UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 

ABDUL KARIM HASSAN, 

 Plaintiff, Civ. No. 11-2189 (EGS) 

 v. REPLY

FEDERAL ELECTION COMMISSION, 

 Defendant. 

___________________________________ 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION TO DISMISS 

In response to the Federal Election Commission’s (“Commission” or “FEC”) motion to 

dismiss, Hassan has not refuted the Commission’s argument that this case is not ripe, he has 

relied on only speculative and conclusory statements of fact to demonstrate standing, and he 

offers no sound legal support for his claim that the Fifth and Fourteenth Amendments have 

abrogated the Article II requirement that the President be a natural born citizen of the United 

States. This case should be dismissed. 

I. HASSAN FAILS TO RESPOND TO THE COMMISSION’S SHOWING THAT 

THIS CASE IS NOT RIPE 

In its opening brief (FEC’s Memorandum of Points and Authorities in Support of Its 

Motion to Dismiss (“FEC Mem.”)), the Commission explained (at 8-9) that Hassan has failed to 

present a controversy ripe for judicial intervention because it is speculative at best whether he 

will ever be in a position to accept public funds under the Presidential Election Campaign Fund 

Act (“Fund Act”), 26 U.S.C. §§ 9001-13. In his opposition, Hassan does not address this 

argument. 

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“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance 

of premature adjudication, from entangling themselves in abstract disagreements over 

administrative policies, and also to protect the agencies from judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way by the 

challenging parties.’” Nat’l Park Hospitality Ass’n v. Department of Interior, 538 U.S. 803, 807-

08 (2003) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967)). Although 

Hassan argues (Opp. at 13) that it would be “logical” for him to ask a court to invalidate the 

alleged “discrimination against him in the fund Act” before seeking the nomination for President, 

the Supreme Court has rejected that kind of personal preference as a basis for finding that a case 

is ripe. In National Park Hospitality, the Court explained: 

Petitioner’s argument appears to be that mere uncertainty as to the validity of 

a legal rule constitutes a hardship for purposes of the ripeness analysis. We 

are not persuaded. If we were to follow petitioner’s logic, courts would soon 

be overwhelmed with requests for what essentially would be advisory 

opinions . . . . In short, petitioner has failed to demonstrate that deferring 

judicial review will result in real hardship. 

538 U.S. at 811-12 (footnote omitted). 

 If and when Hassan becomes the nominee of a major or minor party whose candidate 

would qualify for public funds under the Fund Act (see FEC Mem. at 7-8), Hassan might be able 

to present an allegation “of an actual or imminent [violation] sufficient to present the 

constitutional issues in clean-cut and concrete form.” Renne v. Geary, 501 U.S. 312, 313 (1991) 

(internal quotation marks omitted). Until then, however, this case is not ripe. 

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II. HASSAN FAILS TO MEET HIS BURDEN TO DEMONSTRATE STANDING 

UNDER ARTICLE III 

Hassan fails to show the three essential elements of constitutional standing: 

injury-in-fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-01 (1992). 

First, Hassan conflates statutory and Article III standing. They are distinct, independent 

requirements; even if Hassan has statutory standing under 26 U.S.C. § 9011, it would have no 

bearing on whether he meets the requirements of Article III. “It is settled that Congress cannot 

erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who 

would not otherwise have standing.” Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997); see also 

Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997) (holding that 2 U.S.C. § 437g(a)(8) 

— a provision allowing for limited judicial review of a Commission decision to dismiss an 

administrative complaint — “does not confer standing; it confers a right to sue upon parties who 

otherwise already have standing”). “[B]ecause Article III standing is always an indispensable 

element of the plaintiff’s case, neither [the courts] nor the Congress can dispense with the 

requirement — even if its application renders a [statutory] violation irremediable in a particular 

case.” Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1020 (D.C. Cir. 1998). 

