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BERG v. OBAMA: Third Circuit Affirms Dismissal of Case
Scribd ^ | Nov. 12, 2009 | Third Circuit Court of Appeals

Posted on 11/12/2009 10:51:25 AM PST by Sibre Fan

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Today, the Third Circuit Court of Appeals upheld the dismissal of the first eligibility case, filed in August 2008 by Phil Berg. Full opinion available at the link.
1 posted on 11/12/2009 10:51:26 AM PST by Sibre Fan
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To: Sibre Fan

Can you give us the jist in the short form instead of legal ease and preferably, English?


2 posted on 11/12/2009 10:56:38 AM PST by b4its2late (Before you can control a horse, you have to break it. Sound familiar?)
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To: Sibre Fan
An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotations omitted). “

Sounds to me that the Court is dissembling. If what they state is in fact true, and Obama was not even a NATURALIZED citizen, or, for that matter, UNDER the age of 35, as required by the Constitution, his lack of qualifications for office would be irrelevant.

3 posted on 11/12/2009 10:57:00 AM PST by ZULU (God guts and guns made America great. Non nobis, non nobis Domine, sed nomini tuo da gloriam.)
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To: LucyT; null and void
Because there is no case or controversy

No controversy Ping

4 posted on 11/12/2009 10:58:26 AM PST by Las Vegas Ron (Oath keepers + The NRA = FReeRepublic (.com baby))
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To: b4its2late

Even a powerful Clinton/Hillary lawyer can’t get passed go on this B.C. issu!


5 posted on 11/12/2009 10:58:34 AM PST by classified
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To: classified

So, we’re screwed.


6 posted on 11/12/2009 10:59:33 AM PST by b4its2late (Before you can control a horse, you have to break it. Sound familiar?)
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To: Sibre Fan

apparently it is no one’s Constitutional right to have a Constitutionally qualified President. Since generally the denial of one’s Constitutional rights is considered an injury.

But what do I know


7 posted on 11/12/2009 11:00:32 AM PST by silverleaf (Ours is the only country on earth with a ventriloquist dummy for President)
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To: classified
Even a powerful Clinton/Hillary lawyer can’t get passed go on this B.C. issu!

Can you just imagine how much dirt the Chicago mob machine has on Hillary and Bill?

Hillary wouldn't dare go after this, imo

8 posted on 11/12/2009 11:05:19 AM PST by Las Vegas Ron (Oath keepers + The NRA = FReeRepublic (.com baby))
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To: b4its2late
Can you give us the jist in the short form instead of legal ease and preferably, English?

FVCK YOV, Citizen.

9 posted on 11/12/2009 11:09:12 AM PST by null and void (We are now in day 295 of our national holiday from reality. - 0bama really isn't one of US.)
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To: Sibre Fan

“Standing” was created very soon after America was formed and it was basically a way for a court to throw something out that they know they have no power to enforce.


10 posted on 11/12/2009 11:12:13 AM PST by autumnraine (You can't fix stupid, but you can vote it out!)
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To: b4its2late
Can you give us the jist in the short form instead of legal ease and preferably, English?

I can try. The Third Circuit held:

A. A voter does not have standing to challenge the qualifications of a presidential candidate because, among other reasons, the voter can always support a candidate he believed was eligible. Moreover, even if placement of an ineligible candidate harmed the individual voter, that injury is too general to meet Article III requirements, because it would similarly harm all voters.

B. A voter does not have standing to challenge the qualifications of a sitting president because any alleged injury is shared by the entire country (including nonvoters)

C. The 10th Amendment is irrelevant to standing issues -- that is, the 10th Amendment does not create an individual right to sue to challenge the qualifications of a presidential candidate (or sitting President).

D. A voter does not have standing to sue the President of the Senate (i.e., Dick Cheney) for any alleged failure to call for objections during counting of the Electoral College vote, because that voter did not suffer particularlized injury. (Stated another way, just as an individual voter has no specific "injury" re: an "ineligible candidate" - the voter's injury caused by the alleged failure to call for objections is shared by all voters.)

E. A voter's First Amendment rights are not infringed when his political representative fails to do as he asks (i.e., here, to object to the electoral votes cast in Obama’s favor). The Court called this argument frivolous.

F. The District Court did not violate Berg's due process rights by dismissing the case. (Again, the court called this argument frivolous.)


