Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L.

Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

I. STATEMENT OF FACTS AND PROCEDURE
At no time in any of the many cases that have been filed against Candidate "Barack Obama" in various courts throughout the country has he produced a certified true paper copy of a 1961 long-form birth certificate

from the State of Hawaii showing that he was born there. At no time, during

election has Obama provided to any of the 50 Secretaries of State any such document. We recognize that this is a ballot challenge under Pennsylvania 25 P.S. §2937 and that under Pennsylvania law a party objecting to a nominating petition has the burden to show that the person filing that

presented any such true copy of his long-form birth certificate or other equivalent document to the Pennsylvania Secretary of State or any other

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Objection verification form which was attached to his initial Objection.

February 14, 2012, was the last day for a candidate to file a primary nominating petition. On February 15, 212, Dale A. Laudenslager signed the

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controlling authority in Pennsylvania, we do not know his true identity. On February 10, 2012, Dale A. Laudenslager signed the first

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petition is not entitled to file it. Because Candidate Obama has not

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his first presidential campaign in 2008 and during his current run for re-

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

second objection verification form which was attached to his amended objection. On February 16, 2012, Dale A. Laudenslager went to the voter registration office to change his political party from Republican to Democrat. On Friday, February 17, 2012, Objectors, Charles F. Kerchner, Jr. a registered Republican, and Dale A. Laudenslager, a registered

Democrat, filed their first objection to Candidate Obama's nominating petition.

On Friday, February 17, 2012, Objectors' attorney, Karen Keifer, Esq. hand delivered a copy of the filed objection to DNC Pennsylvania Headquarters, at 300 North Second Street, Harrisburg, PA 17120. On the same day, she also hand delivered a copy of the filed objection on the Pennsylvania Secretary of State. Tuesday, February 21, 2012, was the last day for any objector to file an objection to a candidates nominating petition

Tuesday, February 21, 2012, Karen Kiefer, Esq. hand carried to Sheriff of

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Westmorland County the filed objection and the Court's Scheduling and

Case Management Order so that his office could effectuate service of those documents upon Candidate Obama. On Wednesday, February 22, 2012,

Karen Kiefer, Esq. mailed by U.S. Postal Service certified mail return receipt requested the initial filed objection and court's Scheduling and Case
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(7 days from last day for candidate to file his nominating petition). On

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Management Order to Candidate Obama at his address at 5046 South Greenwood Avenue Chigaco, IL 60615 and to Clifford Levine, Cohen, and Grigsby, at 625 Liberty Avenue, Pittsburgh, Pa 15222, who are Candidate Obama's listed attorneys.

The deadline for filing Nomination Petition objections was extended

Esq. served a copy of the Scheduling and Case Management Order on the Pennsylvania Secretary of State. On Thursday, February 23, Karen Kiefer, Esq. received back the return receipt cards showing the initial objection and Scheduling and Case Management Order were served upon Candidate at both addresses.

Objectors filed their Amended Objection on Friday, February 24, 2012. On the same day, February 24, 2012, Karen Kiefer, Esq. served the Amended Objection upon the Clerk of the Court, the Pennsylvania

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Secretary of State, and Candidate Obama by mailing the documents to him

at his Illinois address and to his Pittsburg attorneys. On Tuesday, February

28, 2012, Karen Kiefer, Esq. received copy of Candidate Obama's motion

papers from John P. Lavelle, Jr. Esq., Candidate Obama's attorney in this matter. On Tuesday, February 28, 2012, Karen Kiefer, Esq. sent copies of

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to Thursday, February 23, 2012. On Thursday, February 23, Karen Kiefer,

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

all papers (initial Objection, Amended Objection, motions, and brief) to Mr. Lavelle for next day delivery. February 29, 2012, Ms. Kiefer emailed to Mr. Lavelle the motion for reconsideration regarding the motion to have Mario Apuzzo admitted pro hac vice.

II. LEGAL ARGUMENT

Candidate Obama argues that in Pennsylvania a candidate's

nominating petition can only be challenged by members of his own party. He adds that Charles F. Kerchner, Jr. is a registered Republican and Dale A. Laudenslager switched from Republican to Democrat but that he did so after the deadline for candidates to file their nominating petitions. But Candidate Obama has not presented the Court any facts which disqualify Mr. Laudenslager from establishing standing.

verification form which was attached to his objection. February 14, 2012,

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was the last day for a candidate to file a primary nominating petition. On

February 15, 2012, Dale A. Laudenslager signed the second objection verification form which was attached to his amended objection. On February 16, 2012, Dale A. Laudenslager went to the voter registration office to change his political party from Republican to Democrat. On
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On February 10, 2012, Dale A. Laudenslager signed the first objection

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A. THE OBJECTORS DO HAVE STANDING

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Friday, February 17, 2012, Objectors filed their first objection to Candidate Obama's nominating petition. Tuesday, February 21, 2012, was the last day for any objector to file an objection to a candidates nominating petition (7 days from last day for candidate to file his nominating petition). The deadline for filing Nomination Petition objections was extended to Thursday, February 23, 2012.