Second, Hassan cannot show an injury-in-fact by relying on FEC v. Nat’l Conservative 

Political Action Comm. (“NCPAC”), 470 U.S. 480 (1985), and FEC v. Akins, 524 U.S. 11 

(1998). In NCPAC, the Supreme Court held that the Commission had standing “to bring a 

declaratory action to test the constitutionality of a provision of the Fund Act . . . because a 

favorable declaration would materially advance the FEC’s ability to expedite its enforcement of 

the Fund Act against political committees such as NCPAC. . .” 470 U.S. at 484-85. Hassan’s 

posture is not remotely similar to the Commission’s in NCPAC. In that case, political party 

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committees had brought a private right of action against NCPAC and thus intruded upon the 

Commission’s exclusive jurisdiction to civilly enforce the Fund Act. To defend that jurisdiction, 

the Commission intervened and argued successfully that the private litigants had no “standing to 

bring a private action against another private party.” Id. at 486. Hassan’s speculative allegations 

of injury to his professed challenge to President Obama for the Democratic nomination for 

President bear no resemblance to the imminent and concrete threat to the Commission’s 

exclusive enforcement authority at issue in NCPAC. 

In Akins, the Supreme Court held that certain voter-plaintiffs had standing to challenge 

the Commission’s dismissal of their administrative complaint because that complaint alleged that 

an organization had failed to register as a political committee and to file required disclosure 

reports about its campaign receipts and disbursements. The Court held that the plaintiffs had 

alleged a sufficient informational injury because the missing information would help them 

evaluate which candidates they would support or oppose. See 524 U.S. at 21. Although Hassan 

concedes (Opp. at 3) that Akins involved informational injury, his complaint is devoid of any 

allegation that he has been deprived of information, let alone that any such deprivation has 

caused him a concrete injury-in-fact.1

                                                           

1

 Similarly, Hassan cannot show an injury-in-fact by relying on the Commission’s 

“testing the waters” regulations. See 11 C.F.R. §§ 100.72, 100.131. Although those regulations 

allow someone who is considering becoming a candidate to receive donations without formally 

becoming a federal “candidate,” the funds received must comply with the Federal Election 

Campaign Act’s limits on contributions. See 2 U.S.C. § 441a(a). And once the person becomes 

an actual candidate, the funds received count against the donors’ contribution limits. Thus, 

while allowing a prospective candidate some flexibility, the regulations function as an 

anti-circumvention provision to prevent the receipt of excessive contributions under the pretense 

that they are meant only to help someone decide whether to become a federal candidate. 

Hassan’s suggestion (Opp. at 4) that these regulations are part of a statutory design to help 

candidates “identify and overcome obstacles at an early stage” is pure fiction. 

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 Third, Hassan cannot demonstrate an injury-in-fact by relying on conclusory generalities 

about his alleged candidacy. Despite the general rule that the court must accept the allegations in 

Hassan’s complaint as true, “the Federal rules do not require courts to credit a complaint’s 

conclusory statements [made] without reference to its factual context.” Ashcroft v. Iqbal, 556 

U.S. 662, __, 129 S. Ct. 1937, 1954 (2009). Hassan’s alleged candidacy for President of the 

United States is essentially ipse dixit. He has filed nothing with the FEC to establish a principal 

campaign committee,2 and his “campaign” for President appears to consist of a website and a 

series of lawsuits (see FEC Mem. at 7 n.3). “Hassan’s bare assertion that he ‘intends to seek the 

Presidency of the United States in the year 2012, and thereafter if necessary,’ is, by itself, 

insufficient to establish the sort of ‘actual or imminent, not conjectural or hypothetical’ injury 

required to establish standing.” Hassan v. United States, 441 Fed. Appx. 10, 11 (2nd Cir. 2011) 

(citations omitted), cert. denied, 132 S. Ct. 1016 (2012).3

Fourth, in response to the Commission’s argument (FEC Mem. at 6-7) that he has not 

alleged that he seeks the nomination of a political party — a prerequisite to obtaining money 

under the Fund Act — Hassan has now added a sentence to his website stating, “I am running for 

and intend to be the Presidential candidate of the Democratic Party in 2012 . . . . ” 

http://www.abdulhassanforpresident.com. But he implicitly concedes that his complaint contains 

no such allegation when he states (Opp. at 11) that this sentence “now clarifies” that he is 

                                                           

2

 A search for “Hassan” at the Commission’s disclosure website, 

http://www.fec.gov/finance/disclosure/srssea.shtml, yields no record of any Hassan candidacy. 