-----------
The court marked the case "precedential" - which means that it is binding on the Third Circuit (and all courts in that circuit - i.e., all federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands).

This means that Kerchner's appeal, which is also in the Third District, is not likely to succeed. As to the three "citizen/voter" plaintiffs in Kerchner, this holding directly impacts their case - the Court has held that plaintiffs in their position have no standing.

Kerchner's status -- as a retired military officer, and not just as a voter -- is somewhat different, but, as his status is shared by tens of thousands of other retired military officers, it is not likely that the Court will find that he has standing either, given their ruling in this case.
11 posted on 11/12/2009 11:17:44 AM PST by Sibre Fan
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To: Sibre Fan
GD it.

Yet another bought-off/threatened/treasonous/cowardly/Democrat judge proves the American court system is hopelessly corrupt, and an orderly, peaceful means of change within the current system is no longer an option.


Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.

12 posted on 11/12/2009 11:18:32 AM PST by The Comedian (Evil can only succeed if good men don't point at it and laugh.)
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To: Sibre Fan

I imagine the decision of the appeals court in Orly’s Keyes v Obama case will read pretty much the same.


13 posted on 11/12/2009 11:21:19 AM PST by Non-Sequitur
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To: The Comedian
Yet another bought-off/threatened/treasonous/cowardly/Democrat judge...

Actually, a three-judge panel decided this appeal. Two were appointed by Democrats (Carter/Clinton); one by Republican (Bush I).

The decision was unanimous, which means that the "Republican" judge agreed with the ruling.

2012 is the peaceful means for bringing about change within the system.
14 posted on 11/12/2009 11:25:32 AM PST by Sibre Fan
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To: The Comedian
Yet another bought-off/threatened/treasonous/cowardly/Democrat judge...

Damn. They're everywhere. </sarcasm>

15 posted on 11/12/2009 11:27:25 AM PST by Non-Sequitur
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To: Non-Sequitur
I imagine the decision of the appeals court in Orly’s Keyes v Obama case will read pretty much the same.

Agreed. And the 11th Circuit Appeals in Orly's appeal in Cook v. Good appeal will likely have the same result.
16 posted on 11/12/2009 11:27:25 AM PST by Sibre Fan
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To: Sibre Fan

Does this mean (IANAL) that we have no means of redress at all if an ineligible POTUS slips through the system?

Does the fact that a lot of people were injured negate the fact that I as an individual was still injured and that I still have rights?


17 posted on 11/12/2009 11:28:51 AM PST by paulycy (Demand Constitutionality.)
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To: Sibre Fan
Thanks. Sounds like something like this:

Photobucket

18 posted on 11/12/2009 11:31:07 AM PST by b4its2late (Before you can control a horse, you have to break it. Sound familiar?)
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To: Sibre Fan; Jet Jaguar; NorwegianViking; ExTexasRedhead; HollyB; FromLori; ...

The list, ping


19 posted on 11/12/2009 11:38:41 AM PST by Nachum (The complete Obama list at www.nachumlist.com)
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To: paulycy
Does this mean (IANAL) that we have no means of redress at all if an ineligible POTUS slips through the system?

It means that citizens/voters cannot seek redress in the Courts. However, no ineligible POTUS should slip through the system of the general election if we, the voters, are doing our jobs correctly. And, if one does "slip through," then Congress and -- according to all these cases, only Congress -- has the power to address the issue. So our only redress as voters is with Congress -- and the next election.
20 posted on 11/12/2009 11:40:02 AM PST by Sibre Fan
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To: Sibre Fan

“The decision was unanimous, which means that the “Republican” judge agreed with the ruling.”
You think that means anything these days? I’m finding it hard to name more than a handful of people in the GOP who support the constitution any more.

This so called “conservative” party will not be getting my vote until they get their act together and realise that even Zero has to obey the constitution.


21 posted on 11/12/2009 11:45:14 AM PST by IntolerantOfTreason (The AMERICAN President should be an AMERICAN, NOT an AFRICAN-American)
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To: Sibre Fan
So our only redress as voters is with Congress -- and the next election.

I think I understand the reasoning (I guess) but it still doesn't seem right on some level.

