kerchner & laudenslager v obama - statement of facts and procedure by atty karen kiefer - 1 mar 2012

8/2/2019 Kerchner & Laudenslager v Obama - Statement of Facts and Procedure by Atty Karen Kiefer - 1 Mar 2012

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I. STATEMENT OF FACTS AND PROCEDURE

At no time in any of the many cases that have been filed againstCandidate "Barack Obama" in various courts throughout the country has heproduced a certified true paper copy of a 1961 long-form birth certificatefrom the State of Hawaii showing that he was born there. At no time, duringhis first presidential campaign in 2008 and during his current run for re-election has Obama provided to any of the 50 Secretaries of State any suchdocument. We recognize that this is a ballot challenge under Pennsylvania25 P.S. 2937 and that under Pennsylvania law a party objecting to anominating petition has the burden to show that the person filing thatpetition is not entitled to file it. Because Candidate Obama has notpresented any such true copy of his long-form birth certificate or otherequivalent document to the Pennsylvania Secretary of State or any othercontrolling authority in Pennsylvania, we do not know his true identity.

On February 10, 2012, Dale A. Laudenslager signed the firstObjection verification form which was attached to his initial Objection.February 14, 2012, was the last day for a candidate to file a primarynominating petition. On February 15, 212, Dale A. Laudenslager signed the

R E C E N T : I )

Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer

Copy provided courtesy of: http://www.ProtectOurLiberty.org


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second objection verification form which was attached to his amendedobjection. On February 16, 2012, Dale A. Laudenslager went to the voterregistration office to change his political party from Republican toDemocrat. On Friday, February 17, 2012, Objectors, Charles F. Kerchner,Jr. a registered Republican, and Dale A. Laudenslager, a registeredDemocrat, filed their first objection to Candidate Obama's nominatingpetition.

On Friday, February 17, 2012, Objectors' attorney, Karen Keifer, Esq.hand delivered a copy of the filed objection to DNC PennsylvaniaHeadquarters, at 300 North Second Street, Harrisburg, PA 17120. On thesame day, she also hand delivered a copy of the filed objection on thePennsylvania Secretary of State. Tuesday, February 21, 2012, was the lastday for any objector to file an objection to a candidates nominating petition(7 days from last day for candidate to file his nominating petition). OnTuesday, February 21, 2012, Karen Kiefer, Esq. hand carried to Sheriff ofWestmorland County the filed objection and the Court's Scheduling andCase Management Order so that his office could effectuate service of thosedocuments upon Candidate Obama. On Wednesday, February 22, 2012,Karen Kiefer, Esq. mailed by U.S. Postal Service certified mail returnreceipt requested the initial filed objection and court's Scheduling and Case

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Management Order to Candidate Obama at his address at 5046 SouthGreenwood Avenue Chigaco, IL 60615 and to Clifford Levine, Cohen, andGrigsby, at 625 Liberty Avenue, Pittsburgh, Pa 15222, who are CandidateObama's listed attorneys.

The deadline for filing Nomination Petition objections was extendedto Thursday, February 23, 2012. On Thursday, February 23, Karen Kiefer,Esq. served a copy of the Scheduling and Case Management Order on thePennsylvania Secretary of State. On Thursday, February 23, Karen Kiefer,Esq. received back the return receipt cards showing the initial objection andScheduling and Case Management Order were served upon Candidate atboth addresses.

Objectors filed their Amended Objection on Friday, February 24,2012. On the same day, February 24, 2012, Karen Kiefer, Esq. served theAmended Objection upon the Clerk of the Court, the PennsylvaniaSecretary of State, and Candidate Obama by mailing the documents to himat his Illinois address and to his Pittsburg attorneys. On Tuesday, February28, 2012, Karen Kiefer, Esq. received copy of Candidate Obama's motionpapers from John P. Lavelle, Jr. Esq., Candidate Obama's attorney in thismatter. On Tuesday, February 28, 2012, Karen Kiefer, Esq. sent copies of

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all papers (initial Objection, Amended Objection, motions, and brief) to Mr.Lavelle for next day delivery. February 29, 2012, Ms. Kiefer emailed to Mr.Lavelle the motion for reconsideration regarding the motion to have MarioApuzzo admitted pro hac vice.

II. LEGAL ARGUMENTA. THE OBJECTORS DO HAVE STANDING

Candidate Obama argues that in Pennsylvania a candidate'snominating petition can only be challenged by members of his own party.He adds that Charles F. Kerchner, Jr. is a registered Republican and Dale A.Laudenslager switched from Republican to Democrat but that he did so afterthe deadline for candidates to file their nominating petitions. But CandidateObama has not presented the Court any facts which disqualify Mr.Laudenslager from establishing standing.

On February 10, 2012, Dale A. Laudenslager signed the first objectionverification form which was attached to his objection. February 14, 2012,was the last day for a candidate to file a primary nominating petition. OnFebruary 15, 2012, Dale A. Laudenslager signed the second objectionverification form which was attached to his amended objection. OnFebruary 16, 2012, Dale A. Laudenslager went to the voter registrationoffice to change his political party from Republican to Democrat. On

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Friday, February 17, 2012, Objectors filed their first objection to CandidateObama's nominating petition. Tuesday, February 21, 2012, was the last dayfor any objector to file an objection to a candidates nominating petition (7days from last day for candidate to file his nominating petition). Thedeadline for filing Nomination Petition objections was extended toThursday, February 23, 2012.

