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10-2622

United States Court of Appeals For the Second Circuit

--------- -------ABDUL KARIM HASSAN, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR PLAINTIFF-APPELLANT

ABDUL KARIM HASSAN, ESQ. Plaintiff-Appellant, Pro Se 215-28 Hillside Avenue Queens Village, New York 11427 (718) 740-1000 [email protected]

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TABLE OF CONTENTS

Pages

I. PRELIMINARY STATEMENT II. JURISDICTIONAL STATEMENT III. STATEMENT OF ISSUES PRESENTED FOR REVIEW IV. STATEMENT OF THE CASE V. STATEMENT OF FACTS IV ARGUMENT

1 .4 5 5 7 8

1. THE INVIDIOUS NATIONAL ORIGIN DISCRIMINATION IN ARTICLE II, SECTION I, CLAUSE 5, OF THE U.S. CONSTITUTION IS TRUMPED, ABROGATED AND IMPLICITLY REPEALED BY THE FIFTH AMENDMENT'S EQUAL PROTECTION, DUE PROCESS AND LIBERTY GUARANTEES 8 A. Hassan is Entitled to The Declaration He Seeks Under The Supreme Court's Reasoning in McDonald v. City of Chicago ........ 11 B. The District Court Applied The Wrong Legal Standard 13

C. Hassan is Entitled to the Declaration He Seeks Because Contrary to the District Court's Holding, There is No Presumption In Favor of Invidious National Origin Discrimination 15 D. Hassan is Entitled to The Declaration He Seeks Under the Absurdity Doctrine That Emanated From Dredd Scottv. Sandford and Bolling V. Sharpe and In Light of The Constitution's Purpose and The Current Anti-Discrimination Public Policy of the Nation .... 17 E. Hassan is Entitled to the Declaration He Seeks Under the Comparative Value Doctrine F. The District Court's Reliance on Dicta in Schneider et al is Misplaced

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2. THE FOURTEENTH AMENDMENT TOOK TOTAL CONTROL OF THE STATUS OF CITIZENSHIP AND NECESSARILY TRUMPED, ABROGRATED AND IMPLICITLY REPEALED THE NATURAL BORN PROVISION 32 VII. CONCLUSION COMPLIANCE 41 43

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TABLE OF AUTHORITIES Cases: Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) Afroyim v. Rusk, 387 U.S. 253, 267 (1967) Bolling v. Sharpe, 347 U.S. 497, 499 (1954) Dred Scott v. Sandford, 60 U.S. 393 (1857) Fitzpatrict v. Bitzer, 427 U.S. 445, 456 (1976) Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) Hirabayashi v. United States, 320 U. S. 81,100 (1943) Image Carrier Corp. v. Beame, 567 F.2d 1197, 1199 (2d Cir. 1977) lana-Rock Const., Inc. v. New York State Dept. of Economic Development, 438 F.3d 195,200 (2d Cir. 2006) Knaur v. United States, 328 U.S. 654,658 (1946) Korematsu v. United States, 323 U. S. 214,216 (1944) Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539,49 L.Ed. 937 (1905) McDonald v. City of Chicago, Ill. 130 S.Ct. 3020,3059 -3060 (2010) National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) Osborn v. Bank of United States, 9 Wheat. 738, 827, 6 L. Ed. 204 (1824) Oyama v. California, 332 U. S. 633,644-646 (1948) Perez v. Brownell, 356 U.S. 44 (1957) 9

23, 29, 30, 32-36-38, 41-42 2, 9, 13 2, 12, 13, 14, 19-22,39,40 28 23 17 18 20 29 17 18 11, 38 15 31 17 35

Phillips v. Saratoga Harness Racing, Inc., 240 F.3d 174, 179 (2d Cir. 2001) ........ 22

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Schneiderv. Rusk, 377 U.S. 163, 165 (1964) South Carolina v. Regan, 465 U.S. 367,412 (1984)

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Constitutional Amendment:

U.S. U.S. U.S. U.S. U.S. Constitutional Amendment 5 Constitutional Amendment 14 Constitution Article I, Section 9, Clause 1 Constitution Article I, Section 2, Clause 3 Constitution Article IV, Section 2, Clause 3 passim passim 12 12 12

Statutes:

28 U.S.C. §§ 1331 and 1337 28 U.S.C. §§ 2201 and 2202 4 U.S.C. § 7201(b) ; 4 4 25

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I. PRELIMINARY STATEMENT

Plaintiff-Appellant Abdul K. Hassan, Esq., ("Plaintiff-Appellant", "Hassan") appeals from that part of an order and judgment of the United States District Court, Eastern District of New York, Hon. Nina Gershon, which granted the motion to dismiss of the United States of America ("USA", "Defendant") and denied Hassan's summary judgment cross-motion for a declaratory judgment declaring that the natural born provision of the U.S. Constitution has been trumped, abridged, abrogated or implicitly repealed by the equal protection, due process and liberty guarantees of the Fifth Amendment and by the citizenship clause of the Fourteenth Amendment. The district court's Memorandum and Order is dated June 11,2010 (A. 51-57) and the amended judgment is dated June 18,2010 (A. 59).

Plaintiff-Appellant Hassan is a naturalized American citizen who decided to run for the Presidency of the United States but was effectively blocked by the uncertainty created by the natural born provision of Article II, Section 1, Clause 5, of the United States Constitution which purports to allow only natural-born American citizens to seek and hold the Presidency. The Fifth Amendment as currently interpreted prohibits the very type of invidious national origin discrimination that is contained in the natural born provision. Nonetheless, the district court held that the invidious national origin discrimination in the natural

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born provision should prevail over the Fifth Amendment because the district court found that there was a strong presumption against repeal by implication. However, the presumption is in the other direction - it is well settled that government laws or conduct that discriminate on the basis of national origin are presumed to be invalid. Moreover, the district court's ruling is incorrect under absurdity doctrine that emanated from Dred Scott v. Sandford, 60 U.S. 393 (1857) and Bolling v. Sharpe, 347 U.S. 497,499 (1954). In what Supreme Court justices has described as a great "self-inflicted wound," the Dredd Scott decision held that persons of African ancestry were not included in the word "citizen" as used in the Constitution. It is now well accepted that while such an absurd result had greater constitutional support than alternative interpretations at the time, the Supreme Court should have adopted the non-absurd interpretations that were consistent with the Constitution's purpose of liberty and justice for all as also reflected in the Fifth Amendment. The Supreme Court took this approach in Bolling when in order to reject invidious discrimination by the federal government, the Court recognized an equal protection guarantee in the Fifth Amendment even though the text of the Fifth Amendment does not contain equal protection language. Under current constitutional jurisprudence, discrimination based on national origin and race are viewed as equally bad and are both subject to strict scrutiny. Like Dredd Scott, Hassan faces citizenship discrimination contained in the Constitution itself because of a highly

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protected characteristic - for Dredd Scott it was his race and for Hassan it is his national origin. If we now agree that it was wrong to deny Dredd Scott citizenship because of his race, we must also agree that is wrong to deny Hassan full citizenship because of his national origin.