So, with Dale A. Laudenslager being a registered Democrat on

in fact a Democrat on the day that he filed his first Objection to Candidate

2012. The day that he filed his Objection is critical because that is when standing is established. Clearly, he had standing on that day. Also, the filing deadline for Mr. Laudenslager was extended to February 23, 2012. Finally, regarding Candidate Obama's unsubstantiated allegation that Mr. Laudenslager has engaged in "procedural jockeying," he cites no case law

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which supports the proposition that such conduct would preclude an elector from having standing. Additionally, he provides no evidence that Mr.

Laudenslager actually engaged in such conduct. Since Mr. Laudenslager was a Democrat when he filed his timely Objection, he has standing to

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Obama's nominating petition which was before the deadline of February 21,

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February 16, 2012 and filing his first objection on February 17, 2012, he was

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

challenge Candidate Obama nominating primary petition on the day that he filed his Objection which is February 17, 2012. Objector Kerchner also has standing. He has filed his Objection for the purpose of making sure an ineligible person is eventually elected

President. The Founders and Framers put the "natural born Citizen" clause

in the Constitution for the safety and security of the nation. They knew what enormous powers the President and Commander in Chief of the Military would wield. The President is supposed to protect Kerchner with respect to international commerce, treaties, and wars in which the United States is

President does therefore personally affects Kerchner, a U.S. citizen who is entitled to the protection of the President. Kerchner and Laudenslager both have a right under the Fifth and Ninth Amendments to file this action in which they seek to protect their life, liberty, and property.

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are interfere[ing] with the electorate's consideration of the President's

candidacy for re-election, Objectors have filed their Objection to protect

their own rights to make sure that they are lead by a person who satisfies the Pennsylvania Constitution and election laws and ultimately the U.S. Constitution.

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Also, contrary to Candidate Obama's characterization that Objectors

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engaged. The President signs laws into enactment. Everything that the

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

B. THE COURT DOES HAVE JURISDICTION TO CONSIDER THE OBJECTORS' OBJECTION TO THE NOMINATING PETITION OF PRESIDENTIAL CANDIDATE "BARACK OBAMA"

Candidate "Barack Obama" argues that Objectors have not made any valid allegation of a defect in the nominating papers. He adds that in such

constitutional eligibility which state courts are not constitutionally able to do. He argues that only Congress has the responsibility for deciding whether a president-elect qualifies for the office of President.

On the contrary, Objectors' objection does allege that there is a defect in the nominating petition. Under 25 P.S. Sec. 2937, if the court finds that

shall be set aside." Hence, objectors can prove that Obama, a candidate for

statute gives the Court the power to make such a finding and to "set aside"

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the petition.

We first allege that he has not conclusively proven that he was born in the

United States. We also allege that even if he was born in the United States, he is still not an Article II "natural born Citizen" because he fails to meet the
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President, is not a "person[] entitled to file the [petition]." And the very

Our objection to Candidate Obama's nominating petition is twofold.

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the nominating petition "was not filed by persons entitled to file the same, it

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case, the court can only make some general ruling on Candidate Obama's

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

requirements of the traditional American common law definition of the clause which is a child born in the country to two U.S. citizen parents. See
Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark,

169 U.S. 649, 708 (1898).

Our first objection regarding place of birth includes knowing the true identity of the person who filed the nominating petition and who calls

himself "Barack Obama." In order to know whether Candidate Obama is a person entitled to file the nominating petition, it is first necessary to know the true identity of the person who filed the petition.

Candidate Obama was born to two U.S. citizen parents, the person who filed the nominating petition has to first prove his identity. So, by Candidate Obama proving his identity, he would also be proving that he was born in the United States and by proving his place of birth, he would be proving his true identity. In other words, Candidate Obama cannot prove that he was

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born in the United States unless he first proves his identity and he cannot

prove his identity unless he first proves where he was born. Hence, Candidate Obama, to prove both his true identity and his place of birth, has

to present some type of evidence to the Secretary of State which conclusively proves his true identity and his place of birth.

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So, before we get to the second part of Objectors' objection, whether

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

There is little doubt that even though others may have filed the nominating petition for Candidate Obama, he is still considered the person who filed it. The person who filed the petition which is the subject of Objectors' objection claims to be "Barack Obama." But "Barack Obama" has not

presented any evidence to the Secretary of State proving that he is in fact

"Barack Obama." Only by knowing the person's true identity can we then move forward to address question of the correct definition of an Article II "natural born Citizen" which goes to the question of the eligibility of

that he was born in the United States, Candidate Obama has not yet presented evidence of his true identity. Hence, Objectors' objection first goes to the fact that we do not yet know the true identity of the person who claims to be "Barack Obama" and on whose behalf the nominating petition has been filed. We have even reflected the doubts regarding Candidate

