Appeals briefs scheduled in Obama eligibility challenge...

Posted: November 29, 2009
9:17 pm Eastern

By Bob Unruh
© 2009 WorldNetDaily

A briefing schedule has been announced by the 3rd U.S. Circuit Court of Appeals in a case alleging Congress failed in its constitutional duties by refusing to investigate the eligibility of Barack Obama to be president, according to an attorney handling the challenge.

WND previously reported on the lawsuit filed by lead plaintiff Charles F. Kerchner Jr. and others against Congress.

Attorney Mario Apuzzo filed the action in January on behalf of Kerchner, Lowell T. Patterson, Darrell James Lenormand and Donald H. Nelson Jr. Named as defendants were Barack Hussein Obama II, the U.S., Congress, the Senate, House of Representatives and former Vice President Dick Cheney along with House Speaker Nancy Pelosi.

The case focuses on the alleged failure of Congress to follow the Constitution. That document, the lawsuit states, "provides that Congress must fully qualify the candidate 'elected' by the Electoral College Electors."

The case asserts "when Obama was born his father was a British subject/citizen and Obama himself was the same."

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The Constitution also provides, the lawsuit says, "If the president-elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified."

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"There existed significant public doubt and grievances from plaintiffs and other concerned Americans regarding Obama's eligibility to be president and defendants had the sworn duty to protect and preserve the Constitution and specifically under the 20th Amendment, Section 3, a Constitutional obligation to confirm whether Obama, once the electors elected him, was qualified," the case explained.

Now the attorney has posted an online statement that the brief on behalf of the appellants is due Jan. 4, 2010.

In an e-mail announcing the schedule, Kerchner wrote, "We look forward to moving ahead with this very important constitutional case along the legal pathway to the ultimate decision maker for this historic and precedence setting lawsuit, the U.S. Supreme Court."

He continued. "They will determine the answer to the pressing legal question of what is a 'natural born citizen' of the USA per Article II constitutional standards and did Obama and the U.S. Congress violate the Constitution and statutory laws and my constitutional rights during the 2008 election cycle."

"I say Obama does not meet the founders and framers intent for the Article II eligibility clause. I say Obama is a deceiver and a usurper," he wrote today.

Apuzzo earlier argued in his notice of appeal that the district court judge "avoided" a conclusion on the merits of the case.

"We allege that Obama has not conclusively proven that he was born in Hawaii. More importantly, we also allege that he is not an Article II 'natural born Citizen' because when Obama was born his father was a British subject/citizen and Obama himself was the same," he wrote.

The lawyer said it is important that the court did not rule Obama was born in Hawaii, nor did it rule that the claim was frivolous.

It simply said the case was dismissed because of a jurisdiction issue.

"By the court finding that plaintiffs do not have standing and that their claims present a political question, the court was able to avoid having to address the underlying merits of the Kerchner case. With such a decision, the American people unfortunately still do not know where Obama was born and whether he is an Article II 'natural born Citizen' and therefore constitutionally eligible to be president and commander in chief," the attorney said.

"A court cannot refuse to hear a case on the merits merely because it prefers not to due to grave social or political ramifications," he continued. "The court's opinion dismissing the Kerchner complaint/petition did not address the real Kerchner case but rather looked for a way to dismiss the case without having to reach the merits of the question of whether Obama is an Article II 'natural born citizen.'

"The American people deserve to know whether Obama was in fact born in Hawaii. More importantly, even if he is born in Hawaii, given that he was born with dual allegiance and citizenship, the American people deserve to know whether he is an Article II 'natural born citizen' which would make him eligible to be president," the attorney said.

WND reported earlier when Kerchner publicly argued the courts have an obligation to make a decision on Obama's eligibility.

He wrote, "The federal courts and judges are committing treason to the Constitution by not taking jurisdiction and getting to the merits in the various cases before them regarding the Article II eligibility clause question for Obama."

He said his basis for such a statement is the opinion of U.S. Supreme Court Chief Justice John Marshall, who wrote in an 1821 case, Cohens vs. Virginia:

"It is most true that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one."

WND has reported on dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.

Further, others question his citizenship by virtue of his attendance in Indonesian schools during his childhood and question on what passport did he travel to Pakistan three decades ago.

Adding fuel to the fire is Obama's persistent refusal to release documents that could provide answers and the appointment – at a cost confirmed to be at least $1.7 million – of myriad lawyers to defend against all requests for his documentation. While his supporters cite an online version of a "Certification of Live Birth" from Hawaii as his birth verification, critics point out such documents actually were issued for children not born in the state.

The ultimate questions remain unaddressed to date: Is Obama a natural born citizen, and, if so, why hasn't documentation been provided? And, of course, if he is not, what does it mean to the 2008 election or the U.S. Constitution if it is revealed that there has been a violation?

WND has reported on another case that was dismissed by U.S. District Judge David Carter in California. It also now is heading to the appeals level.

WND also has reported that among the documentation not yet available for Obama includes his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.