Archive for March, 2009

SCOTUS Has No Original Jurisdiction To Issue A Writ of Quo Warranto re Obama; Legal presumption in favor of natural born citizen clause and effect

Posted in Uncategorized on March 16, 2009 by naturalborncitizen

RADIO UPDATE: I will be on the Chalice show on PatriotsHeartNetwork.com Wed.  March 18 at 9:05 EST]

cj-marshall

Before I address the legal facts of this headline, I want to address all of the other Presidential eligibility cases that went before SCOTUS  including my own.  It’s true that – technically – Donofrio v. Wells could still be pending if I chose to submit a full petition for writ of certiorari.  Many have written to me and asked why I haven’t resorted to that tactic.  The answer is fairly simple: my case is moot.

The same is true for Wrotnowski v. Bysiewicz, Lightfoot v. Bowen and the Berg cases, all of which asked for emergency stays or emergency injunctions to stop a candidate from becoming “president-elect” and later president.

Once my case stay application was denied, I had exhausted the only emergency procedure available to me and the US Supreme Court Rules would not have facilitated the resolution of a full petition before the candidate was sworn in as President (or become president-elect).

When Obama was sworn in by Chief Justice Roberts as President, our Constitutional separation of powers kicked in big time.  Because of the separation of powers enumerated in our Constitution, the United States Supreme Court has no ability to remove a sitting President.  Nowhere in the Document does it give the Supreme Court (or the judicial branch) any authority to remove a sitting President.

All of the eligibility law suits – brought before electoral college votes were counted in Congress – sought to challenge the qualifications of  candidate Obama to be President.  Once he graduated from “candidate Obama” to “President-elect Obama” and later “President Obama”, every single eligibility law suit pending before SCOTUS became moot.

Those actions are moot because SCOTUS has no authority to act on the relief requested in those law suits.  And SCOTUS knows this better than anybody else.

Full petitions or motions to reconsider filed in any of the eligibility suits that went to SCOTUS before Obama became President (including my own) now leave SCOTUS with only one possible course of  action thereto: a Supreme dog and pony show.  And I don’t think Chief Justice Roberts will be calling in the Westminster Kennel Club anytime soon.  Those cases are dead done and dusted.  Call the embalming squad.

POINT I: SCOTUS HAS NO ORIGINAL JURISDICTION TO ISSUE WRITS OF QUO WARRANTO.

Article 3 Section 2 of the US Constitution grants SCOTUS its authority as follows:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

There you have it.  SCOTUS only has original jurisdiction over cases affecting Ambassadors, other public Ministers, Consuls and where a State is a party to the law suit.  If the action is not in aid of their appellate jurisdiction, then that law suit cannot originate with the United States Supreme Court.  A quo warranto to determine POTUS eligibility brought directly to SCOTUS does not fall within their Constitutional authority.  [Thanks to reader “Lawyer” for her insights on this issue.]

SCOTUS can probably review a quo warranto case under the All Writs Act.  But such review is only available if it comes within their appellate jurisdiction.  Original jurisdiction cannot be invoked for writs of quo warranto and any attempt to institute a proceeding in quo warranto directly with SCOTUS should fail.  It would be a violation of the Constitution.

US Code Section 1651, aka “the all writs act”:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In the landmark SCOTUS case, Marbury v. Madison, the Supreme Court dealt with this exact issue, whether SCOTUS had original jurisdiction to entertain one of the extraordinary writs.  In that case, it was a writ of mandamus.  And SCOTUS held they did not have any authority to act under original jurisdiction to issue the writ:

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present  case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that ‘the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.’…

…If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance. (Emphasis added.)

SCOTUS cannot entertain any quo warranto brought directly to it.  They must wait for it to come on appeal.  Please take note of the statement above concerning the Constitution’s grant of Congressional authority to ordain and establish inferior courts.  It is this Congressional power coupled with the exclusive power given to Congress to remove a sitting President which was exercised by Congress within the very text of the District of Columbia Code’s quo warranto statute.

In that statute, Congress exclusively authorized the District Court of the District of Columbia with the power to hear cases challenging the eligibility of a sitting officer holding a United States national office located in the District of Columbia.

SCOTUS is constitutionally estopped from issuing a writ of quo warranto regarding Obama’s qualifications to be President if the action is brought directly to them.  Any attempt to do that should certainly be denied.  This is simply a legal fact.  Any attorney who brings such an action to SCOTUS directly will be doing terrible damage to the cause on account of the public relations disaster awaiting certain denial by SCOTUS.

POINT II: UNITED STATES LAW INCLUDES A PRESUMPTION THAT THE NATURAL BORN CITIZEN CLAUSE HAS A UNIQUE EFFECT OTHER THAN THAT OF A 14TH AMENDMENT CITIZEN.

Chief Justice Marshall (pictured above) delivered the opinion of the Court in Marbury v. Madison.  His “form without substance” quote truly made me wonder what he would say about the natural born citizen clause.

As I thought about it, Chief Justice Marshall’s voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

This must kill the argument that being “a 14th Amendment citizen” has the same effect on Presidential eligibility as being a “natural born citizen”.  If being a “citizen” had the same exact effect as being a “natural born citzen” then the clause would have no effect.  As stated by Chief Justice Marshall, “such a construction is inadmissible.”

Holy cow.  I just had one.  It’s more like the proverbial elephant in the room.

We know that the 14th Amendment only mentions the word “citizen”.  It does not use the words “natural born citizen”.  And it makes no distinction between a “citizen” born in the US and a “citizen” naturalized in the US.  Under the 14th Amendment, they are equals.  The 14th Amendment certainly does not state that being a “citizen” satisfies the qualification of Article 2  Section 1 Clause 5.

Those who are trying to read such an interpretation into the 14th Amendment do so at the ignorance of Chief Justice Marshall’s landmark opinion in Marbury v. Madison. Those cunning arguments would leave the “natural born citizen” clause without effect.  Such a construction is inadmissible.

Chief Justice Marshall provided only one exception to this rule, “such construction is inadmissible, unless the words require it”. The words “natural born citizen” don’t require the clause to be construed to mean the same thing as the word “citizen”.  The exact opposite is true. The plain text of the Constitution shows that the framers allowed persons to become Senators and Representatives if they were “Citizens”, but as to the office of President they required a “natural born citizen”.  So the exception is irrelevant here.

Marbury v. Madison creates a standing presumption against any interpretation that would render the “natural born citizen” clause to have no effect independent of being a “citizen”. Chief Justice Marshall insisted such a construction is inadmissible.

INADMISSIBLE.

Inadmissible in this context means such an argument is not competent to be considered.  It’s essentially no different from the situation where a piece of evidence is excluded from trial.  It means you can’t even argue such a thing before the court.  Please think about this carefully.  This means any argument that a “14th Amendment citizen” is the same as a “natural born citizen” – for purposes of  effecting POTUS eligibility – is not competent to be considered by the court.

If the natural born citizen issue were ever heard on the merits, the court hearing the case must recognize that a presumption exists requiring the natural born citizen clause to have independent effect from all clauses which just refer to “citizen”.

Effect is the key.

What is the independent effect attributed to the “natural born citizen” clause?  The effect  is that just being a “citizen” isn’t enough to satisfy the requirement of Article 2 Section 1 Clause 5 which demands that the President of the United States be a “natural born citizen”.

This means that under current United States law, the “natural born citizen” clause is presumed to mean something other than a “14th Amendment citizen”.  And no other construction is even admissible.