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Obama by addressing him in our objection by the various alias by which he

has been known, "Barack Hussein Obama II, Barack Hussein Obama,

Barack H. Obama." We also request the Court to take judicial notice of the fact that he has also been known as "Barry Soetoro" and that he has refused

to release to the public his many birth, education, travel, and work

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Candidate Obama to be elected President. By not yet conclusively proving

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

documents. Without proof of identity, the Pennsylvania Secretary of State cannot allow Obama's name on the primary ballot. Candidate Obama filed a certification (Exhibit C to his motion papers) saying that "he" is a candidate for nomination of President of the United States and that "he" authorized

delegates and alternate delegates to commit themselves to "him." But in all this, we do not know who "he" and "him" is. Since Objector's challenge

first goes to Candidate Obama's identity which is necessarily an element to be established in order to know that Candidate Obama is a "person[] entitled to file same" and that challenge first goes to a defect in the nominating

sufficiently alleged that there exists a "specific defect in the nomination petition under Section 977." In Re Jones, 505 Pa. 50, 476 A.2d 1287 (1984). Surely, not knowing the identity of the person filing a nominating petition is as serious as filing a false affidavit and goes to whether that person is entitled to file that petition in the first place. So, should the Court rule that it

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has no jurisdiction to decide the question of whether Candidate Obama meets the definition of an Article II "natural born Citizen," then it does have

jurisdiction to address Objector's claim that Candidate Obama has not provided the Pennsylvania Secretary of State with any evidence showing where he was born which goes directly to establishing his identity and that

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petition, this Court has jurisdiction over the objection. Here, Objectors have

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

he is entitled to file any nominating petition in the first place. See In re:

Nomination Petition of Pippy, 711 A.2d 1048 (Pa.Cmwlth 1998); In re: Nomination Petition of Street, 102 Pa.Cmwlth 155, 516 A.2d 791 (1986).
C. THE OBJECTORS' LEGAL CLAIM THAT CANDIDATE OBAMA, EVEN IF BORN IN THE UNITED STATES, IS NOT AN ARTICLE II "NATURAL BORN CITIZEN," DOES HAVE LEGAL MERIT

uniformly rejected virtually identical filings" such as Objectors. The Court should reject some statements as having any value. Surely, Candidate Obama does not expect the court to give some sort of res judicata or collateral estoppel effect to such other rulings. In this nomination petition challenge, we have a totally different procedural posture. Also, here we are applying Pennsylvania election laws and not federal law or the law of some other state. Dale A. Laudenslager has never participated as a party in any of

cite in his brief and which cases we will address here, has not cited what

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those other cases are. Objectors have filed their brief which addresses the legal question of

what is an Article II "natural born Citizen." They rely on this brief to address Candidate Obama's contention that their claim that he does not meet

the correct American common law definition of an Article II "natural born
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those cases. Moreover, Candidate Obama, other than the cases that he did

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Candidate Obama makes a sweeping statement that "courts have

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Citizen" is so without merit that the Court should quickly dismiss the Objectors' Objection. Candidate Obama cites U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), United States v. Marguet-Pillado, 648 F.3d 1001 (9 th Cir. 2011), Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), Hollander v.

McCain, 566 F.Supp.2d 63 (D.N.H. 2008), Schneider v. Rusk, 377 U.S. 163 (1964), and Tisdale v. Obama, Civil Action No. 3:12-cv-00036-JAG.

Objectors have already addressed Wong Kim Ark and Ankeny in their brief. We rely on that discussion. The Marguet-Pillado is a criminal case

prove beyond any reasonable doubt alienage in a case involving a criminal charge for violating 8 U.S.C. Sec. 1326 (previously removed alien found in the United States) and has absolutely no relevance to the question of whether Candidate Obama is an Article II "natural born Citizen." Here we just want to emphasize that Candidate cites Wong Kim Ark as holding that Wong was

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"natural born Citizen." But no where do we find such a statement in the Court's holding. Candidate Obama is simply putting his own words into the Wong holding. The cases of Hollander and Tisdale are not persuasive on the

question of what is a "natural born Citizen." And Schneider does not stand

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involving derivative citizenship and the government's burden in having to

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

for the proposition for which Candidate Obama cites it. We will now discuss these three cases. The Court dismissed the Hollander case on standing. Hence, the Court found it had no subject matter jurisdiction. So, the decision cannot be used to show that it "decided" anything regarding the merits of the question

plaintiff's claim that John McCain was not a "natural born Citizen" on the

The Hollander court never reached the merits of Hollander's argument that McCain was not a "natural born Citizen." In fact, the Court even said that it

dismissal for lack of standing is not with prejudice. Also, when a court dismisses a case for lack of standing, it says that the court does not have

over a case cannot decide anything about the case other than to decide

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whether it had jurisdiction and if it decides it does not to dismiss it for lack of jurisdiction. But Tisdale did reach the merits of Tisdale's "natural born Citizen" argument, relying upon a case that was dismissed for lack of

jurisdiction. How can Tisdale rely on a case that was dismissed for lack of jurisdiction and which never reached the merits of the meaning of a "natural
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subject matter jurisdiction over the matter. A court that has no jurisdiction

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was not relevant for its decision where McCain was born. Additionally,

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ground that Hollander failed to prove Article III standing to make that claim.

