Petition for Writ of Certiorari filed with the U.S. Supreme Court for Kerchner v Obama & Congress

8/8/2019 Petition for Writ of Certiorari filed with the U.S. Supreme Court for Kerchner v Obama & Congress

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No. 10-

INTHE

Supreme Court of the United States

_______________________________

ON PETITIONFORA WRITOF CERTIORARITOTHE

UNITED STATES COURTOF APPEALSFORTHE THIRD CIRCUIT

232184

A(800) 274-3321 (800) 359-6859

CHARLES F. KERCHNER, JR., et al.,

Petitioners,

v.

BARACK HUSSEIN OBAMA, II, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

MARIO APUZZOCounsel of Record

LAWOFFICESOF MARIO APUZZO185 Gatzmer AvenueJamesburg, NJ 08831(732) [email protected]

Attorney for Petitioners

Source: www.protectourliberty.org

446


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QUESTIONS PRESENTED

1. Whether petitioners sufficiently articulated a caseor controversy against respondents which gives them

Article III standing to make their Fifth Amendment dueprocess and equal protection claims against them.

2. Whether putative President Obama can be anArticle II natural born Citizen if he was born in the

United States to a United States citizen mother and anon-United States citizen British father and under theBritish Nationality Act 1948 he was born a Britishcitizen.

3. Whether putative President Obama and Congress violated petitioners Fifth Amendment due processrights to life, liberty, safety, security, tranquility, andproperty and Ninth Amendment rights by Congressfailing to assure them pursuant to the Twentieth

Amendment that Obama qualified as an Article II

natural born Citizen before confirming his electoralvotes and by Obama refusing to conclusively prove thathe is a natural born Citizen.

4. Whether Congress violated petitioners rightsunder the Fifth Amendment to equal protection of theirlife, liberty, safety, security, tranquility, and property byinvestigating and confirming the natural born Citizenstatus of presidential candidate, John McCain, but notthat of presidential candidate, Barack Obama.



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LIST OF ALL PARTIES TO THE PROCEEDINGS

The parties to the proceedings in the District Courtare the petitioners, Charles F. Kerchner, Jr.; Lowell T.Patterson; Darrell James LeNormand; Donald H.Nelsen, Jr.

The respondents are Barack Hussein Obama, II,President Elect of the United States of America,

President of the United States of America, andIndividually; United States of America; United StatesCongress; United States Senate; United States Houseof Representatives; Richard B. Cheney, President of theSenate, Presiding Officer of Joint Session of Congress,

Vice President of the United States and Individually;Nancy Pelosi, Speaker of the House and Individually.The same parties were also in the Circuit Court.



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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . i

LIST OF ALL PARTIES TO THEPROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . ix

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORYPROVISIONS AND TREATISEINVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THEPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. The Third Circuit Court of Appeals hasdecided an important question of federallaw concerning Article III standing that

has not been but should be settled by thisCourt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



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Contents

A. Standing and subject matter jurisdiction are important questionsof federal law . . . . . . . . . . . . . . . . . . . . . 9

B. The Court should exercise i tssupervisory powers regarding

standing and subject matterjurisdiction . . . . . . . . . . . . . . . . . . . . . . . 10

C. The Circuit Court s dec is ion onstanding implicates the questions ofthe meaning and application of thenatural born Citizen clause andCongress duty under the TwentiethAmendment to enforce it which areimportant constitutional questions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Having a person sit as Presidentand Commander in Chief of theMilitary who is not a naturalborn Citizen puts the nationalsecurity of the United Statesvitally at risk . . . . . . . . . . . . . . . . . 14

2. T he rule of l aw need s to b eprotected . . . . . . . . . . . . . . . . . . . . . 16



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3. The Supreme Court should grantreview so as to maintain theproper balance of power betweenthe three branches ofgovernment in our constitutionalrepublic . . . . . . . . . . . . . . . . . . . . . . 17

4. Whether or not the President andCommander in Chief islegitimately sitting in thoseoffices impacts the nationsforeign policy . . . . . . . . . . . . . . . . . 18

5. The nation needs a definition ofnatural born Citizen for futurepresidential and vice presidentialelections . . . . . . . . . . . . . . . . . . . . . . 19

II. The Third Circuit Court of Appeals erredin concluding that petitioners do not havestanding to bring their claims and theCourt should exercise its error-correctionfunction to correct such error . . . . . . . . . . 19

A. The standing standard . . . . . . . . . . . . 20

B. Application of the standard . . . . . . . . 21

1. Peti tioners have suffered aninjury in fact . . . . . . . . . . . . . . . . . . 21

Contents



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a. The injury is concrete . . . . . . 21

b. The injury is particularized . . 23

c. The injury is actual orimminent . . . . . . . . . . . . . . . . . 26

2. There is a causal connectionbetween the injury and theconduct of which they complain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6

3. It is likely and not merelyspeculative that their injuries willbe redressed by a favorable courtdecision . . . . . . . . . . . . . . . . . . . . . . 27

a. Congress cannot def ine anatural born Citizen

. . . . . . . . . . . . . . . . . . . . . . . . . . 27

b. The executive cannot definea natural born Citizen

. . . . . . . . . . . . . . . . . . . . . . . . . . 28

c. The political parties and thepopular vote cannot define anatural born Citizen

. . . . . . . . . . . . . . . . . . . . . . . . . . 29

Contents



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d. Only the judiciary can definea natural born Citizen

. . . . . . . . . . . . . . . . . . . . . . . . . . 29

C. Berg is distinguishable . . . . . . . . . . . . 31

III. Obama has not conclusively proven thathe is an Article II natural born Citizen

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

IV. Congress violated the TwentiethAmendment . . . . . . . . . . . . . . . . . . . . . . . . . . 35

V. Congress violated petitioners equalprotection to life, liberty, safety, security,tranquility, and property under the FifthAmendment . . . . . . . . . . . . . . . . . . . . . . . . . . 35

VI. Justice Sonia Sotomayor and JusticeElena Kagan should recuse themselvesfrom having any involvement in this case

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Contents



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TABLE OF APPENDICES

APPENDIX A: Opinion of the United StatesCourt of Appeals for The Third Circuit FiledJuly 2, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B: Opinion of the United StatesDistrict Court for the District of New Jersey

Filed October 20, 2009 . . . . . . . . . . . . . . . . . . . . 12a

APPENDIX C: Statutory Provisions andTreatise Involved . . . . . . . . . . . . . . . . . . . . . . . . 24a



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TABLE OF CITED AUTHORITIES

CASES

American Ins. Assn v. Geramendi,539 U.S. 396 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 18

Barnett v. Obama,No. 09-0082, ___ F. Supp. 2d ___,

2009 WL 3861788 (C.D. Cal. Oct. 29, 2009),recons. denied (Dec. 4, 2009),appeal pending (9th Cir.) . . . . . . . . . . . . . . . . . . 10-11

Berg v. Obama,586 F.3d 234 (3d Cir. 2009) . . . . . . . . . . . . . . 7, 11, 31

Bruner v. United States ,343 U.S. 112 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 10

Chisholm v. Georgia,2 U.S. (2 Dall.) 419 (1793) . . . . . . . . . . . . . . . . . . 16

Christopher v. Harbury,536 U.S. 403 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 18

Cohen v. Obama,No. 08-2150, 2008 WL 5191864 (D.D.C. Dec.11, 2008), affd, Cohen v. Obama, 332 F.Appx 640 (D.C. Cir. Sept. 8, 2009) (percuriam), rehgdenied (D.C. Cir. Nov. 25,

2009), rehgenbancdenied, slip copy (D.C.Cir. Nov. 25, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 11



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Cohens v. Virginia,19 U.S. 264(1821) . . . . . . . . . . . . . . . . . . . . . . . . . 32

Cook v. Good ,2009 WL 2163535 (M.D. Ga. July 16, 2009),appeal dismissed, No. 09-14698-CC (11th Cir.