3

 Hassan is easily distinguished from the contractor in Adarand Constructors, Inc. v. Pena, 

515 U.S. 200, 212 (1995), that presented concrete evidence that it would “very likely” continue 

to submit relevant bids in competition with favored “disadvantaged businesses.” Although, to 

demonstrate standing, the contractor did not have to show that it would have been awarded a 

contract but for the preference for disadvantaged businesses, it still had to show an “imminent” 

injury that was “certainly impending.” Id. at 211 (citation and internal quotation marks omitted). 

Hassan does not come close to meeting that standard. (See FEC Mem. at 6-8.) 

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seeking the Democratic nomination.4 While this new clarification is also too conclusory to 

survive a motion to dismiss under Iqbal, it comes too late. “The existence of federal jurisdiction 

ordinarily depends on the facts as they exist when the complaint is filed.” Lujan, 504 U.S. at 569 

n.4 (emphasis in original; internal quotation marks and citation omitted). Injury-in-fact “may not 

be established by a development that occurs after the commencement of the litigation.” Park v. 

Forest Serv., 205 F.3d 1034, 1038 (8th Cir. 2000). Hassan cannot, therefore, “retroactively 

create[] . . . jurisdiction,” Lujan, 504 U.S. at 569 n.4, by now announcing that he is seeking the 

Democratic nomination, especially when he has not alleged a single fact to support that 

conclusory assertion. “The requirements of standing must be satisfied from the outset and in this 

case, they were not.” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999). 

Fifth, Hassan offers only unsupported speculation when he suggests that the Fund Act has 

caused the problems with his candidacy, or that a favorable decision would redress any such 

deficiencies. For example, he argues (Opp. at 5) that “whether a candidate can receive tens of 

millions in public funding is a significant factor that would influence whether a voter would vote 

for plaintiff as the candidate of the Democratic Party.” But he does not allege that any single 

voter — let alone a significant number of voters — has actually been influenced by his 

ineligibility for public funding.5 Even more speculative, Hassan also argues (Opp. at 8) that 

“having a candidate who is ineligible for . . . public funding will seriously hurt the political party 

                                                           

4

 Paragraph 26 of his complaint merely alleges that “his chances of becoming the nominee 

of a major political party” has been injured, not that he is actually seeking the nomination of any 

particular political party or that he has taken any concrete steps to do so. Likewise, Hassan relies 

(Opp. at 7) on paragraphs 14, 15, 17, and 22 of his complaint to argue that he has been 

“promoting his candidacy,” but none of these paragraphs allege that is seeking the nomination of 

any political party. 

5

 See also Hassan, 441 Fed. Appx. at 12 (noting that “Hassan does not allege, for example, 

that any potential voter or contributor has declined to support him in light of his ineligibility for 

office if elected”). 

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and the party’s members and because of this, voters will not logically vote or are significantly 

less likely to vote to nominate plaintiff . . . .” This argument, however, is flatly contradicted by 

recent history. President Obama — Hassan’s obvious competition for the Democratic 

nomination — was the first Presidential candidate who chose not to accept public funding in the 

last general election campaign. Yet he was still able to win the Democratic nomination in 2008, 

and it is wildly speculative to suggest that his lack of public funding would have any impact on 

his chances of being nominated again later this year. 

In sum, Hassan’s lack of standing under Article III is an independent and sufficient basis 

for dismissing his complaint. 

III. HASSAN’S COMPLAINT FAILS TO STATE A CLAIM 

 

 The Commission has shown that the Constitution’s requirement that the President be a 

natural born citizen has not been implicitly or explicitly repealed. (FEC Mem. at 9-13.) In his 

opposition, Hassan argues (Opp. at 13-25) that this requirement is inconsistent with the equal 

protection guarantees in the Fifth and Fourteenth Amendments, but this argument fails as a 

matter of law. Fundamentally, Hassan asks this Court to hold that a provision of the Constitution 

is itself unconstitutional. But “this Court lacks the power to grant the relief sought because the 

Court, as interpreter and enforcer of the words of the Constitution, is not empowered to strike the 

document’s text on the basis that it is offensive to itself or is in some way internally 

inconsistent.” New v. Pelosi, No. 08-9055, 2008 WL 4755414, at *2 (S.D.N.Y. Oct. 29, 2008) 

(internal quotation marks and citation omitted), aff’d, 374 Fed. Appx. 158 (2d Cir. 2010). Thus, 

contrary to Hassan’s suggestion (Opp. at 14-15), the natural born citizenship requirement should 

not be treated like a statute or presumed invalid because it makes a distinction based on national 

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origin. Instead, unless the requirement is explicitly repealed through the amendment process 

specified in the Constitution, it remains in full force. 

