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To: rxsid; Fred Nerks; Red Steel; LucyT; InspectorSmith; BP2; STARWISE; Kenny Bunk; ...
You make an excellent point. In particular in the Hollister case several posts have failed to show a clear understanding of the de facto officer doctrine and what it means in that case. It is always the case in the application of the de facto officer doctrine as upheld by the Supreme Court that there is a retroactive declaration that the elected or appointed officer in question is not de jure because the electon or appointment in question was carried out in violation of the Constitution.

But the plaintiff invoking the doctrine does not him or her self ask that the unconstitutional officer be removed. What the plaintiff asks is that the action by that officer which will affect him or her be declared as not lawful.

In the Hollister case the retroactity in question, as discussed by SCOTUS in the case cited by Hollister, the Ryder case, was whether Coastguardsman Ryder had raised the issue before the decision of the panel that affected him by a panel with an unconstitutional member. Thus SCOTUS explained that in order for government to function it was necessary that the party affected raise the issue before the decision in question was made because if every person, after had already been made, could challlenge the constitutional legitimacy of an officer involved in the decsion it would create chaos.

Teh question remains one of whether there is some reason that the doctrine as espoused would not apply to a de facto officer in the White House who is not de jure as oppposed to a lesser officer in that situation. Obviously, if Colonel HOllister succeeds, it will create a serious problem in that other members of the Reserves will wonder whether they should accept a call up order from the One. But Colonel Hollister has not asked for the removal of Soetoro a/k/a Obama only that if the defendant is found to be de facto and not then he must look for a legitimate call up order to Biden as the other interpleadler defendant.

146 posted on 01/12/2010 1:21:20 PM PST by AmericanVictory (Should we be more like them or they more like we used to be?)
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To: AmericanVictory
If Obama is found de facto how would this call up order happen?

At this point can congress be forced to act by law?

147 posted on 01/12/2010 1:27:50 PM PST by OafOfOffice (Constitution is not neutral.It was designed to take the government off the backs of people-Douglas)
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