You can take all the law review articles, emotional pleas claiming the natural born citizen clause is obsolete, the 14th Amendment arguments, Wong Kim Ark, and every main stream media barker, throw them before the SCOTUS altar, and make them kneel to Chief Justice Marshall and the framers.

SCOTUS has spoken on this issue, and it said the “natural born citizen” clause, being a clause directly written into the text of the Constitution, is presumed to have a unique and independent effect.

This is a point I have failed to make up until right now, so please forgive me for having not locked it down earlier.  But don’t spank me too hard since it appears to be an original argument.  It’s not a point I’ve seen published anywhere else.

Of course it’s well known that each Constitutional clause must have an independent effect.  But I don’t believe any other commentary has been published exposing this legal presumption in favor of the “natural born citizen” clause which also renders other arguments inadmissible.  By other arguments, I refer to all theories claiming that a 14th Amendment “citizen” born on US soil satisfies the Constitutional qualifications for President.

Regardless,  I must give credit to my sister (an ex prosecutor) for having brought the independent legal effect argument to my attention while Donofrio v. Wells was still pending with SCOTUS.  But without having Chief Justice Marshall’s brilliant opinion from Marbury v. Madison in front of me, I didn’t grasp the spectacular power of the presumption.  So I’ll leave you with those words once more.  Please give them your utmost concentration:

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible…”

Leo C. Donofrio 03.16.2009

QUO WARRANTO LEGAL BRIEF: Part 3 STANDING-TRIAL BY JURY- HISTORY OF STATUTE – SEPARATION OF POWERS Cont.

Posted in Uncategorized on March 10, 2009 by naturalborncitizen

[CORRECTIONS struck out below and in purple. 03.11.09]

[UPCOMING RADIO INTERVIEWS]

Wed. March 11, 3:05 (East coast time) Joyce Kaufman show, WFTL 850AM Ft. Lauderdale/Miami

Wed. March 11, 9:00 (East coast time) Solutions Not Politics with Devvy Kidd

Thurs. March 12, 9:05 (East coast time) The Crystal Chalice show

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The following points contain the most important issues as to federal quo warranto actions brought under the District of Columbia Code.

1. SCOTUS IS THE WRONG VENUE TO INITIATE AN ACTION IN QUO WARRANTO BECAUSE DOING SO WOULD DEPRIVE THE PUBLIC OF A JURY TRIAL ON THE ISSUE OF WHETHER OBAMA WAS BORN IN HAWAII.

The District of Columbia Code, Title 16, Chapter 35 (Quo Warranto) Subchapter III states:

§ 16-3544. Pleading; jury trial.

In a quo warranto proceeding, the defendant may demur, plead specially, or plead “not guilty” as the general issue, and the United States or the District of Columbia, as the case may be, may reply as in other actions of a civil character. Issues of fact shall be tried by a jury if either party requests it. Otherwise they shall be determined by the court. (Emphasis added.)


The quo warranto statute allows a jury trial on “issues of fact”.   Whether Obama was born in Hawaii is an issue of fact.  Whoever institutes a proceeding pursuant to the statute may request a jury trial and one must be granted.  The judge could not refuse.

But if the case is brought to SCOTUS before it’s brought to the District Court of the District of Columbia, and if SCOTUS were to accept the case, you’re never going to have a jury trial.

Any quo warranto proceeding should go before the DC District Court as follows:

a.  a determination would have to be made, as a matter of fact, as to whether Obama was born in the US/Hawaii.

b. if the jury’s verdict is that he wasn’t born in Hawaii, then the legal question is easy: he’s not a natural born citizen.  please take note that the issue wouldn’t be whether the online COLB is genuine, the issue is whether Obama was born in Hawaii and any COLB or other document would only be considered as a piece of evidence for the jury to consider.

c.  if the jury’s verdict is that Obama was born in Hawaii, then the next issue is a more complex judicial question.  the District Court would have to make a legal determination as to the meaning of NATURAL BORN CITIZEN.

Congress has absolutely no power to “interpret” clauses of the Constitution.  That would be a violation of the separation of powers.  Only the judicial branch could make such a determination. Congress properly assigned the issue to the District Court.

While Congress has the power to remove the President under the Constitution, they don’t have the power to interpret the Constitution.  The judicial branch must do that.

As to issues of fact, ie:

– how long a person is a citizen of the US

– how old a person is

– where a person is born

…these qualifications for office are matters of fact which Congress properly recognized were best left to a trier of fact and therefore a trial by jury is statutorily allowed.

The issue of who is a “natural born citizen” under Article 2 Section 1 Clause 5 is an issue of legal interpretation outside the Constitutional authority of Congress.

Only the judicial branch can interpret the laws of this nation.

Congress didn’t delegate the authority to remove the President…they exercised that authority.  (My previous explanation was not correct.  I said they delegated their authority but that was a poor choice of words.  Please forgive me.)  Congress exercised their authority by allowing for the removal of the President.

Under the statute, the DC District Court must follow the law enacted by Congress.  Congress has deemed that if an action is instituted properly, the court then conducts a trial as to all relevant facts.  After the facts are determined, the court is empowered under the Constitution, to interpret the law in light of the facts.

JURY TRIAL.  Think about that.

SCOTUS is not a trier of fact and so quo warranto MUST be brought before the District Court for the District of Columbia EXACTLY as the statute requires.

GOD FORBID SCOTUS WOULD EVER JUMP IN AND TRY TO WRANGLE THIS CASE FROM A DISTRICT COURT JURY.

2.  STANDING UNDER THE DISTRICT OF COLUMBIA CODE TO INSTITUTE A FEDERAL QUO WARRANTO ACTION

a. STANDING OF GOVERNMENT OFFICIALS

The DC code allows three different levels of standing to “institute” a quo warranto action.  As to private plaintiffs, SCOTUS noted – in Newman at 538 – that Congress “has placed obstacles” in the way.  But as to the “Attorney General” or the “United States attorney”, who act in the name of the United States, the statute makes it very simple for an action to be instituted.  It says:

“The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion…”

SCOTUS in Newman at 546 has interpreted the statute to give wide discretion to these officials:

“By virtue of their position, they, at their discretion and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper.”

“IN ANY CASE THEY DEEM PROPER.”

– There is no qualification that there be a certain amount of evidence one way or the other.

– There is no qualification that the officials must consider public opinion or political party affiliation.

– There is no “standing” to prove.  If your title is US Attorney General or United States attorney, you have standing.

– There is no need to consult with Congress because, as SCOTUS noted in their opinion, Congress has already acted on the issue by enacting the quo warranto statute.

All that is required is that the official deems a quo warranto statute proper.  His discretion is unassailable judicially.

WHY SHOULD THESE OFFICIALS DEEM QUO WARRANTO PROPER?

The short answer is that the action is proper to settle title to the office of President for the good of the nation.

Even if both officials are convinced Obama is eligible, it’s still proper for them institute a quo warranto proceeding because the evidence emerging now is that, by leaving the controversy as is, a floodgate of litigation will ensue.  And like the waters over New Orleans levees, this floodgate has the ability to wreak havoc on our nation.

– Active military officers have openly stated that the so called Commander In Chief is an “imposter” and a “usurper”.  These men have consented to be plaintiffs in eligibility law suits.  Should this trend spread, it has the power to divide our forces and nation.