Plaintiff-Appellant Hassan also moved for a declaration that the natural born provision was trumped, abrogated, or implicitly repealed by the Fourteenth Amendment. It does seem that the district court mistakenly analyzed this argument under the equal protection clause instead of citizenship clause of the Fourteenth Amendment, thought the district court in general denied the Fourteenth Amendment claim. Nonetheless, Hassan should prevail on his Fourteenth Amendment claim because as explained below, in the leading case on this subject, the Supreme Court held that the Fourteenth Amendment was intended and calculated to "completely control" the status of citizenship and to protect citizenship from destruction, abridgement and dilution. Because the natural born provision dilutes and partially destroys the citizenship of Hassan it is trumped and abrogated by the Fourteenth Amendment.

American courts have not been confronted with invidious discrimination contained in the Constitution itself since the Dredd Scott decision more than 150 years ago - the natural born provision is the only form of invidious discrimination

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that remains in our Constitution. The natural born provision invidiously discriminates against over 10 million naturalized American citizens and potentially discriminates against over 33 million foreign born persons (A. 41 :79). Given these numbers, this is very likely the largest case of invidious discrimination ever in the history of the United States. This Court should avoid another great "self-inflicted wound" like the one in Dredd Scott and this Court should declare that the natural born provision has been trumped, abrogated and repealed by the Fifth and Fourteenth Amendments.

II. JURISDICTIONAL STATEMENT

The district court (Hon. Nina Gershon, USDJ) had subject matter jurisdiction over all claims and causes of action pursuant to 28 U.S.C. §§ 1331 and 1337 as well as 28 U.S.C. §§ 2201 and 2202. The district court entered an amended final judgment in the case on June 18, 2010 fully disposing of all issues. On June 28, 2010, Plaintiff-Appellant filed a notice of appeal. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

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III. STATEMENT OF ISSUES PRESENTED FOR REVIEW

Issue 1: Whether the equal protection guarantee of the Fifth Amendment trumps, abrogates or implicitly repeals the invidious national origin discrimination against naturalized citizens that is contained in the U.S. Constitution's natural-born provision?

Standard of Review: De Novo - this is a question of law on a motion to dismiss/summary judgment.

Issue 2: Whether the citizenship clause of Section 1 of the Fourteenth Amendment trumps, abrogates or implicitly repeals the invidious national origin discrimination against naturalized citizens that is contained in the Constitution's natural born provision.

Standard of Review: De Novo - this is a question of law on a motion to dismiss/summary judgment.

IV. STATEMENT OF THE CASE

Plaintiff-Appellant Hassan commenced the instant action by filing a complaint against Defendant-Appellee United States of America on March 5, 2008. (A. 5-11). The complaint sought a declaratory judgment declaring that the

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natural born provision of the Constitution is trumped or implicitly repealed by the First, Fifth, Fourteenth and Fifteenth Amendments. Hassan sought this declaration because he is a naturalized American citizen who intends to run for the U.S. Presidency in 2012, and the natural born provision stands in his way because said provision purports to allow only natural born citizens to seek and hold the Presidency.

By so-ordered stipulation, the parties agreed that Defendant would move to dismiss the complaint in lieu of filing an answer and that Hassan would crossmove for summary judgment on his claims. After briefing, the motions of the parties were fully submitted on or about August 13,2008. By Memorandum and Order dated June 11, 2010 (A. 51-57), the district court found that Hassan had standing to bring the case but also found that the natural born provision was not trumped or implicitly repealed. An amended judgment dismissing the action in its entirety was entered on June 18, 2010. (A. 59). Plaintiff-Appellant filed a notice of appeal on June 28, 2010 (A. 61-62), appealing the denial of his Fifth and Fourteenth Amendment claims - he does not appeal the finding that he has standing and he does not appeal the dismissal of the First and Fifteenth Amendment claims.

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On or about July 23,2010, Plaintiff-Appellant filed with the U.S. Supreme Court a petition for certiorari before judgment in the Second Circuit. That petition was denied on or about September 27,2010. Plaintiff-Appellant intends to file another petition for certiorari using the standard process if he looses before the Second Circuit. Plaintiff-Appellant also kindly requests that this Honorable Court handle this appeal in an expedited manner given that Hassan intends to run for the Presidency in 2012 and needs to clear the legal hurdles at issue in this appeal before he can run.

v. STATEMENT OF FACTS

Plaintiff-Appellant Abdul Karim Hassan was born on April 27, 1974 in Georgetown, Guyana. (A. 44:2). At the time of Hassan's birth in Guyana, his mother and father were both citizens of Guyana. (A. 45:9). Hassan lawfully immigrated to the United States of America in August 1990 as a permanent resident alien and obtained a resident alien card, commonly called a "green card." (A. 45:12). In 1998, Hassan became a naturalized American citizen and he took the oath of citizenship in the United States Courthouse, Eastern District of New York Brooklyn, New York. (A. 45:13). Hassan has resided continuously in the United States and in the State of New York, Queens County, ever since his entry into the

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United States in August 1990. (A. 45:14,19). As of the year 2000 there were 10.6 million naturalized American citizens and 33 million foreign-born persons in the United States as of the year 2003. (A. 41 :79). The district court has also made the following relevant findings of fact:

Abdul Karim Hassan, a naturalized citizen of the United States and a pro se lawyer in this action, asserts that he intends to run for President of the United States in 2012. Article II, Section 1, Clause 5, of the United States Constitution, which provides that "[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President" stands in the way. (A.51) The government ... does not seriously dispute Hassan's contention that he intends to run for President. (A. 52) With the exception of the Natural Born Citizen Clause, Hassan meets all of the other eligibility requirements for the office [of President]" (A. 53).