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of what is a "natural born Citizen." The Court in Hollander dismissed

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

born Citizen" for support for his decision which did reach the merits of that very question? The answer is that he simply cannot. There simply is nothing in the Hollander case that properly and legally supports the merits decision made by Tisdale on the question of what is a "natural born Citizen." A

decision on standing does not provide any merit substance as to the meaning of an Article II "natural born Citizen." Hence, Tisdale's reliance on Hollander for the merits of his decision is error.

Obama, Civil Action No. 3:12-cv-00036-JAG, held not by published decision but by Order of Hon. Judge John A. Gibney, Jr. that any child born

relate to the holding of Wong Kim Ark. We know that Article II, Section 1, Clause 5 includes both a "natural born Citizen" and "Citizen of the United

after the adoption of the Constitution. Hence, the text of Article II, Section 1,

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Clause 5 clearly states "natural born Citizen" and sets that type of

citizenship apart from that called "Citizen of the United States." We cannot

replace that clause with another type of citizenship that is also provided for in the Constitution. "Natural born Citizen" is a word of art or an idiom. We

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States," with only the former being eligible to be President for those born

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in the U.S. is a "natural born citizen." Tisdale has a textual problem that

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We will now examine the Tisdale and Schneider cases. Tisdale v.

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

cannot simply substitute in its place "citizen of the United States" which has a different constitutional meaning. The Court in Tisdale said "[i]t is well settled that those born in the United States are considered natural born citizens. See, e.g., United States v.

Ark [sic meant Wong], 169 U.S. 649, 702 (1898) ('Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a

citizen of the United States.')" Tisdale relied upon Wong Kim Ark and the parenthetical statement for his decision. But the quote from Wong Kim Ark uses the phrase "citizen of the United States." The Wong Kim Ark holding

Obama is a "natural born Citizen." In light of the critical constitutional distinction between a "natural born Citizen" and a "Citizen of the United States, there has to be some basis to go from Wong's "citizen of the United States" to saying that the holding also defines a "natural born Citizen." From the clear text of the Wong holding regarding a "citizen of the United

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States," Wong's holding without more does not support Tisdale's statement

regarding a "natural born Citizen." In support of its statement, "[i]t is well settled that those born in the

United States are considered natural born citizens," the Court cites Wong

Kim Ark and the holding of the case. But that case and its holding do not

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that Wong was a "citizen of the United States" cannot be used to show that

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

directly relate to a "natural born Citizen." Rather, it concerns only a "citizen of the United States" under the Fourteenth Amendment. Wong even confirmed that there is a distinction between a "natural born citizen" child born in the U.S. to citizen parents and a "citizen" child born in the U.S. to

alien parents. In fact, the Wong holding that Judge Gibney provides does not even include the clause "natural born Citizen" in it. The Tisdale Court is

simply putting words into the mouth of the Wong Court which are not there. There is language or the lack of language in Wong which shows that the Court recognized the distinction between a "natural born Citizen" and a

to be a Fourteenth Amendment "citizen of the United States" and not an Article II "natural born Citizen."

First, the question presented and holding of the Court speak of a "citizen of the United States" under the Fourteenth Amendment, not a "natural born Citizen" under Article II. The Court stated its holding thus:

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The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the

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"citizen of the United States," and that it went as far as only holding Wong

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Nowhere in the question presented or in the Court's holding do we find the

shows that the Court found Wong to be a "natural born Citizen." The Court said in its holding that it was deciding "the single question." The only

question before the Court was whether Wong was a Fourteenth Amendment "citizen." Hence, the Court answered that "single question" and not

answering any other question, surely did not also answer the question of whether Wong was also an Article II "natural born Citizen." It did not address the question of whether he was an Article II "natural born Citizen," which would involve a different question than the one raised before the

Second, Wong Kim Ark cited and quoted Minor's "common-law" definition of a "natural-born citizen," with no criticism or distinguishing of that definition to reach its holding that Wong was a "citizen of the United

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States." This is critically important because Minor had held in 1875 that the

definition of a "natural-born citizen is that already existing under "commonlaw" which is "all children born in a country of parents who were its

citizens." Id. at 167-68. But Wong was clearly not born to citizen parents.