Nov. 24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dawson v. Obama ,2009 WL 532617 (E.D. Cal. Mar. 2, 2009) . . . . 11

Essek v. Obama,No. 08-379-GFVT (E.D. Ky. Jan. 15, 2009) . . . 11

Federal Election Commission v. Akins,524 U.S. 11 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 26, 32

Flast v. Cohen,392 U.S. 83 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32

Florida v. Rodriguez,469 U.S. 1 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FMC v. S.C. State Ports Auth.,535 U.S. 743, 122 S. Ct. 1864,152 L. Ed. 2d 962 (2002) . . . . . . . . . . . . . . . . . . . 16

Gladstone Realtors v. Village of Bellwood,441 U.S. 91 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 25



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Hamblin v. Obama ,No. 09-17014, 2009 WL 2513986 (D. Ariz.Aug. 14, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hamdan v. Rumsfeld,546 U.S. 1002, 126 S.Ct. 2749 (2006) . . . . . . . . . 17-18

Hollander v. McCain ,566 F. Supp. 2d 63 (D.N.H. July 24, 2008) . . . . 11

Japan Whaling Assn v. American CetaceanSoc., 478 U.S. 221 (1986) . . . . . . . . . . . . . . . . . . . 32

Kawakita v. United States,343 U.S. 717 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 22

Linda R.S. v. Richard D,

410 U.S. 614 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 32

Lujan v. Defenders of Wildlife,504 U.S. 555, 560, 112 S.Ct. 2130,119 L.Ed.2d 351 (1992) . . . . . . . . . . . . . . . . . . passim

Marbury v. Madison,5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 16, 30

Massachusetts v. EPA,549 U.S. 497, 127 S.Ct. 1438 1447 (2007) . . . 9-10, 32

Patriots Heart Media Network, Inc. v.Soetoro, No. 1:09-mc-00442-RCL (D.D.C. Sept. 10, 2009) . . . . . . . . . . . . . . . 11



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Perma Life Mufflers, Inc. v. InternationalParts Corp. , 392 U.S. 134 (1968) . . . . . . . . . . . 20

Robinson v. Bowen,567 F. Supp. 2d 1144, slip copy (N.D. Cal. Sept.16, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sierra Club v. Morton,405 U.S. 727 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 32

Strunk v. N.Y. State Bd. of Elections ,No. 1:08-cv-04289-ARR-LB (E.D.N.Y. Oct. 30,

2008), appealdismissed, No. 08-5422 (2d Cir.Nov. 14, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Richardson,418 U.S. 166 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. SCRAP,412 U.S. 669 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 32

Valley Forge Christian College v. AmericansUnited for Separation of Church & State,

Inc., 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . 9

Vassilios v. Kennedy,95 F.Supp. 630 (D.C.Cir. 1961) . . . . . . . . . . . . . . 34



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CONSTITUTION

United States Constitution

Article I, Section 2 and 3 . . . . . . . . . . . . . . . . . . . 29

Article II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Article II, Section 1, Clause 5 . . . . . . . . . . . . .1, 9, 33

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . passim

Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

Twentieth Amendment . . . . . . . . . . . . . . . . . 2, 12, 13

Twenty-Fifth Amendment . . . . . . . . . . . . . . . . . 30

STATUTES

3 U.S.C. Sec. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

28 U.S.C. Sec. 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. Sec. 455(a) and (b)(4) . . . . . . . . . . . . . . . 36

28 U.S.C. Sec. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . 1, 33



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28 U.S.C. Sec. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. Secs. 1331, 1343(a)(3)-(4), 1346(a)(2),1361, 1651(a), and 2201(a)-2202 . . . . . . . . . . . . . 4

COURT RULES

Fed.R.Civ.P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Evid. 201(d) . . . . . . . . . . . . . . . . . . . . . . . . . 15

OTHER AUTHORITIES

Emer de Vattel, The Law of Nations, orPrinciples of the Laws of Nature, Applied tothe Conduct and Affairs of Nations and

Sovereigns, bk. 1, c. 19, sec. 212 (original

French in 1758 and first English in 1759, andother subsequent French and Englisheditions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 34

FOREIGN LAW

British Nationality Act 1948 . . . . . . . . . . . . . . . . . . 4



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OPINIONS BELOW

The opinion of the Third Circuit Court of Appeals(App. A, 1a-16a), affirming the District Courts decisionis reported at 612 F.3d 204 (3d Cir. 2010).

The opinion of the District Court (App. B, 12a-23a)is reported at 669 F. Supp. 2d 477 (D.N.J. 2009).

JURISDICTION

The opinion and judgment of the Court of Appealswas entered on July 2, 2010. App. A, 1a. This petition isfiled within 90 days of that date. Rule 13.1. This Courtsjurisdiction rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS AND TREATISE INVOLVED

Article II, Section 1, Clause 5 provides:

No Person except a natural born Citizen, or aCitizen of the United States, at the time ofthe Adoption of this Constitution, shall beeligible to the Office of President; neither shallany person be eligible to that Office who shallnot have attained to the Age of thirty fiveYears, and been fourteen Years a Residentwithin the United States.

The Fifth Amendment provides in pertinent part:

No person shall be . . . deprived of life, liberty, orproperty, without due process of law . . . .



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The Ninth Amendment provides: The enumerationin the Constitution, of certain rights, shall not beconstrued to deny or disparage others retained by thepeople.

The Twentieth Amendment provides in pertinentpart:

Section 2. The Congress shall assemble at

least once in every year, and such meetingshall begin at noon on the 3d day of January,unless they shall by law appoint a differentday.

Section 3. If, at the time fixed for thebeginning of the term of the President, thePresident elect shall have died, the VicePresident elect shall become President. If aPresident shall not have been chosen beforethe time fixed for the beginning of his term,

or if the President elect shall have fa iled toqualify, then the Vice President elect shall actas President until a President shall havequalified; and the Congress may by lawprovide for the case wherein neither aPresident elect nor a Vice President electshall have qualified, declaring who shall thenact as President, or the manner in which onewho is to act shall be selected, and such personshall act accordingly until a President or VicePresident shall have qualified.



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3 U.S.C. Sec. 15 provides in pertinent part:found at Appendix C, 24a-25a.

28 U.S.C. Sec. 455 provides: found atAppendix C, 25a-28a.

Emer de Vattel, The Law of Nations, orPrinciples of the Laws of Nature, Applied tothe Conduct and Affairs of Nations and

Sovereigns , bk. 1, c. 19, sec. 212 (originalFrench in 1758 and first English in 1759, andother subsequent French and Englisheditions) 212. Citizens and natives: found at

Appendix C, 29a.

STATEMENT OF THE CASE

This petition involves the question of whetherpetitioners have Article III standing to enforce ArticleIIs natural born Citizen clause and thereby seek

through the Ninth Amendment and the Fifth Amendment itself to protect their Fifth Amendmentrights to life, liberty, safety, security, tranquility, andproperty. The underlying merits involve the question of

what is the meaning of Article IIs natural born Citizenclause as applied to a President-Elect and currentlyputative sitting President. The merits also involve thequestion of what is the duty of Congress, the Presidentof the Senate, and the Speaker of the House under theTwentieth Amendment when confirming a President-Elects electoral votes. These are important questions

of federal law that have not been but should be settledby this Court. Because the merits of petitioners claimspresent a rare case of extraordinary public importance,

we are also requesting that this Court reach theunderlying merits of petitioners claims.



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Putative President, Barack Hussein Obama(Obama) has not yet conclusively proven that he wasborn in the United States. Complaint para. 34-70. Obamais not an Article II natural born Citizen, for Obamasfather, Barack Obama Sr., at the time of Obamas birthin 1961 was a British subject/citizen subject to the jurisdiction of the United Kingdom, and handed downBritish citizenship to his son, Obama. British NationalityAct 1948. His father was never a United States citizen

nor was he even a permanent resident. Id. para. 72-74.They both became Kenyan citizens when Kenya got itsindependence in 1963.Id. para 73. Obamas relationshipto his Indonesian step-father and move to Indonesia when he was a child with his mother and step-father,and his travels to Pakistan in 1981, also raise doubts tobe resolved through discovery about whether Obama isa natural born Citizen.Id. para. 76-78. If Obama wasnot born in the United States, there exists a possibilitythat Obama could be an illegal alien.Id. para. 79-83. TheDemocratic National Committee (DNC) did not

adequately vet and verify Obamas Article II naturalborn citizenship status. Contrary to 3 U.S.C. Sec. 15,during the January 8, 2009 Joint Session of Congressheld for purposes of confirming the electoral votes castfor President-Elect Obama and Vice-President ElectBiden, Cheney did not openly call for the objections tothe votes after the votes from each and every state werepresented.

