Beruflich Dokumente
Kultur Dokumente
Plaintiffs-Appellants,
v.
Defendants-Appellants.
MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
On the Brief
Mario Apuzzo
Case: 09-4209 Document: 003110069319 Page: 2 Date Filed: 03/23/2010
TABLE OF CONTENTS
ARGUMENT 1
CONCLUSION 30
Cases
Kitty Hawk Aircargo, Inc. V. Chao, 418 F.3d 453, 460 (5 th Cir.
2005) 2
Court Rule
Other Authorities
ARGUMENT
Hein v. Freedom From Religion Found, Inc., 127 S.Ct. 2553, 2569 (2007);
Allen v. Wright, 468 U.S. 737, 752 (1984). Defendants do not address
powers problem for the Court. Nor do the defendants address plaintiffs'
alleged facts which they submit sufficiently show that they have suffered a
that standing turns on the highly sensitive and particularized context of the
Camp, 397 U.S. 150, 151 (1970). Lujan V. Defenders of Wildlife, 504 U.S.
555 (1992). Both the District Court decision and the defendants' opposition
general statements on the law of standing which do not address the specific
Case: 09-4209 Document: 003110069319 Page: 7 Date Filed: 03/23/2010
specific factual and legal arguments made by the plaintiffs, the defendants in
much of their brief basically tell the court that the Kerchner case should be
dismissed because all the other Obama cases have been dismissed.
whether plaintiffs have standing, for it is that very status which is the basis
of their injury in fact. Plaintiffs filed their action against Obama on January
20,2009, at about 2:50 a.m., which was before he was sworn in as President.
At this time he was still a private individual who had the burden of proving
that he satisfied each and every element of Article II, Section 1, Clause 5.
That plaintiffs filed their action at this time is important for it not only sets
the time by which we are to judge when their standing attached to their
action against Obama, Congress, and the other defendants (Wilbur v. Locke,
423 F.3d 1101,1107 (9 th Cir. 2005) and Kitty Hawk Aircargo, Inc. v. Chao,
418 F.3d 453,460 (5 th Cir. 2005)), but also to show that Obama has the
burden of proof to show that he is a "natural born Citizen" and satisfied the
2
Case: 09-4209 Document: 003110069319 Page: 8 Date Filed: 03/23/2010
appellants' complaint/petition which are that Obama has not shown that he is
under the British Nationality Act 1948 his father was a British
subject/citizen and not a United States citizen and Obama himself was a
alleged that Congress breached its Constitutional duty under the Twentieth
Obama, who ran for President and while he was still a private person
had the burden prior to assuming the office of President to prove he was
qualified for the office. Blatch v. Archer, 1 Cowper 63, 66, 98 English
Reports 969, 970. Obama surely has the power and given the requirements
of Article II, Section 1, Clause 5 the duty to produce his evidence of where
3
Case: 09-4209 Document: 003110069319 Page: 9 Date Filed: 03/23/2010
as to the evidence that is needed for him to conclusively prove that he was
born in Hawaii.
light most favorable to him. The Court must assume the validity of
plaintiffs' substantive claims. Warth v. Seldin, 422 U.S. 490, 500 (1975).
The District Court did recognize this requirement. Hence, the District Court
was compelled to accept as true for purposes of the motion that Obama is
not and cannot be an Article II "natural born Citizen" and that Obama has
States" under the Fourteenth Amendment. While the District Court said that
it would "take all the allegations in the complaint to be true and construe
them in the light most favorable to the Plaintiffs," there is no indication from
its opinion that it did so. In fact, the court completely ignored these alleged
defendants' brief does not even acknowledge these factual allegations which
District Court, and in the Appellants' Opening Brief filed with this Court.
