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legal analysis and critique by an anonymous patriot

(Oct. 22, 2009) –  Federal Judge Jerome B. Simandle’s ruling to grant the govt.’s Motion to Dismiss, in the case Kerchner vs. Obama, is not only a clear violation of the laws of the country but also a shabby, shameful exercise in the incorrect and untruthful exercise of logic and common sense.  In fact, there may be more than 4 erroneous arguments, but these are just the ones that bubble up to the surface when the opinion is digested together with the plaintiffs and defendants submissions.

In drafting his obviously slanted opinion (that might as well have been written by the DOJ since almost every argument presented by them was accepted en toto by Simandle, but taking MONTHS to do so) the judge notes:

Where, as here, the challenge to subject matter jurisdiction is facial, the Court must, for the purposes of this motion, take all the allegations in the complaint to be true and construe them in the light most favorable to the Plaintiffs.

The judge by the words in his own opinion must then take the plaintiff’s allegations to be true and consider the MTD in that regard. It means for purposes of this action the court assumes Obama is ineligible and Congress completely failed in its duty and assumes all other allegations to be true.  In fact, he has done exactly the opposite on at least the four primary points of the Kerchner et al action which are:

1. Obama has not shown his Constitutional eligibility to hold the office he now occupies and the Constitution REQUIRES that eligibility. The judge misstates the position by claiming that the action states that “Obama is not eligible for his office”.  The action states that he has not shown his eligibility (not that he is NOT eligible) and is required by the black letter law of the highest law of our land to do so.   And the judge MUST per his own opinion accept that as correct – he did not; but did just the opposite.

He also misstates that “four individuals” (not even calling them “plaintiffs”) are attempting to get “officials” to “look into their claims”which is also an egregious misstatement of the pleading since it is the Constitution which requires the eligibility, not the “individuals” and, if not eligible, the “individuals” are insisting that the Constitution be followed.  He has (he claims) accepted that as correct and yet now gravely misstates it by seeming to pretend that the “individuals” have some personal vendetta when it is the Constitution that is making this requirement; the “individuals’ are merely voicing the requirement and insisting that it be followed.

The judge, however, contrary to his own words above in his opinion promulgates his opinion in the vein of the plaintiffs not having any injury different from anyone else when in fact he must accept that as true as his above words show that they DID have such an injury.  He did not but instead denigrated any injury claiming that “… the alleged grievance is one they share with all United States citizens.” Such reasoning is patent nonsense (aside from violating his own stated opinion) since not all US citizens are harmed equally (as he states later in his opinion that they are equally harmed) in that many citizens who voted for Obama have been helped greatly by his occupying an office he may be ineligible for.  Also political activist groups such as ACORN benefitted enormously – to mention only a few of the beneficiaries.  This does not even mention the effects on taxpayers, businesses, or employees of those businesses which are certainly not “equally affected”.

In addition the Democratic political party and its officers and functionaries also benefit greatly as well as all of those people appointed as czars and other political appointees in the Obama administration.  Since Obama received something less than 70 million votes from a population of 306 million it is preposterous to claim, as the judge does, that any injury would be “shared by all the American people” nor is the action a “… generally available grievance about government …” as he states.  It is particular to AT LEAST the four points herein all of which the judge cast aside with spurious justifications in contradiction to his own opinion as shown above which shows he must consider the four points as true.  He did not, but sought to trample on each of the four.

The total ignoring by the judge of the Constitutional requirement of eligibility as being either requisite or important is a violation of the Constitution since no judge (or SCOTUS justice for that matter) is free to run roughshod over the requirements of the Constitution and abrogate its provisions by throwing out such a scurrilous opinion as does Simandle.

2.  Lack of Congressional action as required in the procedures to determine the eligibility of Obama. The man in his own admission against interest on his own political websites and in his writings had admitted his father was an alien governed by the laws of another country and that Obama himself was also governed by those laws.  It was apparent to all in Congress including then-Senator Obama that he was not eligible under the Constitution since Obama himself not only sponsored but voted for SR511 regarding McCain’s NBC status which required 2 citizen parents and was supported in that regard by the “eminent” (gag) Tribe/Olson political-legal team. In spite of doing this with regard to McCain, there was no effort to do so WRT Obama who shortly thereafter claimed in a written, signed and notarized Oath recorded in Arizona that he not only met all of the Constitutional qualifications for office, but was in fact a NBC (in spite of realizing and just voting for a resolution that clearly proclaimed TWO citizen parents were required which he knew he did not have).

This is Congressional misadventure (call it malfeasance, misfeasance, or nonfeasance if you wish) of indeed a high order and it violates both the letter and the spirit of the Constitution which REQUIRES NBC.  The judge who must take the facts from the action as true chooses instead  to completely whitewash these facts and yet proclaim that, somehow, the plaintiffs should instead realize “…their remedy may be found through their vote” — DUH!! That was just tried and is part of the action because there was no remedy and the Congress was sued because of it.  Choosing to not accept this as true, as the judge has erroneously done, is not only a violation of his judicial oath and ethics but it is a sham and an artifice … and just flat-assed wrong!