In the Federal District Court

Invoking the District Courts jurisdiction under 28U.S.C. 1331, 1343(a)(3)-(4), 1346(a)(2), 1361, 1651(a),and 2201(a)-2202, petitioners filed a Complaint for



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Emergency Injunction, Declaratory Relief, Mandamus,and Petition for Quo Warranto at about 2:50 a.m. onJanuary 20, 2009, when Congress had already confirmedObamas President Elect status but before Chief JusticeRoberts swore him in as President after 12 Noon onJanuary 20, 2009. Dkt. Entry 1 and 21. While petitionersamended that pleading two more times, the Second Amended Complaint/Petition is the only pleadingpetitioners served upon respondents. Dkt. Entry 7-13.

Who the petitioners are is fully set out in the SecondAmended Complaint/Petition. Dkt. Entry 3, para. 8-11.

In the complaint/petition, petitioners allege thatObama has not conclusively proven that he was born inHawaii. They also allege that even if he was so born, heis not an Article II natural born Citizen because hisfather was a British subject/citizen when Obama wasborn and Obama himself was born a British subject/citizen, all of which makes him ineligible to be Presidentand Commander in Chief of the Military. Specifically, they

made a claim against Congress based on the First Amendment (by abridging their right to petition thegovernment for a redress of grievances); a claim againstCongress based on the Fifth Amendment (deprivationof liberty, safety, security, protection, and tranquilitywithout procedural and substantive due process of lawby violating its constitutional duty under the Twentieth Amendment to adequately investigate and confirmwhether Obama is an Article II natural born Citizen); a claim against Congress based on the FifthAmendment (denial of equal protection by protecting

them and other citizens as to McCains natural bornCitizen status but not as to Obamas); a claim againstObama based on the Fifth Amendment (deprivation of



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liberty, safety, security, protection, and tranquilitywithout substantive due process of law by failing toadequately prove and to prove he is an Article IInatural born Citizen and occupying the Office ofPresident while not being eligible for the that Office); aclaim against both Obama and Congress based on theNinth Amendment (denial of rights retained by thepeople in failing to address Obamas lack of qualificationto be President); and a claim against Obama based on

quo warranto (occupying the Office of President whilenot being eligible for that office). They also made claimsagainst former Vice President Dick Cheney and currentSpeaker of the House Nancy Pelosi for allowing andfacilitating the ineligible Obama to occupy the Office ofPresident.

Respondents filed a motion to dismiss petitionerscomplaint/petition under Fed.R.Civ.P. 12(b)(1), arguing,among other things, that the District Court did not havesubject matter jurisdiction because petitioners do not

have standing. On October 21, 2009, the District Courtdismissed petitioners complaint/petition. The courtruled that the petitioners do not have Article IIIstanding and that therefore the court does not havesubject matter jurisdiction. The court found that thepetitioners failed to show that they suffered an injuryin fact. It added that petitioners alleged injury is onlya generally available grievance about government andis one they share with all United States citizens. Byway of footnote, the court said that even if the petitionerscould show that the court had Article III standing, they

would not be able to show that the court should exercisejurisdiction because prudential standing concerns wouldprevent it from doing so. Finally, the court again in a



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footnote said that it cannot take jurisdiction of the issueof whether Obama is a natural born Citizen and whether Congress has acted constitutionally in itsconfirmation of Obama for President because the matteris a political question which needs to be resolved byCongress. The court said that there simply is no roomfor judicial review of political choices made by theElectoral College and the Congress when voting for andconfirming the President. The court added that the

petitioners remedy against Congress may be found atthe voting polls.

In the Third Circuit Court of Appeals

Petitioners invoked the Circuit Courts jurisdictionto review the District Courts order of dismissal under28 U.S.C. 1291. On July 2, 2010, the Third Circuit Courtof Appeals issued its decision affirming the DistrictCourts dismissal of the case for lack of Article IIIstanding. Appendix A. The courts judgment is

Document No.: 0031102204065. The court ordered thatAttorney Apuzzo show cause in 14 days why the courtshould not find him liable for just damages and costssuffered by the respondents in having to defend againstwhat the court considered to be a frivolous appeal ofthe District Courts dismissal of their claims on theground of Article III standing. App. A. 2a and 8a. Theshow cause order is Document No.: 003110204089.

The Court found that the petitioners did notestablish that they suffered an injury in fact. App. A,

4a and 8a. It said that the injury that petitioners allegelike that of plaintiff, Philip Berg, in Berg v. Obama, 586F.3d 234 (3d Cir. 2009), is not concrete or particularized



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enough to satisfy Article III standing. App. A, 5a-6a. Itfound that these injuries are too generalized forArticle III courts. App. A, 6a. It added that petitionersinjuries are not concrete and particularized becausethey are harms that are suffered by many or all of theAmerican people. App. A, 6a. Furthermore, the courtsaid that petitioners injuries are generalizedgrievances which are most appropriately handled bythe legislative branch. App. A, 7a. The court said that

it acknowledges petitioners frustration with what theyperceive as Congress inaction in this area, but theirremedy may be found through their vote. App. A, 7a.Finally, the court stated that because petitioners failedto show they have standing, it need not address theircontention that the original common law definition ofan Article II natural born Citizen. . . is a child born inthe country to a United States citizen mother andfather. App. A, 8a, n.4.

On July 19, 2010, Attorney Apuzzo filed his response

to the courts show cause order. Document No.:003110221486. On July 22, 2010, the court issued itsdecision on whether it should impose the damages andcosts upon Attorney Apuzzo. The court decided not toimpose any damages and costs upon him and dischargedits order to show cause. The court order is DocumentNo.: 003110225662.



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REASONS FOR GRANTING THE PETITION

I. The Third Circuit Court of Appeals has decided

an important question of federal law concerning

Article III standing that has not been but should

be settled by this Court

The court has held that the citizen petitioners donot have Article III standing to enforce the Article II,

Section 1, Clause 5 natural born Citizen clause againstall respondents under the Fifth Amendment due processright to life, liberty, safety, security, tranquility, andproperty, and against Congress1 also under the Fifth Amendment procedural due process and equalprotection clause, and the Twentieth Amendment.

A. Standing and subject matter jurisdiction are

important questions of federal law

One important question that this Court should

address is whether United States citizens such as thepetitioners have standing to enforce these types ofclaims. There is little doubt that this Court attachesgreat national importance to the issues of standing andjurisdiction. See Valley Forge Christian College v.Americans United for Separation of Church & State,Inc., 454 U.S. 464, 470 (1982) (granting certioraribecause of the unusually broad and novel view ofstanding to litigate a substantive [constitutional]question in the federal courts adopted by the Court ofAppeals.);Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct.

1. Petitioners have sued, among others, the United States,Congress, The Senate, and The House of Representatives. We

will refer to these respondents collectively as Congress.



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1438 1447 (2007) (Notwithstanding the seriouscharacter of [the respondents] jurisdictional argumentand the absence of any conflicting decisions construing[the Clean Air Act], the unusual importance of theunderlying issue persuaded us to grant the writ).

B. The Court should exercise its supervisory

powers regarding standing and subject

matter jurisdiction

Connected to the importance of standing andjurisdiction that this Court has recognized is the relatedissue of the Court exercising its supervisory powers overall courts in the land. This is a case in which the Courtcan exercise such supervisory power on the issue ofstanding.SeeFlorida v. Rodriguez, 469 U.S. 1, 7 (1984)(Stevens, J., dissenting) (recognizing the Courtssupervisory authority and pure error-correctingfunctions in federal litigation);Bruner v. United States ,343 U.S. 112 (1952) (involved supervision regarding the

jurisdiction of federal courts). The supervisory powerfunction of the Court in this case takes on additionalsignificance because of all the other important reasonsthat we express herein regarding why the Court shouldgrant certiorari.