4
Case: 09-4209 Document: 003110069319 Page: 10 Date Filed: 03/23/2010
must consider these alleged facts as true. These presumptions of fact are
other of the many cases that have been filed against him throughout the
the State of Hawaii showing that he was born there. See Vassilios v.
birth"). Accepting these facts as true, we must conclude for purposes of the
"citizen of the United States" let alone an Article II "natural born Citizen,"
constitutional authority which is causing the plaintiffs their injury in fact and
which serves as the basis for their standing to bring this action against the
defendants. Neither did the District Court nDr the defendants in their
5
Case: 09-4209 Document: 003110069319 Page: 11 Date Filed: 03/23/2010
opposition brief acknowledge let alone address what our legal arguments are
adequately shown they do not have a "mere interest in the proper application
of the law" and that their case is not a "mere abstract objection to
values. Ass'n of Data Processing Servo Org., Inc. V. Camp, 397 U.S. 150,
154 (1970). The court should reject defendants' argument that plaintiffs
about much more than mere general grievances about government not
influence infiltrating into the new national government. The Framers saw
6
Case: 09-4209 Document: 003110069319 Page: 12 Date Filed: 03/23/2010
individual citizens and residence that they sought to insulate the Office of
all the positions and offices the Framers provided for in the Constitution,
only that of the President and Commander in Chief of the Military (and also
the Vice President under the Twelfth Amendment) must be occupied only by
a "natural born Citizen." They therefore believed that this singular and all-
powerful office was more vulnerable to foreign influence than any other and
they thereby sought to give it the most protection that they could. The
Framers were well read in Cicero and would have been familiar with his
warning when he wrote: "A nation can survive its fools and even the
ambitious. But it cannot survive treason from within .... " John Jay in his
(Duke University Press 1987) via Google Books. We can see that John Jay
called for "a strong check" on foreign influence invading our government.
7
Case: 09-4209 Document: 003110069319 Page: 13 Date Filed: 03/23/2010
people ought to be constantly awake; since history and experience prove that
St. George Tucker, Treatise on the Constitution (1803). Justice Story also
8
Case: 09-4209 Document: 003110069319 Page: 14 Date Filed: 03/23/2010
It is not too much to say, that no one, but a native citizen, ought
ordinarily to be entrusted with an office so vital to the safety and
liberties of the people. But an exception was, from a deep sense of
gratitude, made in favor of those distinguished men, who, though not
natives, had, with such exalted patriotism, and such personal
sacrifices, united their lives and fortunes with ours during the
Revolution ....
167 (1840 ed.). The Framers were greatly influence by Emer de Vattel and
his, The Law of Nations, Or, Principle of the Law of Nature, Applied to the
Conduct and Affairs of Nations and Sovereigns (1758 French) (1759 first
English edition), where he warned in Section 230 that a nation had a right to
9
Case: 09-4209 Document: 003110069319 Page: 15 Date Filed: 03/23/2010
keep out foreigners for "the care of her own safety." See also Fong Yue
Ting v. United States. Wong Quan v. United states. Lee Joe v. United
States., 149 U.S. 698 (1893) (provides that a nation has the sovereign right
to exclude foreigner from its territory as part of its power to protect itself
and citing many authorities). Hence, we can see what the Framers though
about a foreigner being President and what negative impact he could have on
a nation and every citizen and resident of that nation. Indeed, we can see
how it has long been recognized that the Office of President is so vital to the
safety and liberties of people. Hence, the Framers' purpose for adding the
sure that the nation is lead by a President and Commander in Chief who has
sole loyalty and allegiance to the United States and will therefore protect the
nation generally and each citizen and resident specifically which includes
bound to receive the law of nations, in its modern state of purity and
Justice Marshall stated that the "Court is bound by the law of nations, which
is part of the law of the land." 13 U.S. 388, 423 (1815). "The courts have
always considered the law of nations to be part of the law of the United
10
Case: 09-4209 Document: 003110069319 Page: 16 Date Filed: 03/23/2010
the life blood ofa nation wanting to be part of the "civilized world." 4 W.