A full recitation of the facts can be found in the record at A. 16-41 but the material undisputed facts are included herein.

VI. ARGUMENT

1. THE INVIDIOUS NATIONAL ORIGIN DISCRIMINATION IN ARTICLE II, SECTION I, CLAUSE 5, OF THE U.S. CONSTITUTION IS TRUMPED, ABROGATED AND IMPLICITLY REPEALED BY THE FIFTH AMENDMENT'S EQUAL PROTECTION, DUE PROCESS AND LIBERTY GUARANTEES.

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The natural born provision is contained in Article II, Section I, Clause 5, of the Constitution which states that:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The Fifth Amendment reads in relevant part as follows:

No person shall .... be deprived of life, liberty, or property, without due process of law ...

While not appearing in the text of the Fifth Amendment, the U.S. Supreme Court has held that:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. Bolling V. Sharpe, 347 U. S. 497, 500 (1954) [t]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995).

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If the natural born provision was a federal statute, it would certainly be found to be in conflict with the Fifth Amendment and declared unconstitutional as a result. See Schneider v. Rusk, 377 U.S. 163, 165 (1964). It is well established that laws that discriminate on the basis of national origin discrimination are presumed to be invalid and are subject to strict scrutiny analysis under the Fifth Amendment. More specifically, the Supreme Court in Schneider v. Rusk, 377 U.S. 163, 165 (1964), rejected the argument that, "it is not invidious discrimination for Congress to treat such naturalized citizens differently from the manner in which it treats native-born citizens" - the very thing that the natural born provision does. Moreover, the government concedes that the natural born provision is premised on the assumption that foreign born citizens cannot be trusted I

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the very assumption

that the invalidated statute in Schneider was based on. The Supreme Court emphatically held that this distrust rationale has no value when it stated in relevant part that (Schneider, 377 U.S. at 168):

This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make.

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See EDNY ECF System - Case 1:08-cv-00938-NG -LB Document 14 Filed 08113/08 Page 22 of27

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Because the natural born provision as a statute would undoubtedly conflict with the Fifth Amendment, it necessarily will conflict with the Fifth Amendment if it were a constitutional provision which it is - the only real question therefore is whether this conflict between the Fifth Amendment and the natural born provision of the Constitution is irreconcilable and hence, does the Fifth Amendment trump, abrogate or implicitly repeal the natural born provision. The answer is clearly yes.

A. Hassan is Entitled to The Declaration He Seeks Under The Supreme Court's Reasoning in McDonald v. City of Chicago

About seventeen days after the district court issued its decision in this action, the United States Supreme Court in McDonald v. City of Chicago, Ill. 130 S.Ct. 3020, 3059 -3060 ( 2010) stated in relevant part as follows:

Nearly three decades after Barron, the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation's early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure.

This statement from McDonald is extremely important in this case for several reasons but most importantly because of its "irreconcilable" finding and the

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fact that it is the most recent Supreme Court decision to address this issue. While the Supreme Court's "irreconcilable" finding is self-evident and is the product of simple common sense, it puts to rest any notion that invidious discrimination is not irreconcilable with the Constitution. As the Supreme Court stated in McDonald, it is not only invidious discrimination in the form of slavery that is irreconcilable with the equality principles of the Constitution - "the measures designed to protect it," are also irreconcilable with the Constitution. Significantly, slavery and several of the measures meant to protect it which the McDonald court found were irreconcilable with the Constitution, were explicitly contained in the words of the constitution itself. See Article I, Section 9, Clause 1; Article I, Section 2, Clause 3; Article IV, Section 2, Clause 3. All of these measures referred to - centered in some form or the other on invidious discrimination. As is also clear from the McDonald decision, the most prominent form of invidious discrimination that is irreconcilable with the equality principles of the Constitution was the Constitution's denial of citizenship to persons of the African race and ancestry as confirmed in Dred Scott v. Sandford, 60 U.S. 393 (1857). As explained further below, invidious discrimination based on national origin and race are viewed as equally bad under the Constitution and are both subject to strict scrutiny. As such, based on the reasoning in McDonald, the invidious national origin discrimination contained in the Constitution's natural born provision is irreconcilable with the

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Constitution's equality principles, including the equal protection guarantee of the Fifth Amendment. Defendant itself argued below that when two provisions are irreconcilable, the later provision implicitly repeals the earlier provision. Here, the Fifth Amendment was adopted after the natural born provision and the decision which recognized the existence of an equal protection guarantee in the Fifth Amendment came about 167 years after the natural born provision. See Bolling v. Sharpe, 347 U.S. 497 (1954). Equally or more important however, as the McDonald court noted, invidious discrimination is irreconcilable with the principles or equality which are embedded in "our constitutional structure." As such, to uphold invidious discrimination such as that contained in the natural born provision would be to threaten the very structure of our constitution. As such, in order to save the very structure of our constitution this Court must declare that the natural born provision is trumped, abrogated and implicitly repealed by the Constitution's principles of equality, including the equal protection guarantee of the Fifth Amendment.

B. The District Court Applied The Wrong Legal Standard

The first step is analyzing any legal problem is to establish the applicable legal standard. In this regard, the district court stated in relevant part as follows (A. 53-54):

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Likely because of the rarity of such challenges, the Supreme Court has not established a test for determining whether or when one constitutional provision "trumps," as plaintiff argues, another.

As the district court pointed out, the constitutional challenge brought by Hassan is indeed rare. The only other time that someone challenged invidious discrimination contained in the constitution itself was in Dred Scott v. Sandford, 60 U.S. 393 (1857). In fact, in the more than 150 years after Dredd Scott was decided, the natural born provision remains the only form of invidious discrimination left in the Constitution and as far as one can ascertain, this is the first time its validity is being challenged in light of the modern interpretation of the Constitution. The natural born provision invidiously discriminates against more than 10.6 million naturalized American citizens (A. 41 :79) and this number can exceed thirty million since there are more than thirty-three million foreign-born persons in the United States. (A. 41 :79). Given these numbers, this is likely the largest case of invidious discrimination ever in the history of the United States.

