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Berg v Obama Appeal scheduled for Oct 26/2009
scribd ^ | Oct 9.2009 | Clerk Marcia M. Waldron

Posted on 10/11/2009 8:20:36 PM PDT by Elderberry

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To: wintertime

Yes you do. That is the way our Founders set it up. Moral of the story - make sure you stop Castro from being sworn in or be prepared to deal with it under the available alternatives.


51 posted on 10/13/2009 10:53:38 AM PDT by kukaniloko
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To: Sibre Fan

“Chief Justice Warren determined that the only critical one in this case was whether there was a “textually demonstrable constitutional commitment” to the House to determine in its sole discretion the qualifications of members.563 In[p.695]order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell’s conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine.564”

http://www.law.cornell.edu/anncon/html/art3frag27_user.html

Powell v. McCormack

4. The Court has subject matter jurisdiction over petitioners’ action. Pp. 395 U. S. 512-516.

(a) The case is one “arising under” the Constitution within the meaning of Art. III, since petitioners’ claims “will be sustained if the Constitution . . . [is] given one construction and will be defeated if it [is] given another.” Bell v. Hood, 327 U. S. 678. Pp. 395 U. S. 513-514.

(b) The district courts are given a broad grant of jurisdiction by 28 U.S.C. § 1331(a), over “all civil actions wherein the matter in controversy . . . arises under the Constitution . . . ,” and, while that grant is not entirely coextensive with Art. III, there is no indication that § 1331(a) was intended to foreclose federal courts from entertaining suits involving the seating of Congressmen. Pp. 395 U. S. 514-516.

5. This litigation is justiciable because the claim presented and the relief sought can be judicially resolved. Pp. 395 U. S. 516-518.

(a) Petitioners’ claim does not lack justiciability on the ground that the House’s duty cannot be judicially determined, since, if petitioners are correct, the House had a duty to seat Powell once it determined that he met the standing qualifications set forth in the Constitution. P. 395 U. S. 517.

(b) The relief sought is susceptible of judicial resolution, since, regardless of the appropriateness of a coercive remedy against House personnel (an issue not here decided), declaratory relief is independently available. Pp. 395 U. S. 517-518.

6. The case does not involve a “political question,” which, under the separation of powers doctrine, would not be justiciable. Pp. 395 U. S. 518-549.

(a) The Court’s examination of relevant historical materials shows at most that Congress’ power under Art. I, § 5, to judge the “Qualifications of its Members” is a “textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government” (Baker v. Carr, 369 U. S. 186, 369 U. S. 217) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution’s membership requirements. Pp. 395 U. S. 518-548.

(b) The case does not present a political question in the sense, also urged by respondents, that it would entail a “potentially embarrassing confrontation between coordinate branches” of the Government, since our system of government requires federal courts on occasion to interpret the Constitution differently from other branches. Pp. 395 U. S. 548-549.

7. In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. P. 395 U. S. 550.

http://supreme.justia.com/us/395/486/index.html


52 posted on 10/13/2009 1:59:40 PM PDT by plenipotentiary (Obama was a BRITISH SUBJECT at birth, passed to him via Pops, can't be NBC)
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To: plenipotentiary
In Powell v. McCormack, Powell was directly harmed by the complained of actions - he had a particularized and direct injury and, as such, no party contested his standing.

Nowhere in Powell v. McCormack does the Supreme Court disavow the standing requirement. It didn't address standing - quite simply because standing was not contested.
53 posted on 10/13/2009 2:17:01 PM PDT by Sibre Fan
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To: Sibre Fan

I give you an example where the text of the Constitution was breached, and no-one challenged on grounds of Standing, and you say it is not enough. It is exactly on point, and Keyes and the rest, in fact every Citizen, has standing in this particular case, because the text of the Constitution itself is being dis-regarded.


54 posted on 10/13/2009 2:42:40 PM PDT by plenipotentiary (Obama was a BRITISH SUBJECT at birth, passed to him via Pops, can't be NBC)
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To: plenipotentiary

A case is not “on point” if the Court does not address the issue at point. The case you provided did NOT address standing. To be “on point,” the case would have had to say either (a) there is no standing requirement when a person challenges an action as unconstitutional; or (b) even though there is a standing requirement generally, it does not apply in this case because ....

Again - if the case doesn’t address the issue, it simply cannot be “on point” to that issue. The case you cited didn’t even address the standing issue, much less find that there was standing.


55 posted on 10/13/2009 2:52:11 PM PDT by Sibre Fan
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To: Sibre Fan

The point is CitizenStanding is given without question when the matter involves contravention of the text of the Constitution. That is why the Standing of the parties was never challenged in this case.

The Courts cannot refuse Citizen Standing to hear a case which involves going against the text of the Constitution.

The other cases you have cited involve allegations of going against a “principle” that the Constitution “may” govern. Going against the actual tex is an open and shut, no brainer for standing, for any US Citizen.

If for example, Obama was 21 he could be challenged by any Citizen, because he has to be 35 according to the text of the Constitution.


56 posted on 10/13/2009 6:56:54 PM PDT by plenipotentiary (Obama was a BRITISH SUBJECT at birth, passed to him via Pops, can't be NBC)
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