It is also a second violation of the Constitution in that is says a second time that, in effect, “this court and I in my judicial wisdom and jurisdiction” may obviate any portion of the Constitution that I so choose – and you peons may go piss up a rope!  The laws are what I (and my buds) say they are!!

3.  Pelosi in her political position(s) clearly had the responsibility of ensuring or causing to be ensured that the candidate of her party met the Constitutional eligibility requirements since, e.g., the NBC clause is a requirement (not an option) and the document she sent to the various states prior to the election was clearly intended to whitewash and/or fool voters and her everyday party workers that Obama met Constitutional muster when he clearly did not (and pointed out above) KNEW that he did not.  Pelosi also clearly must have known of his ineligibility since SR511 was readily available along with the Tribe/Olson justifications re McCain and certainly she would have access to Obama’s writings and his websites showing that his father was not an American citizen.  The “Inside The Beltway” is not that big a place nor is the “oligarchy” that large that such things do not rapidly permeate all chambers, coatrooms,  and restrooms of the “Dismal Swamp” (as some call it).

Here, then, we have a gross violation by Pelosi and that is why she is named in the action as the Constitution does not say “… it’s OK if the guy is not eligible – go ahead and put him in office and we’ll worry about that later …” or anything of the sort.  It says the man SHALL be a natural born citizen. Attempting to marginalize this point as Simandle does is merely a 3rd violation of the Constitution (as well as his judicial ethics and oath to defend the Constitution).  Once again, he attempts to make a judicial override to allow usurpation of the office of President by someone who has not shown himself to be eligible to hold that office.  A Constitutional Amendment – not the half-assed opinion of a 60’s student radical judge – is required for that purpose.  Though there have been a number of attempts to pass such an Amendment for Ratification in the past several years, there has been no such amendment put forth to the States by Congress!!!

4. Cheney, though, with somewhat different circumstances prevailing is also charged in the action for his failures to call for objections which are Constitutionally required. In fact as the votes of the Electoral College were being read into the record in the Joint Session, there was at least one man sitting very near the middle aisle and about the 6th or 7th row back who is frantically waving his arm in the air appearing to attract the attention of Cheney or Pelosi at the time before the count was accepted and gaveled to a close. He was either not seen or ignored by Cheney and Pelosi certainly did not call Cheney’s attention to the man.  There is a video clip of this action that has been widely seen.

The point is, though, that objections were not called for by Cheney as Constitutionally mandated.  This is a 4th violation of the Constitution by Simandle as it is yet another thing that he attempts to fob off in his opinion as a “remedy found in their vote” again which is why Cheney is named in the suit – his inaction to do the Constitutionally prescribed procedure.

There are a number of other mistakes and misstatements of fact in the opinion, but Judge Simandle does not have the Constitutional latitude to waive whichever portion of the Constitution that he chooses — though it must truly be a delicious feeling of political power (even though you’re in the judicial branch) to believe that you may willy-nilly do so.

YOU MAY NOT, Judge Simandle and you – yourselfare guilty of four violations of Constitutional law which –  though perhaps not a record in a short, 11-page opinion that took MONTHS to write and which mostly copied the DOJ points presented right down the line – it is, at least a pretty damned good average.  I wonder if your opinions in your other cases will be so injurious to Constitutional law?????  It may come as a great surprise Judge, but some of We The People can actually read!!!

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  2. If you receive this 3 times, I’m sorry. My computer has lots of protection and is at times slow.

    Mr. Charlton Replies: Please post this url under the AP story, Fran; you need not post the entire article or the comments.

  3. FollowTheConstitution:

    I’d imagine it would sound pretty similar since it’s abundantly clear that our Imperial Judiciary has the bit in their mouth to overturn the Constitution by condoning usurpation.

    John Q. Public is truly awakening to that fact as can be seen by both this post and the later one by John.

  4. It is precisely such failures of our judiciary, combined with like failures of our legislature, that have produced and maintain a constitutionally disabled executive branch. That is three strikes. Unless redress of our grievances is forthcoming fast, this government is going to be OUT!

    If all three branches of our government have failed to uphold the Constitution, the inescapable fact is that the Republic has failed. Maybe some legal case will still reach the Supreme Court, or maybe the Joint Chiefs can still save us, but I’m not counting on it. Least of all would I expect Congress to take any action against Obuma.

  5. Bravo! Would the anonymous patriot care to give a legal analysis and critique on Judge Land’s ruling to dismiss Orly’s case and his ruling on sanctioning Orly $20k?