So, with Dale A. Laudenslager being a registered Democrat on

February 16, 2012 and filing his first objection on February 17, 2012, he wasin fact a Democrat on the day that he filed his first Objection to CandidateObama's nominating petition which was before the deadline of February 21,2012. The day that he filed his Objection is critical because that is whenstanding is established. Clearly, he had standing on that day. Also, thefiling deadline for Mr. Laudenslager was extended to February 23, 2012.Finally, regarding Candidate Obama's unsubstantiated allegation that Mr.Laudenslager has engaged in "procedural jockeying," he cites no case lawwhich supports the proposition that such conduct would preclude an electorfrom having standing. Additionally, he provides no evidence that Mr.Laudenslager actually engaged in such conduct. Since Mr. Laudenslagerwas a Democrat when he filed his timely Objection, he has standing to

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challenge Candidate Obama nominating primary petition on the day that hefiled his Objection which is February 17, 2012.

Objector Kerchner also has standing. He has filed his Objection forthe purpose of making sure an ineligible person is eventually electedPresident. The Founders and Framers put the "natural born Citizen" clausein the Constitution for the safety and security of the nation. They knew whatenormous powers the President and Commander in Chief of the Military

would wield. The President is supposed to protect Kerchner with respect tointernational commerce, treaties, and wars in which the United States isengaged. The President signs laws into enactment. Everything that thePresident does therefore personally affects Kerchner, a U.S. citizen who isentitled to the protection of the President. Kerchner and Laudenslager bothhave a right under the Fifth and Ninth Amendments to file this action inwhich they seek to protect their life, liberty, and property.

Also, contrary to Candidate Obama's characterization that Objectorsare interfere[ing] with the electorate's consideration of the President'scandidacy for re-election, Objectors have filed their Objection to protecttheir own rights to make sure that they are lead by a person who satisfies thePennsylvania Constitution and election laws and ultimately the U.S.Constitution.

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B. THE COURT DOES HAVE JURISDICTION TO CONSIDER THEOBJECTORS' OBJECTION TO THE NOMINATING PETITION OFPRESIDENTIAL CANDIDATE "BARACK OBAMA"

Candidate "Barack Obama" argues that Objectors have not made anyvalid allegation of a defect in the nominating papers. He adds that in suchcase, the court can only make some general ruling on Candidate Obama'sconstitutional eligibility which state courts are not constitutionally able todo. He argues that only Congress has the responsibility for deciding whethera president-elect qualifies for the office of President.

On the contrary, Objectors' objection does allege that there is a defectin the nominating petition. Under 25 P.S. Sec. 2937, if the court finds thatthe nominating petition "was not filed by persons entitled to file the same, itshall be set aside." Hence, objectors can prove that Obama, a candidate forPresident, is not a "person[] entitled to file the [petition]." And the verystatute gives the Court the power to make such a finding and to "set aside"the petition.

Our objection to Candidate Obama's nominating petition is twofold.We first allege that he has not conclusively proven that he was born in theUnited States. We also allege that even if he was born in the United States,he is still not an Article II "natural born Citizen" because he fails to meet the

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requirements of the traditional American common law definition of theclause which is a child born in the country to two U.S. citizen parents. SeeMinor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark,169 U.S. 649, 708 (1898).

Our first objection regarding place of birth includes knowing the trueidentity of the person who filed the nominating petition and who callshimself "Barack Obama." In order to know whether Candidate Obama is a

person entitled to file the nominating petition, it is first necessary to knowthe true identity of the person who filed the petition.So, before we get to the second part of Objectors' objection, whetherCandidate Obama was born to two U.S. citizen parents, the person who filedthe nominating petition has to first prove his identity. So, by CandidateObama proving his identity, he would also be proving that he was born inthe United States and by proving his place of birth, he would be proving histrue identity. In other words, Candidate Obama cannot prove that he wasborn in the United States unless he first proves his identity and he cannotprove his identity unless he first proves where he was born. Hence,Candidate Obama, to prove both his true identity and his place of birth, hasto present some type of evidence to the Secretary of State whichconclusively proves his true identity and his place of birth.

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There is little doubt that even though others may have filed the nominatingpetition for Candidate Obama, he is still considered the person who filed it.

The person who filed the petition which is the subject of Objectors'objection claims to be "Barack Obama." But "Barack Obama" has notpresented any evidence to the Secretary of State proving that he is in fact"Barack Obama." Only by knowing the person's true identity can we then

move forward to address question of the correct definition of an Article II"natural born Citizen" which goes to the question of the eligibility ofCandidate Obama to be elected President. By not yet conclusively provingthat he was born in the United States, Candidate Obama has not yetpresented evidence of his true identity. Hence, Objectors' objection firstgoes to the fact that we do not yet know the true identity of the person whoclaims to be "Barack Obama" and on whose behalf the nominating petitionhas been filed. We have even reflected the doubts regarding CandidateObama by addressing him in our objection by the various alias by which hehas been known, "Barack Hussein Obama II, Barack Hussein Obama,Barack H. Obama." We also request the Court to take judicial notice of thefact that he has also been known as "Barry Soetoro" and that he has refusedto release to the public his many birth, education, travel, and work