To date, many lower courts throughout the countryhave denied any plaintiff standing to file an action underthe Article II natural born Citizen clause.2 But thisCourt has never decided whether a citizen has standing

2. Not one court in any jurisdiction has held that a citizen,voter, or oath taker has standing to make such claims. See,e.g.,Barnett v. Obama, No. 09-0082, ___ F. Supp. 2d ___, 2009 WL

(Contd)



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to enforce Article IIs natural born Citizen clause3 andto bring claims against Congress for its failure to comply with its constitutional duties under the Twentieth Amendment. There is no Supreme Court decision onwhether a citizen has standing to enforce Article IIsnatural born Citizen clause by requesting the court, within the factual and legal context of the case orcontroversy presented by theKerchnercase, to declarethe meaning and application of that clause as it applies

to Obama or any other presidential candidate, president-elect, or sitting putative president, and issue injunctive

3861788, at *4-*6 (C.D. Cal. Oct. 29, 2009), recons. denied (Dec.4, 2009), appeal pending (9th Cir.); Patriots Heart MediaNetwork, Inc. v. Soetoro , No. 1:09-mc-00442-RCL (D.D.C. Sept.10, 2009);Hamblin v. Obama , No. 09-17014, 2009 WL 2513986(D. Ariz. Aug. 14, 2009); Cook v. Good , 2009 WL 2163535 (M.D.Ga. July 16, 2009), appeal dismissed, No. 09-14698-CC (11th Cir.Nov. 24, 2009);Essek v. Obama , No. 08-379-GFVT (E.D. Ky. Jan.15, 2009);Dawson v. Obama , 2009 WL 532617 (E.D. Cal. Mar. 2,

2009); Cohen v. Obama, No. 08-2150, 2008 WL 5191864, at *1(D.D.C. Dec. 11, 2008), affd, Cohen v. Obama, 332 F. Appx 640(D.C. Cir. Sept. 8, 2009) (per curiam), rehg denied (D.C. Cir.Nov. 25, 2009), rehgenbancdenied, slip copy (D.C. Cir. Nov. 25,2009);Strunk v. N.Y. State Bd. of Elections , No. 1:08-cv-04289-

ARR-LB (E.D.N.Y. Oct. 30, 2008), appeal dismissed, No. 08-5422 (2d Cir. Nov. 14, 2008);Berg v. Obama , 574 F. Supp. 2d 509(E.D. Pa. Oct. 24, 2008), affd, 586 F.3d 234 (3d Cir. Nov. 12, 2009);Robinson v. Bowen , 567 F. Supp. 2d 1144, slip copy (N.D. Cal.Sept. 16, 2008);Hollander v. McCain , 566 F. Supp. 2d 63 (D.N.H.July 24, 2008).

3. The Supreme Court has refused to grant stay

applications or writs for certifications in at least 11 cases. Wecan speculate that, among other matters, issues of ripeness,redressability, and identity of parties could be among thereasons for the Courts refusal to grant any relief.

(Contd)



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and mandamus relief based on that declaration. Underthe same factual and legal circumstances, there also isno Supreme Court precedent on whether a citizen hasstanding to bring an action against Congress and othergovernment officials in which he contends they violatedtheir Twentieth Amendment duties and powers byfailing to confirm before accepting his electoral votesthat the President-Elect met the Founders andFramers definition of an Article II natural born

Citizen and that he was born in the United States andby failing to protect the petitioners regarding theirconcern over Obamas citizenship status as theyprotected others who were concerned with McCainsstatus.

The answers to these questions have broadimplications not only for civil rights plaintiffs lookingfor a remedy in the judicial branch of government butfor the nation as a whole. Whether the petitioners havestanding to enforce this clause and the Twentieth

Amendment is vitally important to our constitutionalrepublic. By so finding, the Circuit Court has not onlydecided that petitioners do not have standing but hasalso decided not to address the vitally criticalconstitutional questions that lie in the merits ofpetitioners case. The merits of petitioners claims go tothe questions of whether Obama is an Article II naturalborn Citizen; whether he has conclusively proven thathe is a Fourteenth Amendment born citizen of theUnited States; whether Obama violated petitionersFifth Amendment due process rights to life, liberty,

safety, security, tranquility, and property and rightsretained by them under the Ninth Amendment by failingand refusing to conclusively prove that he is an Article



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II natural born Citizen; whether Congress violatedpetitioners Fifth Amendment due process rights to life,liberty, safety, security, tranquility, and property andrights retained by them under the Ninth Amendmentby violating its Twentieth Amendment constitutionalduty to petitioners when it confirmed President-ElectObama who is not a natural born Citizen and who hasnot even conclusively proven that he is a born citizenof the United States under the Fourteenth

Amendment; whether Congress violated petitionersprocedural due process rights under the FifthAmendment, Twentieth Amendment and 3 U.S.C. Sec.15; and whether Congress violated petitioners rightsto equal protection under the Fifth Amendment.

C. The Circuit Courts decision on standing

implicates the questions of the meaning and

application of the natural born Citizen

clause and Congress duty under the

Twentieth Amendment to enforce it which are

important constitutional questions

The merits of petitioners claims involve the meaningand application of Article II natural born Citizen clauseand the constitutional duty of Congress under theTwentieth Amendment to properly enforce that clause.While the United States Supreme Court has directlydecided what is the meaning of a citizen of the UnitedStates, and has provided in dicta the definition of anArticle II natural born Citizen, it has never decided acase in which it applied the meaning of a natural born

Citizen to the question of whether a President Electmeets that criteria in order to be eligible to be President.



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is of vital importance to the preservation and survivalof the constitutional republic. The purpose the Framersincluded the natural born Citizen clause in Article II was to provide a strong check on foreign influencemaking its way into our government and specifically inthe Office of President and Commander in Chief of theMilitary.See July 25, 1787, letter of John Jay to GeneralGeorge Washington (Permit me to hint, whether it would not be wise & seasonable to provide a strong

check to the admission of Foreigners into theadministration of our national Government; and todeclare expressly that the Command in chief of theamerican army shall not be given to, nor devolve on,any but a natural born Citizen (emphasis in the original)(found at http://thomas.loc.gov). If the President andCommander in Chief is ineligible for those offices, bothour civilian and military sector need to know that as soonas possible. The President is the Commander in Chiefof our military forces. Whether he is legitimate is alsovital in maintaining the proper chain of command in our

military and in giving legality to all military orders thatemanate from him.4 Since the President signs all actspassed by Congress into law, it is vitally important thatthe President be legitimately in power so as to give thoselaws domestic and international legality. Hence, the

4. We are asking the Court to take judicial notice underFed. R. Evid. 201(d) of an affidavit filed by Lt. Gen. Thomas G.McInerney (retired) in the court marital proceeding of Lt. Col.Terrence Lakin who is currently in court martial proceedingsfor his refusal to obey orders and to be deployed on the ground

that Obama has yet to show that he is a natural born Citizen.http://court-martial-ucmj.com/category/lakin/. The affidavitmay be accessed and read at http://randysright.files.wordpress.com/2010/09/affidavit_of_lt_gen_mcinerney1.pdf.



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claims being made by petitioners directly andsubstantially implicate the national security of theUnited States.

2. The rule of law needs to be protected

The Court should also grant the petition becausewe need to protect the rule of law. The sovereign powerin our constitutional republic lies with the people and

the Constitution they established to limit the power ofthe Federal government.SeeChisholm v. Georgia, 2 U.S.(2 Dall.) 419 (1793) (says the people are sovereign in ourconstitutional republic) (superseded by statute as statedin FMC v. S.C. State Ports Auth., 535 U.S. 743, 122 S.Ct. 1864, 152 L. Ed. 2d 962 (2002). That sovereignty canbe protected only by the rule of law. The Government ofthe United States has been emphatically termed agovernment of laws, and not of men. It will certainlycease to deserve this high appellation if the laws furnishno remedy for the violation of a legal right.Marbury v.

Madison, 1 Cranch 163 (1803). To deny standing is toclose the court house doors to a litigant who seeks justice under the rule of law. The Courts finding thatpetitioners have standing is to find in favor of the ruleof law.

Both lower courts said that while they understandhow petitioners are frustrated with Congress not actingon their request for investigation and action, their onlyremedy is at the polls. App. A, 7a. Hence, we can seethat even the court concedes that to deny petitioners

standing is to allow such critical questions to be decidedby political parties and voting majorities rather thanthe rule of law. Not only is such a proposed remedy both



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inappropriate and insufficient, but its suggestionunderstates the gravity to petitioners of theconsequences of denying them any right to bring theirclaims to a court of law. The rule of law does not allowthat the will of the people or the popular vote shoulddetermine the meaning of the natural born Citizenclause and that Congress should defer to that will onsuch vital constitutional questions. Rather, only thejudicial branch of government can provide that meaning

and by so doing will maintain the rule of law in our nationon this vitally important question. It is only by allowinglitigants to bring claims to the courts that the courtscan enforce and preserve the rule of law. Hence, whetheror not a citizen has standing to bring an importantconstitutional challenge against his or her governmentis of utmost national importance, for the action also goesto protecting and preserving the rule of law.

