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Benefiting from Obama’s Ineligibility By his own
public admission, Barack Obama acquired foreign nationality (in addition to US
citizenship) at birth. For that reason alone, Obama probably does not meet the
presidential “natural born citizen” requirement specified in the US Constitution
(Fact Sheet). Obama’s
apparent ineligibility presents an opportunity for some groups and individuals.
If you are suffering an injury in fact as a
direct result of a law or executive order that Obama has signed, you may have standing to pursue a collateral attack against that law or executive
order. A collateral attack does not seek to
remove Obama from office. It merely asks a court to strike down a specific law
or executive order, on grounds that it was signed by an ineligible President. No one has standing to challenge presidential
actions which harm all taxpayers in general. But, if a presidential action
causes specific harm or injury to a specific person, business, group or
state, the injured party may attack the presidential action collaterally in
court. According to
the de facto
officer doctrine, the actions of a public official are valid even if she or
he is holding office illegally. However, the de facto officer doctrine does not apply to the exercise of
Constitutional authority by a President who knows, or should know, his “natural
born citizen” status is in doubt (Vieira: Obama must stand
up now). In Andrade
v. Lauer, the DC Court of Appeals held that the de facto officer doctrine does not prevent an injured party from
challenging the official actions of an ineligible office holder. Under the holding in Andrade
v. Lauer, the Court of Appeals for the District of Columbia has held that
the de facto officer’s doctrine does not prohibit “collateral attacks” of
official actions based upon a public officer’s lack of eligibility. These are
not quo warranto suits to remove the official; they are civil suits to challenge
a specific action of that official. In the Andrade case, the plaintiffs
were Government employees who lost their jobs to “reduction in force”
ordinances which cut whole departments from the Government budget. The
plaintiffs sued alleging those who did the cutting were not Constitutionally qualified
to make such decisions in that their appointments violated the appointments
clause of the US Constitution. The DC District Court held that the
plaintiffs had no standing other than to bring a “direct attack” in quo
warranto to remove the alleged usurper. But the DC Court of Appeals reversed and
said the plaintiffs, who had suffered real injuries, could bring such an action
on a case by case basis if they could prove their injury in fact (being fired)
was caused by a Government official who was not eligible to serve. They opened the door to a floodgate of
litigation by an incredibly large field of possible plaintiffs who might
challenge every single official action of the Obama administration on the basis
that he isn’t eligible. (Donofrio:
Quo Warranto Legal Brief, pp.19-20) So far, only a few plaintiffs have attempted
collateral attacks against Obama’s presidential actions. As of yet, none has
met the standing requirement. For
example, in Purpura
v. Sebelius, the plaintiffs argued that ObamaCare (HR3590: Patient
Protection and Affordable Care Act) is unconstitutional because it was
signed by an ineligible President. Since ObamaCare does not harm the plaintiffs
a unique or particularized manner, the court ruled that they do not have
standing to challenge the ObamaCare law. At this time, we are not aware of any
case in which a litigant with proper standing
has pursued, or is pursuing, a collateral attack against any of Obama’s
presidential actions. Nevertheless, as increasingly large numbers of persons
and businesses are uniquely harmed or injured by Obama’s official actions, we
believe it is only a matter of time before an injured party with proper standing files a collateral
attack against a law or executive order that Obama has signed. Listed
below are examples of presidential actions which have caused unique harm,
injury or loss to a specific
individual or group. Such actions appear vulnerable to collateral attack. 1. Wrongful termination In June 2009,
President Obama fired inspector general Gerald Walpin (Obama
fires AmeriCorps inspector general). Mr. Walpin filed a wrongful
termination lawsuit seeking to get his job back. Although he
chose not to do so, Mr. Walpin could
have included a collateral attack in his lawsuit. He could have asked a court to invalidate his firing, on the basis
that Obama, as an ineligible President, does not have the legal authority to
fire anyone. Mr. Walpin’s
lawsuit ultimately failed (Ex-AmeriCorps
IG Gerald Walpin Loses Appeal in Wrongful Firing Suit), though it might have succeeded if it had included a
collateral attack. 2.