numerous other authorities that state that the law of nations became the
national law of the United States. See Jordan J. Paust, In Their Own Words:
Davis Law Review, Vol. 14, p. 205, 2008; U of Houston Law Center No.
numerous sources from the Founding period and shortly thereafter which
judicial decisions that are relevant to whether the people, Congress, the
President, and the states are bound by customary international law [the law
of nations] and whether the law of nations is part of the laws of the United
States"); Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common
Law of Nations, 109 Colum.L.R. (2009) (collects and provide sources that
explain the historical practice of both English and early American courts
regarding the reception of the law of nations into federal common law);
11
Case: 09-4209 Document: 003110069319 Page: 17 Date Filed: 03/23/2010
because they did not see a reason to. It was a term that was well defined by
the law of nations and well-know by civilized nations. The Framers would
not have relied upon mere municipal law or the English common law to
define the new national citizenship but rather the law of nations. See Ernest
sources and states that the debates over ratification of the new national
Constitution "[a]11 participants seem to have understood that the new federal
Constitution did not receive the English common law as part of national
law"). Given that citizenship affects "the behavior of nation states with each
other" (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), all civilized nations
citizenship has always been a topic of international law which has been
when not codified into any Act of Congress, became the common law of the
United States. The Founders believed that the common law was
universal reason." Sosa. So since the Constitution did not define "citizen" or
"natural born Citizen," "resort must be had to the customs and usages of
12
Case: 09-4209 Document: 003110069319 Page: 18 Date Filed: 03/23/2010
and commentators of the time who devoted "years of labor, research and
experience" to the subject. The Paquete Habana, 175 U.S. 677, 700 (1900).
The Framers used and relied upon the law of nations to provide the
the Opening Brief bears this out. The Framers looked to Vattel and his, The
Law of Nations as the source and text on the law of nations. Louis Martin
Sears explains that to eighteenth century thinkers war was abnormal and
nations, except as modified by special laws and treaties was a state of peace.
Vattel furnished the text .... " Louis Martin Sears, Jefferson and the Law of
Nations, The American Political Science Review Vol. XIII, No.3, p.379
(1919). "It is therefore to be expected that, when terms of municipal law are
they were used in Blackstone's Commentaries; and when the law of nations
is referred to, that its principles are to be understood in the sense in which
Vattel defined them." James Brown Scott, The United States of America: A
It was through the "natural born Citizen" clause that the Framers
13
Case: 09-4209 Document: 003110069319 Page: 19 Date Filed: 03/23/2010
naturally to the child at the time of birth from the two events of birth in the
United States and birth to United States citizen parents, this status provides a
would-be President with the greatest degree of loyalty and allegiance to the
United States, a quality that the Framers expected all Presidents and Chief
President and Military Commander in Chief of the Military that provides the
plaintiffs with both the greatest confidence in the person holding that highest
civil and military office and the greatest protection from enemies both
United States should demand anything less from a person who would aspire
14
Case: 09-4209 Document: 003110069319 Page: 20 Date Filed: 03/23/2010
process right to bring an action against him and Congress in an effort to have
have also sufficiently shown that they have a personal stake in the case that
personal stake contained within their causes of action. Plaintiffs are not
Chief. Plaintiffs also have the Fifth Amendment due process right to protect
action against a foreigner who would occupy the Office of President and
personal security, life, liberty, and property as well as "relative" rights which
15
Case: 09-4209 Document: 003110069319 Page: 21 Date Filed: 03/23/2010
L.Rev. Vol. 93:275 (arguing that standing should be easily established when
a person's private rights have been allegedly violated which necessitates that
the court provide a remedy even if it is only nominal damages and that the
which can be the basis of a cause of action). For sure, the "natural born
and residing in the United States, plaintiffs are direct beneficiaries of that
needed protection. Plaintiffs have not only shown that they are direct
beneficiaries of Article II's "natural born Citizen" clause, but they have also
shown that the defendants have violated the letter and the spirit of Article
II's natural born Citizen" clause which is the basis of the protection to which
The Court should reject defendants' argument the since Obama and
Congress's conduct may harm all Americans equally, plaintiffs do not have
16
Case: 09-4209 Document: 003110069319 Page: 22 Date Filed: 03/23/2010
not logically sound. Something cannot injure everyone without injuring the
sufficiently shown how they personally have suffered and continue to suffer
an injury in fact, causation, and redressability. Hence, it does not matter that
other Americans may also suffer the same injury as the plaintiffs are
suffering. That the public also has an interest in the subject of plaintiffs'
action against defendants does not and cannot erase their right to bring an
action in which they attempt to vindicate their own private and personal
rights.
