KERCHNER V OBAMA (APPEAL) - Appellant Reply Brief - Transport Room

Case: 09-4209 Document: 003110069319 Page: 1 Date Filed: 03/23/2010
IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
Case No. 09-4209
CHARLES F. KERCHNER, JR. et aI.,
Plaintiffs-Appellants,
v.
BARACK HUSSEIN OBAMA II et aI.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
REPL Y BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS
MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
On the Brief
Mario Apuzzo
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES
ARGUMENT 1
I. PLAINTIFFS HAVE SUFFICIENTLY SHOWN THAT THEIR

INJURIES ARE CONCRETE AND PARTICULARIZED 1
A. The Court Should Reject the District Court's Decision and

Defendants' Argument that Plaintiffs Have Not Shown That They
Suffered a Concrete Injury 1
B. The Court Should Reject Defendants' Argument that Plaintiffs

Have Failed to Prove that They Suffered a Particularized Injury 15
II. PLAINTIFFS' CAUSES OF ACTION DO NOT PRESENT

ANY POLITICAL QUESTION PROBLEM 26
CONCLUSION 30
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) 30
CERTIFICATE OF FILING AND SERVICE, AS TO E-BRIEF AND

HARD COPIES THEREOF BEING IDENTICAL, AND AS TO
VIRUS SCAN PERFORMED 31
TABLE OF CASES AND AUTHORITIES
Cases
Allen v. Wright, 468 U.S. 737, 752 (1984) 1
Ass'n of Date Processing Servo Orgs. V. Camp, 397 U.S. 150,

151 (1970) 1
Baker V. Carr, 369 U.S. 186,203, (1962) 24
Berg V. Obama, 586 F.3d 234 (3 rd Cir. 2009) 24
Blatch V. Archer, 1 Cowper 63, 66, 98 English Reports 969,

970 3
Federal Election Commission V. Akins, 524 U.S. 11, 23,

24-25 (1998) 18
Fong Yue Ting V. United States. Wong Quan V. United States.

Lee Joe V. United States., 149 U.S. 698 (1893) 10
Hein V. Freedom From Religion Found, Inc., 127 S.Ct. 2553,

2569 (2007) 1
Kitty Hawk Aircargo, Inc. V. Chao, 418 F.3d 453, 460 (5 th Cir.
2005) 2
Lujan V. Defenders of Wildlife, 504 U.S. 555 (1992) 1
Massachusetts V. EPA, 127 S.Ct. 1438 (2007) 18
Sosa V. Alvarez-Machain, 542 U.S. 692 (2004) 12
The Nereide, 13 U.S. 388, 423 (1815) 10
The Paquete Habana, 175 U.S. 677,700 (1900) 13
United States V. Olmstead, 277 U.S. 438 (1928) 29

United States v. Richardson, 418 U.S. 166, 177 (1974) 20
Vassilios v. Kennedy, 95 F.Supp. 630 (D.C.Cir. 1961) 5
Ware v. Hylton, 3 Dall. 199. 199,281 (1796) 10
Warth v. Seldin, 422 U.S. 490, 500 (1975) 4
Wesberry v. Sanders, 376 U.S. 1, 17 (1964) 22

th
Wilbur v. Locke, 423 F.3d 1101, 1107 (9 Cir. 2005) 2
Court Rule
_Federal Rule of Evidence 201(d) 21
Other Authorities
Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal

Common Law of Nations, 109 Colum.L.R. (2009) 11
4 W. Blackstone, Commentaries on the Laws of England 67

(1769) 11
Alexander Heard and Michael Nelson, Presidential Selection,

page 123 (Duke University Press 1987) 7
St. George Tucker, Treatise on the Constitution (1803) 8
M. J. Glennon, Constitutional Diplomacy (Princeton,

NJ: Princeton University Press 1990), at 245 11
F. Andrew Hessick, Standing, Injury in Fact, and Private

Rights, Cornell L.Rev. Vol. 93:275 16
Jordan J. Paust, In Their Own Words: Affirmations of

the Founders, Framers, and Early Judiciary Concerning the
Binding Nature of the Customary Law of Nations (October

