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What’s done is done? The de facto officer doctrine

How many times have you seen something like this comment I just picked up from YouTube?

If Obama is not eligible to be president, every law and treaty he signed will be invalid. This will have huge implications for years to come.

If the Internet is any indication, beliefs such as this are widely held. It’s not necessarily true, though. Chief Justice Renquist described the “de facto officer doctrine” in Ryder v. United States (94-431), 515 U.S. 177 (1995):

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.

However, the question remains as to which circumstances the de facto officer doctrine applies. The Supreme Court (unanimously) did not apply the doctrine in the aforementioned Ryder case. The court distinguished Ryder from other similar cases (e.g. Ball v. United States, 140 U.S. 118) because the officer in Ryder (two military appeals judges) were were not properly appointed according to constitutional process (and for other reasons), whereas the disability in other cases was due to a misapplication of a statute.

It is of course a mistake to take Ryder as a blanket rule that invalidates the de facto officer doctrine when constitutional issues are part of the mix. Ryder deals with appointment rather than election; it deals with judges rather than members of another branch of government; it deals with an objection raised before the action being voided.

Also when the de facto officer doctrine is not applied, the acts of an illegal officeholder are not erased en masse (Andrade v Lauer 729 F.2d 1475). An individual act has to be challenged because no one has standing to claim an injury in fact for “everything.” This question is going to take more research on my part. In the mean time, I suggest the reader look at several substantive comments left by others to this article.

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35 Responses to What’s done is done? The de facto officer doctrine

  1. avatar
    Slartibartfast May 5, 2011 at 12:14 pm #

    Nice article, Doc – I think that the willful ignorance of the de facto officer doctrine is one of the most completely illogical birther memes.

  2. avatar
    DP May 5, 2011 at 12:44 pm #

    Far being from me to derail the fantasy momentum of far left’s infantile idiocy, but you do know what the freak show birther response to the de facto officer doctrine is, don’t you? They claim that since they always knew he was a fraud, he never acted under legal cover of authority.

    So basically, if any insane, bitter loser anywhere concocts some personal fantasy as to why someone is ineligible for office, the de facto officer doctrine can’t apply. Because the invincible sense of entitlement insane, bitter losers have must be validated at all costs.

  3. avatar
    Bovril May 5, 2011 at 12:45 pm #

    The second you link to the mad and the delusional your entire thesis crumbles into the malodorous cack it is.

    So sad it doesn’t even rate a FAIL

  4. avatar
    Thrifty May 5, 2011 at 12:46 pm #

    thefarleftView: SC can rule that it matters, it is up to them, this case is entirely different than the fraud that BO has gotten away with to date

    and blah blah blah

    I think you need a more reliable source than other birthers.

  5. avatar
    Sef May 5, 2011 at 1:00 pm #

    DP:
    Far being from me to derail the fantasy momentum of far left’s infantile idiocy, but you do know what the freak show birther response to the de facto officer doctrine is, don’t you? They claim that since they always knew he was a fraud, he never acted under legal cover of authority.

    So basically, if any insane, bitter loser anywhere concocts some personal fantasy as to why someone is ineligible for office, the de facto officer doctrine can’t apply. Because the invincible sense of entitlement insane, bitter losers have must be validated at all costs.

    So why do they cash their Soc Sec checks?

  6. avatar
    DP May 5, 2011 at 1:11 pm #

    Sef: So why do they cash their Soc Sec checks?

    Again, it’s that invincible sense of entitlement. They know they deserve those checks far more than all thE other moochers. And if that money keeps them going in their epic pursuit of the greatest scandal since Genesis-gate, well, the greater good, blah, blah blah, I’m a true patriOt, blah, blah, blah, Puzo says, blah blah blah… WHAT ABOUT THE FACT THAT HE’S BLACK DON’T YOU GET?

  7. avatar
    bjphysics May 5, 2011 at 1:43 pm #

    thefarleftView: thefarleftView

    thefarleftView,

    That’s also my understanding from reading birther websites – the de nutso birther doctrine takes precedence over the de facto officer doctrine.

  8. avatar
    Sef May 5, 2011 at 1:44 pm #

    DP: WHAT ABOUT THE FACT THAT HE’S BLACK DON’T YOU GET?

    Who’s black?