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words "natural born Citizen." Not one quote from the Court exists which

Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Hence, if the Court were addressing the meaning of a "natural born Citizen" it would have had to explain why Minor's presentation of that definition either was wrong or did not apply. The point is that Wong Kim Ark would have had to make a comment about what Minor said was the already

established "common-law" definition of a "natural born Citizen." But we know from reading Wong Kim Ark that the only thing the Court did

regarding Minor was cite and quote the definition of a "natural-born citizen" which it confirmed. If the Court was willing to abandon or distinguish that definition, it would have done so.

citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' Wong Kim Ark, at 169-70 (citing and

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quoting Horace Binney, The Alienigenae of the United States Under the

Present Naturalization Laws (1853)). Both the Court and Binney erred in

contending that the right to citizenship in the United States "never descends in the legal sense," for the definition of a "natural born Citizen" is based

both on inheritance of citizenship from citizen parents which concept

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Third, Wong Kim Ark said, by quoting Mr. Binney: 'The right of

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

emanates strictly from natural law and on acquiring citizenship from place of birth which has its origins in positive law. Also, note Binney's reference to "in the country" which is directly out of Vattel Section 212's definition of a `natural-born citizen." Note also that, with the Court requiring "birth in the

country" in order to acquire birthright citizenship if one does not otherwise

qualify for the status under some naturalization statute, the Court recognized that only a child born "in the country" to citizen parents can be a "natural-

born citizen." The Court by this quote told us in clear words that while both a child "born in the country" to citizen parents and a child "born in the

country," only a child born "in the country" to citizen parents is a "naturalborn citizen." The reason for this distinction is that under the English common law which the Court applied to make Wong a "citizen," any person born in the King's dominions and in allegiance to him, regardless of how weak that allegiance may be due to the child's parents being aliens, was a

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"natural born subject." Emer de Vattel in Section 214 of the The Law of

Nations, Or, Principles of the Law of Nature (London 1797) (1 st ed.
Neuchatel 1758), explained that this form of granting subjectship in England was actually naturalization at birth by the only fact of being born in its dominions and without reference to the citizenship of the child's parents

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country" to alien parents are "citizens" by the mere fact of being "born in the

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("Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner"). Wong Kim Ark was willing to make Wong a "citizen" because he

was born in the United States and his parents' domicile in the United States at the moment of his birth created a strong enough allegiance to the United States (in the words of Lord Coke and Blackstone local and temporary) which was "strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject." Calvin's Case, 7 Rep. 6a (1608).

the parents had been citizens of the United States and therefore not strong enough to make Wong a "natural-born citizen." Under American constitutional "common-law," which in the area of national citizenship is based on natural law and the law of nations (a combination of natural law and positive law), such local and temporary allegiance in the child's parents

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could be strong enough to satisfy the "subject to the jurisdiction"

requirement of the Fourteenth Amendment, but it could never be strong enough to make a "natural born Citizen," which is the exacting standard

used in our Constitution for presidential eligibility. Wong Kim Ark found

that both of these factual scenarios satisfied the Fourteenth Amendment's

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Wong Kim Ark. 169 U.S. at 693. Yet that allegiance was not as strong as if

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"jurisdiction" clause and therefore produced citizenship by the mere fact of
being born in the country, but recognized that only the latter were "natural born Citizens."

Wong Kim Ark used the English common law to give current
meaning to the Fourteenth Amendment. Of course, with no such amendment existing when the Founders and Framers drafted the

Constitution, they would not have had any need to look to the English common law for such assistance. Furthermore, the Founders and Framers would never have adopted the English common law standard of a "natural

assured of this because, among the many other existing sources revealing this fact, James Madison tells us this. In The Federalist No. 42 (J. Madison), Madison said:

The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term,

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born subject" to define an Article II "natural born Citizen." And we can be

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.

own colleagues at the constitutional convention of 1787 and who supported a strong national executive,

told us in no uncertain words that the English common law "would be a dishonorable and illegitimate guide" for providing a definition for "felonies" which is a term that is included in the Constitution. Madison objected to using the English common law as a source by which to define "felonies" because of its "loose signification" within that law. He even objected to

explained that neither the common law nor statute law of England could provide the standard to define "felonies," a term in the Constitution, unless that law was accepted in the United States "by legislative adoption," which it

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was not. He also emphasized that there was a need for "certainty and

uniformity" in the standard to be established for the definition of "felonies." There can be little doubt that on providing a definitional standard for a "natural born Citizen," Madison would have echoed the same sentiments. The English common law also provided a very loose standard for defining a
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using English statutes because of their "various import" on the matter. He

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http://www.montpelier.org/explore/james madison/father_constitution.php,

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So Madison, who was given the title of "Father of the Constitution" by his

Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

"natural born subject," for it included therein both persons born in the King's dominions to English "natural born subjects" and born there to aliens, and persons who through naturalization after birth were also called "natural born subjects." There exists no evidence that the English common

law was ever adopted by the Founders and Framers to define a "natural born

Citizen." Because of the loose definition under the English common law of a "natural born subject," that law also did not provide "certainty and

uniformity." Finally, he would also have considered the English common law as 'a dishonorable and illegitimate guide" for defining who could be

republic which had been recently created by a bloody revolution fought against that same very nation. For further reading on my position that the Founders and Framers relied upon the law of nations and not the English common law to define an Article II "natural born Citizen," see my August 20, 2009 essay entitled, "'The Law of Nations or Principles of Natural Law'

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as U.S. Federal Common Law Not English Common Law Define What an

Article II Natural Born Citizen Is," accessed at http://puzol.blogspot.com/2009/08/law-of-nations-and-not-englishcommon.html.