– Under the holding in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C. 384 (1984), the Court of Appeals for the District of Columbia has held that the defacto officer’s doctrine does not prohibit “collateral attacks” of official actions based upon a public officer’s lack of eligibility.  These are not quo warranto suits to remove the official, they are civil suits to challenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost their jobs to “reduction in force” ordinances which cut whole departments from the Government budget.  The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.

The DC District Court held that the plaintiffs had no standing other than to bring a “direct attack” in quo warranto to remove the alleged usurper.  But the DC Court of Appeals reversed and said the plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injury in fact (being fired) was caused by a Government official who was not eligible to serve.

They opened the door to a floodgate of litigation by an incredibly large field of possible plaintiffs who might challenge every single official action of the Obama administration on the basis that he isn’t eligible.

– Furthermore, there is a tenet of Government that requires there be a certainty to the official actions taken in the name of the United States.  No certainty is possible when millions of US citizens, including active military, are concerned that Obama’s credentials were not verified in the same way all citizens must verify their identity for the most simple things in life like getting a drivers license or passport.  It smacks of imperial coronation when a Government of, by and for the people are not entitled to know that the commander in chief must submit to the same levels of identity proof as the citizens.

Regardless of whether one believes Obama’s online COLB is real, no citizen can tell the Government to check a web site for their birth certificate rather than bring it in to the DMV or send it to the federal Government for a passport.  You have to actually mail your BC in to them if you don’t bring it in person.

I recognize that the Constitution does not require a birth certificate as a qualification, but that’s not the issue anymore.

The issue is whether the Attorney General and/or a United States attorney deems it proper for Obama to provide the same proof of identity as ordinary citizens in order to avoid FORESEEABLE complications which are destined to rot public faith.

We need to put aside whatever prejudices we have as to the eligibility and plead for now for the issue to be resolved as opposed to pleading what we believe the outcome of any such action should be.

I have stated over and again on numerous radio programs that I do not believe any private plaintiff has standing to demand to see Obama’s records of birth or any other personal records.  These plaintiffs are appealing to emotions and not rational legal considerations.  Obama should not bend to the will of those who have no legal authority to command him.  I said this over and over and over again.  But I was grouped in with these other attorneys whose theories I take great issue with.

We are governed by laws.  And there is no law which allows a private person to demand to see Obama’s birth certificate or college records.  It may seem like a good idea, but last time I checked the Constitution, neither are required to be President.

However, the United States attorney, the Attorney General and the District Court for the District of Columbia do have authority to command Obama to prove his credentials.  And they ought to exercise that authority for the good of the nation, especially our military.

I fail to see any difficulty in establishing non-partisan compliance with the SCOTUS holding in Newman that these officials may bring a quo warranto if they simply “deem it proper” to do so.

That decision is not subject to review.

There is a public policy behind this which makes alot of sense.  Obama ought to encourage these officials to institute an action in quo warranto for the good of the nation and for the good of his own legacy.

IMPORTANT:

The best possible candidates I can think of who should request the US Attorney and/or the Attorney General to bring an action in quo warranto on their own motion are Retired Military officers who understand the absolute need for the President’s title to office not to be encumbered by doubt.  Retired military can band together to request that these Government attorneys “deem it proper” to protect the active military from all of the swirling dangers their involvement in a political action as to POTUS eligibility would bring.  Such a request shows no disrespect, but rather recognizes the actual risk now being taken by soldiers getting involved with various law suits.  The retired military would not be making a case for or against Obama’s eligibility, but rather they would simply be asking that the issue be resolved one way or the other under the applicable statute.  Again, keep in mind that the statute doesn’t require anything more than that the US attorney or the Attorney General “deem it proper.”

Please don’t confuse this with asking these retired military to be plaintiffs.  That’s not what I’m suggesting.  I’m suggesting that retired military officers are the best possible group who might be able to influence the US attorney or the Attorney General in making the decision to bring an action in quo warranto on their own motion with no private plaintiffs.

Another interesting question is whether any of the 94 United States attorneys may institute the proceeding in quo warranto…[Ed.  I have reconsidered the discussion on this issue and as of 03.011.2009 struck it from the brief.   16-3502 applies exclusively to the US Attorney General and to the US Attorney for the District of Columbia.  I believe that’s the most accurate intention of the statute.]

b. Standing of “third persons” vs “interested persons”.

16-3502 states:

The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person.

16-3503 states:

If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued.

The terms “third person” and “interested person” have been interpreted by SCOTUS  in the Newman case as follows:

The Code provides that a “third person” — the equivalent of “any person” — may institute the proceedings only after he had secured the consent of the law officers and the court. It makes a distinction between a “third person” and an “interested person,” and provides that, if the Attorney General refuses to give his consent to the latter, such “interested person” may secure the right to use the name of the government by satisfying the… Court of the District that his reasons for applying therefore are sufficient in law…

Considering the ancient policy of the law and the restrictions imposed by the language of the Code, it is evident that, in passing this statute, Congress used the words “third person” in the sense of “any person,” and the phrase “person interested” in the sense in which it so often occurs in the law…The interest which will justify such a proceeding by a private individual must be more than that of another taxpayer. It must be “an interest in the office itself, and must be peculiar to the applicant”…The language of the Code, supported by the history and policy of the law, sustains the proposition that one who has no interest except that which is common to every other member of the public is not entitled to use the name of the government in quo warranto proceedings.

For if the allegations in such a suit by a private citizen set out any cause of action at all, it shows on its face that it was a cause of action belonging to the whole body of the public, and which therefore should be prosecuted by the public representative.

The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.

In Newman, there was a jury trial and the jury held that the public officer didn’t meet the requirements of office.  The District Court ousted him based on the jury’s verdict.  The DC Court of Appeals affirmed.  But SCOTUS reversed by stating the jury verdict was nullified because the plaintiff wasn’t an “interested party” and so he didn’t have standing.  Since the official Government attorneys refused consent to bring the action, the plaintiff couldn’t just be a “third person”, the plaintiff had to be an “interested person.”

SCOTUS held that interested persons would include persons ousted from the office they are challenging.  But they left the door open with that last line, “…and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.” (Emphasis added.)

THREE WAYS TO BRING QUO WARRANTO

1. The US attorney and/or the US Attorney General institute the case on their own motion – which is the best way this could happen.  No leave of the court need be requested.  There will be a hearing and a trial of facts.

2. If no authorized Government attorneys will bring the action on their own motion, then any citizen may join a law suit as “third persons” and such law suit, by way of verified petition, shall be brought to the US Attorney and/or the Attorney General to ask their consent to use the name of the United States.  If the Government gives consent, then you must request permission from the court to bring the suit as well.  And if the Court says yes, you will have a hearing on the merits.

3. If the Government will not give consent, then “interested persons” may request leave of the court to institute the action in quo warranto.  But standing will be – according to SCOTUS in Newman – restricted to anybody who was ousted from the office of POTUS (and nobody is going to meet that requirement) or, in the alternative there might by cases under the civil service laws which provide standing.

I don’t know exactly what SCOTUS meant by that vague reference to “civil service laws”, but I would assume they are making reference to Government employees, and perhaps this could also apply to recipients of civil service benefits.  I don’t believe the military are party to the civil service laws, so I don’t see them as being the plaintiffs with the best possible standing.

The holding in Newman is certainly ripe for a challenge, but care ought to be made to find the best possible plaintiffs who might qualify as “interested persons”.

The best private plaintiffs who might have standing to institute an action in quo warranto  as “interested  persons” would be those persons with an injury in fact caused by an official action of POTUS as it relates to the civil service laws.