8,2009). UC Davis Law Review, Vol. 14, p. 205,2008; U
of Houston Law Center No. 2009-A-27 11
James Brown Scott, The United States of America: A Study

in International Organization 439 (1920) 13
Louis Martin Sears, Jefferson and the Law of Nations, The

American Political Science Review Vol. XIII, No.3, p.379
(1919) 13
III J. Story, Commentaries on the Constitution of the United

States Section 1473 (Boston: Little, Brown: 1833) 9
Justice Joseph Story, Volume 3, Section 1472-73 The Founders

Constitution: Commentaries on the Constitution originally
published in 1833 9
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) 9
Ernest A. Young, Historical Practice and the Contemporary

Debate Over Customary International Law, Colum.L.Rev.
(4-27-2009) 12
ARGUMENT
I. PLAINTIFFS HAVE SUFFICIENTLY SHOWN THAT THEIR

INJURIES ARE CONCRETE AND PARTICULARIZED
A. The Court Should Reject the District Court's Decision and

Defendants' Argument that Plaintiffs Have Not Shown That They
Suffered a Concrete Injury
The current Supreme Court rule on standing is designed mostly to
respect separation of powers between the three branches of government.
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
plaintiffs' argument that their causes of action do not present a separation of
powers problem for the Court. Nor do the defendants address plaintiffs'
alleged facts which they submit sufficiently show that they have suffered a
concrete and particularized injury. We have seen in Supreme Court cases
that the proper resolution of the standing issue cannot be accomplished by
resorting to generalized statements concerning the law of standing but rather
that standing turns on the highly sensitive and particularized context of the
facts presented by a plaintiff. Ass'n of Date Processing Servo Orgs. V.
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
brief in defense of that decision are nothing more that presentations of
general statements on the law of standing which do not address the specific
factual and legal content of plaintiffs' claims. Without discussing the
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.
It is self-evident that under Article II anyone aspiring to be President
has to conclusively prove that he or she is eligible to hold that office.
Part of that burden is conclusively showing that one is a "natural born
Citizen." Hence, the citizenship status of Obama is critical to the question of
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
other requirements of Article II.
2
The question of standing is much depended upon the facts alleged in
appellants' complaint/petition which are that Obama has not shown that he is
a Fourteenth Amendment "citizen of the United States" let alone an Article
II "natural born Citizen." We have alleged in our complaint/petition that
Obama is not and cannot be an Article II "natural born Citizen" because
under the British Nationality Act 1948 his father was a British
subject/citizen and not a United States citizen and Obama himself was a
British subject/citizen at the time Obama was born. Amended
Complaint/Petition at Para. 72. We further contend that Obama has failed to
even conclusively prove that he is at least a "citizen of the United States"
under the Fourteenth Amendment as he claims by conclusively proving that
he was born in Hawaii. Amended ComplaintlPetition Para. 34. We also
alleged that Congress breached its Constitutional duty under the Twentieth
Amendment to properly investigate the status of Obama's citizenship.
Amended ComplaintlPetition Para. 158.
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
he was born and that he is an Article II "natural born Citizen." Obama
cannot reasonably maintain that he has a reasonable expectation of privacy
as to the evidence that is needed for him to conclusively prove that he was
born in Hawaii.
Moreover, on a motion to dismiss a complaint, the Court is compelled
to accept alleged facts of the nonmovant as true and to interpret them in a
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
failed to even conclusively prove that he is at least a "citizen of the United
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
facts as do the defendants in their opposition brief. Additionally,
defendants' brief does not even acknowledge these factual allegations which
appellants included in the complaint/petition, in their opposition brief in the
District Court, and in the Appellants' Opening Brief filed with this Court.
4
Hence, the Court when deciding the defendants' motion to dismiss
must consider these alleged facts as true. These presumptions of fact are
more than reasonable given that at no time in these proceedings or in any
other of the many cases that have been filed against him throughout the
country has Obama produced a 1961 contemporaneous birth certificate from
the State of Hawaii showing that he was born there. See Vassilios v.
Kennedy, 95 F.Supp. 630 (D.C.Cir. 1961) ("Necessarily, a record of birth
contemporaneously made by governmental authority in official records
[such as a "contemporaneous birth certificate" when there is no indication
what one is not readily available] would be most conclusive evidence of
birth"). Accepting these facts as true, we must conclude for purposes of the
defendants' motion that since Obama is not a Fourteenth Amendment
"citizen of the United States" let alone an Article II "natural born Citizen,"
he is not eligible to be President and Commander in Chief. Not being
eligible to be President and Commander in Chief, he is currently acting as
such without constitutional authority. It is Obama's exercising the singular
and great powers of the President and Commander in Chief without
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
opposition brief acknowledge let alone address what our legal arguments are
on the questions of standing.
Defendants have mischaracterized plaintiffs' claims. Plaintiffs have
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
unconstitutional conduct." The Supreme Court defined injury in fact
broadly, explaining that it includes not only injuries to economic interests
but also to "aesthetics," "conservational," "recreational," and "spiritual"
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
causes of action are a "mere abstract objection to unconstitutional conduct."
Plaintiffs do not present a case of citizens only being interested in the
government operating according to the Constitution. Plaintiffs complain
about much more than mere general grievances about government not
operating in accordance with the Constitution. Their cause of action is not
one of mere interference with the political branches of government. An
examination of our history shows that the concreteness of plaintiffs' injuries
has a historical foundation that dated back to the Founding itself.
The Founders and Framers were particularly concerned with foreign
influence infiltrating into the new national government. The Framers saw
6
foreign influence to be a sufficiently concrete injury to the nation and its
individual citizens and residence that they sought to insulate the Office of
President and Commander in Chief from such influence. It is telling that 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
letter of July 25, 1787, to then General Washington said:
"Permit me to hint, whether it would be wise and seasonable to

