BORN IN THE USA? ELIGIBLE? NEW APPEAL

Alan Note: another case to obtain facts about Obama's eligibility rests with Federal District Judge David O. Carter in Santa Ana, California but appears to be in a state of limbo. He has taken the request to dismiss the case, filed by Orly Taitz, by Obama's attorneys under submission but has not stayed with his original indication that he would make a ruling  a few days later in early October.

He has, however, set a pre-trial date of January 11th, 2010 and a jury trial date of January 26th, 2010 
By WorldNetDaily

A case alleging Congress failed in its constitutional duties by refusing to investigate the eligibility of Barack Obama to be president has been sent on appeal to the 3rd U.S. Circuit Court of Appeals.

WND previously reported when a federal judge dismissed the lawsuit filed by Charles F. Kerchner Jr. and others against Congress.


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


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


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


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


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


The attorney now has posted online a notice of his appeal to the 3rd Circuit in Philadelphia.


"Through his dismissal, Judge Simandle avoided having to reach the merits of the question of whether Obama is an Article II 'natural born citizen' and eligible for the office of president and commander in chief," Apuzzo said.


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


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


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


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


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


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


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


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


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


"It is most true that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us.


We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States.

 We find no exception to this grant, and we cannot insert one."


Kerchner added, "The … judges in the … cases should simply read the words of U.S. Supreme Court Chief Justice Marshall from the past and take jurisdiction of the constitutional question of the Article II eligibility clause in the Constitution and proceed to a fact finding hearing and trial on the merits.