Active military may appear to have the best standing based on a purely emotional reading of the term “interested persons”, but according to the controlling SCOTUS decision in Newman, the military aren’t the best subset of “third person” plaintiffs.

This is thes best shot, not the military.  They do enough for us to at least deserve civilians with better standing exhaust every possible Constitutional means available before subjecting them to any number of possible court martials.


3. LEGISLATIVE HISTORY OF TITLE 16 CHAPTER 35 (Quo Warranto) OF THE DISTRICT OF COLUMBIA CODE.

Chapter 35 is entitled “QUO WARRANTO”.  Subchapter I is entitled “Actions Against Officers of the United States.” Subchapter II is entitled “Actions Against Officers or Corporations of the District of Columbia“. Please note that the original DC quo warranto statute was first enacted in 1901.  While SCOTUS interpreted that statute as controlling national officers, Congress modified the statute in 1963 to its current form which erases any possible doubt that the statute applies to all Officers of the United States.

Furthermore, the District of Columbia Code is federal law.  It’s enacted by Congress and the actual United States Constitution is included in the District of Columbia code.  I have seen the most erroneous comments online wherein it has been argued that a “local DC code is not federal law”.  Besides the ultimate federal law – the Constitution – being placed directly in the DC code, SCOTUS has stated – in the seminal quo warranto DC code case, Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915) – that the District Code applies to all…

“…actions in quo warranto instituted by authorized parties against national officers of the United States, they are general laws of the United States, and not merely local laws of the District of Columbia…”

I must reiterate that the code’s text does not provide any exceptions for any public office, not even POTUS.

In UNITED STATES of America ex rel. STATE OF WISCONSIN v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, 248 F.2d 804 (1957), the US court of Appeals, 7th Circuit, provided an on point discussion of quo warranto in the district courts:

There have been submitted to this court only two instances in which original quo warranto jurisdiction has been specifically conferred upon federal district courts. The revised statutes of 1878 vested jurisdiction in these courts of proceedings brought by the United States Attorney for the removal of persons holding office contrary to the Fourteenth Amendment. Rev.Stat., Sections 563(14), 626(14), (1786). This Act was repealed in the Judicial Code of 1911, 36 Stat. 1168. In 1901, Congress specifically authorized the United States District Court for the District of Columbia to issue quo warranto in the name of the United States. Act of March 3, 1901, 31 Stat. 1419, Title 16, Section 1601 of the D.C. Code (1940). However, this grant is strictly limited and is confined solely to situations involving franchises and public offices held within the District of Columbia. There is no other specific statutory provision vesting original jurisdiction in the district courts in quo warranto actions.

The first statute mentioned above dealt specifically with quo warranto actions which arose out of 14th amendment issues where citizens were refused the right to vote.  Under this statute, all US district courts could hear quo warranto cases.  But this statute was repealed in 1911 and so the only remaining statute which controls quo warranto is the District of Columbia Code.  And all actions brought thereunder must be brought in the District Court for the District of Columbia.

All discussion of quo warranto actions brought in other “district courts” of the US has been rendered moot.  Unfortunately, I have seen irrelevant analysis of that repealed statute applied to the DC Code by various confused commentators online.  In a quote taken from a legal treatise called Treatise on Federal Practice by Roger Foster, written in 1921, he states:

“The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States.”

At first glance it appears this “better opinion” might be a problem.  I don’t know where he derives this “better opinion” from, certainly not the federal courts or SCOTUS because no such case law exists.  It’s probably a reflection of a common erroneous assumption that the Constitution only allows removal of a sitting President by impeachment in the House and conviction in the Senate.  We put that rumour to rest in part 2 of this brief — the Constitution does not say that anywhere in the Document’s text.

When you continue with the Foster quote, it states:

The District Courts of the United States have jurisdiction of all suits to recover possession of any office…authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen…” (Emphasis added.)

This analysis is specifically directed to the repealed statute regarding quo warranto wherein “the sole issue” is deprivation of 14th amendment voting rights.   It has nothing to do with the District of Columbia Code wherein quo warranto may be brought against any “public office of the United States” with regard to anyone found to be a usurper for any legal breach.

The statute Foster refers to has been repealed.  It didn’t deal with Constitutional qualifications for office.  Also notice that the comment says “District Courts”.  This is obsolete.  District Courts – other than the DC district court – have been stripped of authority to hear any quo warranto cases.

CONCLUSION: The District of Columbia Code is the only means by which a federal quo warranto action can be instituted and its application is strictly limited to public offices of the United States or local DC offices within the ten square miles of the District of Columbia.  No public office, ie POTUS, is exempt by the statute.

QUO WARRANTO LEGAL BRIEF – Part 2: The Federal Quo Warranto Statute Is The Only Constitutional Means of Removing a Sitting President Other Than Impeachment

Posted in Uncategorized on March 5, 2009 by naturalborncitizen

[TYPO UPDATE: The first federal Quo Warranto statute was enacted in 1878 not 1787.]

[UPDATE 9:16 AM: 03.06.09:  EXHIIBITS 7-9 were added below.  And they are heavyweights.]

[UPDATE: 12:30 AM: 03.06.09  EXHIBIT 6 was added below . ]

The issue of whether the President can be removed from office other than by impeachment is the single most important question presented with regard to challenging the eligibility of a sitting President. This section of the brief contains important new information supporting the conclusions discussed in Part 1 of this legal brief .

Please understand that if the Constitution limits Congressional power to remove the President to only cases of impeachment then there is no Constitutional mechanism available to remove a President who is proved to be a usurper.  And if that’s true, then the federal quo warranto statute doesn’t have the power to remove a sitting President… even if it was proved beyond any doubt he was ineligible. 

The best dream team of lawyers you can draft may bring all the law suits they like for the best possible reasons in favor of the most perfectly possible plaintiffs with undeniable standing as to injury in fact and causality, but the courts do not have the authority – under the Constitution – to remove a sitting President.  Those law suits will fail and they should fail.

In order to protect the Constitution, we must not subvert the separation of powers.

If it can’t be done by quo warranto, then it can’t be done at all. Why?

Because Congress is the only branch authorized by the Constitution to remove the President should he be found ineligible.  And the only court Congress has delegated that power to is the District Court of the District of Columbia, and such delegation of power is strictly limited to actions governed by the federal quo warranto statute.

If we are going to challenge eligibility to protect the Constitution, then we certainly cannot do an end around the separation of powers.  I have recognized this from the outset and that’s why I tried to have the eligibility issue litigated prior to election day and then again prior to the electoral college meeting.  After the electoral college met and cast its votes for Obama, he went from being an ordinary candidate to being the President-elect.

That metamorphosis has important Constitutional consequences which cannot be ignored.  The Constitution provides that once we have a President-elect, the eligibility of that person can be challenged by Congress.  The political question doctrine kicks in at that point and the ability of any other branch to challenge for POTUS eligibility is probably nullified.  And once the President-elect is sworn in and assumes office, the Constitutional separation of powers certainly controls the issue.

Recall, Congress didn’t challenge Obama’s eligibility before he was sworn in, so those provisions are now moot.   And once a person is sworn in as President, the Constitution then provides specific means for removing the President from office, none of which grant such power to the Judicial Branch.  Now please consider the following two points:

1.  Nowhere in the Constitution does it give the Judicial Branch the power to remove a sitting President.

Those who are currently petitioning the Judicial branch to challenge Presidential eligibility are seeking to subvert the Constitution.