provide a strong check to the admission of Foreigners into the
administration of our national Government; and to declare expressly
that the Commander in Chief of the American Army shall not be
given to nor devolve on, any but a natural born Citizen." (underlining
in the original).
Alexander Heard and Michael Nelson, Presidential Selection, page 123
(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
President Washington cautioned: "Against the insidious wiles of foreign
influence, (I conjure you to believe me fellow citizens) the jealousy of a free
people ought to be constantly awake; since history and experience prove that
foreign influence is one of the most baneful foes of Republican
Government." George Washington, Farewell Address, September 19, 1796
Founder St. George Tucker also warned on the dangers of foreign
influence invading the Office of President:
That provision in the constitution which requires that the president

shall be a native-born citizen (unless he were a citizen of the United States
when the constitution was adopted,) is a happy means of security against
foreign influence, which, wherever it is capable of being exerted, is to be
dreaded more than the plague. The admission of foreigners into our councils,
consequently, cannot be too much guarded against; their total exclusion from
a station to which foreign nations have been accustomed to, attach ideas of
sovereign power, sacredness of character, and hereditary right, is a measure
of the most consummate policy and wisdom .... To have added a member to
this sacred family in America, would have invited and perpetuated among us
all the evils of Pandora's Box.
St. George Tucker, Treatise on the Constitution (1803). Justice Story also
maintained in his Commentaries on the Constitution of the United States that
permitting a citizen, other than a natural born citizen, to be President of the
United States was an exception to "the great fundamental policy of all
governments, to exclude foreign influence from their executive councils and
8
duties." III J. Story, Commentaries on the Constitution of the United States
Section 1473 (Boston: Little, Brown: 1833).
But the general propriety of the exclusion of foreigners, in common