arguing as the District Court found that since all Americans may be equally
statement that has no factual support in the record. In our Opening Brief, we
have shown how defendants do not present any evidence to support such an
assertion let alone prove that all Americans would suffer equally from such
because they know they have no reasonable support for such an unfounded
17
Case: 09-4209 Document: 003110069319 Page: 23 Date Filed: 03/23/2010
standing. That the harm caused by Obama and Congress may be suffered by
provided they have sufficiently shown that they too have personally suffered
injury in fact caused by defendants' conduct for which the Court can provide
an effective remedy. Additionally, the fact that a plaintiff may allege only a
"generalized grievance" does not alone defeat standing, for standing depends
informational injury at issue here .. .is sufficiently concrete and specific such
that the fact that it is widely shared does not deprive Congress of
also Massachusetts v. EPA, 127 S.Ct. 1438 (2007) (finding standing because
Rather than specifically show how plaintiffs have not suffered the
injury that they allege they have suffered, defendants simply cite cases on
the law of standing and present their disqualifying general principles and say
18
Case: 09-4209 Document: 003110069319 Page: 24 Date Filed: 03/23/2010
that those principles apply to plaintiffs' case. See Def. Br. at 11-12. We
have shown in our opening brief what the plaintiffs' injuries are. Obama is
the enormous civil and military power of the United States. Plaintiffs
defendants have not in any way contested this factual allegation. This fact is
"natural born Citizen" because his father was not a United States citizen
when Obama was born and Obama himself was born a British
who his parents were but assuming to be true what he publicly stated that his
father was a British citizen/subject under the British Nationality Act 1948
when Obama was born, he also cannot satisfy the citizen parentage
connection test. Additionally, Obama himself under that same 1948 Act was
born a British subject/citizen through descent from his father. These facts
19
Case: 09-4209 Document: 003110069319 Page: 25 Date Filed: 03/23/2010
dismiss. Hence, Obama also fails the citizen parentage connection test
which has caused him to be born with dual allegiance, a birth circumstance
that the Framers would not have allowed in a would-be President born after
the adoption of the Constitution. Given that Obama has both not shown
himself to be eligible for the offices he now occupies and that he is not and
Given the amount of power that the President has, his acting as an
plaintiffs, every action that Obama takes is an injury in fact suffered by the
threatens their life, liberty, safety, security, tranquility, and property. With
Richardson, 418 U.S. 166, 177 (1974). Plaintiffs are aware of statements
such as this one made by Obama: "In the wake of 9/11 .. .I will stand with
them (Muslims) should the political winds shift in an ugly direction." "So let
me say this as clearly as I can -- the United States is not and will never be at
20
Case: 09-4209 Document: 003110069319 Page: 26 Date Filed: 03/23/2010
war with Islam." Obama has no problem sharing with the world and our
enemies information that should remain secret for national security reasons.