  9. avatar
    aarrgghh May 5, 2011 at 1:59 pm #

    clinging to this myth goes beyond entitlement. it is the feverish and infantile wish to see all of that scary black man’s works undone and his name reduced to a footnote if not entirely expunged from the pages of history:

    robert c laity: “The Obama “Presidency” is nonexistent. … Barack Obama has never been the President of the United States of America. … He is a quisling, a traitor to the United States of America. I am of the opinion that he should be arrested and tried and if convicted, executed by firing squad. … Obama’s name will go down in infamy in the history books. The names “Benedict Arnold” and “Barack Obama” are synonymous. The terms “traitor” and “quisling” will have, as an addition, the term “obama.” “You are an ‘Obama'” will be heard to describe one who has betrayed his duty to America.”

    charles kerchner: “Obama has created a Constitutional Crisis of historic proportions. But We the People will resolve it. History will record Putative President Obama as a disgraceful moment in the history of our great Republic and put a gigantic asterisk after his name.”

    drkatesview: “he will be shamed for all of history…and no one will want to remember his name.”

  10. avatar
    Tarrant May 5, 2011 at 2:17 pm #

    They cash checks for the same reason Lakin cashed his checks that came from a budget signed by someone he believed was so illegitimate that he couldn’t obey an order to get on a plane – because Obama is only ineligible to them when it’s convenient.

    That tax cut? Sure, theyll accept one of those signed by a “usurper”. Tax increase? ILLEGAL ILLEGAL FRAUD.

    Lakin risking his career and jail? GO GO GO!!! Suggest they risk their own skins? Well, then they need more evidence. Etc.

    Gandhi, MLK, there are lots of examples of people who believed in a cause and knew they would get arrested as a result of their disobedience. These guys want the disobedience without penalty.

  11. avatar
    Benji Franklin May 5, 2011 at 2:53 pm #

    You’re treading on hollowed (sic) ground here, Doc. If birthers ever understand the de facto officer doctrine, it will quickly become the Klein Bottleneck of Obama Usurper Conspiracy theories! I recall one scenario posted on a World Nought Daily Forum not long ago. Something like this:

    Obama, the usurper, knows he’s about to be arrested and jailed! So…………

    Under the de facto officer doctrine, he pardons himself for any unimpeachable crimes he may have committed in association with being an usurper. (Impeachment is the only crime he can’t pardon, but that doesn’t apply to an usurper.)

    Then he walks off of the White House grounds and calls a press-conference to announce his formal resignation as usurper.

    And, by birther reckoning, gets away scott free!

    Maybe to work on his usurper library?

    BenjiFranklin

  12. avatar
    Fred May 5, 2011 at 3:17 pm #

    So of course, in their pea brains, Obama must take a leave of absence immediately until this matter is settled through decades of court battles rather than risk stuff getting done that would latter have to be undone.

    These people will stop at nothing. There is no angle they will not try take on this. No matter how obsurd.

  13. avatar
    Slartibartfast May 5, 2011 at 3:19 pm #

    Benji Franklin: it will quickly become the Klein Bottleneck of Obama Usurper Conspiracy theories!

    [math geek]

    Sorry, but I’ve got to nitpick on this one…

    There can be no ‘bottleneck’ in a Klein flask (a friend of mine has a immersion [submersion? I can never keep those straight….] of one in his office, by the way…). A bottleneck implies a constriction in the path between the ‘inside’ and the ‘outside’ – a constriction which cannot exist when the inside IS the outside (there can’t be a constriction on the path between a point and itself…).

    Although an object which cannot exist in our reality can certainly be said to have much in common with the birthers… If you intended this interpretation (especially with the added ironic twist of a non-existent part of a non-existent object) then kudos. 😉

    [/math geek]

    In any case, you are right that, like any other part of the birther house of cards, the birthers cannot give up this point without having their whole rationalization come tumbling down…

  14. avatar
    Bovril May 5, 2011 at 3:43 pm #

    I always think of Birfoon “logic” as rather more a combination of Mobius strip and Oroboros. Relentlessly circular, mythical and mystical as opposed to factual and real, caniballistic and perpetually vanishing up it’s own ass……

  15. avatar
    Slartibartfast May 5, 2011 at 3:55 pm #

    Bovril:
    I always think of Birfoon “logic” as rather more a combination of Mobius strip and Oroboros. Relentlessly circular, mythical and mystical as opposed to factual and real, caniballistic and perpetually vanishing up it’s own ass……

    I know you get a Klein flask when you glue two Möbius strips together along their edges (meaning gluing each of their single edges together – I know how picky birthers are about plurals…), but I’ve never heard of anyone gluing a Möbius strip to an Oroboros… and I would say that the birther movement is being continually created out of it’s own ass, not the other way around… 😉

  16. avatar
    ASK Esq May 5, 2011 at 4:47 pm #

    Quite frankly, while the de facto officer doctrine is useful in shooting down this particular insanity, I usually just ask them to point out the legal source that they rely on to say the nullification could possibly happen.