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documents. Without proof of identity, the Pennsylvania Secretary of Statecannot allow Obama's name on the primary ballot. Candidate Obama filed acertification (Exhibit C to his motion papers) saying that "he" is a candidatefor nomination of President of the United States and that "he" authorizeddelegates and alternate delegates to commit themselves to "him." But in allthis, we do not know who "he" and "him" is. Since Objector's challengefirst goes to Candidate Obama's identity which is necessarily an element to

be established in order to know that Candidate Obama is a "person[] entitledto file same" and that challenge first goes to a defect in the nominatingpetition, this Court has jurisdiction over the objection. Here, Objectors havesufficiently alleged that there exists a "specific defect in the nominationpetition under Section 977." In R e Jones, 505 Pa. 50, 476 A.2d 1287 (1984).Surely, not knowing the identity of the person filing a nominating petition isas serious as filing a false affidavit and goes to whether that person isentitled to file that petition in the first place. So, should the Court rule that ithas no jurisdiction to decide the question of whether Candidate Obamameets the definition of an Article II "natural born Citizen," then it does havejurisdiction to address Objector's claim that Candidate Obama has notprovided the Pennsylvania Secretary of State with any evidence showingwhere he was born which goes directly to establishing his identity and that

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he is entitled to file any nominating petition in the first place. See In re:Nom ination Petition o f Pippy, 711 A.2d 1048 (Pa.Cmwlth 1998); In re:Nomination Petition of Street, 102 Pa.Cmwlth 155, 516 A.2d 791 (1986).

C. THE OBJECTORS' LEGAL CLAIM THAT CANDIDATEOBAMA, EVEN IF BORN IN THE UNITED STATES, IS NOT AN

ARTICLE II "NATURAL BORN CITIZEN," DOES HAVE LEGALMERIT

Candidate Obama makes a sweeping statement that "courts haveuniformly rejected virtually identical filings" such as Objectors. The Courtshould reject some statements as having any value. Surely, CandidateObama does not expect the court to give some sort of res judicata orcollateral estoppel effect to such other rulings. In this nomination petitionchallenge, we have a totally different procedural posture. Also, here we areapplying Pennsylvania election laws and not federal law or the law of someother state. Dale A. Laudenslager has never participated as a party in any ofthose cases. Moreover, Candidate Obama, other than the cases that he didcite in his brief and which cases we will address here, has not cited whatthose other cases are.

Objectors have filed their brief which addresses the legal question ofwhat is an Article II "natural born Citizen." They rely on this brief toaddress Candidate Obama's contention that their claim that he does not meetthe correct American common law definition of an Article II "natural born

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Citizen" is so without merit that the Court should quickly dismiss theObjectors' Objection. Candidate Obama cites U.S. v. Wong Kim Ark, 169U.S. 649 (1898), United States v. Marguet-Pillado, 648 F.3d 1001 (9 t h Cir.2011), Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), Hollander v.McCain, 566 F.Supp.2d 63 (D.N.H. 2008), Schneider v. Rusk, 377 U.S. 163(1964), and Tisdale v. Obama, Civil Action No. 3:12-cv-00036-JAG.

Objectors have already addressed Wong Kim Ark and Ankeny in their brief.We rely on that discussion. The Marguet-Pillado is a criminal caseinvolving derivative citizenship and the government's burden in having toprove beyond any reasonable doubt alienage in a case involving a criminalcharge for violating 8 U.S.C. Sec. 1326 (previously removed alien found inthe United States) and has absolutely no relevance to the question of whetherCandidate Obama is an Article II "natural born Citizen." Here we just wantto emphasize that Candidate cites Wong Kim Ark as holding that Wong was"natural born Citizen." But no where do we find such a statement in theCourt's holding. Candidate Obama is simply putting his own words into theWong holding. The cases of Hollander and Tisdale are not persuasive on thequestion of what is a "natural born Citizen." And Schneider does not stand

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for the proposition for which Candidate Obama cites it. We will nowdiscuss these three cases.

The Court dismissed the Hollander case on standing. Hence, theCourt found it had no subject matter jurisdiction. So, the decision cannot beused to show that it "decided" anything regarding the merits of the questionof what is a "natural born Citizen." The Court in Hollander dismissedplaintiff's claim that John McCain was not a "natural born Citizen" on theground that Hollander failed to prove Article III standing to make that claim.The Hollander court never reached the merits of Hollander's argument thatMcCain was not a "natural born Citizen." In fact, the Court even said that itwas not relevant for its decision where McCain was born. Additionally,dismissal for lack of standing is not with prejudice. Also, when a courtdismisses a case for lack of standing, it says that the court does not havesubject matter jurisdiction over the matter. A court that has no jurisdictionover a case cannot decide anything about the case other than to decidewhether it had jurisdiction and if it decides it does not to dismiss it for lackof jurisdiction. But Tisdale did reach the merits of Tisdale's "natural bornCitizen" argument, relying upon a case that was dismissed for lack ofjurisdiction. How can Tisdale rely on a case that was dismissed for lack ofjurisdiction and which never reached the merits of the meaning of a "natural

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born Citizen" for support for his decision which did reach the merits of thatvery question? The answer is that he simply cannot. There simply is nothingin the Hollander case that properly and legally supports the merits decisionmade by Tisdale on the question of what is a "natural born Citizen." Adecision on standing does not provide any merit substance as to the meaningof an Article II "natural born Citizen." Hence, Tisdale's reliance onHollander for the merits of his decision is error.

We will now examine the Tisdale and Schneider cases. Tisdale v.Obama, Civil Action No. 3:12-cv-00036-JAG, held not by publisheddecision but by Order of Hon. Judge John A. Gibney, Jr. that any child bornin the U.S. is a "natural born citizen." Tisdale has a textual problem thatrelate to the holding of Wong Kim Ark. We know that Article II, Section 1,Clause 5 includes both a "natural born Citizen" and "Citizen of the UnitedStates," with only the former being eligible to be President for those bornafter the adoption of the Constitution. Hence, the text of Article II, Section 1,Clause 5 clearly states "natural born Citizen" and sets that type ofcitizenship apart from that called "Citizen of the United States." We cannotreplace that clause with another type of citizenship that is also provided forin the Constitution. "Natural born Citizen" is a word of art or an idiom. We

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cannot simply substitute in its place "citizen of the United States" which hasa different constitutional meaning.

