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Hassan v US

The lower court decision has been recently affirmed by the Second Circuit Court of Appeals.

Hassan says the he intends to run for President in 2012. He wants the court to declare him eligible even though he is a naturalized citizen. His contention is that the 14th amendment is in conflict with the presidential eligibility clause in Section II of the Constitution.

The court rejected his case because Hassan lacks standing: he was not able to show a particularized injury (since he is just one of millions of naturalized citizens).

20 Responses to Hassan v US

  1. avatar
    Thrifty June 20, 2011 at 5:26 pm #

    I’m no lawyer, but can two portions of the Constitution actually be in conflict? Isn’t that what amendments are for, to change previous language of the Constitution? Because I’d like to say that the 18th and 21st amendments are in conflict, but that would just be stupid.

  2. avatar
    Daniel June 20, 2011 at 5:58 pm #

    time ’til birthers erroneously claim this proves their case against Obama…

    5….4….3…

  3. avatar
    Expelliarmus June 20, 2011 at 6:18 pm #

    Thrifty: I’m no lawyer, but can two portions of the Constitution actually be in conflict?

    Where there is a direct conflict, the amendment would override the original language. If the language can be reconciled, then both would stand, with perhaps a more nuanced interpretation of the original.

    I haven’t read Hassan’s argument, but think the question he is raising is whether the “privileges and immunities” and equal protection provisions of the 14th amendment would override the natural-born requirements of Article II. That is… the 14th amendment says that naturalized citizens have the same rights as natural-born citizens (“all persons born or naturalized”)… so wouldn’t that extent to the right to run for President?

    The problem that I see with that argument is that the 14th amendment does NOT say that naturalized citizens have the same rights — it says, “no State” shall make any law abridging the privileges and immunities of naturalized, as well as natural born, citizens — and “no State” shall deny equal protection of the laws. So those provisions don’t actually apply to the federal government — and since Congress does have the power to set terms of naturalization, that may be one area where there is a clear distinction between state and federal.

    On the other hand, Hassan’s argument raises an interesting question: assuming that he did run for President, would the 14th amendment preclude any state from denying him a place on the ballot? (assuming all other requisites were met). Let’s say he got the nomination of an established third party, and thus qualified for ballot placement but for his naturalization status — could he then argue that the 14th amendment requires that each state treat him the same as any natural citizen for purposes of the ballot? That dovetails with the argument that it is the sole province of Congress to decide eligibility as part of its tally of electoral college votes.

    In fact, many states have in the past placed clearly ineligible candidates on the ballot, probably with precisely that consideration in mind.

  4. avatar
    Scientist June 20, 2011 at 7:13 pm #

    This is an interesting case, with an argument that is far more convincing than the birther “two citizen parent” nonsense. As an amendment, I think there is little doubt that the equal protectiion argument would supercede any language in the oriiginal document. Equal protection could certainly be taken to mean that all citiizens are equal regardless of how they obtained ciitizenship. Of course, the laws do discriminate among citiizens-by age, for example (drinking. driving, voting, Social Security), but I don’t know whether the court would allow discrimination based on the rooute to citiizenship.

    I agree with Expelliarmus, that this will likely never be ruled on. I suspect that if Mmr Hassan got enough signatures he would apppear on the ballot. After all several states had Roger Calero, a resident alien, on the ballot, so Mr Hassan deserves to be on and let the voters decide.

    In effect, for all the wailing of the biirthers, the natural born citizen clause may be de facto unenforceable. It is immaterial as regards a losing candidate and for a winning candiidate, its application rests wiith Congress. Congress is going to very reluctant to overturn the will of the voters, since they are elected by those same voters. The clause is guidance but not really enforceable law. I would argue that this is how it should be in a democratic republic and probably how the framers intended it.

  5. avatar
    Rickey June 20, 2011 at 7:41 pm #

    This pretty much is a nail in the coffin to Steven Lee Craig’s quest to have the government declare that he is a natural born citizen. As we told him (and as he refused to accept), he has no injury in fact and therefore no standing.

  6. avatar
    Expelliarmus June 20, 2011 at 8:47 pm #

    Scientist: It is immaterial as regards a losing candidate and for a winning candiidate, its application rests wiith Congress. Congress is going to very reluctant to overturn the will of the voters, since they are elected by those same voters

    I think a major party would be unwilling to nominate a candidate unless it was fairly sure that he or she would be seated if elected — but it is very possible that Congress could pass a law or a resolution tweaking the definition of natural born citizen somewhat. After all, that’s exactly what McCain did to clear the way to his nomination — he got a Senate resolution passed, and his party was confident that they could rely on it. Congress could very well pass a law that says that if a person naturalizes under particular circumstances, they shall be “deemed” a natural born citizen.