3. The Supreme Court should grant review

so as to maintain the proper balance of

power between the three branches ofgovernment in our constitutional

republic

The judiciary plays a vital role in our constitutionalrepublic. It is the judiciary that keeps the other twobranches in check so they do not usurp power that isnot given to them by the Constitution and violate therule of law. Allowing the other two branches ofgovernment to operate outside the Constitution and notproviding a litigant access to the judiciary to redress

such wrongs can only put the balance of power injeopardy ultimately undermines the foundation of theconstitutional republic. See Hamdan v. Rumsfeld, 546



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U.S. 1002, 126 S.Ct. 2749, 2759 (2006) (certiorari wasgranted because trial by military commission is anextraordinary measure raising important questionsabout the balance of powers in our constitutionalstructure).

4. Whether or not the President and

Commander in Chief is legitimately

sitting in those offices impacts the

nations foreign policy

The President has great powers under theConstitution to engage in and impact the nationsforeign policies. He is the Commander in Chief of theMilitary which gives him great powers to execute war.He is in daily involvement with foreign nations in asundry of important international issues. Under ArticleII, Section 2, Clause 2, the President also negotiatesand signs treaties and appoints ambassadors and otherpublic ministers and consuls. Hence, the Presidents

executive powers have a profound impact on the foreignpolicy of the nation. Being nations of laws and to accepthis actions as legitimate, the United States and foreignnations need to be assured that the President andCommander in Chief is operating within the bounds ofthe United States Constitution and laws.SeeAmerican

Ins. Assn v. Geramendi, 539 U.S. 396, 401 (2003)(certiorari granted because of the important foreignpolicy implications involved); Christopher v. Harbury,536 U.S. 403, 412 (2002) (same);



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5. The nation needs a definition of natural

born Citizen for future presidential and

vice presidential elections

What is the correct meaning of the natural bornCitizen clause is also critically important to futurepresidential and vice presidential elections. Over theyears there has been much debate about the meaningof the clause but no definite resolution yet by the

Supreme Court. Even though we are already over 20months into Obamas term of office, the question hasnot been resolved. Given past precedent, Obama willmost likely run for a second term and the nation will befaced with the same issue. Given the amount of childrenborn in the United States to alien parents (one or two),naturalized citizens, non-citizen permanent residence,and illegal aliens who reside in our nation, this issue caneasily repeat in future elections. Now is the opportunetime for the Supreme Court to give the nation thatmuch-needed definition of what an Article II natural

born Citizen is.

II. The Third Circuit Court of Appeals erred in

concluding that petitioners do not have standing

to bring their claims and the Court should

exercise its error-correction function to correct

such error

Before a federal court will take subject matterjurisdiction over a plaintiff s complaint, that party mustadequately demonstrate that he or she has Article III

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).Respondents have argued and the District Court and



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Court of Appeals have found that petitioners lackstanding to bring their claims. They both found thatpetitioners do not have Article III standing because theyhave failed to show they suffered an injury in fact. Wesubmit that the Circuit Court committed error in sofinding and that this Court should grant certiorari onthis basis so that it can exercise its error-correctionfunction.SeePerma Life Mufflers, Inc. v. International

Parts Corp., 392 U.S. 134, 136 (1968) (certiorari was

granted because these [erroneous] rulings by theCourt of Appeals seemed to threaten the effectivenessof the private action as a vital means for enforcing theanti-trust policy of the United States) So too here, theCircuit Courts erroneous ruling on standing virtuallyprecludes any means to enforce Article IIs naturalborn Citizen clause.

A. The standing standard

The Supreme Court in Lujan,supra, provided the

necessary requirements a plaintiff must show toestablish standing: (1) an injury in fact which is aninvasion of a legally protected interest which is (a)concrete and particularized and (b) actual or imminent,not conjectural or hypothetical; (2) a causalconnection between the injury and the conductcomplained of, i.e, the injury has to be fairly . . .trace[able] to the challenged action of the defendant,and not . . . the result [of] the independent action ofsome third party not before the court; and (3) it mustbe likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision. Id.at 560-561. By particularized, the Court meant that theinjury must affect the plaintiff in a personal and



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individual way. Id. at 561. Petitioners did adequatelyshow that they do present an Article III case orcontroversy in that they satisfy each of theconstitutional requirements to establish standing.

B. Application of the standard

1. Petitioners have suffered an injury in fact

a. The injury is concrete

The Circuit Court agreed that the factual allegationsof the complaint/petition are to be accepted as true andare to be interpreted in a light most favorable to theplaintiffs. App. A, 3a-4a. Hence, the Court would haveaccepted as true plaintiffs well-plead allegations thatObama has not yet conclusively proven that he was bornin Hawaii and that he is not an Article II natural bornCitizen. The Court would also have to accept plaintiffswell-plead allegations that Congress failed to properly

vet and investigate Obama under its TwentiethAmendment powers, and that former Vice President andSenate President, Dick Cheney, and current Speakerof the House, Nancy Pelosi, were complicit in thatfailure. The respondents neither in the District Courtnor on appeal have yet to dispute plaintiffs allegationsthat Obama does not meet the definition of an Article IInatural born Citizen and that he has not yetconclusively proven that he was born in Hawaii. Nocourt in the United States that has rendered anydecision on the Obama eligibility issue has granted to

any plaintiff any discovery which would show that theseallegations are not true. Accepting these allegations astrue is important because these accepted facts go to the



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plaintiffs establishing an injury in fact and thereforestanding.

The threat to petitioners life, liberty, safety, security,tranquility, and property is actual and concrete ratherthan merely conjectural or hypothetical. The Declarationof Independence recognizes these rights asunalienable and as having been endowed upon anindividual by his or her Creator. The Constitution

recognizes these rights not as being abstract ortheoretical rights but rather as concrete and real andneeding protection from government abuses. Itrecognizes these rights as the essence of a personsbeing. Petitioners sued Obama after he assumed thegreat and singular powers of the Executive. Obama wasnot a mere candidate with no power. Obama has had andcontinues to have executive and military power to harmthe petitioners. He actually exercises those powers ona daily basis. Petitioners cannot rely on Obama, who wasborn with dual and conflicting allegiances to protect

them as a natural born Citizen would. The UnitedStates Supreme Court has recognized the problemspresented by dual nationality and has stated that dualnationality is a status long recognized in the law andthat a person with such dual nationality may have andexercise rights of nationality in two countries and besubject to the responsibilities of both. Kawakita v.United States, 343 U.S. 717 (1952). But because Obamahas yet to and because he cannot conclusively prove thathe is an Article II natural born Citizen because of hisconflicting natural allegiance and loyalty, plaintiffs are

not constitutionally expected to nor do they trust himto protect their life, liberty, safety, security, tranquility,and property as would a President and Commander in



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Chief of the Military who is a natural born Citizen.Petitioners must therefore be allowed to challengeObama in order to protect these concrete rights.

b. The injury is particularized

The Constitution expressly and strictly limits thepower of the federal government. It also recognizes andprotects on an individual basis a persons unalienable

individual rights to life, liberty, and property, whichincluded safety, security, and tranquility. Petitioners, ascitizens of the United States, have a vested legal rightunder the Fifth Amendment to the Constitution to life,liberty, safety, security, tranquility, and property. TheNinth Amendment further enforces those rights andothers against respondents. Petitioners are thereforethe objects of this constitutional protection andpersonally and particularly entitled to these rights andprotection that they offer.

The requirement that a person be a natural bornCitizen to lead a constitutional republic both in its civiland military capacity is based on a policy decision madeby the Founders and Framers that itself was based on what they perceived to be the consequences to thesurvival, preservation, and protection of not only thatrepublic but every one of its citizens should that personnot have love, fidelity, and allegiance only to the nationand to every one of its citizens from the moment of hisor her natural birth. It is this decision by the Foundersand Framers which gives the individual petitioners the

constitutional right to bring a legal action in which theyask, in default of the executive and legislative branchesof government and the political majorities doing so, the



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judiciary to protect their individual right to protect theirunalienable rights to life, liberty, safety, security,tranquility, and property as guaranteed to them by theDeclaration of Independence and the Constitution.