22 posted on 11/12/2009 11:48:35 AM PST by paulycy (Demand Constitutionality.)
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To: silverleaf
apparently it is no one’s Constitutional right to have a Constitutionally qualified President. Since generally the denial of one’s Constitutional rights is considered an injury. But what do I know

If an unconstitutional act affects everyone, not just one plaintiff who is harmed in a unique way, the Supreme Court has held (in the case the 3rd Circuit's opinion cites) that no one has standing to raise the issue in court, because, if everyone is harmed, they can seek redress from the elected branches of government. So the court is saying that if Obama is ineligible, the Congress can impeach him or the people can vote him out of office in 2012, but the courts can't get involved.

23 posted on 11/12/2009 11:57:25 AM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: b4its2late

We’re screwed because our politicians are all in cahoots with each other regarding Obama’s BC, both the dems and pubs.

Do you really believe that the FBI, CIA and other security agencies do not exactly know where Obama’s skeletons are hidden? They know yours and mine. Obama’s background and that of every other person is minutely scrutinized the moment that they decide to run for political office in Chicago or anywhere.

Do you believe that Bush, Cheney, McCain and even Palin did not know who Obama really was the moment he ran for the Senate? Don’t you find it strange that all of them are silent on this matter or don’t even want to know?

The previous administrations have had plenty of time to investigate Obama’s background or that of any other politician.

You want a truthful answer? Don’t ask the governor of Hawaii, ask Putin.


24 posted on 11/12/2009 12:03:29 PM PST by 353FMG (Save the Planet -- Eliminate Socialism)
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To: Sibre Fan; silverleaf
The Marxist-fascists ( AKA Democratic Party) found a loophole and flew a military transport right through it...And...We have no standing to question it or remedy it.
The Republicans are spineless, and our media ( both Marxist and conservative) will not touch it.

Silverleaf (post #7) is right, but no one has the testosterone level to do anything about it.

Fundamentally, only an honest people of good will can government themselves. No amount of laws or clauses can corral evil. Our Constitution could be legally airtight, and the length of the IRS, but evil people **will** always find a way to scam the system. We now live in a nation where evil is overwhelming the good.

By the way, the 2000 Florida recount was the turning point for me. I realized that the Democrats were Marxists and would do **anything** ( literally) to obtain and hold power. From that point on, I will not have a Marxist ( AKA Democrat) for a friend. They are too evil and/or too stupid.

25 posted on 11/12/2009 12:16:29 PM PST by wintertime
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To: Sibre Fan

This whole ‘standing’ notion is really beginning to chafe a whole lot of folks. It does nothing to clarify the issue at hand, and has been spread broadly and thinly enough to cover, probably, ANY person bringing a suit challenging the anointed one’s eligibility.

It seems to me, common folk that I am, that:

1. ANY registered voter should have standing to challenge the eligibility of any elected official with direct representation; President, VP, Senator (of the state of residence), Representative (of the District of residence), any State elected official (under the same terms). The notion of particularized injury is bunk, IMO, when dealing with direct Constitutional challenges.
2. ALL State and Local Boards of Elections should be required to vet the eligibility of all candidates seeking to add their names to a ballot.


26 posted on 11/12/2009 12:17:07 PM PST by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: Sibre Fan; Seizethecarp; LucyT; STARWISE; pissant

So, what’s the best way to go in the Federal courts? Quo Warranto in DC? Where is Donofrio?


27 posted on 11/12/2009 12:19:21 PM PST by circumbendibus (Where's the Birth Certificate?)
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To: Sibre Fan

You have an amazingly one track mind. How is Eric doing today?


28 posted on 11/12/2009 12:21:54 PM PST by altair (I want him to fail)
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To: silverleaf
apparently it is no one’s Constitutional right to have a Constitutionally qualified President. Since generally the denial of one’s Constitutional rights is considered an injury. But what do I know

I guess we're all just a bunch of dumb schlubs. I guess since Barry was elected, it doesn't matter if he was eligible or not.

Think of the usurpation by Barry as a football analogy:

Say you're playing defense in a Super Bowl where it's 4th quarter, you're leading by 5 points and on a 3rd down play the other team's offensive line belts you while you are out of bounds -- an obvious unnecessary roughness play. No whistle blows because the referees are distracted, except for the one ref at the far end of the field. He saw it, but his whistle isn't working. But he's running toward you screaming - and nobody pays attention.

Since the other team's QB is running a "hurry up offense" they get their next play off and score a touchdown to win the game with no time left on the clock. Just then the ref that ran from the far end of the field finally gets his whistle to work, blows it and charges the other team with an "unnecessary roughness" penalty from the previous play.