  7. avatar
    Dr. Conspiracy June 20, 2011 at 10:25 pm #

    If Hassan actually runs for President and is blocked in some way, then he will have standing to file a lawsuit against whoever blocked him. Then he can get his answer from the court.

    What COULD be interesting is some commentary from a court on what a natural born citizen is should he refile.

  8. avatar
    Nathanael June 21, 2011 at 1:29 am #

    Expelliarmus: it is very possible that Congress could pass a law or a resolution tweaking the definition of natural born citizen somewhat. After all, that’s exactly what McCain did to clear the way to his nomination

    The Senate resolution was non-binding and had no legal force. And could congress (I, too, am not a lawyer) pass a law to “tweak” the constitutional, or can the constitution only be “tweaked” via amendment?

    I personally think McCain would have been the more interesting case. After all Wong Kim Ark settled the jus solis question; McCain would have challenged based on jus sanguinis which, I don’t believe has been directly addressed by the courts.

    Of course, the question of standing comes up. Hypothetically speaking, if someone who clearly fails the NBC test does get himself elected, what legal reourse is there? Individual citizens lack standing, and Congress lacks backbone. What’s left?

  9. avatar
    Nathanael June 21, 2011 at 1:40 am #

    Dr. Conspiracy:

    Totally off-topic, but I have a bone to pick with you, Doc. I left a comment over on Taitz’s blog two days ago that’s still awaiting moderation. You left a comment on the same article and got posted immediately.

    Unfair. How’d you do it?

  10. avatar
    Bovril June 21, 2011 at 6:16 am #

    Nathanael,

    Congress can pass any law it likes, inherently Constitutional or not.

    Ultimately it will be challenged and wend it’s weary way through the courts to the SC who will judge its Constitutionality or not. The only other “tweak” route entails an Amendment which when ratified is inherently Constitutional.

  11. avatar
    Scientist June 21, 2011 at 6:35 am #

    Nathanael: Of course, the question of standing comes up. Hypothetically speaking, if someone who clearly fails the NBC test does get himself elected, what legal reourse is there? Individual citizens lack standing, and Congress lacks backbone. What’s left?

    Allowing the will of the voters to prevail. Imagine that, in a democracy….

  12. avatar
    Dr. Conspiracy June 21, 2011 at 8:24 am #

    Nathanael: Totally off-topic, but I have a bone to pick with you, Doc. I left a comment over on Taitz’s blog two days ago that’s still awaiting moderation. You left a comment on the same article and got posted immediately.

    I left two comments. Only one passed. I don’t think my comment got approved “immediately” but only quickly. They all go into moderation at first.

  13. avatar
    Nathanael June 21, 2011 at 9:18 am #

    Scientist: Allowing the will of the voters to prevail.Imagine that, in a democracy….

    Ah, but the President isn’t elected by popular vote. Just ask Al Gore. Nor is it a given that the will of the voters should prevail over the Constitution — cf., Prop 8 in California.

    I suspect the answer is that in the entirely hypothetical case of a clearly ineligible person being elected, it would devolve on Congress to resolve the situation. If Congress punts, we’re probably just stuck with the guy (or gal).

    But if Congress does decide to address the situation, what’s the process? The President-elect is out. Does Congress certify the runner-up, hold a second election, or go to the bull-pen for whomever’s next in the the line of presidential succession?

    Yeah, I know. I dunno, you dunno, nobody dunno.

    –Nathanael

  14. avatar
    Sef June 21, 2011 at 9:38 am #

    Nathanael: But if Congress does decide to address the situation, what’s the process? The President-elect is out. Does Congress certify the runner-up, hold a second election, or go to the bull-pen for whomever’s next in the the line of presidential succession?

    The 20th Amendment gives Congress the power to make laws defining the process. Have they done this?

  15. avatar
    Scientist June 21, 2011 at 9:40 am #

    Nathanael: Nor is it a given that the will of the voters should prevail over the Constitution — cf., Prop 8 in California.