    The fact that there is no Constitutional or other legal basis for this is further proof that an ineligible person could assume the office of the President.

  17. avatar
    Expelliarmus May 5, 2011 at 5:24 pm #

    Doc, with all due respect, I think that you have made a statement at the end that mangles the Ryder holding and will give a field day to birthers. You wrote, incorrectly, that

    The court distinguished Ryder from other similar cases (e.g. Ball v. United States, 140 U.S. 118) because the officer in Ryder (two military appeals judges) were constitutionally ineligible whereas the disability in other cases was due to a misapplication of a statute.

    (emphasis added)

    Birthers are going to read that and think that you meant that a claim of “constitutional ineligibility” avoids the de facto doctrine — and of course they are arguing that Obama is “constitutionally ineligible”.

    But that is NOT what the Ryder court held, at all.

    Ryder did not apply the de facto doctrine for these reasons:

    1. The judges on the lower court were not properly appointed, as required by the Constitution. That is, Article II Section 2 requires that Judges be appointed by the President, but in Ryder’s case there were apparently a couple of pro tem judges on his panel who were civilians appointed by the general counsel of the Dept. of Transportation.

    2. Ryder raised his objections at the appropriate time, before the judges heard his case — therefore preserving his objections to what they did thereafter.

    3. Ryder had standing — he was objecting only to the judge’s determination in his case, and the remedy, for him, was simply that he would get a new hearing before properly appointed judges.

    From the opinion:

    , petitioner raised his objection to the judges’ titles before those very judges and prior to their action on his case. And his claim is based on the Appointments Clause of Article II of the Constitution–a claim that there has been a “trespass upon the executive power of appointment,”

    This was NOT a claim that the judges were “ineligible” — we don’t know whether they were eligible to be appointed — what we know is that they were NOT appointed. (In this context, “civilian” does not mean non-military,, but rather non-judiciary. It is common practice in courts to use ordinary lawyers as “pro tem” judges to hear cases to fill staffing needs, but only with the consent of the parties. )

    The de facto officer doctrine applies to Obama because we know that proper procedures were follow for his seating as President: he was elected by a wide margin, the electoral college met, Congress counted the votes, he was duly inaugurated. Thus, he became President in accordance with proper procedure.

  18. avatar
    Dr. Conspiracy May 5, 2011 at 5:55 pm #

    Expelliarmus:
    Doc, with all due respect, I think that you have made a statement at the end that mangles the Ryder holding and will give a field day to birthers

    First, I readily agree that the section you highlighted was badly written, and I have changed it. I also acknowledge the additional issues of timeliness and standing that distinguish Ryder.

    On the other hand I would point out that my article deals with an open-ended hypothetical case involving Barack Obama and not with any specific set of facts. My concern over the unchallenged assumption that the de facto officer doctrine would apply comes both from Ryder and from the article from the Columbia Law Review referenced at the end of mine that says, in part:

    Mr. Justice Harlan subjected the de facto officer doctrine, as applied to the acts of lower federal judges, to closer scrutiny, and fashioned a rationale that suggests it is merely a doctrine of convenience, which can be disregarded when to do so will vindicate a strong policy regarding judicial administration or, a fortiori, when nonfrivolous constitutional grounds are advanced as the basis for the challenge to the judge’s authority.

    I have a very hard time, based on the rationale in Norton, imagining the Supreme Court invalidating every act of an ineligible president, and in fact I would go so far as to argue that the Congress is the sole arbiter of presidential eligibility and that no court has jurisdiction to rule a president ineligible and even that “ineligible president” is not something that can exist under our Constitution. Still, I am not yet persuaded that the application of the de facto officer doctrine is a “slam dunk.”

  19. avatar
    Expelliarmus May 5, 2011 at 6:44 pm #

    I disagree. I think that the Columbia Law Review article you are citing is based on an unduly expansive reading of dicta in the majority opinion of Glidden v. Zdanok – http://supreme.justia.com/us/370/530/case.html — which is case where the judges of the lower court were found to have been properly appointed with proper authority. The court dispensed with the de facto officer argument only as a short term means to reach the merits of the case. That is, they never said that the de facto claim didn’t imply — it was more along the lines of, maybe in some cases it might not apply, so we’ll get to the heart of the claim. (This analogous to what Judge Carter did in Barnett v. Obama, when he leapfrogged past the standing issue as to Kreep’s clients in order to discuss the political question issue).

    I think the de facto officer doctrine is pretty much hard and fast, as established in quo warranto cases. If the procedure by which the person came to occupy the office was adhered to, then all acts of the officer are given legitimacy even if the officer is later removed.