WELL TOO BAD FOR YOU! Since the other team got their play off before the whistle blew, they just beat you and there's nothing you can do about it. Sorry, better luck next time!

Repeated appeals to the commissioner fall on deaf ears, and they keep ruling that you "have no standing".

This is how I feel about the election of November 4th, 2008. America lost too!

29 posted on 11/12/2009 12:26:48 PM PST by thecraw (God allows evil...God allowed Hussein...Lord willing he'll give us Sarah to clean up the huge mess.)
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To: Sibre Fan
2012 is the peaceful means for bringing about change within the system.

Uh huh.

We're in an airtight room, with 12 hours of air left, up to our ankles in gasoline, the Democrats are in the corner throwing lit matches at us and each other, and your suggestion is to wait 3 years for the cavalry to show up and take their matches away.

There's a fine line between patience and denial-flavored fatal gullibility.


Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.

30 posted on 11/12/2009 12:52:30 PM PST by The Comedian (Evil can only succeed if good men don't point at it and laugh.)
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To: Sibre Fan

Let the revolution, or the insurrection begin!


31 posted on 11/12/2009 1:08:14 PM PST by IbJensen (America being militarily and economically strong isn't enough: We must be morally strong!)
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To: The Comedian

So what would be your answer if there were no questions about Obama’s eligibility?


32 posted on 11/12/2009 1:20:16 PM PST by Mr. Blonde (You ever thought about being weird for a living?)
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To: paulycy

You do have means of redress. Impeachment.


33 posted on 11/12/2009 1:22:42 PM PST by Mr. Blonde (You ever thought about being weird for a living?)
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To: Sibre Fan
"The essence of Berg's complaint is that the defendents, the states, presidential candidates other than Obama, political parties, a majority of American voters, and Congress - a list that includes some who could have challenged, or could still challenge, Obama's eligibility through various means - have not been persuaded by his claim. That grievance, too, is not one "appropriately resolved through the judicial process."

34 posted on 11/12/2009 1:52:18 PM PST by mlo
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To: Sibre Fan

Is this the case that has Berg’s evidence under wraps because of a court order?


35 posted on 11/12/2009 1:55:02 PM PST by usmcobra (Your chances of dying in bed are reduced by getting out of it, but most people still die in bed)
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To: usmcobra
Is this the case that has Berg’s evidence under wraps because of a court order?

No. First, this is the original case that was filed in August 2008.

Second, I'm not sure what case you're speaking of when you say it involves evidence Berg has under wraps. Berg's False Claims Act case was under seal originally, but it was unsealed a couple months ago when the Court dismissed his case. Berg described his evidence (i.e., the same evidence as in the PA case that was subject to today's 3rd Circuit opinion) in his motion for reconsideration. That case is currently on appeal in the D.C. Court of Appeals -- the same court in which Hollister's appeal is currently pending.
36 posted on 11/12/2009 3:59:47 PM PST by Sibre Fan
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To: circumbendibus
Judge Carter seemed to think that Keyes and the other two political candidates defeated by Obama might have had standing before the inauguration and if Berg had such a plaintiff he might have gotten a different ruling. Kreep may yet write an appeal that could get Carter at least partially reversed enough to trigger discovery.

Apuzzo just wrote a blistering put-down of D’Onofrio’s quo warranto interpretation and not being a lawyer I won't comment, but just watch and see if either one of them prevails.

My best hope at the moment is that folks on the far left who were lied to by Obama (wildly false expectations encouraged by Obama) on a whole host of issues will start to become interested in bringing his down and become interested in Obama’s BC!

“The enemy of my enemy is my friend” and I am expecting a whole lot of new “friends” from the far left soon all trying to find evidence that Obama lied about his eligibility. At the very least, they will stop protecting him and that may be enough to get to a tipping point.

37 posted on 11/12/2009 4:13:19 PM PST by Seizethecarp
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To: Sibre Fan

It is my understanding that There is evidence that Berg has that is still sealed by a court’s decision.

I was wondering if it was this case.


38 posted on 11/12/2009 4:25:38 PM PST by usmcobra (Your chances of dying in bed are reduced by getting out of it, but most people still die in bed)
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To: thecraw

That analogy doesn’t work because the game wouldn’t be over. The NFL is stricter about enforcing rules on field than the US government is in obeying the constitution.