Noting that, "The [Supreme] Court has, however, on numerous occasions considered whether a statute has implicitly repealed another statute," the district court in analyzing Hassan's implicit repeal arguments, applied a more stringent form of the test for implicit repeal of a statute and stated in relevant part that, "The

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already rigorous test for implied repeal of a statute would be even more so in the constitutional context." (A. 54). However, while Hassan should also prevail under the legal standard applied by the district court, the district court committed significant reversible errors of law. First, the most fundamental error committed by the district court is its failure to distinguish between laws that invidiously discriminate and all other laws - the district court seem to believe that the same repeal analysis applies regardless of the subject matter involved. The district court incorrectly analyzed the invidious discrimination claims herein by relying on the implicit repeal analysis in an environmental case (National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007)). (A. 54).

C. Hassan is Entitled to the Declaration He Seeks Because Contrary to the District Court's Holding, There is No Presumption In Favor of Invidious National Origin Discrimination

As laid out above, the district court said that the Supreme Court has never put forward an explicit test for implicit repeal in the Constitutional context. (A. 5354). However, the court borrowed from the statutory context and reasoned that there is a strong presumption against repeals by implication. (A. 54-55). In fact, the district court reasoned that this "presumption against" is even stronger in a constitutional context - "The already rigorous test for implied repeal of a statute

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would be even more so in the constitutional context." (A. 54). In rejecting Hassan's argument that the Fifth Amendment's prohibition of national origin discrimination trumps, abrogates or implicitly repeals the invidious national origin discrimination in the natural born provision, the district court concluded that Hassan failed, "to overcome the strong presumption against implicit repeal." (A. 56). This was clear legal error. While generally there is a strong presumption against implicit repeal, such a strong presumption does not apply where the provision in question imposes invidious national origin discrimination.

The Court cited no case and Hassan knows of none, where there was a strong presumption against implicit repeal of a law that invidiously discriminates. Not surprisingly therefore, the district court borrowed its repeal standard from a case, in the statutory context, that deals with the environment (National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007)) and not invidious discrimination against human beings. By contrast, there are several cases which establish a strong presumption against laws that invidiously discriminate against human beings.

Since the 1940s it has been well settled that federal laws or conduct which discriminate on the basis of national origin are presumed to be invalid and are

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subject to strict scrutiny. Oyama v. California, 332 U. S. 633, 644-646 (1948); Korematsu v. United States, 323 U. S. 214,216 (1944); Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Given the rationale for strict scrutiny, invidious discrimination in a constitutional context carries a stronger presumption of invalidity than in a statutory context. This is because the Constitution has a wider reach and is harder to change than a statute and hence, invidious discrimination in the Constitution will cause more widespread damage for a longer period as a result. In addition, the natural born provision here in question is permanent, with no end in sight - the natural born provision discriminates against over 10 million naturalized citizens (A. 41 :79) and has been around for over 220 years. With this presumption against national origin discrimination in place, the Fifth Amendment prohibition against national origin discrimination easily trumps, abrogates and implicitly repeals the natural born provision of the Constitution, especially since the Supreme Court in Schneider has declared that the "distrust" assumption which is also the foundation of the natural born provision is "impossible for us to make" and hence, has no value whatsoever. The government cannot articulate any need for the natural born provision and there is certainly not a compelling need for it.

D. Hassan is Entitled to The Declaration He Seeks Under the Absurdity Doctrine That Emanated From Dredd Scott v. Sandford and Bolling V. Sharpe and In Light of The

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Constitution's Purpose and The Current Anti-Discrimination Public Policy of the Nation.

Justices of the United States Supreme Court have described the Supreme Court's decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), as a great "selfinflicted wound2 ." In South Carolina v. Regan, 465 U.S. 367,412 (1984), the Supreme Court stated in relevant part that:

Chief Justice Hughes once referred to Pollock, along with Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), overruled by U.S. Const., Arndt. 14, and Hepburn v. Griswold, 8 Wall. 603,19 L.Ed. 513 (1870), overruled by Legal Tender Cases, 12 Wall. 457, 20 L.Ed. 287 (1871), as one of the "three notable instances [in which] the Court has suffered severely from self-inflicted wounds." C. Hughes, The Supreme Court of the United States 50 (1928).

In Image Carrier Corp. v. Beame, 567 F.2d 1197,1199 (2d Cir. 1977), the Second Circuit stated in relevant part that:

This appeal raises the specter of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539,49 L.Ed. 937 (1905), which, with the possible exception of Scott v. Sandford, 60 U.S. (19 How.) 393,15 L.Ed. 691 (1857) (the Dred Scott case), remains the most discredited of Supreme Court decisions. We reject the attempt to resurrect this apparition of the past.

See http://www.supremecourt.gov/publicinfo/speeches/sp_03-21-03.html- In reference to the Dredd Scott decision, then Chief Justice Rehnquist said in a 2003 speech that 'It was rightly referred to by a later Chief Justice as a "self-inflicted wound" from which it took the Court at least a generation to recover.'

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Almost every member of the Supreme Court today has in some form or another stated that Dredd Scott was wrongly decided by the Supreme Court. But why was Dredd Scott wrongly decided? The Dredd Scott decision was handed down before the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted. So why was Dredd Scott wrongly decided? The Supreme Court's holding in Dredd Scott that the word citizen in the Constitution was not intended to include black persons was not genuinely disputed given that the Constitution approved slavery clear. The Supreme Court's ruling in Dredd Scott that Scott as a matter of law was property is undisputed. So why was Dredd Scott wrongly decided? The Supreme Court in Dredd Scott 60 U. S. at 451, stated in relevant part that:

the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States in every State that might desire it for twenty years. And the Government in express terms is pledged to protect it in all future time if the slave escapes from his owner. This is done in plain words -- too plain to be misunderstood.

Unfortunately and shamefully, the U.S. Constitution did explicitly create and protect the right to own human beings as slave property. So why was Dredd Scott wrongly decided?