They will argue Obama isn’t legally President and so therefore the Constitutional separation of powers can be ignored.  Should a court ever accept that theory, you will have the recipe for civil war, and you will be doing more damage to the nation than you can even imagine.  Protest all you like, but the US Government recognizes his authority.

Furthermore, United States Courts all the way up to SCOTUS have refused to get involved, and this was the case before Obama was sworn in when the Judicial Branch actually did have the power to adjudicate the eligibility issue.  They punted.  Fact.

Now that Obama has taken the office of President and is officially recognized as President, no court is going to suddenly take a leap around the separation of powers by agreeing the Constitution doesn’t apply to Obama as President.  That will never happen.

Let that sink in because it’s true.

2.  Nowhere in the Constitution does it say that impeachment is the sole means of removing the President.

Some who support Obama’s eligibility will seek to subvert the Constitution by arguing that the Constitution states that the sole remedy for removing the President is impeachment.  Nowhere in the Document does it say that. Those who believe it must “imply” or “assume” that is the case.  But the Constitution does not state that impeachment is the sole means of removing the President.

The Constitution does say that Congress has the sole authority to impeach and the Senate to convict, and that the President “shall” be removed upon conviction, but it does not say that impeachment is the sole means of removal.  You will hear people say that it does say that in the days ahead.  It is a lie.

I have uncovered a plethora of evidence – within and without the Constitution – which I strongly believe proves that the framers provided Congress with the power to remove a President who is found to be ineligible.  This makes sense because not every person who is found to be ineligible is guilty of a crime.

HYPOTHETICAL:

Two double agents born in the evil nation of  “KILLAMERICASTAN” sneak a child into America over the Canadian border and later obtain false documents indicating they are US citizens and that their child was born in the United States.  The child is raised like a Manchurian Candidate and believes his parents are US citizens and that he was born in the US.  The child grows up a gifted politician and eventually becomes President.  After being sworn in, the truth is discovered by US Intelligence and proved beyond any doubt.  The President then refuses to leave office since he didn’t do anything wrong and had no knowledge of the plot.

What happens?

Well, the President has done nothing to be impeached.  He’s not guilty of any high crimes or misdemeanors, bribery or treason.  Did the framers leave us naked in such a situation?  I don’t believe so.  We will return to this shortly.

SEPARATION OF POWERS

My respect for the separation of powers in our Constitution is the core reason I was so willing to drop the eligibility fight once the Electoral College met.  I understand and respect the Constitution. And I would never further damage it by aiding a new Constitutional crisis which might help to bring our Republic down.

We must respect the separation of powers or we will lose the Constitution and the Republic for which it stands.

The separation of powers argument will be the proper undoing of every single POTUS eligibility law suit running through the courts at this moment in time.  They will all fail.  And they should, because for any of them to prevail, the separation of powers would be violated.

Even in law suits where federal courts have been petitioned to request Congress investigate –  by way of mandamus – Obama’s eligibility (as opposed to seeking removal), the courts will dismiss on the basis of separation of powers limitations and/or subject matter jurisdiction, even if the plaintiffs were found to have passed the difficult standing tests (and that’s not going to happen either).

While I respect the litigants and the efforts they have made, I take issue with some of the tactics employed and I’m also not that impressed with many of the pleadings.  I hope that, by publishing this brief, I will correct some of the previous errors and provide the public at large with the best possible education so that proper pressure can be applied to authorized Government officials.  Knowledge is power.  I seek to empower you.

Should those officials not respond, I also hope the following will act as a template for any attorneys who may wish to pursue a quo warranto petition.  This should save time and resources.

I have reached out to some of the attorneys who impressed me, but none have brought a law suit which can succeed in light of the separation of powers enumerated in the Constitution.

IS THERE A CONSTITUTIONAL SOLUTION?

It appears there is a Constitutionally viable method available for the eligibility issue to be litigated which does not violate the separation of powers enumerated in the Constitution.  I strongly believe the federal quo warranto statute provides the only Constitutionally viable means by which a sitting President can be removed from office if found to be a usurper, whether such usurpation is intentional or unintentional.  Full details and analysis below, but first let’s discuss the following:

REVIEW OF CURRENT QUO WARRANTO ACTIVITY

As far as I can tell, only one attorney has filed for an actual quo warranto claim at this point in time.  Unfortunately, that attempt will fail as it was brought on behalf of private plaintiffs.  As you will see below, any action in quo warranto must be brought on behalf of the United States.  The attorney needed to first petition the Attorney General or US Attorney in DC to institute an action in quo warranto.  Additionally, that same action was brought in the wrong venue.  According to the statute, a quo warranto action to challenge the eligibility of a United States officer – whether elected or appointed – can only be brought in the District Court of the District of Columbia.

Another attorney has sent a “pre-litigation” letter to Attorney General Holder.  But the statute requires a “verified petition” be forwarded to the Attorney General and/or the US Attorney requesting consent plaintiffs be allowed to institute a quo warranto action in the name of the United States.  No such petition has been filed.

This “letter” sent to AG Holder insists he recuse himself due to an alleged conflict of interest since the Attorney General’s office is the designated defender of the President.  But that is only true as to the President’s official actions.  A Quo warranto dispute is not related to official activity of the President’s office.   It relates to whether the President is eligible to hold the office and that is not an “official action” undertaken by the President.  The statute defines quo warranto as a civil action.  I believe the President would have to hire private counsel to defend him.

So, there’s probably no legal conflict of interest requiring Eric Holder to recuse himself.   Any conflict of interest which exists is probably limited to the personal gratitude AG Holder may have for Obama since he appointed him.  But that’s not the type of conflict which requires recusal.  For example, a Supreme Court Justice does not have to recuse himself in a dispute involving the President who appointed him.

It’s not fair to suggest AG holder won’t do his job because he owes personal allegiance to Obama.  I believe in fighting a fair fight even if others fight unfairly against me.  It’s only fair that the man be given the chance to do the right thing.  Furthermore, no verified petition has even been forwarded to the Attorney General’s office.

The federal quo warranto statute provides that the “United States attorney” may institute an action in quo warranto on his own motion.  The US Attorney for the District of Columbia is Jeffrey Taylor.  He was appointed to that position in 2006 by the Bush administration and certainly has no conflict of interest.  I am not aware of anybody who has contacted US Attorney Taylor in this regard.  It will only take one of those officials to bring the action, not both.

WHY EVERY EFFORT SHOULD BE MADE BY THE PUBLIC TO PRESSURE AG HOLDER AND US ATTORNEY TAYLOR TO INSTITUTE – ON THEIR OWN MOTION – AN ACTION IN QUO WARRANTO ON BEHALF OF THE UNITED STATES WITHOUT EX RELATOR PLAINTIFFS

While arguments about whether the military make the best plaintiffs have been raging, the simple truth is that a quo warranto case with the best chance of success ought to be initiated with no private plaintiffs at all.  The federal quo warranto statute shows a preference for cases brought on behalf of the United States by the Attorney General or the US Attorney.  And until respectful pressure is applied to those officials, the nation is deprived of the most perfect avenue to justice.  Until this course of action is exhausted, I pray that all private attorneys briefly delay requesting consent from these officials while an effort is made to persuade them that it’s in the best interests of the nation for them to proceed on their own motion.

This is not a private issue.  The controversy is raging.  Nobody can deny that.  AG Holder and US Attorney Taylor need to consider that the citizens, the military, the Government – as well as Obama himself – will all be better off once clear title to the office is established.