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President and Commander in Chief of the Military in the new constitutional

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

All this is critical since the original and amended Constitution, all Acts of Congress, and treaties read as a whole show that there is a distinction between a "natural born Citizen" and a "citizen of the United States," with Article II, Section 1, Clause 5 requiring that for those born after the adoption of the Constitution, a "Citizen of the United States" is not sufficient for

presidential eligibility and that rather one must be a "natural born Citizen."

Tisdale cites Perkins v. Elg, 99 F.2d 408, 409 (1938), but that case
supports the plaintiff's position and not the Court's. In that case, the child was born in the United States to citizen parents. The lower court found Elg

decision. Hence, the case cannot be cited for the proposition that a child simply born in the United States without more is a "natural born Citizen" when those were not the facts of the case and surely not the holding of the Court. It should also be noted that the Court cited the Circuit Court decision but did not note that the case was appealed to the U.S. Supreme Court which

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rendered a decision reported at Perkins v. Elg, 307 U.S. 325 (1939) (The

U.S. Supreme Court affirmed the lower court ruling which found that Elg

who was born in the United States to citizen parents was a "natural born citizen").

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to be a "natural born citizen." The U.S. Supreme Court confirmed that

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Tisdale cites the Fourteenth Amendment as support for his statement that a "natural born citizen" is any child born in the United States. But as the U.S. Supreme Court in Minor v. Happersett (1875) explained, that amendment does not provide the standard for defining a "natural born

Citizen" and in fact does not even mention the clause. Even Wong Kim Ark, when it gave us its definition of a "natural born Citizen," cited and

quoted Minor and made no reference to the Fourteenth Amendment as it did in deciding whether Wong, who was born to alien parents, was a "citizen of the United States."

already passed in 1875 when the U.S. Supreme Court decided Minor. So when Minor said that the definition of a "natural born Citizen" was not in the Constitution it also meant that it was not found in the Fourteenth Amendment. Rather, the Court said that the definition of a "natural born Citizen" was found in the "common-law" with which the Founders and

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Framers were very familiar. The Court then told us how that "common-law" defined a "natural born citizen." Relying upon that "common-law," it

defined a "natural-born citizen" as a child born in a country to citizen

parents. Given the definition that it gave, which included the constituent element of citizen parents, clearly the Court did not rely upon any English

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The Fourteenth Amendment is part of the Constitution and was

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

common law which does not include such a requirement. Rather, the Court relied upon American "common-law" which had its origins in natural law and the law of nations, as commented upon by Emer de Vattel in The Law of Nations, Section 212. In fact, Minor's definition of a "natural born Citizen"

is almost word for word Vattel's definition of a "natural-born citizen" found in Section 212.

Another point is that Minor said that "[t]he Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." By the use of the word "shall," we can see that the Court

example or description of a "natural born Citizen." It would make little sense for a court to want to determine whether one is a "natural-born citizen" and not first search for a definition of the term. And Minor did provide the definition of a "natural-born citizen" about which it said there were no doubts. On the other hand, it said that "there have been doubts" as to the

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meaning of a "citizen," referring to a Fourteenth Amendment "citizen of the United States," which we know in Minor's definition of a "natural-born citizen" related to the parents of a "natural-born citizen," but not to a

"natural-born citizen" himself or herself. Finally, none of the citations provided by Tisdale in his Order

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set out to find a definition of the clause "natural born Citizen," not just one

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

sufficiently support its conclusion that any child born in the United States, regardless of the citizenship status of his or her parents, is a "natural born Citizen." The Court cites Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008), in support of his on-the-merits dismissal with prejudice of Tisdale's

complaint for failure to state a claim. The Court in citing that case, provided this quote:

But what the Court did here is take two separate statements that came from two different courts (Wong Kim Ark and Schneider v. Rusk, 377 U.S. 163 (1964)) and joined them with ellipses to give the appearance that Hollander

the Hollander case for plaintiff's failure to prove Article III standing. A dismissal for lack of standing means that the court found it had no subject matter jurisdiction. If a court has no subject matter jurisdiction, it cannot

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decide anything in the case other than having decided that it had no

jurisdiction and therefore dismissing the case. Hence, Hollander could not have provided any substantive explanation or conclusion on what is a "natural born Citizen." But even though Hollander said that it did not "reach the rest of the parties' arguments, including, most notably, the question of
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made that full statement. First, as will be seen below, the Court dismissed

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Moreover, "those born 'in the United States, and subject to the jurisdiction thereof,' . . . have been considered American citizens under American law in effect since the time of the founding . . . and thus eligible for the presidency" (citing and quoting Hollander, 566 F.Supp.2d at 66).

