- Law Cases
by Sharon Rondeau
(Jun. 9, 2010) — Mario Apuzzo was born on June 30, 1956. He graduated from Jamesburg High School in New Jersey in 1975. He obtained his undergraduate degree in Political Science from Wilkes University in Wilkes-Barre, PA. He then attended Temple University School of Law in Philadelphia, from which he graduated with a Juris Doctorate degree in 1982. He then continued his post-graduate legal studies at the University of the Pacific in Sacramento, CA, at its McGeorge School of Law and in Salzburg, Austria, which also included coursework in Milan, Italy, receiving a Diploma in Advanced International Legal Studies in 1983. He has also studied comparative international law at Temple University, in Rome, and has pursued a second law degree in the European civil law system at the University of Naples.
Mr. Apuzzo founded his law firm in 1983, at which time he went into private practice in New Jersey. He currently has his law offices at 185 Gatzmer Avenue, Jamesburg, New Jersey 08831. He is engaged in the general practice of law which includes trials and appellate work in both the state and federal courts.
Regarding the Obama eligibility controversy, Attorney Apuzzo published his first blog entry on December 20, 2008 after having followed and contributed to the postings on the websites of Leo Donofrio and Orly Taitz. Commander Charles Kerchner was put in touch with Attorney Apuzzo by an acquaintance who had known he had been seeking an attorney to challenge Congress and Obama regarding Obama’s eligibility to serve as President of the United States.
Attorney Apuzzo was very gracious with his time and knowledge in the following interview with The Post & Email.
MRS. RONDEAU: I heard you on Dr. Kate’s radio program the other night, and it caught my attention when you said that you believe that your case will end up at the Supreme Court despite the fact that the Third Circuit is scheduled to hear your appeal. Could you expound on that?
ATTY. APUZZO: Yes. If the Third Circuit affirms the District Court’s decision to dismiss the case for lack of standing and political question, then the Kerchner plaintiffs will file a Writ of Certiorari with the U.S. Supreme Court. It does not mean that the court will necessarily hear the case because you’re essentially requesting that the Supreme Court review the lower court’s decision. So you don’t have a right to go to the Supreme Court; you have a right to ask that the Supreme Court take the case. So when we talk about going to the Supreme Court, we mean that we are asking the Supreme Court to take the case. If four justices vote to accept the petition for Certiorari, then it’s actually on appeal in the U.S. Supreme Court, and then we would need a majority of the court to actually grant the petition. If they grant the petition, you don’t necessarily win the case, because at that point the only issue that’s on appeal is whether or not the District Court is correct in dismissing the case for lack of standing and for political question. That means that the lower court never addressed the merits of the case, the merits being “Is Mr. Obama a ‘natural born Citizen’ under the Constitution; does he meet that definition?” We contend that he does not meet the doubt-free definition of a “natural born Citizen” because when he was born his father was a British subject and Obama himself was also born a British subject (which converted to Kenyan citizenship when he was 2), all giving him conflicting natural allegiance to Great Britain from the time of birth and to Kenya from age 2. The Framers would not have allowed a person born after the adoption of the Constitution with such conflicting natural allegiances to assume the great and singular powers of the President and Commander in Chief. Secondly, “Was he born in Hawaii?” We contend that he has yet to provide sufficient and credible information that he was indeed born in Hawaii.
Again, those two issues were never decided by the lower courts, and the Supreme Court most likely will not address those issues, unless, because of the importance of the case – if it decides somehow to rule on the definition of “natural born Citizen,” even though the lower court never did that – that would be something interesting. I don’t know whether or not the court would do that or let it go back down; then the lower court would decide the issue, and then it would come back up again. Then it would go to the Third Circuit again, and then it would go up to the Supreme Court again, so you can imagine how long this whole process could take.
MRS. RONDEAU: I had no idea it could be that lengthy. When was the last time that the Supreme Court or any court, to your knowledge, defined “natural born Citizen”?
ATTY. APUZZO: First of all, there was never a case in the U.S. Supreme Court which decided, in the context of questioning if a person is eligible to be president, whether or not that person is a natural born Citizen. It has never happened. That means that there was never an election-type contest case involving the President of the United States, which question involved whether or not he or she was a natural born Citizen. There’s never been a case like that, which is very important to understand, because that tells us that we really don’t know what the Supreme Court would rule on the question of whether or not a person is a natural born Citizen within the context of a presidential election contest.
There have been cases where the Supreme Court was asked to define citizenship. We hear of the famous Wong Kim Ark case of 1898. The reason why I point to that case right now is that the Obama supporters, or enablers, depending on how motivated they are, point to that case as being the definitive answer from the Supreme Court as to what a “natural born Citizen” is, which is totally incorrect, because #1, that case is not about defining presidential eligibility, and #2, the case dealt only with a “born” “citizen of the United States” under the 14th Amendment. A “citizen of the United States” is one thing; a “natural born Citizen” is another. It’s two different things. It’s very simple to see that if you look at Article II, Section 1, clause 5, which is the Eligibility Clause. Right there, it has both standards: “at the time of the Adoption of this Constitution” relates to a citizen of the United States. But after the adoption of the Constitution, you have to be a “natural born Citizen,” so it tells you right there just by a very simple common-sense reading of the Article that it’s two different things. It can’t be the same thing or the Framers wouldn’t have written it that way.