cases, will scarcely be doubted by any sound statesman. It cuts off all
chances for ambitious foreigners, who might otherwise be intriguing
for the office; and interposes a barrier against those corrupt
interferences of foreign governments in executive elections, which
have inflicted the most serious evils upon the elective monarchies of
Europe. Germany, Poland, and even the pontificate of Rome, are sad,
but instructive examples of the enduring mischiefs arising from this
source ....
Justice Joseph Story, Volume 3, Section 1472-73 The Founders
Constitution: Commentaries on the Constitution originally published in 1833
provided online by University of Chicago. Justice Story continued:
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 ....
Joseph Story, A Familiar Exposition of the Constitution of the United States,
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
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
"natural born Citizen" clause as a requirement to be President was to make
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
the plaintiffs from enemies both foreign and domestic.
Upon independence from Great Britain, the United States "were
bound to receive the law of nations, in its modern state of purity and
refinement. Ware v. Hylton, 3 Da11. 199. 199,281 (1796). In The Nereide,
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
States."M. J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton
University Press 1990), at 245. Even William Blackstone recognized the
importance of the law of nations which he considered "universal law" and
the life blood ofa nation wanting to be part of the "civilized world." 4 W.
Blackstone, Commentaries on the Laws of England 67 (1769). There are
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:
Affirmations of the Founders, Framers, and Early Judiciary Concerning the
Binding Nature of the Customary Law of Nations (October 8, 2009). UC
Davis Law Review, Vol. 14, p. 205, 2008; U of Houston Law Center No.
2009-A-27. Available at SSRN: http://ssrn.com/abstract=1485703 (provides
numerous sources from the Founding period and shortly thereafter which
amount to a "thorough exposition of actual trends in early expressions and
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
The Framers did not define an Article II "natural born Citizen"
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
A. Young, Historical Practice and the Contemporary Debate Over
Customary International Law, Colum.L.Rev.(4-27-2009) (provides historical
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
knew what the definition of citizenship was. Throughout American history,
citizenship has always been a topic of international law which has been
written upon by many writers of international treatises. The law of nations,
when not codified into any Act of Congress, became the common law of the
United States. The Founders believed that the common law was
discoverable by reason and was forever present, a "discoverable reflection of
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
civilized nations" found in the law of nations, as defined by scholars, jurists,
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
definition of a "natural born Citizen." The case law cited by defendants in
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
unnatural. "[T]he state of nature which governed both individuals 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
found in the Constitution, they are to be understood in the sense in which
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
Study in International Organization 439 (1920).
It was through the "natural born Citizen" clause that the Framers
sought to accomplish the goal of protecting the Office of President and
13
Commander in Chief of the Military from foreign influence and of providing
a definition of national citizenship which the nation would have no difficulty
to understand. Under the law of nations definition of "natural born citizen"
as provided by Vattel at Sections 212 to 230 of his treatise, that special
status requires unity of citizenship and allegiance, conditions which descend
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
Military Commanders born after the adoption of the Constitution to have. It
is this high degree of loyalty and allegiance to the United States in a
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
foreign and domestic. Wisdom shows that there is no sound national
security or public policy reason why a Constitutional Republic such as the
United States should demand anything less from a person who would aspire
to the singular and all-powerful office of President and Commander in Chief
of the Military. In order to protect themselves from such a foreigner
occupying the Office of President, plaintiffs have a Fifth Amendment due
14
process right to bring an action against him and Congress in an effort to have
him removed from that position if he cannot conclusively prove that he is
eligible for that position.
B. The Court Should Reject Defendants' Argument that Plaintiffs Have