The Court in Tisdale said "[i]t is well settled that those born in theUnited States are considered natural born citizens. See, e.g., United States v.Ark [sic meant Wong], 169 U.S. 649, 702 (1898) ('Every person born in theUnited States, and subject to the jurisdiction thereof, becomes at once acitizen of the United States.')" Tisdale relied upon Wong Kim Ark and theparenthetical statement for his decision. But the quote from Wong Kim Arkuses the phrase "citizen of the United States." The Wong Kim Ark holdingthat Wong was a "citizen of the United States" cannot be used to show thatObama is a "natural born Citizen." In light of the critical constitutionaldistinction between a "natural born Citizen" and a "Citizen of the UnitedStates, there has to be some basis to go from Wong's "citizen of the UnitedStates" to saying that the holding also defines a "natural born Citizen."From the clear text of the Wong holding regarding a "citizen of the UnitedStates," Wong's holding without more does not support Tisdale's statementregarding a "natural born Citizen."

In support of its statement, "[i]t is well settled that those born in theUnited States are considered natural born citizens," the Court cites WongKim Ark and the holding of the case. But that case and its holding do not

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directly relate to a "natural born Citizen." Rather, it concerns only a "citizenof the United States" under the Fourteenth Amendment. Wong evenconfirmed that there is a distinction between a "natural born citizen" childborn in the U.S. to citizen parents and a "citizen" child born in the U.S. toalien parents. In fact, the Wong holding that Judge Gibney provides does noteven include the clause "natural born Citizen" in it. The Tisdale Court issimply putting words into the mouth of the Wong Court which are not there.

There is language or the lack of language in Wong which shows that theCourt recognized the distinction between a "natural born Citizen" and a"citizen of the United States," and that it went as far as only holding Wongto be a Fourteenth Amendment "citizen of the United States" and not anArticle II "natural born Citizen."

First, the question presented and holding of the Court speak of a"citizen of the United States" under the Fourteenth Amendment, not a"natural born Citizen" under Article II. The Court stated its holding thus:

The evident intention, and the necessary effect, of the submission of this case tothe decision of the court upon the facts agreed by the parties, were to present fordetermination the single question, stated at the beginning of this opinion, namely,whether a child born in the United States, of parents of Chinese descent, who, atthe time of his birth, are subjects of the Emperor of China, but have a permanentdomicil and residence in the United States, and are there carrying on business, andare not employed in any diplomatic or official capacity under the Emperor ofChina, becomes at the time of his birth a citizen of the United States. For the

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reasons ab ove stated, this court is of opinion that the question mus t be answeredin the affirmative.

Nowhere in the question presented or in the Court's holding do we find thewords "natural born Citizen." Not one quote from the Court exists whichshows that the Court found Wong to be a "natural born Citizen." The Courtsaid in its holding that it was deciding "the single question." The onlyquestion before the Court was whether Wong was a Fourteenth Amendment"citizen." Hence, the Court answered that "single question" and notanswering any other question, surely did not also answer the question ofwhether Wong was also an Article II "natural born Citizen." It did notaddress the question of whether he was an Article II "natural born Citizen,"which would involve a different question than the one raised before the

Court which involved only the Fourteenth Amendment.Second, Wong Kim Ark cited and quoted Minor's "common-law"

definition of a "natural-born citizen," with no criticism or distinguishing ofthat definition to reach its holding that Wong was a "citizen of the UnitedStates." This is critically important because Minor had held in 1875 that thedefinition of a "natural-born citizen is that already existing under "common-law" which is "all children born in a country of parents who were itscitizens." Id. at 167-68. But Wong was clearly not born to citizen parents.

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Hence, if the Court were addres sing the meaning of a "natural born Citizen"it would have had to explain why Minor's presentation of that definitioneither was wrong or did not apply. The point is that Wong Kim Ark wouldhave had to make a comment about what Minor said was the alreadyestablished "common-law" definition of a "natural born Citizen." But weknow from reading Wong Kim Ark that the only thing the Court didregarding Minor was cite and quote the definition of a "natural-born citizen"which it confirmed. If the Court was willing to abandon or distinguish thatdefinition, it would have done s o.

Third, Wong Kim Ark said, by quoting Mr. Binney: 'The right ofcitizenship never descends in the legal sense, either by the comm on law, orunder the common naturalization acts. It is incident to birth in the country,or it is given personally by statute. The child of an alien, if born in thecountry, is as much a citizen as the natural-born child of a citizen, and byoperation of the same principle.' Wong Kim Ark, at 169-70 (citing andquoting Horace Binney, The Alienigenae of the United States Under thePresent Naturalization Laws (1 85 3)). Both the Court and Binney erred incontending that the right to citizenship in the United States "never descendsin the legal sense," for the definition of a "natural born Citizen" is basedboth on inheritance of citizenship from citizen parents which concept

