The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution. The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

Health care reform bill default motion

The two plaintiffs in the 15-count pro se lawsuit against the health care reform bill filed a motion for default of appeal today. They did this as the original deadline for filing a brief passed.

What does this motion mean?

A motion for default of appeal means that the movant (the one making the motion) wins. The grounds for this motion are simple: the Department of Justice hasn’t filed a response brief yet. The District Court for New Jersey dismissed the case for lack of subject-matter jurisdiction, saying that the plaintiffs, as ordinary citizens, lacked standing. The plaintiffs appealed that dismissal on June 10.

The DOJ did seek an extension of time to file. But the grounds they gave are specious. They amount to nothing more than being too busy to write the brief.

What do the rules say?

James A. Byrne Federal Courthouse, Philadelphia, PA, where the DOJ has two health care reform bill cases on appeal.
The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

The Local Appellate Rules for the Third Circuit Court of Appeals say that “counsel is too busy” is not good grounds for an extension. Those rules also say:

  1. The court rarely extends time to file a brief or for any other act.
  2. The court, or its clerk, may grant a first extension for 14 days or less.
  3. If a party wants a further extension, they must ask for it separately and show that something came up that they did not expect the first time.
  4. The court, or its clerk, may extend time for a reply brief once only.

What did the Court do in this case?

In the case of Purpura v. Sebelius, Chief Clerk Marcia M. Waldron extended the time for the DOJ appellee brief for thirty days, not fourteen. Nick Purpura and Don Laster, the two lead plaintiffs, filed a motion to vacate the extension almost at once. On the same day they filed a motion for a temporary restraining order (TRO) that would shut down the health care reform bill while the case was in the Third Circuit.

Now that the 30th day has passed since Purpura and Laster filed their appeal, they filed this motion for default, as if the extension of time never happened. They have asked the court to roll back the extension, and now have served notice that they expect the court to uphold their appeal on the original schedule. This will force the court to act. A judge on the Third Circuit must now ask himself: did the Court’s chief clerk act improperly in extending time for longer than the rules say she may, and on grounds that she may not accept as valid? If so, then the court must find that the DOJ has failed to file its brief on time. The usual remedy for that is that the appellant wins.

What would this do to the health care reform bill?

If the appeal holds, then the motion will shut down the health care reform bill. The motion asks for that directly, and gives the court the “fallback” of signing the order for the TRO.

Under any other circumstances, the case would go back to the District Court. But the DOJ has other problems in that forum:

  1. They have repeatedly failed to file briefs on time.
  2. The one answer they gave to the complaint addresses nine of the 15 counts in the lawsuit, but in a very weak way.
  3. The DOJ utterly failed to answer six of the counts.

Any one of those counts would be enough to invalidate the health care reform bill, because it has no severability clause. Congress usually writes in a clause saying that if a court strikes down any part of a law, the rest of the law can still stand. The 111th Congress did not do that with the health care reform bill. Judge Roger Vinson of the Northern Florida District ruled in his own case (Florida ex rel. McCollum et al. v. DHHS et al.) that that one fact made the entire law invalid, after he found the Minimal Coverage Mandate an invalid exercise of Congress’ authority “to regulate [interstate] commerce.”

More to the point: if a defendant does not answer any part of a complaint, he accepts that part as valid. Hence the argument by the DOJ that Purpura and Laster had not made a good-enough case for any injury in fact from the health care reform bill. But since Purpura and Laster filed their appeal, the Supreme Court handed down a powerful decision that could weigh decisively in their favor. The Court held, in Bond v. United States, that private citizens do have standing to challenge a law as unconstitutional, on the grounds that it interferes with a State’s “reserved powers.” Purpura and Laster do have a 10th Amendment count in their complaint. Furthermore, the Bond case came to the Supreme Court from the Third Circuit. That will surely weigh heavily on the mind of any judge that considers this motion.

Featured image: the Constitution of the United States. Photo: National Archives.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

constitutional law, healthcare reform, judiciary, president, Tea Party


Terry A. Hurlbut

Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

Comments (24)

  • I will give Purpura and Laster credit for creativity and balls, but they are delusional and should not be playing lawyer. If they or anyone else believes what they say about their case, they too are delusional.

    It is entertaining to read, however.

    Just a quick question. Did the other Plaintiffs besides Purpura and Laster drop out of the suit? I ask because they’ve never filed anything, and Purpura and Laster can’t represent them or “We the People” or anyone else as non-lawyers.