Failed to Prove that They Suffered a Particularized Injury
We have already seen what plaintiffs' concrete injury is. Plaintiffs
have also sufficiently shown that they have a personal stake in the case that
they have filed against defendants. Let us analyze what is plaintiffs'
personal stake contained within their causes of action. Plaintiffs are not
mere "concerned bystanders." Allen, 468 U.S. at 755-56. Rather, plaintiffs
have a Fifth Amendment due process right to protect themselves from a
foreigner secretly invading the office of the President and Commander in
Chief. Plaintiffs also have the Fifth Amendment due process right to protect
their life, liberty, safety, security, tranquility, and property by bringing an
action against a foreigner who would occupy the Office of President and
Congress if it fails to protect plaintiffs from such a person.
Blackstone wrote that private rights included the "absolute" rights of
personal security, life, liberty, and property as well as "relative" rights which
individuals acquire "as members of society, and standing in various relations
to each other." 1 William Blackstone, 4 Commentaries 119. Plaintiffs have
15
a personal and private right to protect themselves as described and their
cause of action against defendants if filed to accomplish just that. See F.
Andrew Hessick, Standing, Injury in Fact, and Private Rights, Cornell
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
Constitution provides for both enumerated and unenumerated private rights
which can be the basis of a cause of action). For sure, the "natural born
Citizen" clause provides a protection that encompasses the plaintiffs' life,
liberty, safety, security, tranquility, and property. Being American citizens
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
they are entitled.
The Court should reject defendants' argument the since Obama and
Congress's conduct may harm all Americans equally, plaintiffs do not have
standing. Defendants in effect are arguing that because Obama's and
Congress's violation of the Constitution injures no one in particular but all
16
Americans equally, plaintiffs do not have standing. First, such a statement is
not logically sound. Something cannot injure everyone without injuring the
individuals who make up that whole population. Second, plaintiffs have
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.
Defendants do not contest that plaintiffs have sufficiently shown
causation and redressability. They do contest the issue of injury in fact by
arguing as the District Court found that since all Americans may be equally
injured by Obama and Congress's conduct, plaintiffs have no standing. That
Americans have suffered equally by Obama's and Congress's conduct is a
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
unconstitutional conduct. Defendants do not address this point in their brief
because they know they have no reasonable support for such an unfounded
17
statement. The statement is also an incorrect statement of the law of
standing. That the harm caused by Obama and Congress may be suffered by
all Americans does not preclude plaintiffs from establishing standing
provided they have sufficiently shown that they too have personally suffered
an injury in fact, causation, and redressability. Warth v. Seldin, 422 U.S.
490,501 (1975). We have sufficiently shown that plaintiffs have suffered an
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
on whether the grievance, widely shared or not, is too "abstract." Federal
Election Commission v. Akins, 524 U.S. 11,23,24-25 (1998) ("[T]he
informational injury at issue here .. .is sufficiently concrete and specific such
that the fact that it is widely shared does not deprive Congress of
constitutional power to authorize its vindication in the federal court"). See
also Massachusetts v. EPA, 127 S.Ct. 1438 (2007) (finding standing because
of the potential factual consequences of global warming which could cause
flooding of Massachusetts land).
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
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
occupying the office of President and Commander in Chief, alone wielding
the enormous civil and military power of the United States. Plaintiffs
contend that he has not conclusively proven that he is a Fourteenth
Amendment "citizen of the United States," which is necessary but not
sufficient to prove that he is an Article II "natural born Citizen," by
presenting a contemporaneous birth certificate from 1961. Additionally,
defendants have not in any way contested this factual allegation. This fact is
therefore established as true for purposes of the defendants' motion to
dismiss. Hence, he has failed to satisfy the place of birth requirement.
Plaintiffs also contend that Obama is not and cannot be an Article II
"natural born Citizen" because his father was not a United States citizen
when Obama was born and Obama himself was born a British
subject/citizen. He not only has failed to provide conclusive evidence as to
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
are also established as true for purposes of the defendants' motion to
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
cannot be an Article II "natural born Citizen," plaintiffs have every right to
consider Obama their enemy, both foreign and domestic.
Given the amount of power that the President has, his acting as an
enemy threatens the plaintiffs to a significant degree. Being an enemy of the
plaintiffs, every action that Obama takes is an injury in fact suffered by the
plaintiffs, for every one of his actions actually threatens or imminently
threatens their life, liberty, safety, security, tranquility, and property. With
Obama not being eligible for the Office of President because he is a
foreigner, plaintiffs are in danger of suffering these concrete injuries as a
result of defendants' violation of the Constitution. United States v.
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
war with Islam." Obama has no problem sharing with the world and our
enemies information that should remain secret for national security reasons.
Obama released secret memos and photographs detailing interrogation of
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
the complaint/petition which lead plaintiffs to believe that Obama is not
truly committed to protecting them from foreign and domestic enemies.
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,
security, tranquility, and property rights. Again, Obama sitting in the
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
authorized to be President, such conduct by Obama is causing plaintiffs an
injury in fact every day which injury is the basis of their action against
Obama and Congress and the other defendants.
21
"No right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good
citizens, we must live." Wesberry v. Sanders, 376 U.S. 1, 17 (1964)
(invalidating malapportioned congressional districts). If Obama were
eligible to be President and legitimately elected, plaintiffs would simply
have to wait for his removal through the ballot box which is the remedy that
the District Court offered to plaintiffs. But in our Constitutional Republic,
voting is an act of self-preservation for each voting citizen regardless of how
that voter perceives his or her preservation. People vote for a candidate
whom they believe will best protect their unalienable rights to life, liberty,
property, and the pursuit of happiness. How are plaintiffs expected to
effectively protect themselves through their vote for the singular and all-
powerful President and Commander in Chief of the Military unless they
know that the person to occupy those offices is a "natural born Citizen" and
therefore eligible to be President? Their need to protect themselves by
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
serve to protect their own interest in self-preservation. Such an interference
22
with plaintiffs' right to vote needed to protect themselves plainly constitutes
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
because of the consequences of a violation which was being deprived of
information which they needed to evaluate candidates for public office).
Plaintiffs' interest in this case is to protect their own personal lives,
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
eligible to hold that office because he is not an Article II "natural born
Citizen." These are unalienable rights which cannot be doubted deserve
legal protection by a court. Plaintiffs bring a case in which they have shown
that an unidentified foreigner is currently occupying the Office of President
and Commander in Chief who because of the singular and all-powerful
nature of those offices threatens their life, liberty, safety, security,
tranquility, and property. Defendants dismiss plaintiffs' oath, passion for the
constitution, and military status as adding anything to the standing equation.
Def. Br. at 12. What they fail to realized is that such status helps to provide
"that concrete awareness which sharpens the presentation of issues upon
23
which the court so largely depends for illumination of difficult constitutional
questions." Baker v. Carr, 369 U.S. 186,203, (1962).
A person sitting in the President's and Commander's offices wields
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
basis. It cannot be doubted that the President's and Commander's power
whether exercised or not affects in a concrete and particularized way each
plaintiffs life, liberty, safety, security, tranquility, and property.
Consequently not having a "natural born Citizen" as President and
Commander in Chief is a concrete, actual, imminent, and particularized
injury to the plaintiffs' life, liberty, safety, security, tranquility, and property.
The factual injuries alleged by plaintiffs are sufficient to support standing.
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
the injury in fact suffered by the plaintiffs.
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
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
Obama's qualifications, and freedom of speech and association problems
since a candidate has a First Amendment right to run for political office.
Additionally, as a mere candidate, Obama had no constitutional duty to
protect that voter plaintiff. Plaintiffs here as voters and citizens filed their
action against Obama as the President elect after the Electoral College and
Congress acted on his qualifications but before he was sworn in as President
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
complaint/petition both as a private person and as the putative President of
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
constitutionally vest in him under Article II, Section 1, Obama is compelled
to conclusively prove the necessary but not sufficient status that he is a
Fourteenth Amendment or statutory "citizen of the United States" by
25
showing as he claims that he was born in Hawaii or under some other
qualifying circumstances. In his official capacity and since he is not
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
President, he is also compelled to "preserve, protect and defend the
Constitution ... " and is bound by Oath or Affirmation to support the
Constitution which includes making sure that only a person who is an
Article II "natural born Citizen" is currently occupying the Office of
President and Commander in Chief of the Military. Article II, Section 1,
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
facts and circumstances, it is not controlling on this case.
II. PLAINTIFFS' CAUSES OF ACTION DO NOT PRESENT ANY