A. The Constitution’s Natural Born Citizen Requirement Has Not 

Been Repealed 

Relying on Schneider v. Rusk, 377 U.S. 163, 165 (1964), and a long line of other cases, 

the Commission has demonstrated (FEC Mem. at 9-12) that the national born citizen requirement 

has not been explicitly or implicitly repealed by the Fifth and Fourteenth Amendments. Decided 

long after the ratification of the Fourteenth Amendment, Schneider reiterated that “[t]he only 

difference [between naturalized and natural born citizens] drawn by the Constitution is that only 

the ‘natural born’ citizen is eligible to be President. Art. II, § 1.” 377 U.S. at 165 (emphasis 

added). Rather than grappling with this established precedent, Hassan offers a flawed critique 

(Opp. at 13-19) of the district court decision in Hassan v. United States, No. 08-938, slip op. 

at 3-7 (E.D.N.Y. June 15, 2010) (rejecting Hassan’s substantive arguments), aff’d on other 

grounds, 441 Fed. Appx. 10 (2nd Cir. 2011). See also Hassan v. New Hampshire, No. 11-552, 

2012 WL 405620, at *3 (D.N.H. Feb. 8, 2012) (holding “Hassan has not carried the high burden 

necessary to demonstrate that the Natural Born Citizen Clause has been implicitly repealed by 

the Fourteenth Amendment” (footnote omitted)). 

Although Hassan suggests (Opp. at 17) that the Schneider line of precedent has been 

superseded by Afroyim v. Rusk, 387 U.S. 253 (1967), nothing in that case casts doubt on the 

continuing force of either Schneider or the national born citizen requirement. Indeed, the Court 

in Afroyim does not even mention, let alone interpret, that requirement, but instead merely held 

that a naturalized citizen could not be deprived of his citizenship, once obtained, by voting in a 

foreign country’s election. Hassan seizes (Opp. at 17) on a statement in Afroyim, where the 

Court explains that a naturalized citizen generally possesses “all of the rights of a native citizen” 

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and stands “on the footing of a native,” but Hassan fails to point out that the Court was actually 

quoting Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 827-28 (1824).6

 Afroyim, 

387 U.S. at 261. Because Osborn was decided long before the Fourteenth Amendment was 

ratified, it obviously cannot lend any support to Hassan’s flawed argument about the impact that 

subsequent Amendment had on the natural born citizenship requirement. Thus, Hassan’s 

reliance on Afroyim, and its quotation from Osborn, is entirely misplaced.7

B. The Natural Born Citizen Requirement Can Be Abrogated Only 

by Constitutional Amendment 

 As previously explained (FEC Mem. at 12-13 & n.7), repeal of the natural born citizen 

requirement was considered and rejected by Congress around the time of the Fourteenth 

Amendment. See also Sarah Helene Duggin & Mary Beth Collins, “Natural Born” in the USA: 

The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential 

Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 148 (2005) (citing H.R.J. 

Res. 52, 42d Cong. (2d Sess. 1871)); Malinda L. Seymore, The Presidency and the Meaning of 

Citizenship, 2005 B.Y.U. L. Rev. 927, 947 (2005) (citing H.R.J. Res. 166-169, 42nd Cong. (3d 

Sess. 1872) and S.R. 284, 41st Cong. (3d Sess. 1871)). And as recently as 2002, Congress has 

considered amending the Constitution to repeal the requirement. See, e.g., S. J. Res. 15, 108th 

Cong. (1st Sess. 2003) (proposing amendment). These debates clearly suggest that Congress 

                                                           

6

 The Court in Afroyim relied upon Osborn when it explained that Congress did not have 

the power to “enlarge or abridge” the rights of naturalized citizens. 387 U.S. at 261, 268. But 

Afroyim did not suggest that other provisions of the Constitution cannot determine the rights of 

naturalized citizens. 

7

 Hassan also argues (Opp. at 18) that Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), is an 

example of constitutional abrogation by implication. However, as previously shown (FEC Mem. 

at 11 n.5), in that case the Supreme Court relied on explicit language in the Fourteenth 

Amendment that limited state authority. 

