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Posted on 12/24/2009 2:30:27 PM PST by rxsid
"REPLY OF THE APPELLANTS TO THE OPPOSITION TO THEIR MOTION FOR ORAL ARGUMENT
Opposing our motion for oral argument the appellees assert in a quite conclusory fashion that all three reasons of Rule 34(a)(2) are met here. (Doc No.12200734) The first prong that they assert is true here is that the present appeal is frivolous. This is so because the judge below found that the case was frivolous. That finding, based largely on blogging and twittering and vetting on the Internet by Americas vigilant people, was not supported by any actual legal authority. In fact the assertion by the judge below which drove his conclusion of frivolity seems like an obeisance to the idea of pure democracy that the Founders went to great lengths to avoid (See Federalist 10, e.g.). The natural born citizen requirement of Article II, Section 1, Clause 5 at issue here is very much a reflection of that concern which seems to have been almost mocked below and which is, therefore, a serious and non-frivolous matter for an appeal.
This reliance upon blogging and twittering and vetting on the Internet, although raised by us in our issues presented, is, needless to say, not mentioned in this opposition. Instead, to support the accusation of frivolousness, the appellees (p.2) point to a finding in the court below that the appellant Hollister had not stated a claim under the interpleader statute because he failed to allege a cognizable stake and failed to meet interpleaders adversity requirement. The first of these assertions points directly to one of the clear errors which is a key issue presented in our appeal, namely, the use in the Interpleader Act of the word obligation in disjunctive parallel. We have pointed to this clear language in our opening brief.
The next paragraph of the opposition, which begins at the bottom of p. 2 and continues on to p. 3, continues this pattern and further illustrates why there should be an oral argument in this case. It speaks of the plaintiff Hollister and the undersigned as having spoken in our motion to the issue of citizenship in passages in which we were not speaking of being a citizen, as defined in the Fourteenth Amendment, but rather of the specific requirement of Article II, Section 1, Clause 5 that to be eligible to be a President one must be, in the words chosen by the Founders, a natural born citizen. These are two different matters. Then, astonishingly, the opposition asserts that by entering a dismissal under Rule 12(b)(6) a district court can prevent issues presented in a complaint from being before it and then asserts that this Court cannot consider what was alleged in the dismissed complaint to see if there was error in the dismissal.
As to the first pointthe confusion between straight citizenship and the eligibility requirement imposed upon presidents by Article II, Section 1, Clause 5, the Supreme Court has made the distinction very clear:
We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the natural born citizen is eligible to be President. Art. II, § 1.The confusion and mischaracterization exhibited in the remarks of the appellees about citizenship, seem odd in light of the cases that we cited in the pages of our motion referred to, cases such as Minor v. Happersett, 88 U.S..(Wall.) 162 (1874). Our discussion of several pages clearly focused on the Article II requirement for presidential eligibility, that of being a natural born citizen.
While the rights of citizenship of the native born derive from §1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.
Schneider v. Rusk, 377 U.S. 163, 165-66 (1964) (quoting Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 827 (1824)); see also Osborn, 22 U.S. (9 Wheat.) at 827-28 ([The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.).
Hollister v Soetoro updates...
Then, dadgummit, don't say it!
” the use in the Interpleader Act of the word obligation in disjunctive parallel. We have pointed to this clear language in our opening brief.”
“Clear language?” Sorry! Not to me!
Is there a lawyer out there in Freeper land who can interpret this? What's going on here?
ping to #6
And...According to the Obama defenders there is absolutely NO, NO, NO, evidence whatsoever that any of this attorney time cost Obama or any taxpayers a dime. ( dripping with sarcasm.)
Excellent. Sooner or later the truth will come out. Until then, he is a pretender, and ineligible to hold the office he occupies.
It’s time to take back the country.
Sooner or later the truth will come out.
I pray earnestly that it will happen in my lifetime.
When two or more are united in HIS name.....Might as well start now.
Glad to see John Hemenway is working on Christmas Eve. Looks like Barry’s attorneys are afraid of a little oral argument. You know, when the press might be present.
You find the word “obligation unclear and difficult to understand? I don’t think most people do. The judge below in this case ssems to have just ignored it.
I think that you have nailed it.
I’ll join in, HM. Praying that all that is hidden will be revealed . . . in His time . . . for His glory.
I am praying every day.
“Obligation” is about the only word that is comprehensible.
The legalese of the rest of that sentence is so obscure and abstruse, that it has no meaning for the layman. A translator is required!
“Clear language?” I don’t think so!
What is unique about the Hollister case at this point is that it is the only case about the eligibility of the man occupying the Oval Office in which a court has found that it has subject matter jurisdiction. Judge Robertson, in the District Court, found that he had jurisdiction but then dismissed the case under Rule 12(b)(6) of the federal rules for what he held was a failure to state a claim. A chief element of his finding in this regard was that he found that the obligation of Colonel Hollister to report to duty if called back was not "property." But the interpleader act does not just refer to property. After listing several kinds of property that can create interpleader jurisdiction it then lists an "obligation" in addition to the kinds of property it mentions. This list, in which "obligation" is the last item, is in the disjunctive or alternative, that is, if one item in the list applies then there is jurisdiction.
The point of the sentence seems to be that the lower court only focused on the listings of types of property and on that basis dismissed the claim and thus failed to consider "obligation" as a possibility. Clearly Colonel Hollister made allegations that he had such an "obligation." Hence, if the appellate judges wish to engage in political protection of the man in the Oval Office they will have to find some reason that an "obligation" is not what a member of the Individual Ready Reserve has.
A watching public might find that for appellant judges to hold that the duty to report back to active duty if called is not clearly an "obligation" would be a failure to uphold the Rule of Law.
I apologize for not grasping the point of your confusion.
Apology? Abdo-lutely none required! I needed an interpreter, and you took the position. Thanks for the explanation. I thought I understood the pleading until that sentence stopped me in my tracks. I read it over a few times, with my confusion growing with each read.
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