    I also think you need to be very careful about confusing de facto officer doctrine as applied to executive officers with the doctrine as applied to judges. The difference is that judges, by their nature, issue rulings on individual cases — so there is always going to be someone with standing to challenge the impact of an individual ruling. The invalidation of a that ruling does not by itself impact any other action of the same judge, though it may be applied as precedent in other cases where the issue has been preserved.

    So even if, in the judicial context, a case arose like Ryder where the de facto officer doctrine was held not to apply — that doesn’t mean that everything the challenged judges did is automatically invalidated.. It just means that the same avenue of challenge remains open to others,

    Executive officers carry out broader duties, usually impacting policies and not individuals, so you rarely would even have the setting arise in which a particular act could be invalidated.

  20. avatar
    Scientist May 5, 2011 at 6:56 pm #

    Expelliarmus-I agree. It’s also worth noting that Presidents do very little on their own. Laws become law if the President does nothing. Only vetoes are solely Presidential actions, and Obama hasn’t vetoed anything so far. Pardons are too, but he hasn’t issued any yet. Appointments require Senate approval, as do treaties. Executive orders could be cancelled, but a new President can always cancel his predecessor’s EOs. I suppose the Libyan intervention and bin Laden hit were solely Presidential calls, but how would you take them back? With a judge, you can re-try his cases, but much of what a President does is either subject to congressional review anyway or not open to a do-over.

    The other point is that, unlike judges, the President has a clear stand-in who would have been President if he were ineligible or in any way out of action. A neat solution to this entirely fictional dilemma would be to simply have the VP issue a proclamation that everything the Pres did was excatly what he would have done and thus stands.

    A final point is that the purpose of courts is to resolve issues, not create massive new issues to deal with. This is a fictional scenario, of course, but even in fiction courts would either act before the Pres took office or not at all.

  21. avatar
    Dr. Conspiracy May 5, 2011 at 7:07 pm #

    Expelliarmus:
    I think the de facto officer doctrine is pretty much hard and fast, as established in quo warranto cases.

    If I were to take this position in the article, how would I source it?

  22. avatar
    Expelliarmus May 5, 2011 at 7:32 pm #

    Dr. Conspiracy: I think the de facto officer doctrine is pretty much hard and fast, as established in quo warranto cases.

    If I were to take this position in the article, how would I source it?

    You could start by researching the “de facto doctrine” in the context of public office holders. For example, start by reading:

    * De Facto Officer Doctrine: The Case for Continued Application, The; Clokey, Kathryn A. 85 Colum. L. Rev. 1121 (1985)

    * De Facto Public Officers: The validity of their acts and thei rights to compensation. Joseph Jarett, 3 Southern California Law Review 189 (1936)

    * A treatise on the law of public offices and officers, by Floyd Russell Mechem (1890)

  23. avatar
    Dr. Conspiracy May 5, 2011 at 8:15 pm #

    Expelliarmus: You could start by researching the “de facto doctrine” in the context of public office holders. For example, start by reading:

    Looks like a trip to the law library is in order. In the mean time I read the decision in Andrade v Lauer 729 F.2d 1475 and found it instructive.

    In this case appellants have clearly met the first requirement stated above. They brought their action on March 25, 1982, one day before the action under attack, and they sought declaratory and injunctive relief for the specific upcoming RIF as it affected them–not wholesale invalidation of actions taken by Diegelman and Lauer.

  24. avatar
    jamese777 May 5, 2011 at 8:22 pm #

    The time to stop an ineligible person from assuming the presidency is BEFORE they are elected. If an ineligible person should somehow magically sneak through and get elected, the time to stop an ineligible President-elect is at the Joint Session of Congress held to count and certify the vote of the Electoral College. If written objections at the Joint Session of Congress fail to do the trick, the last time to stop an ineligible President-Elect is by not swearing that person in on Inauguration Day.
    The 12th Amendment clearly states that whoever receives a majority of the votes of the Electoral College “SHALL BE PRESIDENT.”
    Once the President is sworn in, that person can ONLY be removed by impeachment and trial in the Senate ending in conviction.
    Under separation of powers, the Courts have no constitutional authority to remove a sitting president…EVER.

  25. avatar
    The Magic M May 6, 2011 at 5:35 am #

    > The 12th Amendment clearly states that whoever receives a majority of the votes of the Electoral College “SHALL BE PRESIDENT.”

    Exactly. And at that point the de facto officer doctrine kicks in.