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emanates strictly from natural law and on acquiring citizenship from place ofbirth which has its origins in positive law. Also, note Binney's reference to"in the country" which is directly out of Vattel Section 212's definition of a`natural-born citizen." Note also that, with the Court requiring "birth in thecountry" in order to acquire birthright citizenship if one does not otherwisequalify for the status under some naturalization statute, the Court recognizedthat only a child born "in the country" to citizen parents can be a "natural-

born citizen." The Court by this quote told us in clear words that while botha child "born in the country" to citizen parents and a child "born in thecountry" to alien parents are "citizens" by the mere fact of being "born in thecountry," only a child born "in the country" to citizen parents is a "natural-born citizen." The reason for this distinction is that under the Englishcommon law which the Court applied to make Wong a "citizen," any personborn in the King's dominions and in allegiance to him, regardless of howweak that allegiance may be due to the child's parents being aliens, was a"natural born subject." Emer de Vattel in Section 214 of the The Law ofNations, Or, Principles of the Law of N ature (London 1797) (1 s t ed.Neuchatel 1758), explained that this form of granting subjectship in Englandwas actually naturalization at birth by the only fact of being born in itsdominions and without reference to the citizenship of the child's parents

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("Finally, there are states, as, for instance, England, where the singlecircumstance of being born in the country naturalises the children of aforeigner").

Wong Kim Ark was willing to make Wong a "citizen" because hewas born in the United States and his parents' domicile in the United Statesat the moment of his birth created a strong enough allegiance to the UnitedStates (in the words of Lord Coke and Blackstone local and temporary)

which was "strong enough to make a natural subject, for if he hath issuehere, that issue is a natural born subject." Calvin's Case, 7 Rep. 6a (1608).Wong Kim Ark. 169 U.S. at 693. Yet that allegiance was not as strong as ifthe parents had been citizens of the United States and therefore not strongenough to make Wong a "natural-born citizen." Under Americanconstitutional "common-law," which in the area of national citizenship isbased on natural law and the law of nations (a combination of natural lawand positive law), such local and temporary allegiance in the child's parentscould be strong enough to satisfy the "subject to the jurisdiction"requirement of the Fourteenth Amendment, but it could never be strongenough to make a "natural born Citizen," which is the exacting standardused in our Constitution for presidential eligibility. Wong Kim Ark foundthat both of these factual scenarios satisfied the Fourteenth Amendment's

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"jurisdiction" clause and therefore produced citizenship by the mere fact ofbeing born in the country, but recognized that only the latter were "naturalborn Citizens."

Wong Kim Ark used the English common law to give currentmeaning to the Fourteenth Amendment. Of course, with no suchamendment existing when the Founders and Framers drafted theConstitution, they would not have had any need to look to the English

common law for such assistance. Furthermore, the Founders and Framerswould never have adopted the English common law standard of a "naturalborn subject" to define an Article II "natural born Citizen." And we can beassured of this because, among the many other existing sources revealingthis fact, James Madison tells us this. In The Federalist No. 42 (J. Madison),Madison said:

The pow er to define and punish piracies and felonies comm itted on the high seas,and offenses against the law of nations, belongs w ith equal propriety to thegeneral governm ent, and is a still greater improv ement on the articles ofConfederation. These articles contain no provision for the case of offenses againstthe law of nations; and cons equently leave it in the power of any indiscreetmem ber to embroil the Confederacy w ith foreign nations. The provision of thefederal articles on the sub ject of piracies and felonies extends no further than tothe establishment of cour ts for the trial of these offenses . The definition ofpiracies might, perhaps , without inconveniency, be left to the law of nations;though a legislative definition of them is foun d in mos t municipal codes. Adefinition of felonies on the high seas is evidently requisite. Felony is a term ofloose signification, even in the comm on law of England; and of various impo rt inthe statute law of that kingdom. But neither the comm on nor the statute law ofthat, or of any other nation, ought to be a standard for the proceedings o f this,unless previous ly made its own by legislative adoption. The meaning of the term,

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as defined in the codes of the s everal States, would be as impracticable as theformer w ould be a dishonorable and illegitimate guide. It is not precisely the sam ein any two of the States; and varies in each with every revision of its criminallaws. For the s ake of certainty and uniformity, therefore, the power of definingfelonies in this case was in every respect necessary and proper.So Madison, who was given the title of "Father of the Constitution" by hisown colleagues at the constitutional convention of 1787 and who supporteda strong national executive,http://www.montpelier.org/explore/james madison/father_constitution.php,told us in no uncertain words that the English common law "would be adishonorable and illegitimate guide" for providing a definition for "felonies"which is a term that is included in the Constitution. Madison objected tousing the English common law as a source by which to define "felonies"because of its "loose signification" within that law. He even objected tousing English statutes because of their "various import" on the matter. Heexplained that neither the common law nor statute law of England couldprovide the standard to define "felonies," a term in the Constitution, unlessthat law was accepted in the United States "by legislative adoption," which itwas not. He also emphasized that there was a need for "certainty and

uniformity" in the standard to be established for the definition of "felonies."There can be little doubt that on providing a definitional standard for a"natural born Citizen," Madison would have echoed the same sentiments.The English common law also provided a very loose standard for defining a

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"natural born subject," for it included therein both persons born in theKing's dominions to English "natural born subjects" and born there toaliens, and persons who through naturalization after birth were also called"natural born subjects." There exists no evidence that the English commonlaw was ever adopted by the Founders and Framers to define a "natural bornCitizen." Because of the loose definition under the English common law of a"natural born subject," that law also did not provide "certainty and

uniformity." Finally, he would also have considered the English commonlaw as 'a dishonorable and illegitimate guide" for defining who could bePresident and Commander in Chief of the Military in the new constitutionalrepublic which had been recently created by a bloody revolution foughtagainst that same very nation. For further reading on my position that theFounders and Framers relied upon the law of nations and not the Englishcommon law to define an Article II "natural born Citizen," see my August20, 2009 essay entitled, "'The Law of Nations or Principles of Natural Law'as U.S. Federal Common Law Not English Common Law Define What anArticle II Natural Born Citizen Is," accessed athttp://puzol.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.