We talk about the first part, “a Citizen of the United States,” as the “grandfather clause” because at that time, you had different people here. You had no one who had been born in the United States yet. There was the Revolution in 1776, then the Founding Fathers who were all born British subjects before the Declaration of Independence. I think we’re all familiar with this history. But the point is that they really were not natural born Citizens, so they said, “OK, fine, we’re not ‘natural born Citizens’; we’re definitely Citizens of the United States” because they had either been born in the Colonies or the States or they had immigrated to the Colonies or the States. But here’s the important point: they adhered to the Revolution; that’s what made them a “Citizen of the United States.” Just like a naturalized Citizen when you swear an oath: you go through a process, which is almost like going through a revolution, and then you swear an oath and you become a Citizen. We don’t go through revolutions today to prove that we’re a Citizen; but if you’re not born here, you do have to swear an oath. So that tells you right there than Wong Kim Ark really is not defining a natural born Citizen in the context of a presidential election.
However, what’s important about Wong Kim Ark is that it did recognize that there is a “natural born Citizen,” and it confirmed the definition of that particular clause because it cites the case of Minor v. Happersett, which case defines clearly what a natural born Citizen is, although it doesn’t tell us, again, in the presidential context. We call it dicta, when the court says something that is not part of the actual decision, so it’s just giving you an extra comment. However, it is important because we’re trying to piece together what the intent of the Founders was, so you look for anything that you can which does that, and Wong Kim Ark affirmed that part of the definition. It also recognized that there’s a difference between a “citizen of the United States” and a “natural born Citizen” because the court says that a citizen has just as many rights as a natural born Citizen, so clearly, it’s recognizing that there are two different things. So again, the Supreme Court has never issued a decision on this in a presidential context, but we do have these cases which touch upon the definition of it.
There are also more cases which address that particular issue. If we go back to the Venus case, which is one of the earliest cases, heard by Chief Justice John Marshall back in 1814, he was concurring and dissenting for other reasons, and then he told us what a “natural born Citizen” is. He doesn’t use that language; he uses the old language which was used to translate Vattel. He talks about the “indigenous,” the “natives” or “indigenous,” but it’s the same concept, the same definition. So that goes back as far as 1814, and Justice Marshall was one of the Founders.
So it’s not a clear-cut thing where you’re going to find a case which says, “Oh, here, to be president, here’s what you have to have.” But there’s enough evidence there, and I have a tremendous amount of evidence that I’ve put together, and I’m giving you a summary here.
MRS. RONDEAU: Regarding the many previous lawsuits which have not advanced, do you think it was because the courts were unprepared for something of this magnitude? Or did the plaintiffs in those cases really not have “standing”?
ATTY. APUZZO: No, I would not say that the court is unprepared. Our legal profession in the United States, which includes the judges, has some pretty smart people. They can read, they can get caught up really fast; we have a tremendous amount of resources with the internet today. It’s just amazing how we can go back and find these sources. In the older cases, they were quite limited and it was difficult to find documents and things, but today, the resources are just unbelievable. We have all the founding documents there and people can go and read them; it’s just fantastic. So the court can go back. They have smart people who can get caught up and quickly understand what’s going on. So I don’t think it was a matter of not being prepared. I think whether or not the cases were ready to be heard is the answer there. I don’t think the cases were ripe.
“Ripeness” is a concept that the court uses when it tells us that the case is not ready to be decided because the injury hasn’t happened yet. We don’t have the battle yet; we don’t have the war yet. There’s nothing to decide yet.
MRS. RONDEAU: How does the court make that decision?
ATTY. APUZZO: It looks to the nature of what’s being contested. For example, in this case, we’re talking about whether or not Mr. Obama is a natural born Citizen. Now the court says, “OK, we’re going to have an election,” because these cases were filed at different times. Regarding those which were filed before the election, the court basically says, “OK, well, they want us to rule on this, but anybody can run for office. You don’t have to be a citizen to run for office. That’s under the First Amendment. So they’re going to say, “Well, what are we going to say, that this person can’t run for office? It’s a First Amendment right to run for office.”
MRS. RONDEAU: Even if you’re not eligible?
ATTY. APUZZO: Yes, even if you’re not eligible. You can run and make a political statement. We had an individual, Roger Calero, who was born in Nicaragua and had a green card. He ran for president, and he was actually put on most of the ballots. I know he was on New Jersey’s ballot. Some states stopped him, but he probably could have challenged those constitutionally. However, nobody made a big deal out of it.
Now the question is, “If he wins, then he still has to qualify.” That’s where Congress comes in, because in the 20th Amendment, it says that the president-elect still has to qualify. So that’s where he would be stopped if he’s not qualified. So running for office is one thing; winning, of course, is another thing; and then actually getting confirmed by Congress and actually having the power go to you, the executive power to vest – the Constitution talks about “vesting” – you have to qualify in order to have that power vested in you. So the court can simply say, “This is too early. We’re not going to get involved in this yet. It has to go to the voters, and a person could simply lose the election, like McCain. McCain lost, and it becomes a non-issue. Or, they could say, “The Electoral College can still do something.” But then again, if the Electoral College says “no,” it’s like a McCain – you just lost. Or, then it can go to the Congress, and the Congress can say, “Oh, no, this person is not qualified, so we’re not going to confirm him.” So the court has spared itself from getting involved in a battle, let’s call it.
So that’s what happened with all of these cases. Another thing, too, is that some of the cases were asking that the election be stayed. There was no actual Writ of Certiorari filed with the Supreme Court on the case itself, on the merits. The issue was, “Stop this election.” But then that goes back to what I just said. They’re not going to stop an election because an election is an election; anybody can run. So that’s the problem. That’s why we really can’t say that the courts were wrong or they weren’t prepared…I think that the cases weren’t ready and it was too early for the courts to act. It is much different now with the Kerchner case, and of course, if you want me to tell you about that, I can do that.