POLITICAL QUESTION PROBLEM
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
causes of actions present no political question problem also supports their
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
District Court's decision dismissing our complaint/petition. The resolution
of this dispute is "textually committed" only if we assume before we begin
that plaintiffs cannot prove that Obama is unqualified to be President for his
failure to be an Article II "natural born Citizen." In other words, defendants
assume that plaintiffs will not prevail on the merits. But the Court must
assume here that plaintiffs will prevail. First, all of plaintiffs factual
allegations in the complaint/petition must be accepted as true for purposes of
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
whether John McCain was a "natural born Citizen" by way of Senate
Resolution 511 which at best is non-binding. S.Res. 511, 11 oth Congo (2008).
27
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
courts are perfectly capable of resolving. The interpretation and application
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
the United States" and an Article II "natural born Citizen." As far as
replacing Obama should the Court declare him ineligible, again the Court
would be acting on Obama in his private capacity and we have offered in
plaintiffs' brief how the Court can craft an effective equitable remedy
including injunctive, mandamus, and declaratory relief which will create
neither a separation of powers nor political question problem. The Court's
remedy would not be at the mercy of any discretion by Obama or Congress.
There is no reason to think that Obama and Congress would not abide by the
Court's authoritative interpretation of the "natural born Citizen" clause and
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
be able to provide the plaintiffs with an effective remedy to right this
egregious injury suffered and continued to be suffered by the plaintiffs.
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
we as a nation accept usurpation and tyranny by a small group of
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.
Judicial review is absolutely necessary when the other two branches
of government act in a concerted way to subvert and ignore the
Constitution's requirements defining eligibility standards for the most
powerful office of the land, the President and Commander in Chief of the
Military. This power balance is important to the survival of our Republic
and our Constitution. Plaintiffs' case goes to the very core of our
29
Constitution, the fundamental law of our land, and whether ultimately our
legal system truly means anything when it comes to controversial but critical
constitutional issues. For the Court to grant plaintiffs standing, find no
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
must adhere to the rule of law.
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
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)
This reply brief complies with the type-volume limitation of FRAP
32(a)(7)(B) because it contains 6,98 1words (no more than 7,000 are allowed
30
for a reply brief), excluding the parts of the brief exempted by FRAP
32(a)(7)(B)(iii). This reply brief complies with the type-space requirements
ofFRAP 32(a)(5) and the type style requirements ofFRAP 32(a)(6) because
it is written in a proportionately spaced typeface using Word in Times New
Roman, point size 14.
Dated: March 23,2010
s/____________________
Mario Apuzzo
Attorneys for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, NJ 08831
CERTIFICATION OF FILING AND SERVICE, AS TO E-