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All this is critical since the original and amended Constitution, allActs of Congress, and treaties read as a whole show that there is a distinctionbetween a "natural born Citizen" and a "citizen of the United States," withArticle II, Section 1, Clause 5 requiring that for those born after the adoptionof the Constitution, a "Citizen of the United States" is not sufficient forpresidential eligibility and that rather one must be a "natural born Citizen."

Tisdale cites Perkins v. Elg, 99 F.2d 408, 409 (1938), but that casesupports the plaintiff's position and not the Court's. In that case, the childwas born in the United States to citizen parents. The lower court found Elgto be a "natural born citizen." The U.S. Supreme Court confirmed thatdecision. Hence, the case cannot be cited for the proposition that a childsimply born in the United States without more is a "natural born Citizen"when those were not the facts of the case and surely not the holding of theCourt. It should also be noted that the Court cited the Circuit Court decisionbut did not note that the case was appealed to the U.S. Supreme Court whichrendered a decision reported at Perkins v. Elg, 307 U.S. 325 (1939) (TheU.S. Supreme Court affirmed the lower court ruling which found that Elgwho was born in the United States to citizen parents was a "natural borncitizen").

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Tisdale cites the Fourteenth Amendment as support for his statementthat a "natural born citizen" is any child born in the United States. But asthe U.S. Supreme Court in Minor v. Happersett (1875) explained, thatamendment does not provide the standard for defining a "natural bornCitizen" and in fact does not even mention the clause. Even Wong KimArk, when it gave us its definition of a "natural born Citizen," cited andquoted Minor and made no reference to the Fourteenth Amendment as it did

in deciding whether Wong, who was born to alien parents, was a "citizen ofthe United States."

The Fourteenth Amendment is part of the Constitution and wasalready passed in 1875 when the U.S. Supreme Court decided Minor. Sowhen Minor said that the definition of a "natural born Citizen" was not inthe Constitution it also meant that it was not found in the FourteenthAmendment. Rather, the Court said that the definition of a "natural bornCitizen" was found in the "common-law" with which the Founders andFramers were very familiar. The Court then told us how that "common-law"defined a "natural born citizen." Relying upon that "common-law," itdefined a "natural-born citizen" as a child born in a country to citizenparents. Given the definition that it gave, which included the constituentelement of citizen parents, clearly the Court did not rely upon any English

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common law which does not include such a requirement. Rather, the Courtrelied upon American "common-law" which had its origins in natural lawand the law of nations, as commented upon by Emer de Vattel in The Law ofNations, Section 212. In fact, Minor's definition of a "natural born Citizen"is almost word for word Vattel's definition of a "natural-born citizen" foundin Section 212.

Another point is that Minor said that "[t]he Constitution does not in

words say who shall be natural-born citizens. Resort must be had elsewhereto ascertain that." By the use of the word "shall," we can see that the Courtset out to find a definition of the clause "natural born Citizen," not just oneexample or description of a "natural born Citizen." It would make littlesense for a court to want to determine whether one is a "natural-born citizen"and not first search for a definition of the term. And Minor did provide thedefinition of a "natural-born citizen" about which it said there were nodoubts. On the other hand, it said that "there have been doubts" as to themeaning of a "citizen," referring to a Fourteenth Amendment "citizen of theUnited States," which we know in Minor's definition of a "natural-borncitizen" related to the parents of a "natural-born citizen," but not to a"natural-born citizen" himself or herself.

Finally, none of the citations provided by Tisdale in his Order

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sufficiently support its conclusion that any child born in the United States,regardless of the citizenship status of his or her parents, is a "natural bornCitizen." The Court cites Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H.2008), in support of his on-the-merits dismissal with prejudice of Tisdale'scomplaint for failure to state a claim. The Court in citing that case, providedthis quote:

Moreover, "those born 'in the United States, and subject to the jurisdictionthereof,' . . . have been considered American citizens under American law ineffect since the time of the founding . . . and thus eligible for the presidency"(citing and quoting Hollander, 5 6 6 F .Supp.2d at 66 ).But what the Court did here is take two separate statements that came fromtwo different courts (Wong Kim Ark and Schneider v. Rusk, 377 U.S. 163(1964)) and joined them with ellipses to give the appearance that Hollandermade that full statement. First, as will be seen below, the Court dismissedthe Hollander case for plaintiff's failure to prove Article III standing. Adismissal for lack of standing means that the court found it had no subjectmatter jurisdiction. If a court has no subject matter jurisdiction, it cannotdecide anything in the case other than having decided that it had no

jurisdiction and therefore dismissing the case. Hence, Hollander could nothave provided any substantive explanation or conclusion on what is a"natural born Citizen." But even though Hollander said that it did not "reachthe rest of the parties' arguments, including, most notably, the question of

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McCain's constitutional eligibility to be President," it still as "Background"provided its opinion as to the law to be applied in defining a "natural bornCitizen," and even citing and quoting Wong Kim Ark and Schneider,although as shown above, in an inaccurate manner.