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

McCain's constitutional eligibility to be President," it still as "Background" provided its opinion as to the law to be applied in defining a "natural born Citizen," and even citing and quoting Wong Kim Ark and Schneider, although as shown above, in an inaccurate manner.

Second, the Hollander case did not decide what Tisdale says it

decided. Hollander did not rely on Wong Kim Ark to find that any person

born in the United States is a "natural born Citizen" and therefore eligible to be President. Rather, it only relied upon Wong Kim Ark to confirm, again while not having any jurisdiction, that persons born in the United States and

under the Fourteenth Amendment. Again while it had no jurisdiction, Hollander then cited Schneider v. Rusk, 377 U.S. 163, 165 (1964) and relied on Schneider as if it had said in "dicta" (a statement appearing in a written court opinion made by the court in passing and not central to the court's underlying decision) that such "American citizens" are therefore eligible to

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be President. Hollander did at least indicate in a parenthetical explanation

that what it said Schneider said was "dicta" in Schneider itself. Here is the actual quote from Hollander upon which Tisdale did judicial surgery so as to create the statement quoted above which has no legal support from any U.S. Supreme Court decision:

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"subject to the jurisdiction thereof" are considered "American citizens"

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

Those born "in the United States, and subject to the jurisdiction thereof," U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (dicta). Id. at 66.

So, we can see from examining Hollander's statement, that persons born in the United States and "subject to the jurisdiction thereof" are

considered "American citizens" under the Fourteenth Amendment (citing

be President (citing dicta from Schneider), that Tisdale's statement was made by joining Hollander's two separate statements which Hollander

Schneider), and that the second statement was "dicta." But what Tisdale has done in its Order is erase Hollander's notice that the statement was the

the last statement was even dicta. It has created one legal principle or

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statement by combining the statements and using ellipsis which makes it look as though Hollander itself made the whole statement.

dicta which supports its proposition that a child born in the United States

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product of combining two statements made by two separate courts and that

Not only is Hollander mistaken that the Schneider case contains any

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acknowledged were made by two separate courts (Wong Kim Ark and

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Wong Kim Ark) and that such "American citizens" are therefore eligible to

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

without more is eligible to be President, the case does not say at all what Hollander said it said. In other words, the Schneider case itself does not support Hollander's citation of that case for Hollander's proposition that an "American citizen" under the Fourteenth Amendment without more is

eligible to be President (again all said while Hollander had no jurisdiction). With Schneider not saying what Hollander says it says, Tisdale surely

cannot properly rely on Hollander's citation of the Schneider "dicta" which simply does no exist.

Let us now examine Schneider. Candidate Obama argues that the Schneider decision equated "a 'natural born citizen' who is eligible to be

in the original). Memorandum of Law at p. 8. But the Schneider Court did not do any such thing. In Schneider, the U.S. Supreme Court voided, based

naturalized citizen should lose his United States citizenship if, following

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naturalization, he resided continuously for three years in his former

homeland because the same type of provision did not apply to "native-born" citizens.

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on Fifth Amendment due process, a federal statute that provided that a

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President to a native born, as opposed to a naturalized, citizen" (emphasis

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

The Schneider case was summarized in Rogers v. Bellei, 401 US 815 (1971), as follows:
Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother's naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the specific provisions of § 352 (a) (1) of the Immigration and Nationality Act, 8 U. S. C. § 1484 (a) (1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by native-born citizens. The dissent (Mr. JUSTICE CLARK, joined by JUSTICES HARLAN and WHITE) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution's distinctions between native-born and naturalized citizens.

Id. at 821.

First, Schneider has never been cited as providing any actual

any such definition. Rather, Obama supporters have cited the Schneider v.

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Rusk case to argue that one only needs to be a "native-born" citizen to be eligible to be President. The decision contains this language:
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.

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definition of a "natural born Citizen," for the case does not expressly provide

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

*** Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1.

In the first quote, the Court explained that a "native born" citizen and a naturalized citizen have the same rights under the Constitution. But the

Court also explained that under the Constitution only a "natural born" citizen is eligible to be President. Hence, the Court properly made a distinction between a "native born" citizen and a "natural born" citizen as they apply to

quote, the Court said that a "natural born" citizen is not the same thing as a "native born" citizen, for the Court acknowledged a "native born" citizen but said that under the Constitution only a "natural born" citizen can be President. Given its equal protection analysis, the Court when it said "native born" citizen was actually referring to a child born in the United States and

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made a "citizen" under the Fourteenth Amendment and when it referred to a

"natural born" citizen in relation to being President was referring to Article II, Section 1, Clause 5. The Court also said that it is necessary to be a

"natural born" citizen to be President ("only the 'natural born' citizen is

eligible to be President"), or in other words, given the definition of a

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one being eligible to be and having the privilege of being President. In this

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

"natural born" citizen, it is necessary to be born in the United States to citizen parents to be eligible to be President. So it follows from this juxtaposition of "natural born" citizen and "native born" citizen that all "natural born" citizens are "native born" citizens but not all "native born" citizens are "natural born" citizens.