MRS. RONDEAU: Yes, how is your case different from the others?
ATTY. APUZZO: Here is the crucial difference. First of all, “standing” is decided at the moment you file the complaint. In other words, that day, when you file the complaint, you have to have standing. Now, you can have standing the day before, or a month before or a year before, but it continues, as if I have an injury of some sort and it happened a year ago and I file a complaint. My standing continues, because I’m still that injured person after that day. It doesn’t count for anything into the future; I can’t file a complaint today, and say, “Well, you know, in about six months I’m going to be injured.” So it goes by the day that you’re filing it.
Now, how does that apply to Kerchner? The day we filed the complaint, Mr. Obama had already been confirmed by the Congress. So that addresses the problem which I talked about before, about ripeness. He had been confirmed, so there was nothing else within the political process to be done. It was complete; there was nothing else. The court couldn’t say, “First Amendment, the voters might not vote for him; the Electoral College; Congress might do something…” They can’t do that; it’s done. The second thing is that when you file a complaint, you have to file at the right time in terms of not losing your rights. For example, if I don’t file within two years of an accident (depending on what state you live in), if you don’t meet the statute of limitations, you lose your rights, even though you were right. If you had filed on time, you would have won. If you don’t do it on time, you lose, and that’s it; you’re done.
Here, we filed before Mr. Obama was sworn in on January 20th. We filed at 2:50 or so in the morning electronically before he was sworn in on January 20th, so he was still a private person. He was not the President of the United States.
MRS. RONDEAU: Could the court then say to you, “You were not injured because you filed before he was sworn in?”
ATTY. APUZZO: No, because at that point, the political process had finished. They can’t say, “Well, Congress can still fix it,” or the Electoral College. There’s no one else who can fix my injury. Of course, I still have to show that I’m injured, but you can’t say that somebody else is going to fix my injury. There’s nobody else who can fix it. I also filed an Amended Complaint/Petition after he was sworn in to office so that we could also sue him as President. So I sued him both before and after he became Presidential.
MRS. RONDEAU: So the swearing-in by Chief Justice John Roberts wasn’t an issue?
ATTY. APUZZO: No, the swearing-in only converts him from a private citizen to a public official. It converts him, because that he still has to do that, according to the Constitution. That’s what vests the executive power in him. He has to take an oath that he is going to preserve, protect, and defend the Constitution, and if he doesn’t do that, he can never be president. So he was not the president when we sued him. He had completed the political process, but yet he was not the president; he was still a private person. So therefore, we did not sue the President of the United States; we sued a private person who, of course, went through the political process, became the President-elect, but not the President of the United States, and as I said, we also sued him after he became President. Also, the fact that he became the President does not moot the case because we allege that he is currently occupying the Office of President while not being constitutionally eligible to do so. That’s what makes our case different from all the other cases. There’s no other case in the country that can say what I just said because you can’t undo history. You can’t go back. So that’s it; we’re locked in. Now, if another case comes along and establishes new standing, that’s something different. But as far as all the cases that have been filed, the Kerchner case is the only one that has this unique standing position. Not only is it a timing situation as to the standing, but also, what we allege. That’s another issue also, and none of the other cases allege the injury that we allege in the Kerchner case.
MRS. RONDEAU: What is the injury that you allege?
ATTY. APUZZO: The injury is tied to your basic, unalienable rights, natural rights that are confirmed by the Declaration of Independence, the U.S. Constitution, by the Fifth Amendment, the 14th Amendment, although the 14th Amendment applies only to the states; but the federal courts look at the 14th Amendment also when they interpret the Fifth Amendment. So we’ve heard these words over and over again which are at the heart of our existence: life, liberty, property and the pursuit of happiness. You can’t get beyond that; that is it. Those are the elements.
What we contend is that the government exists for protection of the people. That’s why the people, when they had the Revolution and they decided to join together “to create a more perfect union,” decided that they would need a government to do that, because the government would protect them. So the purpose of government is to protect the people, and the people say, “If you protect us, we will give you our allegiance, our loyalty.” If the government is supposed to protect you, then of course, you need people to do that. The people vote, because we have a representative form of government. So we vote for our political leaders, and the reason we’re voting for somebody, whether you realize it or not, whether you’re conscious of it or not, is that we believe that person is going to protect us more than the other person.
It could be, “Oh, he’s going to raise my taxes or lower my taxes.” That’s “property.” Or, you don’t want to go to war, or die; going to war is dying, getting hit by missiles, bombs; so that’s “life.” As to “liberty”: Somebody might want to take away certain rights that you have, cut off your liberty. So the list goes on and on.
The president has a tremendous amount of power under our Constitution. He has a great role in that protection, a tremendous role. So if the president is not qualified, if you can’t trust the president because you don’t know who he is, he hasn’t shown you to be eligible, you don’t know whether he’s a “Manchurian candidate,” so to speak, you haven’t given your trust to him; you haven’t given your consent to him. So by not showing who he is, by not being qualified, by not being a “natural born Citizen,” which is a protection mechanism…it’s protecting the people so that the president is going to be trustworthy, he’s going to protect the Constitution, he’s going to protect American values; he’s going to preserve the nation after he assumes that office: that all goes to your protection. So if the president is not qualified and you can’t trust him, of course you can argue that you’ve been injured, because he’s not going to protect you, your life, your liberty, your property; he’s not going to protect your pursuit of happiness. So that’s the injury that somebody suffers when you have somebody like the president who is not a natural born Citizen. It goes to the heart of being protected by your government. We’re not talking about just a senator here, a judge or a representative; we’re talking about the singular, all-powerful office of the President about whom we’ve all heard has the nuclear football; he has a lot of power.