Second, the Hollander case did not decide what Tisdale says itdecided. Hollander did not rely on Wong Kim Ark to find that any personborn in the United States is a "natural born Citizen" and therefore eligible to

be President. Rather, it only relied upon Wong Kim Ark to confirm, againwhile not having any jurisdiction, that persons born in the United States and"subject to the jurisdiction thereof" are considered "American citizens"under the Fourteenth Amendment. Again while it had no jurisdiction,Hollander then cited Schneider v. Rusk, 377 U.S. 163, 165 (1964) and reliedon Schneider as if it had said in "dicta" (a statement appearing in a writtencourt opinion made by the court in passing and not central to the court'sunderlying decision) that such "American citizens" are therefore eligible tobe President. Hollander did at least indicate in a parenthetical explanationthat what it said Schneider said was "dicta" in Schneider itself. Here is theactual quote from Hollander upon which Tisdale did judicial surgery so as tocreate the statement quoted above which has no legal support from any U.S.Supreme Court decision:

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Those b orn "in the United States, and su bject to the jurisdiction thereof," U.S.Const., amend. XIV, have been considered American citizens under A mericanlaw in effect since the time of the founding, United States v. Wong K im Ark, 1 6 9U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for thepresidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12L.Ed.2d 218 (1964) (dicta).

Id. at 66 .So, we can see from examining Hollander's statement, that persons

born in the United States and "subject to the jurisdiction thereof" areconsidered "American citizens" under the Fourteenth Amendment (citingWong Kim Ark) and that such "American citizens" are therefore eligible tobe President (citing dicta from Schneider), that Tisdale's statement wasmade by joining Hollander's two separate statements which Hollanderacknowledged were made by two separate courts (Wong Kim Ark andSchneider), and that the second statement was "dicta." But what Tisdale hasdone in its Order is erase Hollander's notice that the statement was theproduct of combining two statements made by two separate courts and thatthe last statement was even dicta. It has created one legal principle orstatement by combining the statements and using ellipsis which makes itlook as though Hollander itself made the whole statement.

Not only is Hollander mistaken that the Schneider case contains anydicta which supports its proposition that a child born in the United States

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without more is eligible to be President, the case does not say at all whatHollander said it said. In other words, the Schneider case itself does notsupport Hollander's citation of that case for Hollander's proposition that an"American citizen" under the Fourteenth Amendment without more iseligible to be President (again all said while Hollander had no jurisdiction).With Schneider not saying what Hollander says it says, Tisdale surelycannot properly rely on Hollander's citation of the Schneider "dicta" which

simply does no exist.

Let us now examine Schneider. Candidate Obama argues that theSchneider decision equated "a 'natural born citizen' who is eligible to bePresident to a native-orn, as opposed to a naturalized, citizen" (emphasisin the original). Memorandum of Law at p. 8. But the Schneider Court didnot do any such thing. In Schneider, the U.S. Supreme Court voided, basedon Fifth Amendment due process, a federal statute that provided that anaturalized citizen should lose his United States citizenship if, followingnaturalization, he resided continuously for three years in his former

homeland because the same type of provision did not apply to "native-born"citizens.

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The Schneider case was summ arized in Rogers v. Bellei, 4 0 1 US 81 5(19 7 1 ), as follows:

Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national bybirth, acquired United States citizenship derivatively through her mother'snaturalization in the United States. She came to this country as a small child withher parents and remained here until she finished college. She then went abroad forgraduate work, was engaged to a German national, married in Germany, andstayed in residence there. She declared that she had no intention of returning tothe United States. In 1959, a passport was denied by the State Department on theground that she had lost her United States citizenship under the specificprovisions of 352 (a) (1) of the Immigration and Nationality Act, 8 U. S. C. 1484 (a) (1), by continuous residence for three years in a foreign state of whichshe was formerly a national. The Court, by a five-to-three vote, held the statuteviolative of Fifth Amendment due process because there was no like restrictionagainst foreign residence by native-born citizens.The dissent (Mr. JUSTICE CLARK, joined by JUSTICES HARLAN andWHITE) based its position on what it regarded as the long acceptance ofexpatriating naturalized citizens who voluntarily return to residence in theirnative lands; possible international complications; past decisions approving thepower of Congress to enact statutes of that type; and the Constitution'sdistinctions between native-born and naturalized citizens.

Id. at 821 .First, Schneider has never been cited as pr oviding any actual

definition of a "natural born Citizen," for the case does not expressly pr ovideany such d efinition. Rather, Obam a supporters have cited the Schneider v.R usk cas e to argue that one only needs to be a "native-born" citizen to be

eligible to be President. The decision contains this language:We start from the premise that the rights of citizenship of the native born and ofthe naturalized person are of the same dignity and are coextensive. The onlydifference drawn by the Constitution is that only the 'natural born' citizen iseligible to be President. Art. II, 1.

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***Distinctions between native-born and naturalized citizens in connection withforeign residence are draw n in the C onstitution itself. Only a native-born maybecome Pres ident, Art. II, 1.

Id. at 165.

In the first quote, the Court explained that a "native born" citizen anda naturalized citizen have the same rights under the Constitution. But theCourt also explained that under the Constitution only a "natural born" citizen

is eligible to be President. Hence, the Court properly made a distinctionbetween a "native born" citizen and a "natural born" citizen as they apply toone being eligible to be and having the privilege of being President. In thisquote, the Court said that a "natural born" citizen is not the same thing as a"native born" citizen, for the Court acknowledged a "native born" citizen butsaid that under the Constitution only a "natural born" citizen can bePresident. Given its equal protection analysis, the Court when it said "nativeborn" citizen was actually referring to a child born in the United States andmade a "citizen" under the Fourteenth Amendment and when it referred to a"natural born" citizen in relation to being President was referring to ArticleII, Section 1, Clause 5. The Court also said that it is necessary to be a"natural born" citizen to be President ("only the 'natural born' citizen iseligible to be President"), or in other words, given the definition of a

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"natural born" citizen, it is necessary to be born in the United States tocitizen parents to be eligible to be President. So it follows from thisjuxtaposition of "natural born" citizen and "native born" citizen that all"natural born" citizens are "native born" citizens but not all "native born"citizens are "natural born" citizens.