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Dredd Scott was wrongly decide because we now agree that the invidious racial discrimination that destroyed Dredd Scott's right to citizenship was absurd and that this absurd result could have been avoided by choosing an alternative interpretation that was consistent with the Constitution's liberty and justice mandates. Dredd Scott's right to citizenship was destroyed because of his race and here, Hassan's right to full citizenship is being destroyed because of his national origin - like Dredd Scott, Hassan is being relegated to second class status. See Schneider, 377 U. S. at 169 (discriminating against citizens because of their naturalized status "creates indeed a second-class citizenship"). It should be noted that although Dredd Scott dealt with citizenship and race discrimination, as a matter of constitutional law, race and national origin discrimination are viewed as equally bad as evidenced by the fact that they are both subject to strict scrutiny. In lana-Rock Const., Inc. v. New York State Dept. of Economic Development, 438 F.3d 195, 200 (2d Cir. 2006), the Second Circuit stated in relevant part as follows:

The classifications that are the subject of this appeal are based on national origin rather than race. It is undisputed, however, that principles of analysis applicable to race-based affirmative action programs are the same as those applicable to national-origin-based affirmative action programs. We therefore use the terms interchangeably. See United States v. Virginia, 518 U.S. 515, 532 n. 6,116 S.Ct. 2264,135 L.Ed.2d 735 (1996) (noting that "[t]he Court has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin"). Adarand itself made no distinction between the two categories. Indeed, the company that was the beneficiary of the affirmative action program involved in Adarand

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may well have been owned by a Hispanic person. See Adarand, 515 U.S. at 205, 115 S.Ct. 2097.

Simply put, because it is now universally accepted that it was incorrect and absurd for the Constitution to deny citizenship to Dredd Scott because of his race, it is also incorrect and absurd for the Constitution to, deny Hassan full citizenship because of his national origin. The lesson of the Dredd Scott case is that even if an absurd result has far greater constitutional support than a non-absurd result, the courts should choose the non-absurd result over the absurd result. Here, there is much more constitutional support for the non-absurd result of equality under the Fifth Amendment that Hassan seeks and there is little or no support for the absurd result of invidious national origin discrimination that defendant seeks under the natural born provision. Because of the acknowledged mistake in Dredd Scott and the aftermath, including the civil war and civil rights movements, the legal landscape from top to bottom has been transformed dramatically and now provides more support for Hassan today than it did for Dredd Scott more than 150 years ago. Unlike at the time of Dredd Scott, America today has a strong public policy against invidious discrimination and equal protection is now the foundation of our society and this has been reflected in both the laws passed by legislatures and the judicial decisions based on those laws and the Constitution.

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In Phillips v. Saratoga Harness Racing, Inc., 240 F.3d 174, 179 (2d Cir. 2001), the Second Circuit, quoted the U.S. Supreme Court and stated in relevant part that:

Mindful of the Supreme Court's warning that "interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available," Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), we conclude that public policy is best served by relieving health plan administrators of the responsibility for making legal judgments

Almost a hundred years after Dredd Scott, the Supreme Court in in Bolling v. Sharpe, 347 U.S. 497 (1954), was faced with a situation in which the U.S. Constitution prohibited the states from engaging in invidious discrimination but did not prohibit the federal government from doing the same - the federal government was subjecting African Americans to invidious discrimination but the Fifth Amendment contained no equal protection clause and was never intended by the founding fathers to protect African Americans from discrimination. However, in order to avoid another great self-inflicted wound like the one caused by its Dredd Scott decision, the Supreme Court characterized this situation as "unthinkable" or absurd and stated that, "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser

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duty on the Federal Government." Bolling, 347 U.S. at 500. Similarly, it is absurd and "unthinkable" that the Constitution would prohibit invidious discrimination challenged herein as to every other job in the country but permit such discrimination as to the job of President - the highest office in the land which is charged with enforcing the laws and policies against national origin discrimination, and the office, which more than any other, should be free of the taint of invidious discrimination.

The conflict between the Fifth Amendment and the natural born provision of Article II, Section I, must be resolved in favor of the Fifth Amendment because "alternative interpretations consistent with the legislative purpose are available," Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,575 (1982). This resort to policy and purpose as a guide in picking one interpretation over another was also utilized by the Supreme Court in Bolling which relied on "our American ideal of fairness," in reaching its decision. Bolling, 347 U.S. at 499. It was also utilized in Afroyim in deciding whether to keep the interpretation in Perez v. Rusk or the alternative interpretation the Court adopted in Afroyim v. Rusk, 387 U.S. 253, 267 (1967). The Court in Afroyim emphasized the importance of choosing interpretations consistent with constitutional principles and stated in relevant part that (Afroyim, 387 U.S. at 267):

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Our holding we think is the only one that can stand in view of the language and the purpose of the Fourteenth Amendment, and our construction of that Amendment, we believe, comports more nearly than Perez with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee.

In the instant case, the Constitution's own stated policy and purpose as well as the public policy articulated through statute in more recent times are both inconsistent with invidious discrimination and compels this Court to adopt the antidiscrimination mandate of the Fifth Amendment over the invidious discrimination embodied in the natural born provision of Article II, Section 1, Clause 5. The United States Constitution declares its policy and purpose and states as follows:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Simply put, no thinking person can conclude that invidious discrimination is consistent with the goals and purpose of the Constitution as stated above, and as such, the anti-discrimination mandate of the Fifth Amendment must prevail over the invidious discrimination embodied in the natural born provision. Much more recently, the United States of America adopted by statute a policy against employment discrimination based on national origin - the very type of

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discrimination embodied in Article II, Section I, Clause 5. The statute at 4 U.S.C. § 720 1(b) states in relevant part as follows:

It is the policy of the United States to insure equal employment opportunities for employees without discrimination because ofrace, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.

The above statute specifically instructs the President to carry out the policy against employment discrimination based upon national origin - it is therefore truly absurd to discriminate based on national origin as to the job of President as the natural born provision does.

