need only be an invasion of a legally protected interest that is “concrete and particularized” as well as “actual or imminent,” rather than “conjectural” or “hypothetical.”
Defendants argue plaintiffs have not met that standard and cited several cases challenging Obama’s and Sen. John McCain’s “natural born Citizen” status and in which the courts ruled the plaintiffs lacked standing.
Apuzzo said the cited cases were distinguishable because Obama was sued as a candidate and not yet bound to the Constitution, which occurred when he took his oath on Jan. 20, 2009.
Defendants completely failed to address the factual aspects of plaintiffs’ case and simply placed plaintiffs “among these ‘millions’ of Americans and state they have no standing to bring their claim …”
Plaintiffs have not brought a “citizen suit,” seeking to vindicate a general public interest, as defendants suggest, but a redress of their own grievances and injuries.
Apuzzo explains it doesn’t matter how many persons have been injured by the challenged action, as long as the party bringing suit shows that the action injures him in a concrete and personal way.
He said it is simply illogical for defendants to claim because so many people may be injured by defendants’ actions, plaintiffs cannot show that they personally suffered an injury, asking, “If the plaintiffs are part of that larger group that the defendants concede could be injured, then how can the plaintiffs also not be injured?”
“The Constitution of the United States is a contract between the people and the federal government,” stated Apuzzo. “As parties to that contract, the plaintiffs have every constitutional right to demand that the contract be enforced by the judicial branch of government.”
Plaintiffs claim their Fifth Amendment fundamental liberty interest is being deprived as they are defrauded of protection “against an illegal, ineligible usurper President occupying that high Office.”
Obama has refused to produce documents to prove he is a “natural born Citizen” and the non-Obama defendants have refused to compel him to do so.
Apuzzo says plaintiffs have every right to fear a foreigner may be occupying the office of President for some secret reason.
Their distrust and fear of Obama has grown even stronger especially since he has refused to release his birth certificate while at the same time has authorized the public release of CIA interrogation techniques used on terrorists.
Citing Kerchner’s military status gives him standing, Apuzzo said, “One does not have to await the consummation of threatened injury to obtain preventative relief.”
He said it is Kerchner’s knowledge of Obama’s ineligibility to be President that causes him personal injury emanating from the thought of being recalled to duty and being compelled to serve an illegitimate President and Commander in Chief.
“Members of the U.S. military have a moral and ethical obligation not to follow the orders of a putative President who is not an Article II ‘natural born Citizen,’” said Apuzzo, “This same obligation to disobey also applies to an order issued by an unlawful usurper President,” citing the officer oath safeguards the Constitution against a corrupt elected government.
Apuzzo also pointed out an exception to the standing requirement, whereas a citizen may challenge an action that would otherwise go unchallenged in the courts.
While both McCain and Obama were similarly situated, the Senate investigated the former but not the latter and plaintiffs argue the congressional defendants denied them that equal protection under the law.
If anything, Apuzzo said, Obama, who has refused to produce his birth certificate, prevented public access to medical, educational and travel documents, whose father was born a British subject, and who himself was born a British subject, presented a much more questionable case for establishing Article II “natural born Citizen” status than did McCain, who was born in the Panama Canal Zone to two U.S. citizen parents who were on military duty at the time of his birth.
Apuzzo asserts Congress denied Kerchner equal treatment, based on party loyalty, race (wanting to avoid the appearance of being racist against the first African-American President-elect) or some other unknown factor and put up an “unjust, unequal and discriminatory barrier” to Kerchner’s petition for redress of his grievance.
Apuzzo discounts defendants’ claim of “sovereign immunity” and said, “The Constitution is the inviolable, sacrosanct and supreme law of the land. Each and every federal office-holder, including the President, without exception, derives authority and legitimacy therefrom. Any federal office-holder who denies the supremacy of the Constitution, destroys the legitimacy of his own authority.”
He says this cause of action is about a “serious violation of our Constitution,” not a dispute about where Obama was born.