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There was an Old Man with a beard

With apologies to Edward Lear:

There was an Old Man with a beard,
Who said, ‘It is just as I feared!
Two Owls and a Hen,
Four Larks and a Wren,
Have all sued Barack in my beard!

So somehow I ended up this YouTube video by a fellow who has figured out how to get Barack Obama’s eligibility litigated. He’s going to demand the Attorney General bring a quo warranto action against the President, and if the AG refuses, he things that gives him the right to bring it himself.

Actually the DC statute (D.C. Code §§ 16-3501 – 16-3503) says that the leave of the court is required for someone else other than the Attorney General to bring the action. That said, the court in Taitz v. Obama determined that no one but the Attorney General actually has standing to bring it.

Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) as precedent to say “[o]nly the Attorney General may bring a quo warranto action against a public official.”

American Jurisprudence

Sherman, set the way back machine…

The first of the 30-something articles on this sited tagged “quo warranto” dates back almost to the site’s beginning, to an article about the Kerchner v. Obama lawsuit in February of 2009. Orly Taitz liked that idea and brought a few of them herself. The protagonist in the current exercise in futility, Zane Grey, seems not to be aware that numerous demands have been made on the Attorney General to bring a quo warranto action (all ignored), and none of them was ever able to get a court to allow them to bring an action themselves.

See also Drake v. Obama, citing Taitz.

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

Read more:

Two very different ballot challenges in Pennsylvania

Pennsylvania attorney Phil Berg and Charles Kerchner (Birthers call him CDR Kerchner) are no strangers to litigation against Barack Obama’s eligibility to be President of the United States.

Background

The original Berg v. Obama et al. lawsuit codified much of the thinking of the “not born here” Birthers. I wrote about the foundational nature of this case in: “We all came out of Berg’s suit.” Further, much of what I know about the legal doctrine of standing came from Judge Surrick’s scholarly opinion dismissing the case. In addition to speculating that Obama was born in Kenya, Berg also alleges that President Obama became a citizen of Indonesia as a child and thereby lost his US citizenship (if any).

I wrote about Charles Kerchner’s first lawsuit against Obama in an article Kerchner v. Obama and the WHOLE COUNTRY. Charles Kerchner, aided by his attorney Mario Apuzzo, also filed a federal lawsuit seeking to unseat the President that included many of the ideas of Phil Berg, but in a much longer form, so long in fact that defense attorney compared responding to it to looking for “gold coins in a bucket of mud.” This lawsuit introduced one new element. While little more than a footnote, the Kerchner case suggested that Barack Obama wasn’t eligible even if he was born here.

In the time since 2009, very little has changed in Phil Berg’s approach, but in the case of Kerchner, the “not born here” aspect has been toned down and the question of Obama’s parentage and the definition of natural born citizen has come to the forefront.

In this, Kerchner may be responding to popular sentiment, particularly in the wake of the release of Barack Obama’s long-form birth certificate at a White House press conference last April, 20111. Republican leaders, most notably Senator Lindsey Graham of South Carolina, came out and said that people who believed that Barack Obama was born outside the United States or was a Muslim “are just crazy.” On the other hand a scholar, Lawrence Solum, said that while the opposing argument was “much stronger,” still those who believe in a two-parent citizenship qualification “aren’t crazy.”

This brings us to two Pennsylvania ballot challenges filed this month, one from Charles Kerchner and one from Phil Berg.

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Amicus brief in Kerchner

As we wait for the denial from the US Supreme Court in Kerchner v. Obama, I note that USJF attorney Gary Kreep (representing the Joseph Farah/WorldNetDaily front organization, the Western Center for Journalism)  filed an amicus brief with the Supreme Court. Kreep argues that presidential eligibility is not (or should not be) a political question because politicians are well, political, and might decide things based on a political bias. The second part of the brief urges the court to issue an advisory opinion because there may be more ineligible candidates in the future. Of course the brief is moot since Kerchner lacks standing in the first place.

I note a curious discrepancy between the Supreme Court docket  as it appears on the Supreme Court web site today and the Scribd version posted by Mario Apuzzo (embedded below) that says that the amicus brief was filed on November 3rd and distributed. The Court docket says that a motion to file the brief was distributed on November 3rd, but there is no indication that it was actually filed.

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Conservative Arizona news site goes full birther

The Sonoran News, billing itself the “Conservative Voice of Arizona” has gone full birther in an article this week about Lt. Col. Terry Lakin’s upcoming trial.

Far beyond simple shoddy research, this puppy is actually spinning the issue. My favorite quote is:

In September, a military judge ruled Obama’s birth records were irrelevant to the case and that his orders were legal and basically refused Lakin any manner of defense.

The court didn’t refuse Lakin any manner of defense; it just refused him the “birther” defense since it is not, as a matter of law, valid.

The Sonoran News also fails to make it clear that the American Patriot Foundation is no longer representing Lakin, Lakin having fired APF lawyer Paul Jensen and obtained reputable legal counsel.

The article trots out standard birther myths such as Obama’s millions in legal fees to hide his records and wave around Obama Connecticut social-security number. And they end the article with a plug for Kerchner’s case.