BRIEF AND HARD COPIES THEREOF BEING IDENTICAL, AND
AS TO VIRUS SCAN PERFORMED
Mario Apuzzo, certifies as follows:
1. On March 23, 2010, I caused Plaintiffs-Appellants' Reply Brief
to be electronically filed with the Court. On March 23,2010, I caused to be
mailed by U.S. Postal Service Express Mail 10 hard copies of Plaintiffs-
Appellants' Reply Brief to be filed with the United States Court of Appeals
for the Third Circuit to the Court at:
Clerk
United States Court of Appeals
31
For the Third Circuit

21400 US. Courthouse
Independence Mall West
601 Market Street
Philadelphia, PA 19106-1790
2. On March 23,2010, I caused 2 hard copies of the same Reply
Brief to be served upon Defendants-Appellees by serving the document on
each of the attorneys listed below, by placing the document in the United
States Postal Service via regular mail, addressed to:
Eric Fleisig-Greene, Esq.

U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Room 7214
Washington, DC 20530-0001
3. I certify that the text of the E-Brief and Hard Copies of the brief
are identical.
4. I certify that I have caused a virus scan to be done of this
document using Norton Antivirus 360.
5. Pursuant to 28 U.S.C. Sec. 1746, I certify under penalty of
perjury that the foregoing is true and correct.
Dated: March 23,2010 sf--------------------

Mario Apuzzo
Attorneys for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, NJ 08831
32

KERCHNER V OBAMA (APPEAL) - Appellant Reply Brief - Transport Room

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KERCHNER V OBAMA (APPEAL) - Appellant Reply Brief - Transport Room