§ 16-3502. Parties who may institute; ex rel. proceedings.

The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application…

In Newman v. United States ex Rel. Frizzell, 238 U.S. 537 at 546 (1915), the Supreme Court interpreted the role of the AG and US attorney as follows:

The District Code still treats usurpation of office as a public wrong which can be corrected only by proceeding in the name of the government itself. It permits those proceedings to be instituted by the Attorney General of the United States and by the attorney for the District of Columbia.  By virtue of their position, they, at their discretion and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper. But there are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office that the Code not only does not authorize a private citizen, on his own motion, to attack the incumbent’s title, but it throws obstacles in the way of all such private attacks. It recognizes, however, that there might be instances in which it would be proper to allow such proceedings to be instituted by a third person, but it provides that such “third person” must not only secure the consent of the law officers of the government, but the consent of the Supreme Court of the District of Columbia before he can use the name of the government in quo warranto proceedings.

The modern federal statute is virtually identical except the US attorney has been included with the Attorney General as the two officials who may “at their discretion and acting under the sense of official responsibility… institute such proceedings in any case they deem proper.”

Such an action is so proper that despite which side of this argument you fall on, it should be obvious the nation would be better served by having this issue settled once and for all in open court… but not in the name of private plaintiffs who can be so easily painted as partisan.

If either official bring an action in quo warranto upon their own motion, such an action is brought on behalf of the United States and no leave of the court is necessary.

Comparatively, if a private attorney petitions these officials to allow them to bring suit in the name of the US “ex relator” then even if one of the two officials gives their consent, leave of the court must be requested and if denied, that’s it.  The matter is done.  One could then appeal to SCOTUS, but SCOTUS is the last resort, not the first.  There’s no need to disrespect the statute and the resources of the court by going straight to SCOTUS.  That’s just sensational, not wise.

Another interesting point to consider is that while the predecessor statute only named the District Attorney for the District of Columbia – the modern statute which controls quo warranto as to national officers mentions both the Attorney General and the “United States attorney”.  As written, it’s possible any US attorney might be eligible to institute such a quo warranto action.  Notice that in the statute – “attorney” isn’t capitalized in either 16-3502 or 16-3503 when the “United States attorney” is mentioned. Of course, US Attorney Taylor is certainly authorized, but this needs further research.

Assuming AG Holder or US Attorney Taylor were to institute an action in quo warranto, the District Court might attempt to avoid a hearing on the merits (which every court of the nation seems hell bent upon avoiding) by claiming that the federal quo warranto statute – if applied to the President – would violate the Constitutional separation of powers and that they are of the opinion that the Constitution only allows removal of the President for impeachment.

If that argument can be overcome then, due to the obvious public policy benefits inherent in establishing that the President has a clear title to the office of President, there should be no obstacle preventing at least one of the two officials charged with the authority to act in the name of the United States to bring this issue to the court for the benefit of the nation.

THE CONSTITUTION HAS PROVIDED CONGRESS WITH THE AUTHORITY TO REMOVE THE PRESIDENT FROM OFFICE IN CASES OTHER THAN IMPEACHMENT.

Evidence of this power is directly written into the Constitution.  The most obvious section is Article 2, Section 1, Clause 6 which states in full:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Unlike in Wikipedia, the actual text of the Constitution does not apply the heading “Vacancy and Disability”.  The heading is misleading.  A comprehensive investigation appears to reveal that the framers intended Article 2, Section 1, Clause 6 – as it applied to the POTUS – for two distinct purposes.

– the first purpose is the commonly accepted purpose: to provide for a vacancy in the office of President

– the second purpose was to provide Congress a means to remove the President should it become clear that he is not entitled to hold the office, for example – a classic quo warranto situation or if the President becomes disabled.

I realize this is an entirely new theory of Constitutional law and that the common accepted interpretation is that the President can only be removed by impeachment.  As stated above, the Constitution does not state anywhere in its text that impeachment is the only means by which the President can be removed.  And since the concept of demanding public officials prove their legal warrant to hold office via the extraordinary writ of quo warranto goes back to feudal times, nobody can deny the framers were aware that usurpation was a sad fact of life.

How likely is it that the Framers failed to provide for usurpation of public office in the Constitution?  Knowing their collective wisdom, not very likely.  So please suspend judgment until the full weight of the evidence is revealed.

EVIDENCE THE FRAMERS INTENDED TO PROVIDE FOR REMOVAL OF THE PRESIDENT BY QUO WARRANTO – SUCH POWER VESTED IN CONGRESS

If my theory is correct, then we should be looking for evidence that the Framers considered – in their deliberations upon Article 2, Section 1, Clause 6 – that impeachment was not the sole means of ousting a sitting President.  The following are my list of exhibits.

EXHIBIT 1: A perfect on point reference from James Madison’s personal notes are included in the Records Of the Federal Convention:

In Case of his Impeachment, (Dismission) Removal, Death, Resignation or Disability to discharge the Powers and Duties of his (Department) Office; the President of the Senate shall exercise those Powers and Duties, until another President of the United States be chosen, or until the President impeached or disabled be acquitted, or his Disability be removed.

[2:186; Madison, 6 Aug.]

James Madison’s notes here pertain directly to Clause 6 and they list – separated by commas – all the various possibilities whereby the President’s office might be vacated.  Clearly, they considered that the Presidency might be vacated by a “Case of Impeachment” as well as “(Dismission) Removal, Death, Resignation, or Disability“.

Impeachment and Dismission are listed as mutually exclusive devices to remove the President.

EXHIBIT 2: Clause 6 directly follows the infamous Article 2, Section 1, Clause 5 wherein the exact qualifications for the office of President are listed.

Qualifications for office are directly followed by a clause empowering removal from office.

EXHIBIT 3: The text of Article 2, Section 1, Clause 6 would be redundant unless the dual purposes listed above were intended.

Examine the first part of Clause 6 alone:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President,…

If the sole intention of the framers was that Clause 6 only applied – as to the POTUS – with regard to replacing a vacancy then there was no need to say anymore about it – as to the President.  The first line indicates that the powers devolve upon the Vice President when a vacancy occurs. So what’s the need for the next line?

…and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President,…

In this line we see that the Framers, who in the first line already provided directly for succession as to the President, have given Congress – in the 2nd line – the authority to “by Law provide for the Case of Removal… ” of the President and Vice President.

Now, let’s examine the third line:

…declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Without the bias of pre-conceived notions, a balanced reading of Clause 6 indicates that the Framers intended to give Congress the authority to remove the President as long as the manner in which they do that is provided for “by law” in line 2.   Then in line 3, the Framers charged Congress to provide for a line of succession should the Presidency be vacated… as well as the Vice Presidency, and so on.

If there was only one purpose, why mention the vacancy of the Presidency twice?

EXHIBIT 4The 25th Amendment.

One of the arguments against my theory is the misconception that the 25th Amendment superseded every purpose of Clause 6.  I don’t believe that’s correct.  The 25th amendment was born directly due to the clunky ambiguities contained in Article 2 Section 1 Clause 6.  And the 25th Amendment response to that wording directly attests that the Congressional power vested by Clause 6 was not just concerned with providing for a vacancy since the 25th Amendment also provides specific means by which Congress can force the President to leave office, temporarily and/or permanently:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

If Clause 6 only grants Congress the power of providing for a vacancy, then why does the 25th Amendment provide Congress the ability to “by law provide” (the same language as used in Clause 6 as to “removal”)  some “other body” the right to declare the President unable to discharge his duties?