The petitioners each have an unalienable right tolife, liberty, safety, security, tranquility, and property.The government has a constitutional obligation toprotect those rights pursuant to the very reason why

the People constituted their government during theFounding and under the Fifth Amendment due processclause. This is the constitutional protection which thegovernment owes to each of the petitioners. Given theFounders and Framers policy decision to require thePresident to be a natural born Citizen, petitioners arenot expected to and have not and will not receive thatprotection from a person who, not being an Article IInatural born Citizen, is an illegal and illegitimatePresident and Commander in Chief of the Military.Neither the District Court nor the Court of Appeals

addressed this argument in their decisions that plaintiffsdo not have standing. But this is the central standingargument that we made in these two courts. The injurythat is alleged in this argument is critical to plaintiffsstanding to bring their claims against the respondents,for lack of protection from their President andCommander in Chief to which each particular citizenpetitioner is entitled under our constitutional covenantbetween the petitioners and the Government asconceived by the Founders and Framers is more thansufficient to defeat a motion to dismiss for lack of

standing in that it shows that the citizen petitioners haveeach suffered an injury in fact which is both concreteand particularized and which gives them standing and



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under the Fifth Amendment due process clause a rightto seek redress for that injury in the courts.

Courts have also created the doctrine of prudentialstanding which is not an Article III Case orControversy requirements but rather a judicial policyconsideration. Flast v. Cohen, 392 U.S. 83, 92 (1968)(confusion has developed as commentators have triedto determine whether Frothingham establishes a

constitutional bar to taxpayers suits or whether theCourt was simply imposing a rule of self-restraint whichwas not constitutionally compelled). Under prudentialstanding, the judiciary seeks to avoid deciding questionof broad social impact where no individual rights wouldbe vindicated and to limit access to the courts to personsbest suited to assert particular claims. Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 99-100(1979). Not addressing the District Courts finding thatpetitioners also lack prudential standing, the CircuitCourt concluded that petitioners do not have Article III

standing. App. A, 4a. But the courts conclusion thatpetitioners fail to establish Article III standing becausethey present generalized grievances that aresuffered by many or all of the American people andwhich are most appropriately handled by the legislativebranch (App. A, 7a) is an application of prudentialstanding rather than Article III constitutional standing.

SeeUnited States v. Richardson, 418 U.S. 166, 173-76(1974) (the individual may not litigate generalizedgrievances shared by a large group of individuals).Prudential standing is grounded to a great degree on

political considerations. It is very amorphous since it isbased on the courts case-by-case view of what itperceives to be its role in our tripartite federalist



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system, its self-restraint within that vision, and what itperceives to be sound public judicial policy. In Federal

Election Commission v. Akins, 524 U.S. 11, 25 (1998),the Court held that the injury is sufficiently concreteand specific such that the fact that it is widely shareddoes not deprive Congress of constitutional power toauthorize its vindication in the federal courts. In thiscase, we do not have any Congressional statute grantingpetitioners standing. But nevertheless, petitioners

injuries are sufficiently concrete and specific to themthat it does not matter that other Americans may alsobe damaged. SeeLujan, 504 U.S. at 555, 563 (it doesnot matter that others are also injured provided thatplaintiffs are among the injured) (accord, Kennedy, J.and Stevens, J., concurring, at 581).

c. The injury is actual or imminent

Obama is currently exercising executive power. Hehas exercised it, continues to exercise it, and will do so

into the future. Hence, the lack of protection injuriesthat he is causing plaintiffs are actual and on going andthose to occur in the future are imminent. B a s e don all of the foregoing, we can see that petitionerssuffered an injury in fact.

2. There is a causal connection between the

injury and the conduct of which they

c o m p l a i n

Petitioners have established a causal link between

the injury they suffered and respondents conduct. Therespondents have not contested this issue either in theDistrict Court or in the Court of Appeals.



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3. It is likely and not merely speculative

that their injuries will be redressed by a

favorable court decision

Finally, it is more than likely, not merely speculative,that petitioners injuries would be redressed by thedeclaratory, injunctive, and mandamus relief they arerequesting. While respondents have not contested thisissue, we will still address it. All necessary parties,

including Congress, are before the Court and it cantherefore give petitioners meaningful relief.

a. Congress cannot define a natural

born Citizen

Congress cannot define a natural born Citizen, forunder Article I, Section 8, Clause 5 it only has power tomake uniform the laws of naturalization which does notinclude defining an Article II natural born Citizen. Ifthe clause is not already defined by the Constitution or

by the United States Supreme Court, the Constitutiondoes not give Congress the authority to define themeaning of a natural born Citizen. While Congresscan surely apply the natural born Citizen clause in a way that is consistent with its historical meaning,Congress cannot define anew the natural born Citizenclause for the purpose of declaring a president-elect orsitting putative president either eligible or ineligible forthat office. Only the Court can define the natural bornCitizen clause and give that definition to Congress forit to apply when exercising its constitutional duty under

the Twentieth Amendment to confirm a president-electsqualifications to hold that office. The Court thereforehas the right and authority to declare that Obama failed



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to qualify by January 20th under the TwentiethAmendment and that Congress should fill the officepursuant to the Constitution and laws passed pursuantthereto. Once the Court declares what the petitionersand respondents rights are, Congress can takeappropriate action to effectuate what the Courtdeclares.

b. T he e xe cutive can no t d ef in e a

natural born Citizen

The Executive cannot resolve the question, for itinvolves the chief executive himself, the President of theUnited States. This is not a case like Lujan where the wrong alleged by petitioner is best handled by theExecutive Branch of government. Petitioners are notchallenging any government agency action or requestinganything which can be perceived as the courtsinterference with the executives constitutionalauthority to take Care that the Laws be faithfully

executed (Article II, Section 3) but rather the failureof Obama as the President-Elect (but still a privateperson) to satisfy the natural born Citizen clause andthen as the Executive to satisfy the clause and protectthe plaintiffs Fifth Amendment rights to life, liberty,safety, security, tranquility, and property by refusing tobe bound by the meaning and intent of the clause. Thiscase does not involve any Congressional citizen-suitstatute which unduly interferes with executive powerand thereby violates Article III by unlawfully grantingstanding to citizens who are not able to sufficiently allege

facts which show they have standing.



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c. The political parties and the popular

vote cannot define a natural born

Citizen

The constitutional issue also cannot be decided bythe political parties and a voting majority. Our nation isultimately guided by the Constitution and the rule oflaw, not by majority rule. Allowing the political partiesand the voting majorities to decide constitutional issues

would be tantamount to amending the Constitution without going through the amendment processprescribed by Article V of the Constitution andabandoning the basic principles of republicangovernment.

d. Onl y the judiciary can de fine a

natural born Citizen

Only the judiciary can resolve this constitutionalcrisis. Petitioners sued Obama when he was still the

President-Elect and after he was sworn in and becamePresident. Hence they sued him before he acquired theimmunities of the Office of President and after executivepower putatively vested in him. As a private person,Obama cannot claim that he may be removed from officeonly through impeachment by Congress under ArticleI, Section 2 and 3, for the executive powers of thepresident along with removal only by impeachment thatcome with it had yet to legitimately vest in him at thatmoment in time.5 The same is true for the time after

5. Leaving those functions to the House and Senate,respectively, the Constitution does not allow the judiciary toinitiate and prosecute an impeachment of any sitting president.The Framers gave those powers to the legislature and expectedit to exercise its political judgment on whether to initiate andprosecute such proceedings.



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Obama took the oath of office, for Obamas title to thePresidency is void abinitio and should therefore neverhave vested in him from the beginning. Rather, Congresscan resort to its powers under the Twenty-FifthAmendment to remove the putative sitting Presidentfrom office when he is unable to constitutionally exercisehis executive powers. Obamas inability to hold the Officeof President because he is not an Article II naturalborn Citizen is his lack of constitutional authority to

do so.