Look at how Obama has so far transformed our nation; it’s unbelievable in a short amount of time. That’s what I’m talking about here; that’s the protection that we’re not getting and that my clients do not have, and that is the fundamental crux of our standing. Also, protection has been recognized from time immemorial: that government is supposed to give you protection. If you study the history of citizenship and naturalization in America, if you study the case law, if you study all the international law writers, natural law writers, it’s all about protection. So this is not something that we’re inventing about protection. It’s recognized. Vattel even talks about it: protection – that’s what you get from your government. So that’s the standing in the Kerchner case.
MRS. RONDEAU: That being said, why do you think the lower court dismissed your suit?
ATTY. APUZZO: They said that we have a general grievance about government. Essentially, they used language from other cases which talked about people complaining that some regulatory agency wasn’t protecting the environment, wasn’t doing something, and that people are just complaining in a general sense that the law is not being respected. And the court says, “Well, who are you? We have this environmental problem going on in California, for example, and you live in New Jersey. What’s it to you?” I am just giving you an idea of this. So basically, the court says, “Well, the injury that you’re talking about is a general grievance, and everybody in the whole country has the same grievance if he’s not qualified. You don’t show me that you have a specific injury, a particularized injury that applies to you, so therefore, I’m dismissing this case because it’s as if the whole country came to court and everyone is complaining about this. That’s not for us; that’s for the Congress and for the Executive to deal with.”
This is totally inapplicable in our case because we’re talking about a constitutional standard which is well-defined within the Constitution itself. There’s a lot of argument as to what it means, but the court is well-equipped to finally tell us what it means, so they can make that decision. So again, not everybody sees himself as injured by Mr. Obama; you still have “X” amount of people who still support him. And even if you prove to these people that he’s not qualified to be president, they would vote for him again, because they have a different value.
MRS. RONDEAU: I’ve heard the argument that 52% of the voters put him in and therefore he can serve, eligible or not. Is that valid?
ATTY. APUZZO: Absolutely not. The people don’t have a right to vote for and put into office an illegal candidate. Now when I say “candidate,” once again, anybody can run. But they can’t have him sit in that office if he’s illegal. They don’t have a constitutional right to do that. They have a constitutional right to vote for a person and then have him sit, eventually, if he’s constitutionally qualified. But we don’t have a democracy in America, even though I know everybody talks about “democracy.” It’s not a democracy; it’s a constitutional republic, which means that the majority just can’t go ahead and do things because it’s “cool” to do it or it’s the “avant garde” thing to do, or because they don’t like the minority. They can’t do that. They’re limited by what they can do, and the limit is set by the Constitution, and then from there, all the laws that are created in America. Of course, you have jurisdictions; every state makes its laws and every county and municipality – right down to the speed limit on your local roads – right down to that. So that holds us back as to what we can do. So you can’t just say, “Oh, well, we voted for him, and that’s the end of it.” You cannot do that. The rule of law has to be applied. The Constitution has to control. If you satisfy those elements, then, of course, we say, as a society, that an election decides who is in and who is out. And once the election is over, that’s it; we don’t discuss it unless, of course, somebody has a legal issue with that election to be raised and litigated in an election contest.
MRS. RONDEAU: It is a fact that there were many letters written to Senators and Representatives before the certification of the votes on January 8, 2009. Why do you think Congress failed to question anything then when they had the chance?
ATTY. APUZZO: We talk about “the perfect storm”? Well, we had one. We had the perfect storm. And what was it? We had McCain, who was born in Panama, whose “natural born Citizenship” status was not clear in the U.S. Constitution. That’s an open question. You can argue in court whether or not he is a “natural born Citizen.” So you have that on the Republican side. You had the Democrats supporting McCain for “natural born Citizenship” status, which was really unbelievable. Obama himself and Hillary Clinton were supporting the resolution that McCain is a natural born Citizen? So, now the Republicans are beholden. “Oh, thank you for being so nice and for letting us run, for letting our candidate go through!” which, by the way, there still could have been challenges if he had won afterward. Just because you pass a Senate resolution, that’s not binding, that’s not law. So the Republicans had a weakness; they were compromised. They were compromised because they made a “deal” with the Democrats. Now, did they sit down and make a deal or something like that? I’m not saying that; I have no evidence of that. But what I’m saying is, in the general sense, they were given this “gift.” And then they were compromised. So they couldn’t argue about Obama, because McCain wasn’t even born in America! So how do they argue about it? They said, “OK, you let us run; we’ll let you run; and the people won’t even know anything. This thing will go through, politics as usual…” and that was the end of it. So that was a big, big factor as to why the Republicans didn’t do anything. That’s one factor. Additionally, Calero, who ran as a Socialist, was not even a “citizen of the United States.” So he surely was not going to say anything about either Obama’s or McCain’s “natural born Citizen” status, nor was anyone from either the Republicans or the Democrats going to say anything about his status.
Another factor is race, and it’s going on right now. If you read the blogs and some of the comments, you’ll see, “Oh, the only reason you’re going after Obama is because you’re a racist,” which is the most absurd thing, because if you look at history, there have been many challenges to candidates, and all those candidates were white. They were all white. If you look, there are a bunch of them. And there was McCain in this same election who is white, who was challenged, who was sued such that the Senate had to pass a resolution because he was being challenged. That’s not racism? So it’s absurd, but yet, it exists. Just like the tea party movement – “Oh, you’re a racist.” Anything that you do against Obama makes you a racist. So that also is a factor that plays in here whereby a congressman or senator is thinking, “If I say anything, they’re going to say that I’m doing it because I’m a racist.”
