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Suing Congress

I am reminded of Leo Donofrio’s memorable comment: “you can’t save the Constitution by destroying it,” when reading Orly Taitz’ latest lawsuit in California that attempts to get a court to meddle with Congress certifying the 2012 election, something that the Constitution mandates that they do. Taitz calls Congress a “government agency” and names it as a defendant in her Grinols et al. v. Electoral College et al. lawsuit.

As I said in a comment on another thread: “I suppose in the history of whack-job lawsuits, someone has tried to sue Congress before” and it turns out that I was correct that Taitz is not the only lawyer that thinks outside the box, way outside the box. Another is Mario Apuzzo who filed a lawsuit against Congress on behalf of Charles Kerchner in 2009, Kerchner v. Obama. Indeed, not only did Kerchner sue the House, the Senate and the Vice President (then Dick Cheney) he even sued The United States itself! That lawsuit was ultimately dismissed but I wondered if anything in that process would shed light on the instant case suing Congress.

In the Kerchner case, the United States Attorney replied on behalf of Defendants. In its motion to dismiss, the Government argued that the Congressional Defendants had immunity. The government argued sovereign immunity (you can read the Wikipedia article for more on that). In addition, the Government argued “absolute immunity” for the Vice President under U.S. Const. art. I, § 6, cl. 1, noting that the courts have broadly interpreted the debate immunity to preclude the courts from interfering with the function of Congress. In dismissing Kerchner, Judge Simandle did not reach the immunity argument, dismissing rather for lack of standing; however, he did cite one other reason that the suit could not be brought—the “political question doctrine”—writing:

…it appears that Plaintiffs have raised claims that are likewise barred under the “political question doctrine” as a question demonstrably committed to a coordinate political department. See Baker v. Carr, 369 U.S. 186, 216 (1962). The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.

So this brief nostalgic look back at another lawsuit from 2009 informs us that the Grinols case is:

Doomed image

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12 Responses to Suing Congress

  1. avatar
    Thinker December 14, 2012 at 12:46 am #

    I’m looking forward to seeing how she serves the Electoral College. I think we may be on the precipice of learning a whole new branch of Orlylaw. :grin:

  2. avatar
    JPotter December 14, 2012 at 1:05 am #

    Thinker:
    I’m looking forward to seeing how she serves the Electoral College. I think we may be on the precipice of learning a whole new branch of Orlylaw.

    Is she asking for the Flying Moonkeys to chip in on a ….. oh, $14K or so FedEx bill? She loves the white boxes. 538 • $26 or so ought to do it ….

    This all has me wondering what the crazy lawsuit ever was. Epperly sued the US Gov’t (which he refers to as a ‘corporation’ foisted upon the sovereign states) on behalf of a whole list of states. I’m pretty sure he didn’t bother consulting said states’ Attorneys General first.

    Santa Claus has been sued.

    Has anyone bothered to ‘sue’ God? Well, duh, of course they have:
    http://en.wikipedia.org/wiki/Lawsuits_against_God

    … lawsuits literally aghainst reason:
    http://www.cracked.com/article_16896_7-stupid-people-who-sued-scientific-method.html

    I don’t see any instances of legal action against Jesus. Saved by those puppy-dog eyes?

    George Washington? Wellllll … it isn’t a lawsuit, but this is pretty weird:
    George Washington Becomes America’s Greatest Villain in Assassin’s Creed III DLC

  3. avatar
    The Magic M December 14, 2012 at 4:30 am #

    JPotter: don’t see any instances of legal action against Jesus.

    How often has Satan been sued, outside “Suing the Devil” starring Malcolm McDonald?

  4. avatar
    Bob December 14, 2012 at 5:03 am #

    Thinker:
    I’m looking forward to seeing how she serves the Electoral College.

    I left a comment saying that all she needs to do is put the subpoena(s) on her website or YouTube — if it’s good enough for the president’s birth certificate it should be good enough for her subpoena(s).

  5. avatar
    brygenon December 14, 2012 at 12:13 pm #

    To see the futility of trying to take the U.S. Congress to court, look up the case of former federal judge Walter Nixon, Nixon v. United States, 506 U.S. 224 (1993).

    Obama is President. McCain was not President, and that’s because he lost the election, not because of any question of his eligibility. To those who disagree, I say: enjoy your fantasy world.

  6. avatar
    steve December 14, 2012 at 5:24 pm #

    Then again:

    http://en.wikipedia.org/wiki/Lawsuits_against_God

    Thrown out also on appeal.

  7. avatar
    ZixiOfIx December 14, 2012 at 10:34 pm #

    JPotter:
    Santa Claus has been sued.

    The answer to how Ms. Taitz will manage to serve the Electoral College is as clear as the nose on Rudolph’s face. She needs to sue Santa to make him deliver service to the Electoral College with the gifts.

  8. avatar
    Rickey December 15, 2012 at 1:36 am #

    Orly’s motion has been rejected due to her failure to comply with the rules. What a shocker! She has until December 21 to fix the deficiencies.

    http://www.scribd.com/doc/116883121/EDCA-ECF-8-2012-12-14-Grinols-v-Electoral-College-OrDER-Denying-Motion-for-TRO

  9. avatar
    Reality Check December 15, 2012 at 1:32 pm #

    “Doomed” is the perfect word for this one. The electors vote on Monday and Congress will probably certify on January 8th (not Sunday the 6th ). No court has jurisdiction now. Orly should be spending her time answering FEC complaints about campaign donations from dead people rather than trying to correct this stinker of a lawsuit.

  10. avatar
    gorefan December 15, 2012 at 1:51 pm #

    Reality Check: The electors vote on Monday and Congress will probably certify on January 8th (not Sunday the 6th ).

    All of the state’s certified EC votes have to be submitted to the President of the Senate (Joe Biden) and the National Archives by December 26th.

    Watch them come in to the National Archives here:

    http://www.archives.gov/federal-register/electoral-college/2012/certificates-of-vote.html

  11. avatar
    Reality Check December 15, 2012 at 4:31 pm #

    Thanks gorefan. I will keep an eye in that. I think CSPAN usually covers the EC voting that will happen on Monday in all the state capitals.

    gorefan: All of the state’s certified EC votes have to be submitted to the President of the Senate (Joe Biden) and the National Archives by December 26th.

    Watch them come in to the National Archives here:

  12. avatar
    Zixi of Ix December 15, 2012 at 4:34 pm #

    gorefan: All of the state’s certified EC votes have to be submitted to the President of the Senate (Joe Biden) and the National Archives by December 26th.

    Watch them come in to the National Archives here:

    http://www.archives.gov/federal-register/electoral-college/2012/certificates-of-vote.html

    Oh my gosh. That is so cool. Thank you! Can’t wait!

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