E. Hassan is Entitled to the Declaration He Seeks Under the Comparative Value Doctrine

In determining whether one constitutional provision trumps or abrogates another, courts have employed what amounts to a comparative value doctrine under which the constitutional provision with the greater value trumps the provision with lesser value. In Schneider v. Rusk, 377 U.S. 163, 167 (1964) for example, the Supreme Court stated in relevant part as follows:

As stated by Judge Fahy, dissenting below, such legislation, touching as it does on the "most precious right" of citizenship (Kennedy v. Mendoza-Martinez, 372 U. S., at 159), would have to be justified under the foreign relations power "by some more urgent public necessity than substituting administrative convenience for the

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individual right of which the citizen is deprived." 218 F. Supp. 302, 320.

In other words, when a provision of the Constitution subjects citizenship to national origin discrimination as was the case in Schneider, the Fifth Amendment will trump and abrogate such a provision unless there is "some more urgent public necessity than substituting administrative convenience for the individual right of which the citizen is deprived." Applying this standard as we must, to the natural born provision, we can easily conclude that the national origin discrimination contained in the natural born provision is trumped by the equal protection guarantee of the Fifth Amendment because the Supreme Court concluded in Schneider that the distrust assumption upon which the national origin discrimination was based is impossible to make and therefore has no value whatsoever. This same assumption of distrust formed the basis of the natural born provision as the government itself argued.

In describing the history and rationale for the natural born requirement, Defendant stated that3 :

The inclusion of the natural-born citizen clause of the Constitution is generally accepted as a response to a letter by John Jay (who was then serving as the Continental Congress's Minister of Foreign Affairs) to

3

See EDNY ECF System - Case 1:08-cv-00938-NG -LB Document 14 Filed 08/13/08 Page 22 of27

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George Washington (who was presiding over the Constitutional Convention at Philadelphia), which stated: Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen

It has been suggested that Jay's letter was "motivated by a distrust of Baron Von Steuben," who had fought on the side of the colonies in the Revolutionary War, and who had suspected dealings with Prince Henry of Prussia.

Hassan agrees with Defendant that the assumption and rationale behind the natural born requirement was the "distrust" of "Foreigners". However, the Supreme Court in Schneider, 377 U.S. at 168, specifically and directly rejected this assumption when it stated in relevant part that:

This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make.

Given the Supreme Court's outright rejection of the non-allegiance and "distrust" rationale, the natural born requirement is without any foundation or value and can no longer stand when confronted by the Fifth Amendment guarantees of equal protection, liberty and due process. Unlike the natural born provision which has no value, the equal protection, liberty and due process

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guarantees of the Fifth Amendment are the pillars on which our nation stands and blossoms in the eyes of the world. So valuable are these Fifth Amendment guarantees that we fought a civil war and engaged in many civil rights struggles to protect and propagate them.

As an example of repeal by implication, the district court stated in relevant part as follows: For example, the Supreme Court held that the Fourteenth Amendment partially abrogated Eleventh Amendment sovereign immunity, even thought the text of the Fourteenth Amendment does not explicitly require that result. See Fitzpatrict v. Bitzer, 427 U.S. 445, 456 (1976) )("[W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies ... are necessarily limited by the enforcement provisions of section 5 of the Fourteenth Amendment.")

The district court's own example demonstrates that in deciding whether to elevate one constitutional provision over another the courts put the most emphasis on the value of the provision. In Fitzpatrict v. Bitzer, 427 U.S. 445,456 (1976), the Court placed a lot more value on protecting persons from gender discrimination than in protecting the states from lawsuits. As a matter of law, national origin is protected more than gender and as such, the Fifth Amendment's prohibition against national origin discrimination has to trump the natural born provision for the same reasons that the Fourteenth Amendment prohibition of gender discrimination trumped the Eleventh Amendment.

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F. The District Court's Reliance on Dicta in Schneider et al is Misplaced

Defendant cited a few cases which address the rights of citizenship and mention the treatment of citizenship under the natural born provision. The district court followed suit and stated in relevant part as follows (A. 56-57):

But Schneider hardly provides the emphatic proof Hassan would need to overcome the strong presumption against implicit repeal. On the contrary, in Schneider itself, the Court recognized that "[t]he only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President," not indicating any conflict between the provision and the Court's holding. Id. Other cases have acknowledged the constitutional distinction among citizens. See Knaur v. United States, 328 U.S. 654, 658 (1946) (naturalized citizenship "carries with it all of the rights and prerogatives of citizenship obtained by birth in this country, save that of eligibility to the Presidency") (internal quotation marks omitted); Baumgartner v. United States, 322 U.S. 665 673 (1944) ("Under our Constitution, a naturalized citizen stands on equal footing with the native citizen in all respects save that of eligibility to the Pr~sidency.") (quoting Luria v. United States, 231 U.S. 9,22 (1913)).

Interestingly, Defendant and the district court cite Schneider and a few prior cases but did not cite Afroyim v. Rusk, 387 U.S. 253, 261 (1967), which is the seminal and leading case of the Schneider line of cases. When a lower court ignores the leading Supreme Court precedent a red flag goes up and a reviewing court must closely scrutinize the decision to ignore - a lower court cannot ignore

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controlling precedent simply because the precedent conflicts with its decision. If a lower court cannot distinguish controlling precedent it must follow it - it just cannot ignore it. The decision to ignore Afroyim could be explained by the fact that in Afroyim the Supreme Court adopted without exception the rule that, '(The naturalized citizen) becomes a member of the society, possessing all the rights of a native citizen, and standing, in view of the constitution, on the footing ofa native," Afroyim, 387 U.S. at 260.

Like the district court, Defendant also tried to evade Afroyim and when forced to confront Afroyim, Defendant argued that the statement in Afroyim about equality of naturalized and natural born citizens was "dicta" and argued that, "the Court had no occasion to opine on the meaning of the natural born citizen requirement," because "the question presented in Afroyim was whether Congress could revoke plaintiffs naturalized citizenship ... ,,4. By this same logic however, that part of Schneider and the prior related cases relied on by Defendant and the district court is also dicta, since "the Court had no occasion to opine on the meaning of the natural born citizen requirement," because "the question presented in [Schneider] was whether Congress could revoke plaintiff s naturalized citizenship ... " Both Afroyim as well as Schneider and the prior related cases

4

EDNY ECF System - Case 1:08-cv-00938-NG -LB Document 18 Filed 08113/08 Page 20-21 of24

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invoked by the district court dealt with revocation of citizenship and in none of these cases was the Court presented with the issues presented here which deal with presidential eligibility and whether the natural born provision is trumped or abrogated by the modern interpretation of Fifth and Fourteenth Amendments. In fact, an extensive review of case law reveals that this is the first case by a naturalized citizen in the history of the United States to challenge the validity of the natural born provision in light of the modern interpretations of the Fifth and Fourteenth Amendments.