39 posted on 11/12/2009 4:25:49 PM PST by altair (I want him to fail)
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To: Mr. Blonde

Impeachment is our remedy and I know that’s not going to fly, hence my suggestion of getting a huge sum of money, promising Pelosi the oval office and keep throwing stacks of hundreds on her desk until her price is met.

Pelosi is evil, but she couldn’t be as destructive in the White House as Obama has been.


40 posted on 11/12/2009 4:29:47 PM PST by altair (I want him to fail)
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To: usmcobra
It is my understanding that There is evidence that Berg has that is still sealed by a court’s decision.

This is not the case that was sealed. That case was Berg's FCA Case in DC. However, that case has been unsealed.
41 posted on 11/12/2009 4:30:57 PM PST by Sibre Fan
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To: altair
No but you get the point. I feel this way whenever my team's opponent "gets away with" a penalty the hurries up to snap the ball before the challenge flag can get thrown.

Same concept...

42 posted on 11/12/2009 4:33:03 PM PST by thecraw (God allows evil...God allowed Hussein...Lord willing he'll give us Sarah to clean up the huge mess.)
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To: b4its2late
Can you give us the jist in the short form instead of legal ease and preferably, English?

Ordinary citizens, and most not so ordinary ones, have no standing to have the courts enforce the Constitution. Unless they suffer "injury" different from that of all other citizens.

If no one can eforce it, the Constitution is dead. It'll be deader yet when the Senate passes some kind of health care reform and then the "offending" provisions of the House bill are put back in in conferance, and then passed in the Senate by 51 votes or 50 votes plus Biden's tie breaker.

43 posted on 11/12/2009 4:40:58 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Sibre Fan
2012 is the peaceful means for bringing about change within the system.

Assuming there is an honest election in 2012. After all if no one can sue to enforce Article I section 1 clause 5, why would they be able to sue to enforce the preceeding four clauses and the XIIth, XXth and XXIInd amendments? Particularly first clause of the XXth amendment.

No particularized "injury" would occur if those Constitutional provisions were violated, would they?

44 posted on 11/12/2009 4:51:44 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: altair
Pelosi is evil, but she couldn’t be as destructive in the White House as Obama has been.

She and Dingy Harry are Barry's partners in that destruction.

45 posted on 11/12/2009 5:03:25 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Las Vegas Ron

It’s probably checkmate....Both have each other by the balls so the speak. Hillary or Bill would not used that option of exposing Obama, unless he became the aggressor and showed signs of going to expose her. I think the Clintons are waiting for Obama to hang himself so the speak. They certainly would not come to his aid if there was evidence of him imploding. They no doubt would step aside,get out of the way and hope that they would not be caught up in it.


46 posted on 11/12/2009 5:03:51 PM PST by classified
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To: altair

Impeachment is our remedy and I know that’s not going to fly, hence my suggestion of getting a huge sum of money, promising Pelosi the oval office and keep throwing stacks of hundreds on her desk until her price is met.

Pelosi is evil, but she couldn’t be as destructive in the White House as Obama has been.


Pelosi? Aren’t you forgetting about Joe Biden? He becomes President if Obama was to be removed.


47 posted on 11/12/2009 5:35:17 PM PST by jamese777
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To: mlo; Non-Sequitur; parsifal; Pilsner; Drew68; curiosity; Sibre Fan; El Sordo; MilspecRob; ...

Ping to a ruling on Berg v. Obama.


48 posted on 11/12/2009 6:27:17 PM PST by BuckeyeTexan (Integrity, Honesty, Character, & Loyalty still matter)
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To: Sibre Fan

ANYONE HAS STANDING or as they put it back then, subject matter jurisdiction.

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


49 posted on 11/12/2009 8:57:08 PM PST by plenipotentiary (Obama was a BRITISH SUBJECT at birth, passed to him via Pops, can't be NBC)
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To: Mr. Blonde
So what would be your answer if there were no questions about Obama’s eligibility?

I assume you meant to ask "What would your question be if there were no questions about Obama's eligibility?"

If he hadn't written, or rather Bill Ayers hadn't written in his autobiography that Barack Sr. was a British citizen, therefore Barry Jr simply can't be a natural born US citizen, my question would be the following:

Why have you sealed all of your educational records, and who paid your university tuition?


Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.

50 posted on 11/13/2009 7:39:26 AM PST by The Comedian (Evil can only succeed if good men don't point at it and laugh.)
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