If neither Congress nor the Executive branches ofgovernment will give the petitioners that protection towhich the Constitution entitles them, they should haveaccess to the courts to be able to protect and vindicatetheir own rights to that protection. This right to accessto the courts is more critical when both the executiveand legislature are acting in concert to deprive thepetitioners of their right to this protection. Since Obamahas already been sworn in, it could be argued that only

Congress has jurisdiction over the question of whetherhe is a natural born Citizen. But what happens whenCongress also refuses to perform its constitutional dutyunder the Twentieth Amendment to make sure thatonly a natural born Citizen is given the great andsingular powers of the Office of President andCommander in Chief of the Military? Surely theConstitution would not leave someone like thepetitioners without any remedy to protect the samerights which the Declaration of Independence and theConstitution recognize as their unalienable rights to life,

liberty, and property. SeeMarbury v. Madison, 5 U.S.(1 Cranch) 137 (1803) (where there is a right there is aremedy). Only the Supreme Court can therefore decide



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the issue of standing, define a natural born Citizen,and determine whether the current sitting putativePresident is legitimate.

C. Berg is distinguishable

With the other cases the court cited not beingdispositive of the issue of whether petitioners havestanding, the Court of Appeals cited and relied heavily

upon Berg v. Obama, 586 F.3d 234 (3d Cir. 2009) for itsholding. ButBerg presented a factual and legal scenariomuch different from that of the petitioners. While the

Berg action was filed by a voter against Obama as a merecandidate for office, theKerchnercase was filed not byvoters but by citizens (all the petitioners) and military(Kerchner) and law enforcement (Nelsen) oath takersafter Obama became President-Elect but before andafter he was sworn in as President. Hence, Kerchnerdoes not suffer from lack of ripeness as did Berg.

Kerchnerincludes Congress with due process and equal

protection claims against it, a necessary party forredressability, as a defendant andBerg did not. Becauseof its premature filing,Berg presented political questionand separation of powers problems, but Kerchnerdoesnot.Berg also presented First Amendment problems inthat plaintiff sought to stop a candidate from runningfor political office because of his citizenship status. ButtheKerchnercase does not have that problem. Of criticalimportance, Berg did not make a Fifth Amendmentprotection claim but Kerchner does. Finally, Berg didnot argue that Obama is not eligible because he does

not meet the original law of nations and common lawdefinition of a natural born Citizen which our briefsand record in the Circuit Court show is a child born in



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the country to a citizen mother and father. The fact thatthe Berg case suffered from all those factual and legaldefects caused him not to be able to show standing. Butbecause the Kerchner case does not have those samedefects, the petitioners are able to show they havestanding.

The courts should apply standing to refuse takingjurisdiction of a case only in the most clearest of cases

so as not to unreasonably deny a litigants due processright to vindicate his or her constitutional rights in acourt of law. Cohens v. Virginia, 19 U.S. 264(1821). Ifplaintiffs do not present a legitimate case or controversyunder Article III, then the presidential eligibility clausehas effectively been nullified, not by a constitutionalamendment but rather by the court-created rule ofstanding which plaintiffs have in any event shown theyadequately satisfy. Indeed, the courts should and musttake jurisdiction of this case. See Flast v. Cohen, 392U.S. 83 (1968) (standing found);Sierra Club v. Morton ,

405 U.S. 727 (1972) (same); United States v. SCRAP, 412U.S. 669 (1973) (same); Linda R.S. v. Richard D, 410U.S. 614 (1973) (same); Japan Whaling Assn v.

American Cetacean Soc., 478 U.S. 221, 230-231 (1986)(same); Federal Election Commission v. Akins, 524U.S. 11, 25 (1998) (same); and Massachusetts v. EPA,549 U.S. 497 (2007) (same).

III. Obama has not conclusively proven that he is an

Article II natural born Citizen

While the lower courts have not decided the meritsof petitioners claims, we are respectfully requesting thatbecause petitioners have shown they have standing and



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that the lower courts should have taken jurisdiction overthese merits, their vital importance to the petitionersand to the protection and preservation of ourconstitutional republic, and the need for swift reviewby this Court, the Supreme Court exercise its before .. . rendition of judgment discretion under 28 U.S.C.Sec. 1254(1), 28 U.S.C. Sec. 2101(e), and Rule 11 andalso decide those merits. See Chief Justice Burger,

Annual Report on the State of the Judiciary , 62 A.B.A.J.

443, 444 (1976) (the Supreme Court grants expeditedreview when circumstances warrant that action).

Article II, Section 1, Clause 5 provides:

No Person except a natural born Citizen, or aCitizen of the United States, at the time ofthe Adoption of this Constitution, shall beeligible to the Office of President; neither shallany person be eligible to that Office who shallnot have attained to the Age of thirty five

Years, and been fourteen Years a Residentwithin the United States.

Under this clause, Obama must prove, among otherthings, not only that he is a citizen of the United Statesbut also that he is a natural born Citizen in order tobe eligible to assume and hold the Office of Presidentand Commander in Chief. We submit that Obama if bornin Hawaii may be a Fourteenth Amendment born citizenof the United States, but is not and cannot be an ArticleII natural born Citizen which disqualifies him from

holding those offices. An Article II natural bornCitizen is not only a citizen of the United States underthe Fourteenth Amendment by being born in and subject



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to the jurisdiction of the United States but also born tocitizen parents (meaning both mother and father). Giventhis law of nations and common law definition, a would-be president must be born to citizen parents and be bornin the United States (or its equivalent). Emer de Vattel,The Law of Nations, or Principles of the Laws of

Nature, Applied to the Conduct and Affairs of Nationsand Sovereigns, bk. 1, c. 19, sec. 212 (original French in1758 and first English in 1759, and other subsequent

French and English editions). In our briefs to the CircuitCourt and in the record there (filed on 1/19/2010, 3/23/2010, and 4/2/2010) we provided legal support for thisargument. Should the Court grant certification and atthe Courts request, we will fully brief the issue of themeaning of an Article II natural born Citizen.

There is no factual dispute that Obamas father wasnot a United States citizen when Obama was born. Inhis two books,Dreams from My Father(1995) and The

Audacity of Hope (2006), Obama states that his father

was Barack Hussein Obama and that he was a Britishsubject at the time Obama was born who then became acitizen of Kenya when that country gained itsindependence from Great Britain in 1963. Additionally,according to what has been publicly stated aboutObamas father, he at no time became a citizen of theUnited States. These facts have also been confirmed onFactCheck.org web site and Obamas web site, Fight theSmears. The Court can take judicial notice of these factsunder Fed. R. Evid. 201(d). Obama has also yet toconclusively prove with a 1961 contemporaneous birth

certificate that he was born in Hawaii.SeeVassilios v.Kennedy, 95 F.Supp. 630 (D.C.Cir. 1961) (Necessarily,a record of birth contemporaneously made by



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governmental authority in official records [such as acontemporaneous birth certificate when there is noindication that one is not readily available] would bemost conclusive evidence of birth).

IV. Congress violated the Twentieth Amendment

Under the Twentieth Amendment, Congress powerto confirm a president-elect is limited to one who

qualifies under Article II, Section 1, Clause 5. Congresshas a constitutional duty under this amendment to onlyconfirm the electoral votes of a President-Elect who isqualified for that office which means that he or she must,among other things, be an Article II natural bornCitizen. Here, Congress failed to properly exercise thisduty and thereby allowed Obama to be confirmed to theOffice of President when he is not and cannot be anArticle II natural born Citizen and in any event, whenhe has to this day failed to conclusively prove that he iseven a citizen of the United States by birth in the

United States.

V. Congress violated petitioners equal protection

to life, liberty, safety, security, tranquility, and

property under the Fifth Amendment

Petitioners are challenging the failure of Congressto protect their Fifth Amendment rights to life, liberty,safety, security, tranquility, and property by failing tobe bound by the meaning and intent of Article IIsnatural born Citizen clause and to provide that

protection equally to them as they did to other similarlysituated persons who were concerned with JohnMcCains natural born Citizen status. In investigating



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and confirming McCains status but refusing to do thesame for Obama, Congress violated petitioners rightsto equal protection of their life, liberty, safety, security,tranquility, and property under the Fifth Amendment.

VI. Justice Sonia Sotomayor and Justice Elena

Kagan should recuse themselves from having any

involvement in this case

We respectfully request that pursuant to 28 U.S.C.Sec. 455(a) and (b)(4), Justice Sonia Sotomayor andJustice Elena Kagan should recuse themselves fromhaving any involvement or deciding any issues inpetitioners petition to the Supreme Court in which theyare challenging the legitimacy of putative PresidentObama, the government official who appointed them totheir offices. The validity of their appointments can bequestioned should Mr. Obama be found not eligible tobe President which could cause them to lose theirappointment in which they have a financial interest.