The Court in the second quote said that "only" a "native-born" citizenmay become President. We cannot conclude from these two quotes that theCourt said that a "natural born" citizen is the same as a "native-born"citizen." First, a "native-born" citizen after the adoption of the FourteenthAmendment has been interpreted to mean that someone became a U.S.citizen at the moment of birth by being born in the United States rather thanby naturalization after birth. Second, since a naturalized citizen has thesame rights and privileges as a "native-born" citizen, making a "native-born"citizen eligible to be President would make a naturalized citizen eligible tobe President. Third, these quotes also do not mean that it is sufficient to be a"native born" citizen to be President. Rather, the Court in the second quote

said that it is necessary to be a "native-born" citizen to be President ("[o]nlya native-born may become President"), or in other words, it is necessary tobe born in the United States in order to be eligible to be President. "Only"signified that the condition is necessary, but it does not mean that the

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condition is sufficient. For example, I can say that only a person who hasblood is alive. But clearly having blood is not sufficient to be alive. Rather,Schneider's statement regarding "only" a "native-born" citizen is consistentwith Minor and Wong Kim Ark which as we have seen above said that a"natural-born citizen" is a child born in the country to citizen parents. As wecan see, both of these decisions acknowledged that birth in the country isone of two necessary conditions needed to be met in order to be a "natural

born Citizen."

So, taking these two quotes together, the Court first recognized thatonly a "natural born Citizen" is eligible to be President. We have topresume that the Court knew how Minor and Wong Kim Ark defined a"natural-born citizen." Then, in order to distinguish in the only way whichis permitted by the Constitution a "native born" citizen from a naturalizedcitizen, the Court said that it is necessary to be a "native-born" citizen or a"citizen" by having been born in the United States to be President and thatnaturalized citizens cannot meet that condition. We can come to this

conclusion because in the first quote the court said that under theConstitution only a "natural born" citizen can be President and in fact, theConstitution uses the term "natural born" citizen and not "native born"citizen. The Framers were very careful in the words that they chose to

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include in the Constitution and we cannot simply replace one term foranother without providing any reason and analysis for doing so. And wemust presume that the Schneider Court knew how Minor and Wong KimArk defined a "natural born" citizen." In short, we can read these quotestogether to say that: (1) all "natural born" citizens are "native born" citizens,but not all "native born" citizens are "natural born" citizens; (2) a "nativeborn" citizen if also born to citizen parents is a "natural born" citizen, but a

naturalized citizen may never be; (3) only a "native born" citizen who isborn to citizen parents is a "natural born" citizen and eligible to be President.

Hence, what we learn from the Schneider decision is that a personmust be a "natural born" citizen to be President. This is correct, for theactual text of Article II, Section 1, Clause 5 uses "natural born Citizen" andnot "native born" citizen. We also learn from this case that in order to be a"natural born" citizen, it is necessary but not sufficient that one is a "nativeborn" citizen," which both Minor and Wong Kim Ark confirm. Finally,while the Court did not define a "natural born" citizen, we know that an

Article II "natural born Citizen" is a child born in the country to a U.S.citizen father and mother.

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As we can see, the Court in Tisdale simply cited to some cases whichdo not support its holding. With Tisdale, we see a court not engaging in itsown thoughtful and reasoned analysis of the historical and legal meaning ofa "natural born Citizen." What is worse, it even ascribes to the cases is citeslegal positions that the cases did not hold.

As we can see, there are no current court cases, including Ankeny v.Governor of Indiana and Tisdale, which have convincingly shown through

thorough historical and legal analysis that any child born in the UnitedStates, without any reference to the child's parents' citizenship, is a "naturalborn Citizen." Hence, the law of nations and traditional U.S. Supreme CourtAmerican "common-law" definition of a "natural born Citizen," whichMinor in 1875 directly and Wong Kim Ark in 1898 indirectly confirmed,i.e., a child born in the country to citizen parents, stands. Anyone who wantsto change it needs to either go to the U.S. Supreme Court or have aconstitutional amendment passed to accomplish that.

D. OBJECTOR'S CLAIM NOT ONLY REGARDS CITIZENPARENTS, BUT ALSO INCLUDES PLACE OF BIRTHCandidate Obama argues that the only point being contested by

Objectors is that Candidate Obama was not born to U.S. citizen parents. Buta reading of their amended Objection shows this argument to be incorrect.

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In their Amended Objection, they have alleged both that Obama has yet toconclusively prove that he was born in the United States and that he wasborn to two U.S. citizen parents. Both of these issues are also covered inObjectors' brief.

III. CONCLUSIONFor the foregoing reasons, we respectfully request that the Court deny

Candidate Obama's motion to dismiss the Objection and allow this matter to

proceed to a hearing.Dated:2012 Karen L. Kiefer, Esq.Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. KieferCopy provided courtesy of: http://www.ProtectOurLiberty.org

kerchner & laudenslager v obama - statement of facts and procedure by atty karen kiefer - 1 mar 2012

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