When is the Constitution like a Crocodile?
FEDERAL JUDGES CONTINUE TO FLAGRANTLY FLOUT THE CONSTITUTION
(Jul. 5, 2010) — Apparently it is when you are a federal judge with lifetime (taxpayer-paid) tenure on either the District Court of New Jersey or the Third Circuit Court of Appeals, as is clearly demonstrated by case 09-4209, Kerchner et al v. Obama & Congress, et al. If you remember in the District Court, Judge Simandle took it upon himself at the behest of the DOJ lawyers striving to defend Obama (who was initially sued before he took the Oath of Office and while still a private person) by repeatedly violating his judicial oath (meaning violating the Constitution that he swore to uphold).
In case you weren’t aware of that debacle, here’s a reminder (which should be read) so that you’ll have the background required to grasp what’s going on.
You see in the linked commentary the particulars of at least the four violations of the Constitution and the numerous errors in Simandle’s original opinion, which is the opinion with which the three Appeals Court judges have just agreed in their July 2, 2010 Opinion. This means the Appeals Court has assented to what were shown to be grievous errors and violations of the Constitution in the original opinion of Simandle; they buy into the same flaws wholesale and thereby commit what Chief Justice Marshall noted as “treason to the Constitution” in Cohens v. Virginia (1821) when he said:
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.
So let’s see what we have here…what “exception” mentioned by Marshall have these Appeals judges uncovered??? The Appeals Opinion by Sloviter, Barry, and Hardiman in the very first paragraph shows (by its misstatement of the case overview) the failure to grasp what was actually said in the Initial Appeal when it is stated appellants filed suit “…alleging that President Barack Obama is ineligible…” etc. This same misstatement is in Simandle’s District Court opinion commented upon above when he dismissed the case.
No doubt BOTH of these courts strenuously wish that the Kerchner et al action actually said that, but the rules of the legal progression do not allow them the latitude to re-plead the case to suit their needs and desires. “It is what it is” as the saying goes … and “it ain’t what it ain’t” as they try to redefine it.
The original Complaint, filed after the Electoral College had completed its efforts and Congress as well in “accepting” the results, but BEFORE being sworn in as President, says in “Nature of the Action”:
21. No court of the United States has ever decided the merits of any legal action against a Presidential candidate, President Elect, or sitting President challenging his eligibility to be President based on the “natural born Citizen” requirement of Article II Section 1 of the United States Constitution.
22. To date, no state or federal election official, nor any government authority, has investigated or held hearings and verified that Obama ever established and proved conclusively that he is an Article II “natural born Citizen.”
These are the first two points that go directly to the allegations rather than any allegations as proffered in the above Opinion. These two points do NOT state that Obama is not eligible, as both the District Court (DC) and the Appeals Court claim. They have (possibly intentionally) misstated the Kerchner, et al case in a prejudicial fashion. This seems to be the entire point made by both courts in attempting to categorize Kerchner, et al with numerous other cases against Obama – but they are incorrect and have made numerous misstatements of fact – such as their repeated use of the Berg case which was filed well before the election process was complete (therefore not ripe since the political process had not been completed). Citing such inapplicable cases that are quite different in nature seems almost like judicial misconduct which should itself be sanctioned.
Note that items 21 and 22 above are the first two factual (not speculative) statements made after two passages showing the Constitutional framing of the action (19 & 20). Statements of fact such as those require no interpretation, judicial or otherwise. They are what they are (sound familiar?). Several following points discuss the non-Obama defendants and then we come to:
28. This action in the form of mandamus is brought against defendant Obama to compel him to prove that he was born in the United States, that he is an Article II “natural born Citizen,” and that he is Constitutionally eligible to hold the Office of President and Commander in Chief,”
It is truly “quaint” that both the District Court and the Appeals Court manage to not read these three points of the allegations which clearly say that Obama, Constitutionally required by the mandatory “shall” language of the Constitution to be a “natural born Citizen” has never shown himself to meet that requirement – and this filing, if you judges remember, was made BEFORE Obama was sworn in and was at that time still an ordinary citizen (see point #20 in the above sequence), meaning that he was not above this law (the Constitution). It matters not if the clause is numbered 4 or 5, which is a distinction without a difference since it is not mistaken by any of the parties – so why pretend otherwise … just to kick shins, perhaps? Very petty!!
Point #28 intends to require Obama to comply with the black letter law of our country for which this particular phrase is still applicable, having never been changed by Constitutional Amendment. It goes on to say that if Obama is NOT found eligible as determined by #28 that:
29. This action in the form of declaration of rights and quo warranto is brought for the Court to declare that Obama is not Article II qualified to hold the Office of President and Commander in Chief and therefore that the non-Obama defendants removed and permanently barred him from that Office.
The above (#21, #22, and #28) are what is being alleged and NOT that the man is not eligible, as both sets of judges misstate. It is “more than passing strange” that attorneys who are now judges cannot read with sufficient understanding to grasp the clear meaning of the original Kerchner, et al action, but perhaps they are products of our present educational system.