CONCLUSION

The Court should grant the petition for a writ ofcertiorari.

Respectfully submitted,

MARIO APUZZOCounsel of Record

LAWOFFICESOF MARIO APUZZO

185 Gatzmer AvenueJamesburg NJ 08831(732) [email protected]

Attorney for Petitioners



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APPENDIX



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APPENDIX A OPINION OF THE UNITEDSTATES COURT OF APPEALS FOR THE THIRD

CIRCUIT FILED JULY 2, 2010

No. 09-4209

CHARLES F. KERCHNER, JR.; LOWELL T.PATTERSON; DARRELL JAMES LENORMAND;

DONALD H. NELSEN, JR.,

Appellants

v.

BARACK HUSSEIN OBAMA, II, President Elect ofthe United States of America, President of the United

States of America, and Individually; UNITEDSTATES OF AMERICA; UNITED STATES

CONGRESS; UNITED STATES SENATE; UNITEDSTATES HOUSE OF REPRESENTATIVES;

RICHARD B. CHENEY, President of the Senate,Presiding Officer of Joint Session of Congress, Vice

President of the United States and Individually;NANCY PELOSI, Speaker of the House and

Individually

On Appeal from the United States District Courtfor the District of New Jersey.(D.C. Civil No.1-09-cv-00253).

District Judge: Hon. Jerome B. Simandle.

Submitted Under Third Circuit LAR 34.1(a)June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, CircuitJudges.



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OPINION OF THE COURT

SLOVITER, Circuit Judge.

Charles F. Kerchner, Jr., Lowell T. Patterson, DarrellJ. LeNormand, and Donald H. Nelsen, Jr. (hereafterAppellants) filed suit in the United States District

Court for the District of New Jersey, alleging thatPresident Barack Obama is ineligible to hold his Officeas President. They rely on Article II, Section 1, Clause4 of the United States Constitution which provides thatNo person except a natural born Citizen, or a Citizenof the United States, at the time of the Adoption of thisConstitution, shall be eligible to the Office of President.. . . U.S. Const., art. II, 1, cl. 4.1 Appellants challengethe District Courts order dismissing their complaint.

We will affirm the order of dismissal and directAppellants counsel to show cause why just damages and

costs should not be imposed on him for having filed afrivolous appeal.

1. There is a dispute, among courts and commentators, asto whether the provision known as the Natural Born Citizenclause should be cited as clause 4 or clause 5 of Article II, 1 ofthe Constitution. Compare Hollander v. McCain, 566 F. Supp.2d 63, 65 (D.N.H. 2008) (citing the provision as clause 4),Rhodesv. MacDonald, No. 4:09-CV-106, 2009 U.S. Dist. LEXIS84743,2009 WL 2997605, at *1 n.1 (M.D.Ga. Sept. 16, 2009) (same),and Gerard N. Magliocca, Constitutional False Positives andthe Populist Movement, 81 NOTRE DAME L. REV. 821, 874(2006) (same), with Mathews v. Diaz, 426 U.S. 67, 78 n.12, 96 S.Ct. 1883, 48 L. Ed. 2d 478 (1976) (citing the provision as clause5), and Andrew B. Coan, The Irrelevance of Writtenness inConstitutional Interpretation, 158 U. Pa. L. REV. 1025, 1051(2010) (same). In any event, the parties agree as to the substanceof the Natural Born Citizen clause, and we use the same citationas we used inBerg v. Obama, 586 F.3d 234, 237 n.1 (3d Cir. 2009).



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I.

Appellants, seeking to compel President Obama toconclusively prove[ ] that he is eligible to serve asPresident, Appellants Br. at 6, named as defendantsPresident Obama, the United States of America, theUnited States Congress, the United States Senate, the

United States House of Representatives, former VicePresident and President of the Senate Richard Cheney,and Speaker of the House Nancy Pelosi (hereafterAppellees). Appellants allege that President Obama

violated their rights under the Fifth and Ninth Amendments when he assumed office withoutconclusively proving that he is eligible for thepresidency and that the legislative branch violated

Appellants right under the Petition Clause of the FirstAmendment when Appellants request to investigate thePresidents birthplace and citizenship was ignored.

Appellants also assert claims under the Fifth andTwentieth Amendments against Congress, former VicePresident Cheney, and Speaker Pelosi, for failing toproperly vet and verify Obamas citizenship.

Appellants Br. at 10. They moreover bring an equalprotection claim on the ground that Congress fullyinvestigated . . . whether Republican Presidentialcandidate John McCain is an Article II natural bornCitizen, but made no such inquiry as to PresidentObama. Appellants Br. at 10-11.

At this procedural posture, we must accept allfactual allegations as true, construe the complaint in thelight most favorable to [Appellants], and determine



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whether, under any reasonable reading of the complaint,[Appellants] may be entitled to relief.Byers v. Intuit,

Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammarv. John J. Kane Regl Ctrs.-Glen Hazel, 570 F.3d 520,523 (3d Cir. 2009)). Nonetheless, a complaint must . . .state a claim . . . that is plausible on its face.Ashcroftv. Iqbal, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

The District Court concluded that Appellants lacked Article III standing.2 See Kerchner v. Obama, 669 F.Supp. 2d 477, 479 (D.N.J. 2009). We agree. It is axiomaticthat standing to sue is a prerequisite to Article III

jurisdiction.Friends of the Earth, Inc. v. Laidlaw Envtl.Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693,145 L. Ed. 2d 610 (2000). This constitutional mandaterequires that Appellants show, inter alia, an injury in

fact.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). An injury infact is an invasion of a legally protected interest whichis (a) concrete and particularized and (b) actual orimminent, not conjectural or hypothetical. Berg v.Obama, 586 F.3d 234, 239 (3d Cir. 2009) (quotingLujan,504 U.S. at 560).

2. Appellants invoked the District Courts jurisdictionunder 28 U.S.C. 1331, 1343(a)(3)-(4), 1346(a)(2), 1361, 1651(a),and 2201(a)-2202. We have jurisdiction to review the DistrictCourts order of dismissal under 28 U.S.C. 1291.



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The appeal inBerg presented us with a claim similarto the one here, in which the plaintiff challenged President-elect Obamas eligibility to run for and serve as President.The district court in that case dismissed the suit onstanding grounds because the alleged harm to voters like[the Plaintiff] stemming from [Obamas] failure to satisfythe eligibility requirements of the Natural Born Citizen

Clause is not concrete or particularized enough to satisfyArticle III standing. . . .Id. at 238 (quotation, citationand original internal brackets and ellipses omitted). Thiscourt affirmed the order dismissing the suit, agreeingthat a candidates ineligibility under the Natural BornCitizen Clause does not result in an injury in fact to

voters. Id. at 239 (quotation and citation omitted).

In this case, Appellants seek to respond to theDistrict Courts dismissal on standing grounds byclaiming that they have suffered individual injuries . . .

not shared by all members of the public, AppellantsBr. at 51, because they voted in the November 4, 2008presidential election and because they, unlike themajority of voters, perceive themselves to have suffered[a] violation of their constitutional rights regardingObamas eligibility to hold office. Appellants Br. at 44.

Additionally, Appellants Kerchner and Nelsen attemptto distinguish themselves from the public at large,pointing out that they took oaths to defend and supportthe Constitution as part of their past service in the

Armed Forces and the National Guard. We stated inBerg

that [e]ven if . . . the placement of an ineligiblecandidate on the presidential ballot harmed [theplaintiff], that injury . . . was too general for the purposes



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of Article III [because the plaintiff] shared . . . hisinterest in proper application of the Constitution andlaws . . . with all voters. . . . 586 F.3d at 240 (quoting

Lujan, 504 U.S. at 573). That reasoning also controlsour disposition here.

In their Reply Brief, Appellants assert that their

case differs fromBerg in several ways, including, amongothers, that the plaintiff in that case filed his claimagainst then-candidate Obama before the election andbefore the Electoral College and Congress had . . . actedon Obamas qualifications. . . . Appellants Reply Br. at25. On the contrary, the Berg court addressed standingbased on those same assumed facts. Berg, 586 F.3d at238-39. Just like

Documents

Petition for Writ of Certiorari filed with the U.S. Supreme Court for Kerchner v Obama & Congress