Mario Apuzzo on behalf of Charles Kerchner has filed a reply to the Defendant’s motion to affirm the lower court decision in Kerchner v Obama before the DC Court of Appeals.
I don’t have time right now to analyze this, and I’m not a lawyer anyway. I was struck by the argument’s opening sentence: “The current Supreme Court rule on standing is designed mostly to respect separation of powers between the three branches of government.” I don’t have the two cases cited at hand, but I always thought the rule on standing was there to restrict the federal courts to those cases which the US Constitution gives them jurisdiction. I wonder if the Court of Appeals will scratch their heads over that one like I did?
Apuzzo then says: “The Defendants [do not] address plaintiffs’ alleged facts which they submit sufficiently show they have suffered a concrete and particularized injury.” But of course, the District Court assumes (within reason) that the alleged facts are true when it made its argument on standing. If the court is going to already assume the facts are true, there is no place or value for the defendants to reply to them.
The reply repeats that Obama has the “burden of proof” to show his eligibility, but I fail to see that Apuzzo establishes the legal foundation for this assertion.
I still fail to see how Kerchner’s injury is concrete and particular. More later here or in the comments.