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Case: 09-4209 Document: 003110069319 Page: 1 Date Filed: 03/23/2010

IN THE UNITED STATES COURT OF APPEALS

Case No. 09-4209

CHARLES F. KERCHNER, JR. et aI.,

BARACK HUSSEIN OBAMA II et aI.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

REPL Y BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS

TABLE OF CASES AND AUTHORITIES

I. PLAINTIFFS HAVE SUFFICIENTLY SHOWN THAT THEIR

A. The Court Should Reject the District Court's Decision and

B. The Court Should Reject Defendants' Argument that Plaintiffs

II. PLAINTIFFS' CAUSES OF ACTION DO NOT PRESENT

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) 30

CERTIFICATE OF FILING AND SERVICE, AS TO E-BRIEF AND

TABLE OF CASES AND AUTHORITIES

Allen v. Wright, 468 U.S. 737, 752 (1984) 1

Ass'n of Date Processing Servo Orgs. V. Camp, 397 U.S. 150,

Baker V. Carr, 369 U.S. 186,203, (1962) 24

Berg V. Obama, 586 F.3d 234 (3 rd Cir. 2009) 24

Blatch V. Archer, 1 Cowper 63, 66, 98 English Reports 969,

Federal Election Commission V. Akins, 524 U.S. 11, 23,

Fong Yue Ting V. United States. Wong Quan V. United States.

Hein V. Freedom From Religion Found, Inc., 127 S.Ct. 2553,

Lujan V. Defenders of Wildlife, 504 U.S. 555 (1992) 1

Massachusetts V. EPA, 127 S.Ct. 1438 (2007) 18

Sosa V. Alvarez-Machain, 542 U.S. 692 (2004) 12

The Nereide, 13 U.S. 388, 423 (1815) 10

The Paquete Habana, 175 U.S. 677,700 (1900) 13

United States V. Olmstead, 277 U.S. 438 (1928) 29

United States v. Richardson, 418 U.S. 166, 177 (1974) 20

Vassilios v. Kennedy, 95 F.Supp. 630 (D.C.Cir. 1961) 5

Ware v. Hylton, 3 Dall. 199. 199,281 (1796) 10

Warth v. Seldin, 422 U.S. 490, 500 (1975) 4

Wesberry v. Sanders, 376 U.S. 1, 17 (1964) 22

_Federal Rule of Evidence 201(d) 21

Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal

4 W. Blackstone, Commentaries on the Laws of England 67

Alexander Heard and Michael Nelson, Presidential Selection,

St. George Tucker, Treatise on the Constitution (1803) 8

M. J. Glennon, Constitutional Diplomacy (Princeton,

F. Andrew Hessick, Standing, Injury in Fact, and Private

Jordan J. Paust, In Their Own Words: Affirmations of

Binding Nature of the Customary Law of Nations (October

James Brown Scott, The United States of America: A Study

Louis Martin Sears, Jefferson and the Law of Nations, The

III J. Story, Commentaries on the Constitution of the United

Justice Joseph Story, Volume 3, Section 1472-73 The Founders

Emer de Vattel and his, The Law of Nations, Or, Principle

Ernest A. Young, Historical Practice and the Contemporary

I. PLAINTIFFS HAVE SUFFICIENTLY SHOWN THAT THEIR

A. The Court Should Reject the District Court's Decision and

The current Supreme Court rule on standing is designed mostly to

respect separation of powers between the three branches of government.

plaintiffs' argument that their causes of action do not present a separation of

concrete and particularized injury. We have seen in Supreme Court cases

that the proper resolution of the standing issue cannot be accomplished by

resorting to generalized statements concerning the law of standing but rather

facts presented by a plaintiff. Ass'n of Date Processing Servo Orgs. V.

brief in defense of that decision are nothing more that presentations of

factual and legal content of plaintiffs' claims. Without discussing the

It is self-evident that under Article II anyone aspiring to be President

has to conclusively prove that he or she is eligible to hold that office.

Part of that burden is conclusively showing that one is a "natural born