MRS. RONDEAU: So they’re afraid of what other people will think of them?
ATTY. APUZZO: Yes, that’s factor #2. And then factor #3 is just plain ignorance. There are a lot of senators who believe that he was born in Hawaii. That’s the end of it. They didn’t really look into all the fine-tunings of this, that he never really produced a 1961 contemporaneous birth certificate. Nobody ever saw it; nobody in Congress. I challenge the whole Congress, I challenge the whole government: who saw his birth certificate? When I say his birth certificate, I’m talking about his 1961 certificate that has the hospital in which he was born, the doctor who delivered him…nobody saw that; they’re all assuming that somebody else saw it. “Oh, the DNC, Nancy Pelosi saw his birth certificate…” Well, she didn’t see it, either. Nobody saw a birth certificate, which is just plain incompetence when you’re going to let a person assume tremendous powers, and this is all in light of 9-11 and this whole identity and birth certificate fraud problem. We have people coming into our country on visas and going to flight schools and learning how to fly airplanes into buildings and population centers…this whole identity thing with people sneaking into our country, and we’re going to let the President of the United States, some person whom we don’t even know, assume the powers of the government. It’s just the most incompetent thing. So you also have that as a factor: the embarrassment of the incompetence that was allowed to occur.
So they want him to be a natural born Citizen so they’ll be spared the great embarrassment, the label of “How could you be so incompetent…Right under your nose, you let somebody come in to the office of President after having gone through a 9-11 situation?” So that’s why they also don’t want to say or do anything.
MRS. RONDEAU: So are they just going along, pretending that everything is OK and hope that the courts continue to dismiss the cases?
ATTY. APUZZO: Yes, and then, of course, they confuse the issue. You have some of these editors and talk-show hosts on television such as CNN who go around saying, “Oh, yeah, everybody saw the birth certificate: the governor saw it and the health director saw it, and everybody says he was born in Hawaii.” So that’s put out into the news, so to speak, and people who don’t have the time to really look into it go by sound bytes. Unless you’re a full-fledged patriot who lives and sleeps this stuff…but if you’re a sound-byte person, you’re going to hear, “Oh, the governor saw the birth certificate. The ‘birthers’ are nuts.”
MRS. RONDEAU: That seems to be the impression they want to leave with their audiences. Do you think that Governor Lingle of Hawaii really knows for a fact that Obama was born at Kapiolani Medical Center as she stated a few weeks ago on a radio program?
ATTY. APUZZO: Here’s what I think. If she knows that for a fact, then what’s her evidence? What is her evidence? Hawaii has a lot of power and authority in this. If you look at the Hawaii statutes, they can actually confirm whether or not you were born there by going to your medical records. It’s right in their statutes. Wouldn’t you think they would have done that? They know that people are saying that the hospital has not confirmed it. And then the hospital says, “Oh, well, we can’t do it because Obama has privacy rights and he has not told us that we can release his information to the public.” But Hawaii has the right to actually confirm whether or not somebody was born there by going to the medical records. They can do that. Why haven’t they done that? Why haven’t they gone to the hospital and said, “We have to put this thing to rest once and for all because we have all of this conflicting information: the grandmother says one thing, the ambassador says another; the Kenyan Parliament recently said he was born in Kenya; the people are up in arms.” They pass these ridiculous laws so that people can’t ask for Obama’s documents again, and I don’t know how they’re going to enforce that. Who determines what is “vexatious“? It is so vague and gives discretion to a person, but now you’re applying politics without a standard to the question of whether a public entity should release records to the public, which is absurd. Instead of sparing themselves all that embarrassment and ridicule, just get the medical record from the hospital, and that would be the end of it.
MRS. RONDEAU: I never thought of that angle, but I’m sure they have. In light of the many lawsuits that have been thrown out, although yours is still active, is the U.S. Constitution still in force, or has it been thrown out and we now have some kind of anarchy?
ATTY. APUZZO: The U.S. Constitution is the lifeblood of the Republic. That’s really the only thing that keeps it together, because if you don’t have a constitution, then everybody goes whatever way they want to go. The government makes whatever laws it wants to make; the states do whatever they want to do; you would have anarchy. So that constitution is there and tells you what can happen if somebody goes off on some path which the powers would decide, “You’re off here, and you can’t do that.” Eventually, we have the Army and the National Guard, the military power, which would be called in to stop whatever is going on.
We had a civil war in America. The Constitution was there, and we had a difference of opinion, but it was settled by a war. Again, the Constitution. Everybody interprets it differently, but in the end, whomever has the might, because when law breaks down, when no more negotiation is done, then you resort to might. That’s who decides the issue, just like the Revolution. The Revolution was the same thing. The Colonies said, “Look, that’s it. OK, now we’re going to go to war.” And then the Colonists won. We’ve all heard the expression “Might makes right.” But until you get to that point, you still have a constitution which keeps the peace, and you need the courts to enforce the Constitution. So the Constitution is not a dead document; it’s there.
Now, what’s interesting is that the courts really don’t have power; they don’t have an army. When you think about the Pope in history, he had an army. That’s kind-of funny when you think about that; can you imagine a Pope with an army? But it was different times. Well, the court doesn’t have an army; they don’t issue an order and if you don’t follow it they’re going to send troops to your house. But they do ask the Executive to enforce the order. Then, of course, the Executive has an army, and the Congress, too. So that’s what the power of the Constitution is: that the court will say, “Well, look, this is it; here’s the law.”