terrorists while in American custody. The Court can take judicial notice of
these statement and actions under Federal Rule of Evidence 201(d). He did
this knowing that doing so severely compromises our national security and
places the lives and safety of all Americans including the plaintiffs in
imminent danger. It is statements and actions like these and all of the other
actions and inactions that Obama has engaged in and which are mentioned in
Plaintiffs believe that Obama's policies and actions have so endangered and
weakened the country so as to have injured their own lives, liberty, safety,
President's office and not being legally authorized to be there causes them
great concern for their lives, safety, and property. Given that he is not
injury in fact every day which injury is the basis of their action against
21
Case: 09-4209 Document: 003110069319 Page: 27 Date Filed: 03/23/2010
voice in the election of those who make the laws under which, as good
have to wait for his removal through the ballot box which is the remedy that
that voter perceives his or her preservation. People vote for a candidate
whom they believe will best protect their unalienable rights to life, liberty,
effectively protect themselves through their vote for the singular and all-
know that the person to occupy those offices is a "natural born Citizen" and
voting for the person who will best protect their rights applies whether they
are voting for or against a certain candidate. If they do not intend to support
a candidate for President, knowing that he or she is not eligible for that
office would allow them to educate the public about the matter and thereby
22
Case: 09-4209 Document: 003110069319 Page: 28 Date Filed: 03/23/2010
an injury in fact. See Federal Election Commission v. Akins, 524 U.S. 11,
(1998) (the Court did not find standing because of any statutory violation but
liberty, safety, security, tranquility, and property from a person who is now
occupying the Office of the President and Commander in Chief who has not
shown himself to be eligible to hold that office and who is and cannot be
legal protection by a court. Plaintiffs bring a case in which they have shown
tranquility, and property. Defendants dismiss plaintiffs' oath, passion for the
Def. Br. at 12. What they fail to realized is that such status helps to provide
23
Case: 09-4209 Document: 003110069319 Page: 29 Date Filed: 03/23/2010
singular and enormous power which Obama has used and continues to use
on a daily basis and which greatly affects the plaintiffs' lives on a daily
injury to the plaintiffs' life, liberty, safety, security, tranquility, and property.
The plaintiffs have the due process right under the 5th Amendment to file a
legal action in which they seek to protect those "unalienable rights." This is
Defendants cite various cases and Berg v. Obama, 586 F.3d 234 (3 rd
Cir. 2009) and state that those cases show that plaintiffs do not have
standing to pursue their claims. Def. Br. 6-7. The Berg case is inapposite.
The injuries alleged by plaintiff Berg and those alleged by plaintiffs here are
very much different. Berg filed his action in his capacity as a voter against
24
Case: 09-4209 Document: 003110069319 Page: 30 Date Filed: 03/23/2010
candidate Obama who had yet to win the election and who had no power to
directly and significantly impact the lives of plaintiff Berg. Berg's case
suffered from ripeness since Obama had not yet won the election, political
question since the Electoral College and Congress had not yet acted on
since a candidate has a First Amendment right to run for political office.
protect that voter plaintiff. Plaintiffs here as voters and citizens filed their
action against Obama as the President elect after the Electoral College and
and also after he was so sworn in (by way of amended complaint). Since
plaintiffs sued Obama under both capacities, Obama must answer to their
the United States. While a candidate has a First Amendment right to run for
office, he or she does not have an unqualified right to hold an elective office,
for that candidate must meet all eligibility requirements to hold the office.
Under his private capacity, before he can have the executive power
25
Case: 09-4209 Document: 003110069319 Page: 31 Date Filed: 03/23/2010
qualified for the office, Obama has illegally assumed the power of the Office
of President which includes the great power of the military. As the putative
Clause 8; Article VI, clause 3. With that singular power in his hands and
through his daily actions, he is injuring the plaintiffs' life, liberty, safety,
security, tranquility, and property rights. With Berg, Obama did not yet
have this great power vested in him and for that reason Berg did not allege
injury to such inalienable rights let alone show that Obama was injuring him
in that manner. Since the Berg case presents a completely different set of
The political question doctrine does not bar this Court's consideration
of this case. Baker v. Carr, 369 U.S. 186,226 (1962). That plaintiffs'
26
Case: 09-4209 Document: 003110069319 Page: 32 Date Filed: 03/23/2010
claim that they have Article II and prudential standing. Neither the District
Court nor the defendants in their opposition brief acknowledge let alone
address what appellants' legal arguments are on the question of the political
question doctrine. Rather, it merely repeats what the District Court said in
its decision which dismissed the Kerchner case for what it said was the
political question doctrine and asks the Court of Appeals to affirm the
that plaintiffs cannot prove that Obama is unqualified to be President for his
assume that plaintiffs will not prevail on the merits. But the Court must
assume here that plaintiffs will prevail. First, all of plaintiffs factual
defendants' motion to dismiss. Second, plaintiffs are asking the Court to act
on Obama not only in his official capacity but first in his private capacity.