Let it be restated here for them in terms they MAY understand:
Mr. Obama was still an ordinary citizen when the standing of this case applies and should be judged, and at that time the indented points are what is being alleged. Stating it another way, that the man has not yet shown himself to be eligible to hold the office (which he now – after the fact of the filing/standing – occupies) and is REQUIRED to do so by the Constitution.
The Appeals Court Opinion
Throughout the Opinion of the Appeals Court there are numerous citations intended to backstop the acceptance of the District Court dismissal, and most of them come from the District Court Opinion. That’s all well and good, but they primarily deal with “standing” and other so-called technical issues and have nothing to do with the merits of the case (the indented items above). The idea of “standing,” etc. is merely a figment of judicial invention – an artifice – and is intended to minimize “normal” cases being heard which perhaps should not be because “standing” cannot be shown. This is anything BUT a “normal” case.
It should be kept in mind that almost ALL of the citations in the Opinion that supposedly backstop the judicial “reasoning” are actually misapplied. These precepts were intended to override “normal” cases brought as a result of legislation passed by Congress (statutes) and/or the Executive regulatory information (perhaps as IRS regulations promulgated under the auspices of tax laws passed by Congress). None of these citations relate to direct Constitutional requirements as do the numbered points in the Kerchner action, nor is there even any requirement to interpret the intent of the Constitution with respect to three sets of requirements having to be met. It says they SHALL be met.
Even the citations relating to “Berg” and other similar actions are misstated and are inapplicable to the Kerchner action due to the indented items above. Some of these citations were brought forth at the wrong time when the elective process had not finished (“ripeness” or perhaps “political question”) and some were, in fact, claiming that Obama was not eligible, leaving the burden of proof on the Plaintiffs. The bolded items above put the lie to the cites of this sort, as that which is being claimed is the FACT that the man has never shown his Constitutional eligibility and must do so. That’s not so tough for most citizens to grasp, but it was apparently not made clear in judicial school – but should have been.
The “biggie” one usually sees in these sorts of attempted shoot-downs of actions based on “standing” and similar technical requirements would be the Lujan v. Defenders of Wildlife, but perhaps the good judges of the Appeals Court confuse the Nile Crocodile (in Lujan) with a requirement in Constitutional Article II. I’m quite confident that I can assure the good judges of the Appeals Court they are REALLY not the same thing. It is quite probable also that most citizens can tell the difference between a Constitutional requirement and a Crocodile.
The reason that many liberal citizens think that Lujan is a “killer citation” is the opinion of Justice Scalia (of a somewhat Constitutionally originalist frame of mind), so they believe that quoting him by citing the case is the sine qua non of the pleadings “gotcha games” and is irrefutable. Perhaps that might be the case if used properly, but in using these sorts of “normal” case cites they seem completely oblivious that these cites apply to such content as one normally sees before the court where they have to prove “injury” (or some other artifice of judicial fiction), which are actions resulting from laws passed, regulatory actions, etc. In other words, expressions for and against the Nile Crocodile, violations of the Tax Code requesting “class action” status, abrogation of some contract or another between parties or perhaps a real estate transaction or possibly zoning regulations, refusal to enter a school for education etc, etc. – the list is almost endless. None of these things are violations of a direct Constitutional requirement, and certainly not by a man who is, arguably, the most powerful man in the world who can cause our sons and daughters to be exposed to dangers, including death, and can seemingly take all accumulated wealth from us via taxes and other assessments.
Compared to that and more, the Nile Crocodile seems tame stuff, indeed. But none of those citations deal with violating a direct Constitutional mandate as does the subject of the Kerchner action as indicated above; they are all about “normal” cases and controversies – which the Kerchner, et al action is not … NOT AT ALL!!!
The District Court clearly erred for these reasons (among others) and, since the Appeals Court elected to buy into the DOJ Cliff’s Notes, so did the Appeals Court. In no event, however, is the case “frivolous,”although the Judicial Branch of our government (supposedly the “Protector of our Constitution”) is terrified that such an action will be heard on its merits. There are only “frivolous” judges, and cowardly ones at that. In his original District Court dismissal, Judge Simandle managed his four Constitutional violations in 11 pages. The Appeals Court being a – err – “higher” Court has bettered him and covered the same ground (and a bit more in the way of violations) in only nine pages, which seems a new judicial record in this game of “dodge ’em.”
The Kerchner, et al action is clearly a case as called out by the language of the Constitution in Article III where it is specified “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States …” and this case is clearly one in Law – the black letter law of our land, the United States Constitution – and not one in Equity, as the Courts hope to portray it to be as are those needing “normal” standing. The situations are hugely different, and gravely so from the outlook of our country.
Perhaps a re-reading of Marshall above is in order for these persons since ample “respect for the other governmental branches” has already definitely been shown. Though not required, what we have is a mandatory, factual requirement directly and specifically delineated by the Constitution.
Sanctions are clearly not appropriate when the four judges (which includes the District Court judge who misstated the case originally) have all apparently misread what the Kerchner action clearly stated and tried to claim it said something completely different. And these “servants of the people” (aka “Guardians of our Constitution”) have lifetime tenure??? Where is judicial impeachment when it is gravely needed?