    The interpretation of Bond v U.S. in your article is completely off base.

    Standing is the only issue before the Third Circuit.

    • Are you a lawyer? Don’t answer that. Even that isn’t at issue. Don’t you understand English? If you did, and if you read the opinion in the Bond case, you would realize that the Bond case blows the government’s standing argument right out of the water.

  • I am a lawyer and you obviously did not read or understand Bond. Purpura and Laster’s case will get TOSSED and, if they are really unlucky, they will get sanctioned (IMHO justifiably).

    I look forward to the next set of excuses by birthers, et al, as to why the entire judiciary seems to dislike them.

    • Fine. Then we will see how far the fix goes. I did read Bond. I defy you to show me how Mrs. Bond could have standing and Purpura and Laster could not.

      • Thebarismorehellishthan1L

        Bond was charged with a crime. She was challenging the law she was charged under. Purpura and his “People” have not been charged.

        There ya go.

        • That is not sufficient. A private citizen does not have to wait until someone charges him with a crime in order to complain of a loss of liberty. If that were true, then only by deliberately breaking a law could any citizen gain standing to challenge that law as unconstitutional. Is that what you would have the readers of these comments believe?

          • Terry: Just to be clear, are YOU a lawyer? You reflexively challenge the bona fides of commentors who disagree with you, but I can’t find anything on this site that explains why your conclusory opinions (“The Bond case blows the Government’s standing argument right out of the water.” “That is not sufficient.” etc.) about things concepts like standing and local appellate rules are deserving of more weight than anyone else’s. If you’re really that concerned about “what the readers of these comments believe,” maybe you should start by explaining to them the extent of your legal expertise.

          • No, I’m not a lawyer. But: I have had a few tastes of the legal process and system.

            I also know how to read a Supreme Court opinion. And your spin on this particular opinion (Bond v. United States) appears to be nothing more than an appeal to a “fix.”

            That’s right; I said “fix.” Neither you nor any of the other birds who have weighed in on your side has ever once answered this question: Must a citizen wait until some authority charges him with a crime, under an unconstitutional law, in order to have standing to challenge the constitutionality of that law? I say not. I say that as soon as the law curtails his liberty in any way, and says to him, “If you do such-and-such, we will arrest/fine/imprison you for it,” that person gains standing.

  • Having read what Purpura and Laster are trying to argue, and I’m not a lawyer, although I have some experience with the law since I work in roofing and roofers get sued all the time, they have no case, or at least, not a good one. They seem to be relying on semantic distinctions that are one giant leap after another, and using definitions that I’m fairly certain (but not positive) are not the currently and widely accepted legal definitions.

    As far as I know, at least functionally the government can make people and businesses buy things, as OSHA does this all the time.

    Furthermore, they try to argue that the bill has no standing because Barry isn’t really the President because he isn’t really a citizen. Somehow, I think that this point does more harm to their case than good, if only because it makes them look like a couple of cranks. “Birthers” need to learn when to quit, since that argument is going nowhere, and is so widely accepted as discredited and fallacious that it brings nothing but mockery.

    I will however agree that they should have standing, and any citizen should be able to argue the constitutionality of something, if only because it helps to keep us honest, and challenges to any law or bill are only like to make it stronger.

    Personally, I think the bill should be repealed, only because it isn’t very good. In a ten page bill, they could have accomplished actual reform, as opposed to this nonsense. Of course, now that Obama has agreed to cut entitlements, he’s watering down his own reform. Even progressives can’t stand Obama, since he’s a wishy-washy liar and a traitor to his own cause. He won’t have nearly the grassroots support in 2012 that he had in 2008, likely because most of his supporters feel that he’s stabbed them in the back.

  • Donald R Laster Jr

    Let’s see the rules are explicit. Don’t answer and you default. The DOJ defaulted three times in the District Court. The first filing for a default judgment was filed more than 20 after DOJ was supposed to reply. And they failed to respond properly multiple times after that. And keep in mind they stated in one of their response they would reply. If the DOJ thought they could win they would have answered in the District Court. The District Court and the DOJ had to lie and create a fake standing argument. And that was after the Court and DOJ stalled as long as they could.

    DOJ files a illicit motion in the Appeals Court asking for an extension of time asking for 30 days. The rules explicitly state the most one can receive is 14 days and it has to be good cause. Saying you are too busy is not a valid reason according to the Court rules. What DOJ said is “we are too busy doing this and this and this”. Thus the extension is invalid and we have NO choice but to ask for the default. Otherwise, we are implicitly saying we accept the illicit time extension. DOJ knows they can not answer and are just trying to stall – again. And they know we having standing.