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itself does not believe that the Fourteenth Amendment silently accomplished the repeal that 

Hassan advocates. 

Hassan also suggests (Opp. at 15) that because the Constitution is difficult to amend, the 

courts should more easily find an implicit repeal of a constitutional provision than a similar 

statutory provision. Hassan offers no legal support for this extraordinary proposition, which 

ignores the Constitution’s own very specific, arduous, and carefully balanced amendment 

process. See U.S. Const. art. V. Moreover, the amendment process is primarily vested in the 

legislative branches of the federal and state governments. Id. The judicial branch has no role in 

amending the Constitution. See McPherson v. Blacker, 146 U.S. 1, 36 (1892) (rejecting the 

proposition that the Constitution may be “amended by judicial decision without action by the 

designated organs in the mode by which alone amendments can be made”); New v. Pelosi, 2008 

WL 4755414, at *2 (“Whatever the merits, Plaintiff’s remedy lies in the constitutional 

amendment process, not the courts.”).8

 

 Indeed, in the few instances in which the qualifications for federal office have changed, 

they were accomplished by constitutional amendment. In particular, the Fourteenth Amendment 

                                                           

8

 Hassan relies (Opp. at 23-25) on Dred Scott v. Sandford, 60 U.S. 393 (1856), and 

speculates how that case could have been decided differently. Regardless of the flaws in that 

opinion, the fundamental issues in that case were ultimately resolved through constitutional 

amendment. Hassan also relies (Opp. at 15-16) on McDonald v. City of Chicago, 130 S. Ct. 

3020, 3059-60 (2010), to argue that courts should find an implicit repeal of a portion of the 

Constitution when its provisions appear to be “irreconcilable” with each other. But Hassan fails 

to note that he is citing Justice Thomas’s concurrence, which does not engage in the kind of 

constitutional interpretation that Hassan advocates (and which was joined by no other Justice). 

Instead, Justice Thomas, as part of his explanation of how best to interpret the Fourteenth 

Amendment, notes by way of background that slavery was “irreconcilable with the principles of 

equality” and that after the Civil War “a series of constitutional amendments were adopted to 

repair the Nation from the damage slavery had caused” and that the Fourteenth Amendment 

“unambiguously overruled” the decision in Dred Scott. Id. at 3060. Nothing in Justice 

Thomas’s concurrence supports Hassan’s theory that courts should infer that provisions of the 

Constitution have been repealed by implication. 

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restricts persons who had held certain offices and engaged in insurrection against the United 

States from holding federal office absent a congressional waiver, and the Twenty-Second 

Amendment prohibits a president from serving more than two terms. See Const. amend. XIV 

and XXII. Any amendment to the natural born citizen requirement must follow the process 

spelled out in the Constitution itself. 

 Finally, Hassan relies on (Opp. at 21-22) the “absurdity doctrine,” but he cites no 

authority for the proposition that it has ever been applied to find the implicit repeal of any 

provision of the Constitution, let alone the natural born citizen requirement in particular. When 

it rejected substantially the same argument, the district court in Hassan v. New Hampshire

explained that “Hassan’s argument that the Absurdity Doctrine requires avoidance of the plain 

language of the Natural Born Citizen Clause is . . . unavailing” and further held that the 

“contention that the original rationale for the Natural Born Citizen Clause is no longer relevant 

does not provide the basis for ignoring the plain language of the Constitution.” 2012 WL 

405620, at *4 n.5. As the Commission has previously explained, the natural born citizen 

requirement can be reconciled with the Fifth and Fourteenth Amendments without leading to 

absurd results, and numerous Supreme Court decisions have noted the requirement’s continuing 

force. (See FEC Mem. at 9-11 (citing cases).) At most, Hassan presents policy arguments in 

favor of a constitutional amendment, but until the amendment process specified in the 

Constitution itself takes place, the natural born citizen requirement will remain in the 

Constitution and, by definition, be constitutional. 

IV. CONCLUSION 

 For the foregoing reasons, and those explained in the Commission’s opening brief, the 

Commission respectfully requests that this Court dismiss Hassan’s complaint with prejudice for 

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lack of subject matter jurisdiction and for failure to state a claim upon which relief can be 

granted. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

/s/ Greg J. Mueller

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

April 2, 2012 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

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