    I see a distinction between the rights of individuals, where the majority doesn’t necessarily rule and elections which are about nothing but determining the will of the majority. As for the case of a divergence between popular votes and electoral votes, there the Constitution is crystal clear-only electoral votes count. There are attempts to address that by means of pacts between states to vote for the popular vote winner. In my opinion those are constiitutional, since the states are allowed to apportion their votes as they see fit.

    Nathanael: But if Congress does decide to address the situation, what’s the process? The President-elect is out. Does Congress certify the runner-up, hold a second election, or go to the bull-pen for whomever’s next in the the line of presidential succession?

    The 20th amendment says the Vice President would act as President until a President qualifiied. In the case you described,that would likely be until the next election. If the Veep also doesn’t quallify, then Congress picks the President. They could choose whomever they liked in that situation. They might pick the Speaker, but they wouldn’t have to.

    As far as the role of the Supreme Court, yes,in the case of laws passed they can over-rule Congress and declare them unconstiitutional. There are certain areas, however, where Congress’ interpretation of the Constitution is final. When it comes to impeachment, Congress decides whether a particular offense constitutes a high crime or misdemeanor. If they say a particular act is, then it is, there is no appeal to the courts. In my opinion, the interpretation of whether a President-elect qualifiies falls in the same category. Once Congress says he is or isn’t that’s final-no appeal to the courts.

  16. avatar
    Scientist June 21, 2011 at 9:45 am #

    Just to add, regarding Bush and Gore, Congress had the power to throw out Florida’s votes and give the election to Gore. Of course, Congress was Republican at the time, so that was moot. Would a Democratic Congress have done that? Probably not, but they could have.

  17. avatar
    Dr. Conspiracy June 21, 2011 at 1:41 pm #

    The problem with such a hypothetical argument is that if you assume an impossible premise, you can get false conclusions (like proving 1=2 if you allow division by zero).

    If someone is going to challenge a candidate in the courts, then it needs to be done as early in the process as possible — and there are number of persons who could easily show standing in the process, for example a delegate to a national party convention could sue the party chairman over allowing the name of an ineligible candidate to be put into nomination.

    Nathanael: Hypothetically speaking, if someone who clearly fails the NBC test does get himself elected, what legal [recourse] is there? Individual citizens lack standing, and Congress lacks backbone. What’s left?

  18. avatar
    AnotherBird June 21, 2011 at 1:58 pm #

    Nathanael: I suspect the answer is that in the entirely hypothetical case of a clearly ineligible person being elected, it would devolve on Congress to resolve the situation. If Congress punts, we’re probably just stuck with the guy (or gal).

    With politics being a vicious, that scenario seems unlikely to occur. Opponents will mostly try to get the person removed from the ballot.

    From the 2008 opponents will also investigate their opponents eligibility. So, I doubt that someone will be able to get to the general election without being found to be ineligible.

    However, this only relates to being a natural born citizen for president and vice-president.

  19. avatar
    Expelliarmus June 21, 2011 at 2:33 pm #

    Nathanael: The Senate resolution was non-binding and had no legal force.

    It represented a statement of the will of the entity charged with deciding whether or not McCain was eligible. The Constitution is very clear in giving Congress the ultimate power of deciding who will be President — it does that with specifying the manner of selection, the process of impeachment, and the process of removal in case of disability.

    After all Wong Kim Ark settled the jus solis question; McCain would have challenged based on jus sanguinis which, I don’t believe has been directly addressed by the courts.

    McCain would not have been challenged. He’s white. No one questioned the bona fides of his citizenship. No one was going to raise an objection in Congress — plus no one would have wanted to see Sarah Palin as President.

    My point above is that there is a plausible argument that the 14th amendment overrides Article II, by specifying that naturalized citizens have the same rights as born citizens. If there is a plausible argument to be made, then Congress certainly does have the ability to pass laws based on that assumption. The Supreme Court may or may not take a position of its own. My reference to “tweaking” is that I think the driving force would be a sense of equities, where it didn’t seem fair to exclude someone — just as it made no sense with McCain.

  20. avatar
    Sean June 21, 2011 at 5:48 pm #

    Dr. Conspiracy:
    If Hassan actually runs for President and is blocked in some way, then he will have standing to file a lawsuit against whoever blocked him. Then he can get his answer from the court.

    What COULD be interesting is some commentary from a court on what a natural born citizen is should he refile.

    Are you saying there might be a situation he could get an answer without being in a position that he might win?