Third, it is not the function of Congress to define what the "natural born
Citizen" clause means. We have seen Congress pass on the issue regarding
Resolution 511 which at best is non-binding. S.Res. 511, 11 oth Congo (2008).
27
Case: 09-4209 Document: 003110069319 Page: 33 Date Filed: 03/23/2010
But only the courts can provide an authoritative and binding answer on what
the clause means. That issue is a purely constitutional legal issue which the
of Article II's "natural born Citizen" clause is well within the competence of
the judiciary. We have cited various cases in our Opening Brief in which
our United States Supreme Court has interpreted the meaning of a "citizen of
replacing Obama should the Court declare him ineligible, again the Court
plaintiffs' brief how the Court can craft an effective equitable remedy
There is no reason to think that Obama and Congress would not abide by the
any other action it may take. Neither Obama nor Congress has suggested
that they would refuse to follow a final and binding decision of this Court.
The Court can engage Congress to provide its assistance which it is expected
it would render consistently with the Court's ruling. Hence, the Court will
28
Case: 09-4209 Document: 003110069319 Page: 34 Date Filed: 03/23/2010
The Supreme Court has warned us what can happen to our republic if
its government does not observe the laws of the land. United States v.
Olmstead, 277 U.S. 438 (1928). A finding of no jurisdiction will mean that
individuals who can act in concert and gain control of both parties and
overthrow the constitutional order of our Republic and that citizens of the
United States such as the plaintiffs, whose life, liberty, safety, security,
tranquility, and property are threatened by such a plan and action, do not
have any due process to protect themselves through a legal action in which
they ask the judicial branch of government to protect them by enforcing the
Constitution.
powerful office of the land, the President and Commander in Chief of the
and our Constitution. Plaintiffs' case goes to the very core of our
29
Case: 09-4209 Document: 003110069319 Page: 35 Date Filed: 03/23/2010
Constitution, the fundamental law of our land, and whether ultimately our
legal system truly means anything when it comes to controversial but critical
violation of the political question doctrine, and rule that it has jurisdiction
over plaintiffs claims will do no harm to the role that the judiciary plays in
our Constitutional Republic but will rather confirm that elections in America
CONCLUSION
The District Court had jurisdiction of plaintiffs' claims and this Court
should vacate its order dismissing the case and remand the case to that court.
sf- - - - - - - -
Mario Apuzzo
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
FAX (732) 521-3906
Dated: March 23,2010 Attorney for Plaintiffs-Appellants
32(a)(7)(B) because it contains 6,98 1words (no more than 7,000 are allowed
30
Case: 09-4209 Document: 003110069319 Page: 36 Date Filed: 03/23/2010
for a reply brief), excluding the parts of the brief exempted by FRAP
ofFRAP 32(a)(5) and the type style requirements ofFRAP 32(a)(6) because
s/____________________
Mario Apuzzo
Attorneys for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, NJ 08831
Appellants' Reply Brief to be filed with the United States Court of Appeals
Clerk
United States Court of Appeals
31
Case: 09-4209 Document: 003110069319 Page: 37 Date Filed: 03/23/2010
each of the attorneys listed below, by placing the document in the United
3. I certify that the text of the E-Brief and Hard Copies of the brief
are identical.
32