An examination of the history of natural born exception mentioned in Schneider further undermines the decision of the district court and the position of the Defendant. The quotation in Schneider and prior related cases that the Constitution makes a distinction between natural born and naturalized citizens on the issue of presidential eligibility comes from the 1824 case of Osborn v. Bank of United States, 9 Wheat. 738, 827, 6 L. Ed. 204 (1824). The quotation from Osborne has been repeated in cases cited by the district court but in none of these cases was the natural born provision challenged or was there a need to examine the validity of the natural born provision. In addition, this quotation was put forth in Osborne about fifty years before the Fourteenth Amendment took "total control" of

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citizenship and about one hundred and forty years before the Supreme Court in Bolling recognized a Fifth Amendment equal protection guarantee.

Unlike in Schneider and the prior related cases, the treatment of the Osborn quotation in Afroyim is not dicta because in Afroyim the court necessarily omitted the natural born provision exception from the Osborn quotation to justify its conclusion that the Fourteenth Amendment was intended and calculated to take complete (100 percent) control of the status of citizenship.

2. THE FOURTEENTH AMENDMENT TOOK TOTAL CONTROL OF THE STATUS OF CITIZENSHIP AND NECESSARILY TRUMPED, ABROGRATED AND IMPLICITLY REPEALED THE NATURAL BORN PROVISION

Hassan argued before the district court that the Fourteenth Amendment merged the natural born and naturalized classes of citizenship to create a single class of citizenship, and took total control over the status of citizenship and by so doing, repealed the discriminatory citizenship classification found in the natural born provision. At the outset, it should be noted that for some reason the district court seemed to have mistakenly analyzed Hassan's Fourteenth Amendment argument under the Amendment's equal protection clause instead of the Fourteenth

32

Amendment's citizenship clause as should have been the case. However, the district court in general dismissed all of Hassan's claims.

The Supreme Court in Afroyim clarified the Fourteenth Amendment's total control of citizenship status and its creation of a single citizenship when it described the Fourteenth Amendment and stated as follows (Afroyim, 387 U.S. at 262):

It provides its own constitutional rule in language calculated completely to control the status of citizenship: 'All persons born or naturalized in the United States are citizens of the United States. ' There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.

The Supreme Court has made it abundantly clear, as evidenced by the above excerpt, that the language of the Fourteenth Amendment, which was enacted about eighty years after the natural born requirement, was, "calculated completely to control the status of citizenship." Because the Fourteenth Amendment's control of citizenship status is "complete," Article II, Section 1, Clause 5, lost any control it had over the status of citizenship with the adoption of the Fourteenth Amendment.

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Simply put, the only way the Fourteenth Amendment can "completely control the status of citizenship" as the Supreme Court found, is if the natural born provision lost the control or power to relegate naturalized citizens to second-class status as it did prior to the Fourteenth Amendment. Further powerful support for this conclusion emerges when the "complete control" finding is analyzed in the context of following statement in Afroyim v. Rusk 387 U.S. 253, 262 (1967):

'(The naturalized citizen) becomes a member of the society, possessing all the rights of a native citizen, and standing, in view of the constitution, on the footing of a native"

This statement is clear and sweeping and contains no exception as to presidential eligibility and we need not go further to show that the natural born provision is now moot. Nonetheless, an examination of the history of this statement proves that the Afroyim court necessarily and specifically rejected the natural born provision. The statement excerpted above was taken from the Supreme Court's decision in Osborn v. Bank of the United States, 9 Wheat. 738, 827 (1824) (the "Osborn Statement"). In Osborn the subject statement contains an exception for the natural born provision and several cases since Osborn, including those invoked by the district court and relied on by Defendant, have repeated this statement including the natural born provision exception. However, in Afroyim, the Supreme Court also adopted this statement but deliberately excluded the

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exception as to presidential eligibility. The Court's refusal to adopt the exception as to presidential eligibility was deliberate - it was a necessary act to justify the ultimate holding that the Fourteenth Amendment was intended to "completely control" the status of citizenship. If the Court had repeated the exception from the Osborn case as cases up to and including Schneider had done, the Court could not have then conclude that the Fourteenth Amendment "completely controlled" the status of citizenship. In fact, if Afroyim and its "completely control" holding was handed down before Schneider and the prior cases, these cases would not have even contained as dicta, the Obsorn quotation - at the time of Schneider, Perez was still controlling precedent - it was not until several years later in Afroyim that Perez was examined and specifically overruled.

The "completely control" ruling is further supported by the context of the Afroyim case. The Supreme Court specifically granted certiorari in Afroyim to determine whether to overrule its 1957 decision in Perez v. Brownell, 356 U.S. 44 (1957). Afroyim v. Rusk, 387 U.S. 253, 256 (U.S.N.Y. 1967) ("These cases, as well as many commentators, have cast great doubt upon the soundness of Perez. Under these circumstances, we granted certiorari to reconsider it"). In Perez, the Supreme Court in essence held that the Necessary and Proper Clause of the Constitution and Congress' constitutional powers over foreign affairs trumped the

35

Fourteenth Amendment's citizenship clause. In Afroyim the Supreme Court specifically overruled Perez and concluded that the Necessary and Proper clause and Congress' constitutional powers over foreign affairs were trumped and abrogated by the citizenship clause of the Fourteenth Amendment. The Supreme Court in Afroyim 387 U.S. at 261-262, made it clear that:

any doubt as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship once obtained should have been removed by the unequivocal terms of the Amendment itself.