    Even the recent ruling in the Sixth Circuit Appeals Court ruling in Thomas More Law Center v United States (10-2388) supports our standing. We read it and you can find an analysis of the ruling at

    https://www.conservativenewsandviews.com/2011/07/04/constitution/commerce-health-care-distortion/

    We read Bond v United States and it is not hard to understand. Did you? In fact, anyone who has a decent understanding of the English language can understand the law. You just have to take the time to read the law or bill in question. If more people took the time to read the actual words of the U.S. Constitution and the laws and how they impact their individual lives the country would not in the economic and political mess the country is in.

    And why would the Court even want to sanction us? We have not broken the rules, have not asked for illicit extension of times or done anything else that would warrant a sanction. Each motion we filed was appropriate and timely under the rules. Now the DOJ attorneys are another thing – they defaulted multiple times, requested multiple extensions of time after failing to respond – stalling since they could not answer – and ignored the Appeals Court’s rules by asking for an illicit extension of time from the Clerk – hiding their “we are too busy” excuse in a lot of excess verbiage. And continue to fail to answer the Counts properly or otherwise.

    We are not playing lawyer. Why would we want to play lawyer? We are being responsible citizens defending our Constitutional government. Anyone who takes the time to learn the rules and procedures can petition the government. Have you read Amendment 1? It is a Right protected by Amendment 1. Why should we spend thousands of dollars when those of us petitioning under Amendment 1 of the U.S. Constitution can read and understand the bill, read and understand the U.S. Constitution, and understand the rules and procedures. I have been studying the U.S. Constitution since the 5th grade. You read that right!

    All the rules and procedures are online at

    http://www.ca3.uscourts.gov/default.htm and http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/RulesAndForms.aspx

    for those interested. The three sets of rules together are only 400 or 500 pages long. And there is a lot of white space in the rules to make them easy to read. Sounds like some lawyers don’t like the simple fact that two “lead” pro se petitioners are beating the lawyers at their own game. They are like any clique – they don’t like the idea that someone is better than them at what they are supposed to be the professionals. Lawyer have their place – like the Casey Anthony case – but not everything needs a lawyer if people take the time to learn and understand.

    We took the time to read the bill, examine the facts, research the case law and determine the issues. That is how we identified 19 – note 19 – violations of the U.S. Constitution and violations and conflicts with 4 existing statutes. I wonder how many people have taken the time to read the actual bill and examine it in relation to the U.S. Constitution and the other laws on the books? It is why our case is not just one or two issues like all of the other cases. And remember, DOJ defaulted multiple times by failing to answer. By the way the existing U.S. legal code is available at http://uscode.house.gov/ for those who want to look at. It is available in text and pdf format.

    Each of the Counts is clearly documented in the Petition and various responses. And why should not we ask the Court to determine if Mr Obama was constitutionally allowed to sign the bill into law? It was the Hillary Clinton Presidential Campaign that brought up the issue about Mr Obama’s eligibility to exercise Presidential authority. Anyone who has taken the time to look into the meaning of “natural born Citizen” can understand the issue. Which is “Did the ‘Electoral College’ choose an ineligible team to be President and Vice-President?”. Do we continue to violate the U.S. Constitution? If you notice in the Petition each Count is basically in order of violations of the U.S. Constitution as we identified them.

    It is the same with Count 1. The U.S. Constitution says revenue bills like “H.R. 3590” must originate in the House of Representatives. This bill originated in the Senate. Fraud was used to make it appear like it originated in the House. Even Chief Judge Vinson included this history in one of his rulings. When one examines the text of the bill and understands the U.S. Constitution one can see the violations. We later identified another violation in the bill that violates Amendment 8.

    As for the “Birther” statement neither of us are “Birthers”. We don’t care one way or another where Mr Obama was born. We don’t care about the “Birth Certificate”. It is irrelevant to the case. Mr Obama has publicly stated his father was a foreign national/citizen at the time of his birth. Thus the evidence indicates he does not meet the very first requirement to exercise Presidential authority. There is a saying “where there is smoke there is fire.” It is why we looked into this issue itself. It is why the issue was researched and this document was written

    http://www.thepostemail.com/2011/06/28/why-barack-h-obama-jr-is-not-eligible-to-be-president/

    The people who scream “Birther” are doing their best to avoid an honest discussion of Mr Obama eligibility. So when someone starts screaming and ranting “Birther” you have to understand that they know Mr Obama is not eligible to exercise Presidential authority or are afraid to have an honest discussion. That is a typical reaction of ideologues and fanatics. When the facts and figures do not support their positions they do their best to distract by any means possible. You can see this regularly in the media. They are so emotionally invested in their position they are incapable of entertaining alternatives or facts that disprove or bring into question their position.