may become President. We cannot conclude from these two quotes that the Court said that a "natural born" citizen is the same as a "native-born" citizen." First, a "native-born" citizen after the adoption of the Fourteenth Amendment has been interpreted to mean that someone became a U.S.

by naturalization after birth. Second, since a naturalized citizen has the same rights and privileges as a "native-born" citizen, making a "native-born"

be President. Third, these quotes also do not mean that it is sufficient to be a

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"native born" citizen to be President. Rather, the Court in the second quote said that it is necessary to be a "native-born" citizen to be President ("[o]nly

a native-born may become President"), or in other words, it is necessary to

be born in the United States in order to be eligible to be President. "Only" signified that the condition is necessary, but it does not mean that the
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citizen eligible to be President would make a naturalized citizen eligible to

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citizen at the moment of birth by being born in the United States rather than

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The Court in the second quote said that "only" a "native-born" citizen

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

condition is sufficient. For example, I can say that only a person who has blood is alive. But clearly having blood is not sufficient to be alive. Rather,

Schneider's statement regarding "only" a "native-born" citizen is consistent
with Minor and Wong Kim Ark which as we have seen above said that a

"natural-born citizen" is a child born in the country to citizen parents. As we can see, both of these decisions acknowledged that birth in the country is

one of two necessary conditions needed to be met in order to be a "natural born Citizen."

So, taking these two quotes together, the Court first recognized that only a "natural born Citizen" is eligible to be President. We have to

"natural-born citizen." Then, in order to distinguish in the only way which is permitted by the Constitution a "native born" citizen from a naturalized

"citizen" by having been born in the United States to be President and that

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naturalized citizens cannot meet that condition. We can come to this conclusion because in the first quote the court said that under the

Constitution only a "natural born" citizen can be President and in fact, the Constitution uses the term "natural born" citizen and not "native born" citizen. The Framers were very careful in the words that they chose to
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citizen, the Court said that it is necessary to be a "native-born" citizen or a

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presume that the Court knew how Minor and Wong Kim Ark defined a

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

include in the Constitution and we cannot simply replace one term for another without providing any reason and analysis for doing so. And we must presume that the Schneider Court knew how Minor and Wong Kim Ark defined a "natural born" citizen." In short, we can read these quotes

together to say that: (1) all "natural born" citizens are "native born" citizens, but not all "native born" citizens are "natural born" citizens; (2) a "native

born" citizen if also born to citizen parents is a "natural born" citizen, but a naturalized citizen may never be; (3) only a "native born" citizen who is born to citizen parents is a "natural born" citizen and eligible to be President. Hence, what we learn from the Schneider decision is that a person

actual text of Article II, Section 1, Clause 5 uses "natural born Citizen" and not "native born" citizen. We also learn from this case that in order to be a

born" citizen," which both Minor and Wong Kim Ark confirm. Finally,

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while the Court did not define a "natural born" citizen, we know that an

Article II "natural born Citizen" is a child born in the country to a U.S. citizen father and mother.

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"natural born" citizen, it is necessary but not sufficient that one is a "native

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must be a "natural born" citizen to be President. This is correct, for the

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

As we can see, the Court in Tisdale simply cited to some cases which do not support its holding. With Tisdale, we see a court not engaging in its own thoughtful and reasoned analysis of the historical and legal meaning of a "natural born Citizen." What is worse, it even ascribes to the cases is cites legal positions that the cases did not hold.

As we can see, there are no current court cases, including Ankeny v.

Governor of Indiana and Tisdale, which have convincingly shown through thorough historical and legal analysis that any child born in the United States, without any reference to the child's parents' citizenship, is a "natural

American "common-law" definition of a "natural born Citizen," which Minor in 1875 directly and Wong Kim Ark in 1898 indirectly confirmed,

i.e., a child born in the country to citizen parents, stands. Anyone who wants
to change it needs to either go to the U.S. Supreme Court or have a constitutional amendment passed to accomplish that.

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Objectors is that Candidate Obama was not born to U.S. citizen parents. But a reading of their amended Objection shows this argument to be incorrect.

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D. OBJECTOR'S CLAIM NOT ONLY REGARDS CITIZEN PARENTS, BUT ALSO INCLUDES PLACE OF BIRTH
Candidate Obama argues that the only point being contested by

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born Citizen." Hence, the law of nations and traditional U.S. Supreme Court

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Kerchner & Laudenslager v Obama -- Statement of Fact and Procedure by Atty Karen L. Kiefer Copy provided courtesy of: http://www.ProtectOurLiberty.org

In their Amended Objection, they have alleged both that Obama has yet to conclusively prove that he was born in the United States and that he was born to two U.S. citizen parents. Both of these issues are also covered in Objectors' brief. III. CONCLUSION

For the foregoing reasons, we respectfully request that the Court deny Candidate Obama's motion to dismiss the Objection and allow this matter to proceed to a hearing. Dated: , 2012

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Karen L. Kiefer, Esq.

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