We had examples of that during the 1960s with segregation. The court issued an order to desegregate the schools, and some governors said, “Hey, I want to see you enforce that.” And what did the government do? It sent troops. And that’s the Constitution. So the Constitution has power, but you need the court to say what it means, and then, of course, you need the Executive and the Congress to put into place the mechanisms of power to enforce what the court says. If all of that doesn’t happen, you don’t have a constitution; you no longer have a constitutional republic; you have something else: a dictatorship, an oligarchy, totalitarianism, once the government takes all power, which is where this Obama administration is going by the government taking over major parts of private enterprise. And I don’t care what you want to call it: “Oh, well, if we don’t do that, everything is going to crumble.” That’s all just pretext, because either something is or is not. It’s as simple as that. Either the government has power or it does not. Don’t tell me how it got it or why it got it; just tell me that it has it. And if it has it, then it’s a duck. What is a duck? Well, if it quacks like a duck, if it walks like a duck, it’s a duck.
MRS. RONDEAU: Your case is in the appeal phase now, and I know you’re scheduled for a tentative hearing on the merits beginning on June 29 in the Third Circuit Court of Appeals.
ATTY. APUZZO: Yes, the Third Circuit includes New Jersey, Delaware, Pennsylvania and the Virgin Islands.
MRS. RONDEAU: Where exactly will the case be heard, assuming that the June 29 date happens?
ATTY. APUZZO: The Third Circuit Court of Appeals normally sits in Philadelphia; that’s where the court is. But the notice that we got from the clerk’s office sent the oral argument to Newark because Newark is part of the Third Circuit. So that’s where it’s tentatively scheduled right now: Newark, NJ, at the federal courthouse. But just because it’s happening in Newark doesn’t mean that it’s just for New Jersey; it’s for the whole Third Circuit.
MRS. RONDEAU: Do you know whether or not the date is firm?
ATTY. APUZZO: No, we still don’t know yet. The latest notice that we got said it’s a tentative date and that they will let us know a couple of days before whether or not the date is going to be moved or whether they’re even going to give us oral argument. So when you use the word “tentative,” it applies to two elements: the date itself or the location, and whether or not you get oral argument. So those things are all up in the air.
MRS. RONDEAU: So they could change one or both of those things?
ATTY. APUZZO: Exactly. We won’t know what’s going to happen until no less than one week before the 29th.
MRS. RONDEAU: Is there any place for new arguments if and when you do get that hearing on the merits?
ATTY. APUZZO: The court can ask questions, which is the reason for oral argument. So depending on the questions, then of course I would respond. If something else comes up that’s allowed…why do I say “allowed”? Because you can’t just go up on appeal and raise new arguments. You can’t do that. First of all, when you file an appeal, you file on certain issues which you identify. So that’s one limited aspect. Also, just because you filed on, let’s say, five issues, if you didn’t brief the five issues, you’re not going to be able to argue those issues. So you have to raise the issues, argue the issues in your brief, and the issues have to be relevant to the case. You can’t argue something that wasn’t really decided. So you have to live within all of those limitations.
MRS. RONDEAU: I’ve been reading your updates, and your supplemental filing was denied by the court. Is that significant?
ATTY. APUZZO: No, it’s not significant because an appendix that is part of a brief contains evidence. It could contain exhibits or some kind of document which is important in the case, something of which the court cannot take judicial notice. It’s a piece of evidence that you put in the appendix. It could be a court decision or a court order, some kind of pleading such as the complaint; something that the court needs to look at in order to make the decision. That’s what an appendix is.
What I included in the Supplemental Appendix were legal arguments in the form of articles which exist in the world of knowledge. In other words, they don’t exist because of the Kerchner case; they already existed. You just have to go back to 1789, for example, to see the David Ramsay dissertation. So I included them in the appendix for the convenience of the court so that they could have them there readily available, so they don’t have to go looking for them on the internet.
MRS. RONDEAU: So it was research which you did. Why did they reject it?
ATTY. APUZZO: They rejected its becoming part of the Appendix, that’s all. They don’t need it as part of the Appendix. They really don’t need it because they can just go and look at it. It’s just like a case. I’ll give you an example: Wong Kim Ark. I didn’t print the case out and put it in the Appendix. I don’t have to do that. I could just cite it and they go look at it in the law library or they go on the computer and they can read that case.
MRS. RONDEAU: When people see the word “denied,” they tend to think it’s bad for your case or that the court didn’t need it.
ATTY. APUZZO: They didn’t give a reason why they denied it. But that was the only value there. Those articles were put in the Appendix so the court could have it as a convenience because some of those articles are not that easy to get, such as the Ramsay article. But it’s there; it’s part of our history; you don’t just erase it. That would be similar to my putting the Wong Kim Ark case in the Appendix and they deny it, but that doesn’t mean the Wong Kim Ark case doesn’t exist. It’s called “judicial notice.” The court could take judicial notice of all the laws of the United States, all the law review articles and things, all kinds of things, but you don’t have to present it as a piece of evidence. You cite it so that you can bring the court’s attention to it so that they’re aware of it and they can read it and they don’t miss anything. That’s why you cite things and you argue things, so you can bring it to the court’s attention. But you don’t have to give them the actual document; they can just find it themselves.
MRS. RONDEAU: Because we possibly have an illegitimate president, are all 310,000,000 Americans injured?