    So if you want challenge us – fine. But keep the Saul Alenski diatribes at home. If you have a question on any of the Count they have been examined ad nauseam (reviewed extensively for the non-lawyers) at length. The site’s webmaster can point you to articles on each count.

    Don & Nick

  • You might try reading here and get a little better understanding of Bond and what it does and does not do. It certainly does not relate to your standing issue before the Third Circuit, which again is the only issue before them.

    http://www.scotusblog.com/?p=122251

    When Carol Anne Bond found out her best friend was pregnant, she was overjoyed. When she discovered her husband was the one who got her best friend pregnant, she was out for revenge. Bond placed hazardous chemicals on the homewrecker’s mailbox, car door handles and the like, hoping to injure her now-former friend. All the ex-friend got was a minor burn. Here’s where it gets interesting, legally: Bond was not prosecuted under ordinary state laws, for assault or attempted manslaughter charge. Instead, the federal government charged her with violating a law that was passed under an international treaty banning the use of chemical weapons.

    Does that make sense to you? Well, it didn’t to Carol Anne Bond, either. She argued that she couldn’t be charged with federal crimes because her crimes were the kind of crimes that states should prosecute. Put into constitutional terms, her argument was that when Congress passed the law, it intruded on the rights that the Constitution, in the Tenth Amendment, leaves for the states. The court of appeals ruled against her, holding that she didn’t even have the legal right (which we call “standing”) to bring the claim, because only a state could argue that Congress had infringed upon state power. At the Supreme Court, Bond got some help from an unexpected source: the federal government, which agreed with her that she had the right to challenge the law – a procedure that is known as “confessing error,” or admitting that you are wrong. So the Court appointed an attorney (in this case, as it usually does, it chose a former Supreme Court clerk) to argue that the Third Circuit had been correct.

    On Thursday, the Court unanimously agreed with Bond and the government that she did have “standing” to argue that the federal government had gone too far. The Court pointed out that the right Bond seeks to vindicate is her own, because she benefits from a federalist (states’ rights) system. But here too, Bond’s victory was only the first step in the process of being vindicated: now she must return to the lower courts and convince them that the federal statute does indeed violate the Tenth Amendment.

    • Oh, yes, it does. The rights that Purpura and Laster seek to vindicate are their own. They benefit from a federalistic system. They benefit from knowing that all bills for raising revenue shall originate in the House of Representatives. (HCR originated in the Senate, not the House.) They benefit from knowing that Congress cannot regulate their living and breathing. They benefit from knowing that Congress may not appropriate funds to raise and support armies for longer than two years at a time. They benefit from knowing that Congress may not lay and collect capitation taxes without apportionment. They benefit from knowing that their medical records, whether electronic or paper, are secure against unreasonable searches and seizures, and that no warrants shall issue, but upon probable cause. They benefit from knowing that all laws are subject to judicial review, and that Congress may not place any part of any law beyond judicial review. They benefit from knowing that Congress may not carve out religious exceptions, or not, at a whim. Shall I go on?

      Recognition of their standing will be the first step toward their vindication. And in this case, the government has failed to file briefs on time. They came up with this “no standing” argument in a panic. That was the only way that they could make this case go away.

      And do you care to bet that the Third Circuit is going to lay itself open to getting its collective wrists slapped a second time on the same issue? By a SCOTUS that ruled per curiam? Which is to say, u-n-a-n-i-m-o-u-s-l-y? By this Court?

    • Donald R Laster Jr

      From your comments you appear to fail to understand the ruling in “Bond v United States”. Bond challenged the Constitutionality of a law in her case and her challenge was dismissed on a Standing argument. Like in ruling such as Lujan, the Court determined she had standing to challenge the Constitutionality of the law she was charged with violating. In “Purpura v Seblius” the District Court and DOJ created a fake standing argument in order to avoid the District Court from having to rule against the Government. The Government DEFAULTED by failing to answer the original petition.