    After all, we’re not talking about some guy who broke into the Oval Office, wrote and signed an executive order and then says “it’s valid under the DFOD because I acted as President”.
    We’re talking about someone who was elected by the people, got the majority of the votes of the Electoral college, was confirmed by Congress and sworn in. If that doesn’t lay grounds for the DFOD, then what does?

    Besides, even the “breaking in” example may, under certain circumstances fall under the DFOD.

    Imagine for example someone, somehow (for the sake of the argument) assuming the position of judge in a case in 1950, rendering a verdict that company A became successor-in-interest to company B (when a real judge would have ruled the opposite).
    Would that mean that all contracts A signed or executed in its role as successor-in-interest to B would be void? That all employees fired 50 years ago could sue for unpaid wages since their layoff was void? Imagine this for huge companies the size of Microsoft. It would be simply impossible to unravel all these things. Thus the DFOD might even apply in such an extreme case where “someone off the street” acted in the position of a judge.

    In a related note, when Germany unified in 1990, a law was passed that made it impossible for people whose land/real estate was seized between 1945 and 1949 by the Russians – because it would have created mayhem if people, after 40+ years, could raise claim to land or real estate that had belonged to other people for decades. So this “injustice” was the lesser evil. (I think they still could get financial compensation from the state, though.)

  26. avatar
    GeorgetownJD May 8, 2011 at 2:02 pm #

    Dr. Conspiracy: Looks like a trip to the law library is in order. In the mean time I read the decision in Andrade v Lauer 729 F.2d 1475 and found it instructive.

    Doc,

    Authority is also found in Ryder v. United States, 515 U.S. 177, 180-81, 132 L. Ed. 2d 136, 142, 115 S. Ct. 2031, 2034 (1995), quoting 63A. Am. Jur. 2d Public Officers & Employees §578, at 1080-81 (1984), which states:

    “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.”

    Another source, although a state court decision, is State v. Carroll, 38 Conn. 449, 471-72 (1871) (adopted by the Illinois Supreme Court as its own rule, too, in People ex rel. Rusch v. Wortman, 334 Ill. 298, 301 (1928)):

    “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised *** under color of a known election or appointment [which was] void because the officer was not eligible or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.”

  27. avatar
    Joey May 8, 2011 at 2:08 pm #

    And speaking of “officers,” the birther-bots over at FreeRepublic are VERY upset with General Colin Powell for supporting Obama over the birthers:
    http://www.freerepublic.com/focus/f-news/2716386/posts?q=1&;page=51

  28. avatar
    obsolete May 8, 2011 at 5:33 pm #

    Joey-
    And as usual on FreeRepublic, it includes open racism, homophobia (Powell is a poofster!), and more nutty conspiracy theories than you could shake Trump’s hair at.
    Their new motto should be: 99% fact free!

  29. avatar
    G May 8, 2011 at 10:38 pm #

    obsolete: Joey-And as usual on FreeRepublic, it includes open racism, homophobia (Powell is a poofster!), and more nutty conspiracy theories than you could shake Trump’s hair at.Their new motto should be: 99% fact free!

    Considering the seething anger and general ugliness of the posts at FreeRepublic, their motto should be:

    “All hate all the time AND 99% fact free!”

  30. avatar
    Black Lion May 9, 2011 at 7:06 am #

    The name calling and hate over at Free republic is disgusting and scary….

  31. avatar
    Bovril May 9, 2011 at 7:16 am #

    Ah, Freeperville is actually a Soros_NWO Inc. set up to identify and corall the seditious for later assignment to a FEMA camp………. 😎

  32. avatar
    The Magic M May 9, 2011 at 7:30 am #

    > Ah, Freeperville is actually a Soros_NWO Inc. set up to identify and corall the seditious for later assignment to a FEMA camp

    And don’t tell anyone the Pee and Eee was having hickups yesterday because we at Obots International installed the new tracking software that’s wired directly to the missiles getting their GPS coordinates from the census workers. Oops, did I just say that aloud?

  33. avatar
    Bovril May 9, 2011 at 7:53 am #

    Don’t forget the secondary pacification system we’re using with the chemtrails, which is being paid for out of the funds we will gain when the Iraqi dinar gets revalued to parity with the dollar……

  34. avatar
    The Magic M May 9, 2011 at 8:56 am #

    Revalued? I thought it was going to replace the dollar. Well, I fell asleep during my last CFR briefing, maybe our alien overlords slipped something in at the eleventh hour. You know, my Grakk’narg isn’t as fluent as it used to be…

  35. avatar
    The Magic M May 9, 2011 at 8:57 am #

    Holy Gloof’niq, now we’ll have to scrub the Interwebs again… *sigh*