Clearly, if the 25th Amendment was simply a clarification of Clause 6, then Clause 6 must have vested Congress with more power than just the power to provide for succession since the 25th Amendment allows Congress to replace the President with the Vice President.

Whether the President was found undeniably ineligible to be President – due to his not being a natural born citizen – would make him unable to discharge his duties is certainly debatable, but I don’t think the 25th Amendment pertains to that fact pattern since Clause 6 and Madison’s notes both list “Removal” and “inability to discharge the Power and Duties” as mutually exclusive.  It would be disingenuous to argue that the 25th Amendment directly pertains to a quo warranto situation.

However, it’s obvious that if the 25th Amendment is a response to the ambiguity of Clause 6, then Clause 6 wasn’t just intended to fulfill vacancies.  If Congress was given power in Clause 6 (as codified by the 25th Amendment) to actually replace the President upon his inability to discharge duties – then Congress also had the power to remove the President for being found ineligible.

The 25th Amendment is quite an amazing grant of power when you consider the President can be forced to step down if Congress believes he’s lost his mind.  That’s certainly a much greater power than just being authorized to decide how to fill the vacancy if he loses his mind.

More evidence to support my theory is found in what the the 25th Amendment doesn’t discuss.

The 25th Amendment doesn’t discuss death or resignation.

Why?

Because there is nothing to discuss.  When the President dies or resigns has nothing to do with Congress.  But when it came to deciding whether the President is able to discharge his duties, Congress is authorized to exercise removal power by the 25th Amendment – and such power must be derived directly from Article 2 Section 1 Clause 6.

QUESTION: If Congress has the power to remove a President should it become known he was a usurper, then why doesn’t the 25th Amendment address that?

ANSWER: Because by 1967 – when the 25th Amendment was ratified – Congress had already exercised their authority on this issue by enacting the federal quo warranto statute which allows for the removal of any United States officer found to be a usurper.

EXHIBIT 5: Article 2 Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.

If one argues that the federal quo warranto statute does not apply to the President because the only way to remove a President is by impeachment, then it stands to reason that the statute also can not apply to “civil officers of the United States”.   If you’re going to argue that Article 2 section 4 is the sole means of removing the President, then you must also argue that it’s the sole means of removing “civil officers of the United States”.

If that’s your argument, then 16-3501 of the federal quo warranto statute makes absolutely no sense. Take a look:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action. (Emphasis added.)

If Congress didn’t believe they had the authority to remove a usurper from any public office of the United States, they why did they enact the statute to to read as if it covers every public office of the United States?  Why didn’t they write relevant exceptions in the statute for the office of President, Vice President and civil officers?

The 25th Amendment clarified “Article 2 Section 1 Clause 6” only in so far as the clause needed clarification.  It didn’t need clarification as to death or resignation of the President as those are obvious, and it didn’t need clarification as to issues of quo warranto and usurpers because they had enacted a thorough federal statute.

EXHIBIT 6: Article 1 Section 8 Clause 17 – aka “The Hook Clause”

Article 1 Section 8 Clause17 states:

The Congress shall have power…To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,…

Compare the wording of Clause 17 with §16-3501 of the federal quo warranto statute:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

When you read the two back to back, it appears Constitutional that the office of President – being in the District of Columbia – should be governed by the federal quo warranto statute.

EXHIBIT 7: Analogous Congressional precedent – the voiding of “Mr. Shields” and “Mr. Galatin’s” US Senate elections after they were found to be usurpers who did not meet the qualifications for office enumerated in the Constitution.

While the Constitution doesn’t provide for impeachment of Senators or Representatives, it does provide for their “expulsion” by a vote of two thirds of all members of each body respectively.  Article 1 Section 5 states:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Like impeachment for a President, expulsion is sometimes erroneously assumed to be the only Constitutional process by which a Senator can be removed from office.  But that’s not accurate.  The Senate can remove a sitting Senator should he be found to be a usurper, just as they can remove a President found to be a usurper… and they have done so at least twice that I am aware of.

At Senate.gov, all fifteen of the Senators who have been removed by the Constitutionally enumerated process of expulsion are listed.  Please notice that the list doesn’t include Senator Shields who was removed by Congress in 1849.

Senator Shields was removed by the Senate after it was discovered that he was an alien by birth, and that when he was elected in January 1849 – from the State of Illinois, to serve as a US Senator – he had not been a US citizen for the requisite nine years.  However, he was not removed pursuant to the Article 1 section 5 expulsion power.

Instead, the Senate held that his election was entirely “void”.  Senator Shields even offered his resignation to the Senate, but his resignation was not accepted by the Senate who held that since Shields was never qualified, he was never a Senator even though he had been sworn in and had been serving as a Senator until March 1849 when his election was completely made void and the seat declared vacant.

Since Shields it was discovered – after Shields had occupied the Senate seat – that he didn’t meet the Constitutional qualifications for the office of Senate, the Senate held that he was never an actual Senator and so his removal is not recorded as an expulsion.

Nowhere in the Constitution does it explicitly state that the Senate may remove a Senator by making a determination that his election was void and that he was a usurper.  But that’s exactly what happened.  If the power to remove a usurper wasn’t Constitutionally allowed, the Senate couldn’t have voided Mr. Shields election and vacated his Senate seat.  But they did.

The Congressional Globe account of the Shields removal is preceded by an account of a similar precedent regarding a Mr. Albert Galatin.  Mr. Galatin was elected to the US Senate from Pennsylvania in 1793 and it was later found that he had never become naturalized.  The Senate again voided his election stating that the election wasn’t just “voidable”, but that since there was no way to cure the qualification defect… the election was completely “void”… it didn’t happen.

It’s important to note that the first quo warranto statue enacted by Congress didn’t take effect until 1787 [typo – that should read “1878”] so in 1793 and 1849 the Senate chose to void the elections of the two usurpers.

So here we have precedent for Congressional authority to remove Senators other than by expulsion.  Usurpation of office resulted in elections being voided and the Senate record do not even record usurpers as having been members of the Senate.  If Congress can remove a usurper to the Senate without expelling him, this provides evidence that Congress can remove a usurper to the Presidency without impeaching him.

It appears there is no possible separation of powers issue to confront.  If a person occupying the Presidency is found to be a usurper, then his Presidency is a fiction to be voided in history and his name removed from the record books.  A usurper isn’t allowed to have been said to be President.  His occupation is a fiction.

In the Galatin case the Senate made clear that since there was no possible way the failure to qualify could be cured, then the election was a total fiction and is void, not voidable, but void, as if it never happened.

[Special thanks to reader Kamira, who discovered the Galatin information in the Congressional Globe. ]

EXHIBIT 8: USC CODE: TITLE 3 THE PRESIDENT Chapter 1. Presidential Elections and Vacancies

Please review §19:

Vacancy in offices of both president and vice president; officers eligible to act

§ 19.   (a) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

Please take notice that “failure to qualify” is listed as one of the means by which a vacancy in the office of President may occur.  And recall, as to Mr. Shields whose election to the Senate was voided, the Senate declared his seat vacant.

EXHIBIT 9: COMMON SENSE

Out of all the exhibits listed above, I think it’s most important to keep in mind the most simple evidence – common sense.  Does anybody really believe our Constitution prevents the removal of a person who is found to be a usurper to the office of President?