      Bond, like Lujan, supports our standing. Even the 6th Circuit in the ruling “Thomas More Law Center v Obama” 10-2388 supports the standing of citizens to challenge the Constitutionality of the federal laws. Read the ruling.

  • Donald R Laster Jr

    As a further note. No where in the Petition is there a claim that Mr Obama is not a citizen of the United States. Based upon all evidence he appears to possibly be an Amendment 14 citizen. But regardless, based upon the existing laws at the time of his birth he received citizenship from his mother. But he is not a natural born Citizen. That requires one to be born in the Country and both parents be citizens. Some people referencing other paragraphs in Law of Nations see the requirement as just requiring the father. So either way Mr Obama is not a natural born Citizen of the United States.

    It would be nice, but it is not expected, if people read and report honestly about this particular issue. The issue is not whether he is a citizen but whether he is the proper type of citizen. Depending upon how one looks at the types of citizenship one finds either 2 types with 1 type having 2 subtypes or 3 types of citizenship. Natural born and all others under Positive Law with subtypes such as naturalized, soil based (Amendment 14) and one parent. Or natural born, naturalized and all other variants.

  • Well, I tried.

    Your reading and lack of understanding of Bond is stunning, and belies your statements that you know how to read and understand Supreme Court decisions.

    Your “14th Amendment citizen” argument also fails based on history, the constitution, and the law.

    I will leave the rest of it, as there would be no point in engaging in a discussion on those topics with you.

    I will, however, continue to watch your case in the Third Circuit. When they rule on the standing issue, and if it’s against you, which is a 99.9% probability, I’m sure it will be your position that the “fix” was in, not that you had neither the law nor the facts on your side.

    It is at least entertaining to watch.

  • Donald R Laster Jr

    Frances Black,

    If I am incorrect in my understanding of “Bond v United States” and what it means explain where I am wrong or what I am missing. Anyone reading this blog can get the ruling to read for themselves at

    http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

    This is the Supreme Court’s web site. They can decided for themselves.

    And if I am so wrong on the Amendment 14 citizenship description explain it so I and the other readers can tell what the correct reading is. Keep in mind I have read Elk, Eng, Venus, Ark and other Supreme Court rulings on citizenship. So you have to give facts. Readers can find references to various Supreme Court rulings at

    http://www.thepostemail.com/2011/06/28/why-barack-h-obama-jr-is-not-eligible-to-be-president/

    for those who would like the read the various rulings for themselves.

    Instead of doing a drive by shooting – prove your claim with reason and facts. You claim to be a lawyer so you should be able to explain so everyone can understand.

    Put your money where you mouth, or writing, is. In other words put-up or shut-up.

  • According to the District Court’s opinion behind the dismissal of Purpura v. Sebelius, the plaintiffs lacked standing because they failed to sufficiently allege particularized, concrete, and actual or imminent injury. That’s totally different from why the appeals court held that Bond lacked standing. There was no question she had particularized and imminent injury traceable to to the law she was challenging. She was already being criminally prosecuted under that law.

    As for this new-found constitutional interpretation that native-born citizens are ineligible for the presidency if a parent was not a citizen, that’s at least as silly as the birth-certificate nonsense, and requires an even bigger conspiracy. It may have been questionable before the 14’th Amendment and U.S. v. Wong Kim Ark, but in our time no one argued it until a certain faction needed reasons to deny that Obama can be president.

    Finally, to Donald, there seems to be a theme in your writing that other people fail if they cannot convince you. That’s not how it works. You fail if you cannot convince the courts, and your record on that could not be worse. I find this claim hilarious: “Sounds like some lawyers don’t like the simple fact that two ‘lead’ pro se petitioners are beating the lawyers at their own game.”

    • And how is the District Court’s reasoning valid? When a law or practice violates the Constitution, that causes an injury-in-fact to everyone. “Kwitcherbeefin’ and pay-yer-taxes” is a conclusion to be reached at trial, if it is valid at all.

  • Terry asks: “And how is the District Court’s reasoning valid?”

    The District Court’s reasoning followed the controlling precedent, as its opinion cited. The point here is that Bond v. U.S. did not change the precedent that standing requires particularized concrete injury. That was the dispositive issue in Purpura v. Sebelius.

    Terry notes: “When a law or practice violates the Constitution, that causes an injury-in-fact to everyone.”

    Right. It is a “generally available grievance”, and not sufficient to meat the concrete and particular prong of the standing criteria.

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