ATTY. APUZZO: When the court decides a motion on standing, it’s not “possibly” or” probably.” They have to assume the facts that we have presented. We have presented that he’s not eligible. That’s a factual allegation. We said he hasn’t proven himself to be born in Hawaii, so they have to accept that. The defense surely didn’t bring up evidence that he has proven it; they didn’t even touch that issue. We’ve also argued that he’s not a “natural born Citizen.” They surely didn’t argue that he is; they didn’t argue that. So even if they did, the court can only go by what we’re saying, because this is a Motion to Dismiss for lack of standing on the face of the complaint, so the court has to go by our allegations. The only allegations are that he’s not legitimate, so that’s the only thing that the court can go by. So it’s not “maybe he’s not legitimate” or “they didn’t prove he’s illegitimate so they don’t have an injury.” That’s not correct. They have to accept that he’s illegitimate and then they have to ask, “Do they have an injury here?” That’s very important.
The court itself is not supposed to go to the merits and use the merits to knock out standing, because then a litigant never has a chance to present his merits. Standing is a jurisdictional factor. When a court decides jurisdiction, it’s not supposed to decide anything else. It has no power to decide anything. So the minute you have no jurisdiction, the court has no power to then say, “He’s a natural born Citizen.” It has no power to say that.
Earlier I said that there has not been any U.S. Supreme Court case that has yet to decide the question of what is a “natural born Citizen” within the context of whether a person is eligible to be President. There has, however, been a state court case that has reached the merits of that question as it applies to Obama. That is the Indiana state case of Ankeny v. Governor of the State of Indiana. That court decided that anyone born in the United States (except for the children of diplomats or of invading armies), regardless of the citizenship of his or her parents, is not only a Fourteenth Amendment “citizen of the United States” but also an Article II “natural born Citizen.”
It is telling that the Indiana court felt compelled to rule that Obama was not only a Fourteenth Amendment born “citizen of the United States” but also an Article II “natural born Citizen.” Hence, the court does concede that there is a difference between the two.
MRS. RONDEAU: What could be done with the case of Ankeny v. Governor of the State of Indiana?
ATTY. APUZZO: Well, it’s not a federal opinion; it’s not binding on the federal court, and I really don’t give much value to it myself, personally, based on what I’m saying now as well as other things. They really didn’t get into all the case law, all the evidence, all the history; they just used Wong Kim Ark and said, “He’s a natural born Citizen.” The Indiana court used Wong’s holding that under colonial English common law Wong was a “citizen of the United States” under the Fourteenth Amendment and expanded it to give the meaning of an Article II “natural born Citizen” which is the standard to be eligible to be President. Clearly, the Wong decision did no such thing. On the contrary, Wong distinguished a “natural born Citizen” from a “citizen of the United States.”
MRS. RONDEAU: And yet there’s no real evidence that he was even born in this country.
ATTY. APUZZO: Exactly. That’s another thing with the Ankeny court. They didn’t even get into that. They just assumed without citing to any evidence that Obama was born within the borders of the United States. They had to make that finding in order to apply the jus soli Wong decision to Obama’s situation. But there was absolutely no evidence before the court that Obama was in fact born in the United States. The defendants did not produce for the court any birth certificate or any other evidence proving Obama was born in the United States. Even without any such evidence, the court ruled that he was born in the United States and therefore a “natural born citizen.” In fact, none of the defendants including Obama himself has ever produced his birth certificate for any court which dismissed all cases against him.
MRS. RONDEAU: The arguments I have read are that the plaintiffs don’t have standing or that the jurisdiction is wrong.
ATTY. APUZZO: You would think that the first thing they do would be to say, “What are you, nuts? Here’s my birth certificate.” On the question of the place of birth, that would be the end of it. Then you have the argument that he doesn’t meet the definition as given to us by the Founding Fathers, which is only one definition. It can be only one, just like 35 years of age, 14 years of residency…it can be only one thing. The same thing with “natural born Citizen.” The only thing it could mean is “born in the country of citizen parents” because that’s a definition that everybody can accept. If you’re born in the country of citizen parents, nobody can say you’re not a natural born Citizen of the United States.
MRS. RONDEAU: Or that you don’t bear allegiance to the United States?
ATTY. APUZZO: Yes, that’s full allegiance. Now take McCain, who was born in Panama. There was a time in our history, from 1802 to 1855, whereby if you were born in a foreign country, it didn’t matter that you had citizen parents. You were an alien. Can you imagine that? So now, would the Founding Fathers having given us a definition that could change over time, such that Congress could tell us that someone is no longer a citizen? They wouldn’t have done that; they would have used the natural law definition which goes back to time immemorial: if you’re born with the people on their soil, you’re a full-fledged citizen. Again, it goes back to the religious heritage, secular heritage, the Greeks, the Romans, Ramsay talked about it…and then, of course, there are the cases and our own naturalization laws. Not one of our naturalization laws talks about naturalizing somebody who was born here of citizen parents. Not one. But if you look at the early naturalization laws, it didn’t matter where you were born. If your parents naturalized, you had to naturalize. In other words, you could be born here, and if your father was an alien, when he naturalized, that’s when you became a citizen, even if you were born here.
MRS. RONDEAU: That’s what Breckinridge Long said.
ATTY. APUZZO: And the Congress. The Congress, starting in 1790 and 1795, and so on…1802, 1855. The definition is clear. There can be only one definition, and that is “natural born Citizen.”
MRS. RONDEAU: My closing question is if it proven that Obama did not qualify as a natural born Citizen for any or all of the reasons we have just discussed, constitutionally, what should happen?