Blocking personal property From time to
time, Barack Obama has signed executive orders “blocking” the personal property
of certain individuals. Examples of such executive orders include: Executive Order
13536 - Somalia Executive Order
13551 - North Korea If you are among
the individuals whose property is being blocked by one of Obama’s executive
orders, you may ask a court to invalidate the executive order and restore your access
to your property, on the basis that the executive order was not issued by an
eligible president. 3. Contraceptives
mandate On January
20, 2012, President Obama announced his decision to require all employers to
provide contraceptives to employees at no charge. He did not provide an
exemption for churches which oppose contraception for religious reasons (Obama
Weighed Religious Politics in Contraceptives Decision). Since Obama’s
contraceptives mandate harms religious groups in a unique and particularize
manner (it requires them to violate their conscience), they have standing to
challenge the mandate in court (Religious
Freedom Group Files Lawsuit against Obama Contraception Mandate). Moreover,
such groups have standing to include, in their lawsuits, a collateral attack
against the mandate itself, on the basis that it was issued by an ineligible
president. 4. Patriot Act Extension On, February
27, 2010, President Obama signed a one-year extension of the Patriot Act (Washington
Times article: Obama signs Patriot Act extension). Without this extension,
key provisions of the Patriot Act would have expired on February 28, 2010. One might
argue that, since Obama is not an eligible President, his signature has no
legal effect; hence the Patriot Act was not legally extended past February 28,
2010. Consequently, if you were charged with a crime, and if those charges stemmed
from evidence gathered after February 28, 2010 under the enhanced surveillance
provisions of the Patriot Act, you could ask a court to throw out all such
evidence on grounds that it was obtained under a law that the Justice
Department knew, or should have known, to be invalid. 5. Martinez Settlement In September
2009, the US District Court of Northern California approved the Martinez v. Astrue
class action settlement. Under this settlement, fugitives and prison
inmates are entitled to timely payment of social security benefits. In December
2009, Obama signed HR4218:
No Social Security Benefits for Prisoners Act, which negated key portions
of the Martinez settlement. If you qualify
for social security benefits under the Martinez settlement, but those social
security benefits are now being suspended, denied or deferred as a result of
HR4218, you may have standing to ask a court to invalidate HR4218 and restore the
timely payment of your social security benefits, on grounds that HR4218 was
never signed by an eligible president. 6. Dodd-Frank Act On July 21,
2010, President Obama signed the Dodd-Frank
Act, touted as “the most sweeping change to financial regulation in the
United States since the Great Depression”. This new law imposes costly new
regulations on financial institutions, including small banks (ABA
Testifies on Impact of Dodd-Frank Act on Community Banks), and empowers the
SEC to impose additional regulatory burdens above and beyond those already
imposed by the Act itself. If you are
being uniquely harmed or injured by the Dodd-Frank Act and have already decided
to file a lawsuit challenging a component of the Act, you might include, in your
lawsuit, a collateral challenge to the Dodd-Frank Act itself, on grounds that
it was signed by an ineligible President. 7. Criminal Convictions In Bond v. United States,
the Supreme Court ruled unanimously that, if you are convicted of breaking a
federal law and you are subject to fine or incarceration as a result, you have
standing to challenge the law’s constitutionality (Apuzzo:
Analysis of Bond v. United States). In 2011, a
federal jury in Arkansas convicted Frankie Maybee and Sean Popejoy of violating
the Matthew Shepard
Act which President Obama had signed in 2009. Maybee was sentenced to 11
years in prison and Poepjoy was sentenced to 4 years (Maybee,
Popejoy Sentenced in Hate Crime). Both men could ask a court to overturn
their convictions on grounds that the Matthew Shepard Act is unconstitutional
because it was not signed by an eligible President. 8. Quo Warranto Defense On July 6,
2010, the Department of Justice filed a lawsuit challenging Arizona’s new
anti-illegal immigration law. According to some commentators, the State of
Arizona has a right to pursue a collateral attack, also called a quo warranto defense, against the
Government’s lawsuit (Arizona
Governor can force Obama to prove he's eligible). A quo warranto defense argues that Obama is not an eligible President
and consequently does not have Constitutional authority to order, direct or
approve any such lawsuit. Conclusion If you are
uniquely harmed or injured by a law or executive order signed by President
Obama, do not assume that the law or executive
order has Constitutional validity. There are fact-based reasons to doubt
President Obama’s “natural born citizen” status. Consequently, laws that Obama
signs, executive orders that he issues, and directives he gives to Federal
agencies (such as the Department of Justice and the Department of Health and
Human Services) are vulnerable to collateral attack. If you have
decided to incur the time, cost and risk of litigation, you owe it to yourself
to “give it your best shot” and “not hold back”. This means putting forth all
facts supportive of your position including the fact that the Constitutional legitimacy of Obama’s presidency is
dubious at best. Disclaimer This article
was not written by an attorney and should not be construed as legal advice. You
should seek professional legal assistance when considering whether a collateral attack or a quo warranto defense is appropriate for your
unique and specific circumstances. |