The answer must be no.

CONCLUSION: The federal quo warranto statute provides the only Constitutional means by which a sitting President may be removed by the Judicial branch.


(I must thank a special reader for making me aware of the Clause 17 hook.)

[To be continued in part 3.]

QUO WARRANTO LEGAL BRIEF: part 1

Posted in Uncategorized on March 4, 2009 by naturalborncitizen

INTRODUCTION:

 

Chapter 35§ 16-3501 Persons against whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

The federal statute for quo warranto was tailor made by the legislature to challenge any person occupying any public office of the United States under questionable title thereto.

This legal brief considers all relevant issues pertaining to the proper legal use of the extraordinary writ of quo warranto to determine Presidential eligibility.  The brief will be sent via regular and certified mail to Attorney General Eric Holder as well as to the US Attorney for the District of Columbia, Mr. Jeffrey Taylor, along with an open letter requesting their direct attention to the issues contained herein.

Please note from the start that only one of these officials need bring the action in quo warranto.  The applicable statute vests both officials with the same mutually exclusive authority to do so.  The statute requires either/or, not both.  And the statute also provides a separate mechanism by which their official consent is not necessary to an action in quo warranto where the “third person” petitioning for the writ is also an “interested person”.

Regardless, I fear justice will never prevail on this issue.  By Justice I mean that the relevant issues will probably never be decided on the merits by any court.  Yet, I believe every man charged with the duty to uphold the law must be given his rightful chance to follow and be guided by the rule of law.  And until every effort is made to most effectively bring an action in quo warranto, I personally can’t be satisfied  I’ve done everything in my power to protect the Constitution and the Republic.  Thanks to my readers for pointing this out. (Also see my apology to SCOTUS for previous inflammatory comments along with removal of noted image.)

Since an action in quo warranto is unquestionably the correct legal device to challenge the eligibility of any public office holder and since quo warranto has not been properly set in motion or explained to the public, this brief will attempt to educate the public and the proper officials as to the need to resolve the Obama POTUS eligibility issue in a single quo warranto hearing rather than subject the nation to a floodgate of litigation from plaintiffs with proper standing to bring collateral attacks challenging, on the basis of POTUS ineligibility, any number of potential orders and actions to be issued by the Obama administration.

Additionally, having studied controlling quo warranto cases, I have come to the conclusion that military plaintiffs probably do not have any special standing to institute an action for quo warranto which differs from the standing of the general public.  Please consider that this statement is not based on emotion but on the following;

1) the controlling statute

2) the seminal US Supreme Court decision

3) other relevant SCOTUS and federal cases

When these are examined together, it appears no special standing exists for military personnel to institute actions in quo warranto under the statute.

However, there is a civilian subset of “third persons” who do have a viable claim to quo warranto standing to challenge Presidential eligibility in a direct legal attack on Obama’s title to office.  And so long as this civilian subset exists, there’s no good reason to subject our military to possible court martial by recklessly exposing them to UCMJ Article 88 violations as well as numerous other statutes which could potentially end their careers or land them in jail.

That military personnel are being exposed to court martial via contemptuous language and false headlines (ie, news report which erroneously stated an officer had defied a Presidential order) is one of the strongest public policy reasons why Attorney General Holder and/or US Attorney Taylor should be convinced to step in on their own motion, which is their unquestionable right by statute, to request a straight forward quo warranto hearing on the two basic core issues now in dispute.

1. Does Obama’s birth status having been governed by the British Nationality Act of 1948, as was admitted by Obama, prevent him from satisfying the “natural born citizen” requirement of the Constitution.

2. Should Obama be forced to present, to the District Court for the District of Columbia, proper legal documentation to prove his place of birth by a form of identification regularly accepted by the Government for legal purposes.

POINT I:  WHETHER A WRIT OF QUO WARRANTO CAN BE ISSUED TO REMOVE A SITTING PRESIDENT?

A. Applicability of Statute 16-3501.

§ 16-3501 applies against any person within the District of Columbia who “usurps, intrudes into, or unlawfully holds or exercises… a public office of the United States.”  Under the statute, the writ of quo warranto is issued by the DC District Court in the name of the United States.

The seminal SCOTUS case which has interpreted this statute is Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915).  The opinion is truly one of most rational and clearly written decisions in Supreme Court history and by itself serves as a thorough education on the history of quo warranto as well as the proper statutory interpretation.  I suggest everyone read the entire case.

According to SCOTUS, Newman at 552, the statute applies to any public office:

The Revised Statutes declare that the District of Columbia shall be the seat of government, and “all offices attached to the seat of government shall be exercised in the District of Columbia.” The Code …provides that the… court shall have jurisdiction to grant quo warranto “against a person who unlawfully holds or exercises within the District a . . . public office, civil or military.” It was probably because of this fact that national officers might be involved that the Attorney General of the United States was given power to institute such proceedings…

…the District Code, in proper cases, instituted by proper officers or persons, may be enforceable against national officers of the United States. The sections are therefore to be treated as general laws of the United States, not as mere local laws of the District. Being a law of general operation, it can be reviewed on writ of error from this Court. American Co. v. Commissioners of the District, 224 U. S. 491; McGowan v. Parish, 228 U. S. 317.

Years later, any doubts as to the accuracy of this interpretation were completely nullified when current federal statute16-3501 revised the predecessor code to include officers of “the United States” and not just the District of Columbia.

Neither the statute nor any existing federal case provides an exception to the office of President or any public office of the United States.

CONCLUSION:  An action in Quo Warranto is the statutory legal device available to challenge the eligibility of a sitting President.

B. Constitutionality of using the federal quo warranto statute to remove a sitting President.

There are two sections of the Constitution which allow for the removal of the President.  Article 2, Section 4 allows for impeachment.  This is the remedy for removal of the President should he partake in high crimes or treason.   A quo warranto action as to POTUS eligibility does not appear to be covered by impeachment.

The second section of the Constitution which provides the removal of the President is Article 2, Section 1, Clause 6:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Many have argued that only Congress can remove a sitting President and that the separation of powers enumerated in the Constitution denies the courts any legal ability to remove a sitting President.  But with the federal quo warranto statute, Congress has delegated that authority to the District Court of the District of Columbia by providing for the removal of the President (and other public officers) by quo warranto where the President is found to be a usurper to the office even if he assumed the office with a good faith belief he was eligible.

Consider the following scenario:  A quo warranto action is instituted by AG Holder or, in the alternative, US Attorney Taylor on their own motion.  In that case, there must be a hearing on the merits (this will be explained in detail below).  Further assume Obama then produces a perfect long form birth certificate proving he was born in Hawaii, but then the District Court of DC holds that since Obama was also a British subject at the time of his birth, he is not a “natural born citizen” and is therefore not legally occupying the office of President.  Further assume that the DC District Court’s ruling is upheld by SCOTUS.

Under this fact pattern, Obama would not have broken any laws and so he couldn’t be impeached, but he would be removed from office pertaining to the removal authority of Congress enumerated in Article 2, Section 6, and so delegated by federal statute Chapter 35, §16-3501.

CONCLUSION: Congress has provided for the removal of a sitting President found to be ineligible by enacting the federal quo warranto statute .

POINT II: WHO HAS THE AUTHORITY TO INSTITUTE AN ACTION IN QUO WARRANTO TO CHALLENGE THE CONSTITUTIONAL ELIGIBILITY OF A SITTING PRESIDENT?

[this brief will be continued in part 2]