ATTY. APUZZO: That’s a very difficult question because we’ve never had this happen before. But we do have the 25th Amendment which says that if the president is unable – which doesn’t mean just physically or mentally – I interpret it to mean any kind of inability – the vice president becomes the acting president. So if you’re not constitutionally able, it’s not an impeachment, because with impeachment, you have to have wrongdoing. You have to either commit a crime, a high crime or misdemeanor, or treason. So if somebody isn’t eligible, you could also have criminal conduct if there was some kind of a cover-up. But if somebody was acting in good faith and you really thought you were a “natural born Citizen,” but then you’re not, how can you be impeached? You didn’t commit a crime of any sort, but because you didn’t commit a crime, does that mean you stay? The country can’t undo your swearing-in? That doesn’t make any sense. So the Constitution has the 25th Amendment “inability,” and the mechanism is put into place by the vice president and the leader of the Congress with the cabinet and a majority of his officers who would initiate the process, and then eventually the Congress votes on it. There’s a mechanism there where the whole process is started with inability. And the president, of course, is able to write a letter in defense of himself, but then eventually it goes to the Congress, and they have a hearing, vote on it, and that’s the end of it. It’s not an impeachment because again, there’s not necessarily a crime involved.
MRS. RONDEAU: If Obama were removed from office for ineligibility, what happens to the legislation and other things he has signed?
ATTY. APUZZO: The complications could be what happens to, for example, the health care bill. There are also arms reduction treaties, nuclear treaties. Then the question is, “Are those treaties valid? Do they have to be confirmed?” You could have a new president come in, and then that person would just confirm those acts.
MRS. RONDEAU: Or could he actually invalidate them?
ATTY. APUZZO: Yes, that’s part of it. In other words, if he has to confirm it, then he could invalidate it. Then you have something called a “de facto officer,” somebody who is sitting in power, whereby even if later on it’s decided that he wasn’t legitimately there, his acts are still considered valid because factually, he was there (“de facto,” meaning “by the facts”). Not “de jure,” because de jure is by law. So de facto, he’s the president, and because we have to have stability in our dealings, we’re willing to say, “He was acting like the president, he looked like one, everybody thought he was the president, we all acted in good faith; he did all these things, so therefore, we’re going to say that the things he did are binding,” because he was a de facto president.
MRS. RONDEAU: So everything would not necessarily be canceled?
ATTY. APUZZO: The complication here is that it’s a constitutional problem, so will the “de facto officer” doctrine apply when somebody doesn’t have constitutional power? Are we willing to go that far? “De facto” could apply to a state senator or a town councilman or mayor or a corporate officer of some sort such as the president of IBM or something…but are we willing to go that far with a constitutional officer as the president…will it apply to that? Those are complicated issues that would have to be looked at.
MRS. RONDEAU: What if it is proven that there was a conspiracy, and Obama knew he wasn’t eligible but ran for office anyway? Is that a crime?
ATTY. APUZZO: Yes. Then you get into fraud wherein he has defrauded the nation; he’s received money under false pretenses: wire fraud, mail fraud, sedition. You could probably call it treason, to have somebody do that, because you don’t know what he’s up to. And then, all these different things that he’s done…when you piece it all together, you could make a case as to what his intent was. You can’t take a picture of somebody’s brain and say, “Look, here’s your intent, ” but we get to intent by inference. How do we do that? We look to see what a person did or did not do.
MRS. RONDEAU: And what about all the people who helped him? We don’t know if they absolutely knew. If it turns out he’s not a natural born Citizen, we don’t know if they were complicit or if they really believed that the COLB on the internet was authentic.
ATTY. APUZZO: It’s the same thing. Again, we can’t take a picture of their brain, but we can look to see what they did, when they did it, how they did it and why. Once we have the full picture, then we make a conclusion by inference whether or not they knew that he was or was not eligible. And if we conclude that they knew, then they have trouble. Then it was an intentional cover-up, so to speak. You could have a crime committed, and it’s one crime. Then, you could have a cover-up of the crime; that’s another crime.
MRS. RONDEAU: And a lot of times, it’s the cover-up that actually exposes all of the crimes, as with Al Capone.
ATTY. APUZZO: Yes, sure.
MRS. RONDEAU: Thank you again for giving your time to The Post & Email. Is there anything else that average citizens can do to help your case?
ATTY. APUZZO: Well, if Charlie (Kerchner) were on this interview with me, he would tell you right away that we have the fund-raising blog which we use for advertorials. We write these articles with information for the public. The site is www.protectourliberty.org. People can go there and make a contribution to our educational efforts. Then, of course, there’s my blog at www.puzo1.blogspot.com, which contains all the information as to what a natural born Citizen is. So they can do that. And keep getting educated, keep reading all the information. Your publication is fantastic; it’s cutting-edge; you state the issues the way they are; you don’t hide anything. People need that information; honest, clean information, so they have to keep educating themselves. The reason I say that is I wrote a recent essay on “Who is Protecting the Constitution and our Nation, the “Birthers” or Obama and his Enablers?”
MRS. RONDEAU: Yes, I read it.
ATTY. APUZZO: One of the quotes from Samuel Adams was, “If virtue and knowledge are diffused among the people, they will never be enslaved. This will be their great security.” You see? Virtue and knowledge. So that’s why I say that people just have to keep informed and gain the knowledge they need to make the right decisions so they don’t get tricked or hoodwinked by somebody who doesn’t really have their true interest at heart.
MRS. RONDEAU: Do you think more people are better-educated than two years ago?
ATTY. APUZZO: Oh, yes. Look at the numbers…these polls that keep coming out…it keeps growing. The trend keeps growing, and it’s going to climax.
MRS. RONDEAU: Thank you again for your time.
ATTY. APUZZO: Thank you, and to Mr. Charlton and your whole team.
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