In other words, to the extent the pre-Fourteenth Amendment provisions of the Constitution gave Congress the power to destroy or dilute citizenship acquired through naturalization, those prior provisions are trumped and abrogated by the Fourteenth Amendment to disallow any such grant of power to Congress. As such, it is illogical to therefore conclude that the Fourteenth Amendment does not trump the natural born provision which has no value at all but that it trumps the provisions dealing with foreign affairs which have lots more value. In holding that the Fourteenth Amendment trumped the Necessary and Proper Clause and the Naturalization Clause, the Supreme Court in Afroyim stated that:

Though the framers of the Amendment were not particularly concerned with the problem of expatriation, it seems undeniable from

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the language they used that they wanted to put citizenship beyond the power of any governmental unit to destroy.

The Fourteenth Amendment's control of citizenship is so obviously complete and sweeping - the Fourteenth Amendment trumps and abrogates constitutional provisions that the drafters of the Fourteenth Amendment were not even "particularly concerned with." This is more than is needed to further conclude that the Fourteenth Amendment trumps, abrogates and implicitly repeals the natural born provision.

It is always important to remember that one of the main purposes of the

Fourteenth Amendment was to overrule the Supreme Court's citizenship ruling in Dred Scott v. Sandford, 60 U.S. 393, 404-405 (1857), which on the question of whether persons of African ancestry are citizens under the Constitution stated in relevant part that:

We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

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Very importantly, when the Supreme Court in Dredd Scott held that persons of African ancestry were not included in the word "citizens" as used in the Constitution, it then became established constitutional law that the term natural born citizen in Article II, Section 1, Clause 5, prohibited persons of African ancestry from being President. In McDonald v. City of Chicago, Ill. 130 S.Ct. 3020,3060 (2010), the Supreme Court stated in relevant part that:

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, § 1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This unambiguously overruled this Court's contrary holding in Dred Scott v. Sandford, 19 How. 393,15 L.Ed. 691 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State.

Given that we now have a President with African ancestry - it has to be that the Fourteenth Amendment repealed the limitation imposed by Dredd Scott that only natural born citizens who are not of African ancestry can be President. In other words, the Dredd Scott decision reached the word citizen wherever it appeared in the Constitution and excluded from its meaning persons of African race or ancestry. When the Fourteenth Amendment repealed the Dredd Scott citizenship ruling, it necessarily reached the word citizen wherever it appeared in

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the constitution and removed the exclusion of persons of African race or ancestry. This dynamic is important because it further establishes that the Fourteenth Amendment was intended to and did reach and abrogate the natural born provision. Very significantly, given that the Fourteenth Amendment repealed all citizenship discrimination in the Constitution based on ancestry and alienage, it has to be that the Fourteenth Amendment repealed all citizenship discrimination in the Constitution based on national origin since national origin is the twin sister of ancestry/alienage and generally receives the same or more protection from discrimination than the latter under standard strict scrutiny analysis.

In overruling Dredd Scott, one of the main purposes of the Fourteenth Amendment was to prevent the creation of more than one class of citizenship. This conclusion is further confirmed by the Supreme Court's statement in Afroyim that the Fourteenth Amendment defined "a citizenship" - singular not plural. Prior to the Fourteenth Amendment citizenship was granted by the states and the federal government potentially leading to several classes of citizenship based on discrimination and other similar factors. Afterwards, those possessing Fourteenth Amendment citizenship were automatically citizens of their states and of the United States. Furthermore, the Fourteenth Amendment's Privileges and Immunities clause speaks of a single citizenship and does not distinguish between

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naturalized and natural born citizens. It is therefore impossible to justify the discrimination against naturalized citizens that is embodied in the natural born provision, a discrimination that "creates indeed a second-class citizenship," (Schneider, 377 U.S. at 169).

Significantly, as the Supreme Court pointed out in Afroyim, Fourteenth Amendment citizenship which Plaintiff possesses, cannot be shifted, cannot be diluted, is not fleeting, and cannot be destroyed by governmental power. Afroyim, 387 U.S. at 262. Given these emphatic statements by the Supreme Court, the natural born requirement can no longer stand because it "creates indeed a secondclass citizenship," (Schneider, 377 U.S. at 169), and as such, dilutes, and partially but significantly destroys the citizenship of Hassan - the very result prohibited by the Fourteenth Amendment. As such, while the Fourteenth Amendment by its creation of a single citizenship and its "complete control" of the status of citizenship directly repealed the natural born provision, at minimum, the natural born provision is in direct and irreconcilable conflict with the Fourteenth Amendment. This conflict should be resolved in favor of the Fourteenth Amendment.

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It took a civil war, hundreds of thousands oflost lives and two constitutional

amendments to undo the court-approved invidious discrimination in Dredd Scott. More recently, it took thousands of destroyed lives, a congressional apology, millions in compensation, and a few subsequent court decisions, to attempt to undo the court approved invidious national origin discrimination against Japanese Americans. Approving invidious discrimination is usually the product of fear and not good constitutional analysis. This Court should avoid the mistakes of prior courts, reverse the district court and side with the constitutional goals of liberty and justice and the Fifth and Fourteenth Amendments over the invidious national origin discrimination against American citizens that is embodied in the natural born provision of Article II, Section 1, Clause 5 of the Constitution.

VII. CONCLUSION

Based on the foregoing, Plaintiff-Appellant Abdul K. Hassan kindly requests that this Honorable Court grant him the declaration he seeks, and declare the natural born provision to be trumped, mooted, abrogated and repealed by the Fifth and Fourteenth Amendments, together with the costs of this action and such other, further and different relief as the Court deems just and proper.

Dated: Queens Village, New York November 12,2010

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Respectfully submitted, s/__________________________________ Abdul Karim Hassan, Esq. 215-28 Hillside Avenue Queens Village, New York 11427 Tel: 718-740-1000 Fax: 718-468-3894 Email: [email protected]

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CERTIFICATION PURSUANT TO Fed. R. App. P. 32(a)(7)(B) and (C) The undersigned hereby certifies that the foregoing brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and (C) because the brief contains 9,176 words of text. The brief complies with the typeface requirements of Fed. R. App. P.32(a) (5) and the type style requirements of Fed.R.App.P.32(a)(6) because this brief was prepared in a proportionally spaced typeface using Microsoft Word 2003, Times New Roman, Size 14.

Dated: November 12,2010

ABDUL KARIM HASSAN, ESQ.

Plaintiff-Appellant, Pro Se

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