by Sven Magnussen
The De Facto Officer Doctrine may not be what some OBOTS believe it to be. The doctrine does legitimize the illegitimate. It indemnifies the governing authority from lawsuits and the chaos that would ensue when all laws, rules, regulations and executive actions were suddenly found to be null and void. For an orderly transition, the De Facto Officer Doctrine transfers authority to act to the usurper for the purpose of maintaining an orderly transition. The usurper must vacate the office until he qualifies and must be held to account for his actions in obtaining the office under false pretenses.
"The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." Norton v. Shelby County, 118 U.S. 425, 440 (1886).
"The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office." 63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984).
The De Facto Officer Doctrine cannot be used by the governing authority when an objection is lodged against the officer before the effect of the officers actions and the objection is overruled or dismissed. If it is found the objection to the usurper should have been sustained and the officer is removed after the fact, then the De Facto Officer Doctrine cannot be applied.
For example, A.F. McDowell was indicted and convicted in the District Court of a North Carolina judge temporarily assigned in South Carolina. McDowell did not object at the time of his indictment or trial to the assignment of the North Carolina judge. He later challenged the validity of his conviction because of a claimed error in the assigned judge's designation. The Supreme Court decided that the assigned judge was a "judge de facto," and that "his actions as such, so far as they affect third persons, are not open to question." McDowell v. United States, 159 U.S. 596 (1895).
Who objected to Obama as a qualified person to be POTUS?
Berg v. Obama
On August 21, 2008, Pennsylvania attorney Philip J. Berg filed a complaint alleging that Obama was not a natural born citizen of the United States and unqualified to be President. U.S. District Judge R. Barclay Surrick dismissed the complaint. Berg filed a petition for a writ of certiorari before judgment in the United States Supreme Court. On December 10, 2008, the Supreme Court denied Berg’s request for an injunction against the seating of the Electoral College, scheduled for December 15. On December 15, 2008, Berg refiled the application for injunction. Two days later, Berg’s appeal was denied without comment by Supreme Court Justice Anthony Kennedy. Berg’s previously denied request for an injunction was refiled with Justice Antonin Scalia on December 18, 2008. On January 12, the Supreme Court denied the petition for certiorari. The application for stay addressed to Justice Scalia and referred to the Court was denied on January 21, 2009.
Essek v. Obama
On November 25, 2008, Daniel John Essek filed a pro se federal lawsuit in the Kentucky Eastern District Court. The suit was originally filed as a Freedom of Information Act case, but was amended to a judicial challenge to Obama’s qualifications for the Office of President of the United States. Essek sought to prevent the inauguration of Barack Obama on the grounds that Obama was not a natural born citizen. District Judge Gregory F. Van Tatenhove dismissed the suit because of a lack of subject matter jurisdiction.
Kerchner v. Obama
On January 20, 2009, Mario Apuzzo filed a lawsuit in federal court, on behalf of Charles Kerchner suing President-Elect Barack Obama, the United States Congress, Dick Cheney, and Nancy Pelosi alleging Obama was ineligible to be president. A federal district court in New Jersey dismissed the suit, ruling the plaintiffs lacked standing. On July 3, 2010, the United States Court of Appeals for the Third Circuit, citing Berg v. Obama, affirmed the dismissal.
Several lawsuits were filed alleging Obama was not qualified to be President of the United States due to his natural born citizenship status before, during and after he was sworn into office. He case was dismissed before discovery could begin. The De Facto Officer Doctrine does not apply in Obama's case because there were many objections to his qualifications and each objection was overruled or dismissed.
In Ryder v. United States (94-431), 515 U.S. 177 (1995), James D. Ryder was convicted by court martial. His conviction was affirmed by the Court of Military Review and then the Court of Military Appeals.
The Court of Military Appeals agreed with Ryder the two civilian judges appointed to the Court of Military Review had failed the Appointments Clause and was unconstitutional, but found the actions of the judges were de facto.
The Supreme Court of the United States found the civilian judges were not valid de facto. Ryder had challenged the appointment of the two civilian judges on a petition for a rehearing after the Court of Military Review agreed with the court martial. The court granted a rehearing and rejected this challenge. The Supreme Court found the judges not valid de facto because Ryder raised his objection to the judges' titles before those very judges and prior to their action on his case. The Supreme Court opined, "We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred."
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