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Lindsay oral arguments: peppered with “birther”

Orly Taitz has obtained an unofficial transcript of the oral arguments from the 9th Circuit Court of Appeals in the case of Peta Lindsay, et al v. Debra Bowen. Like 1968 Peace and Freedom Party presidential candidate Eldridge Cleaver1, Lindsay was too young to become President of the United States, and like Cleaver, she was refused a place on the California Ballot because of her age. The lower court dismissed Lindsay’s lawsuit.

Appellants argue that the US Constitution provides that under the 20th Amendment only Congress may decide presidential qualifications, the eligibility of a president-elect to become president. Under the political question doctrine, a court would decline to intervene when the Constitution explicitly assigns a role to another branch of government or to the democratic process. The State of California argues that Congress’ role in deciding eligibility is not exclusive and that case law gives states broad authority in the conduct of elections, including the power to prevent a ballot from being cluttered by frivolous candidates. Both parties cite Elections Code Section 6720, that says:

6720.  The Secretary of State shall place the name of a candidate upon the Peace and Freedom Party presidential preference ballot when the Secretary of State has determined that the candidate is generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Peace and Freedom Party or the national party with which the Peace and Freedom Party is affiliated.

Appellants say this requires the Secretary of State to place the Peace and Freedom Party candidate on the ballot. Bowen argues that an obviously ineligible candidate cannot be considered “generally advocated.”

Interestingly, while this case is not about President Obama, Obama and John McCain  appear in the oral argument, and the word “birther” is peppered throughout, used both by the Parties and the Court. Lindsay’s attorney Robert Barns (who I though handled himself well) wanted to cast the State’s position as being like birther arguments and said that if California’s Secretary of State could refuse ballot position to Lindsay, she could equally well have made a judgment that would have kept Obama or McCain (born outside the US) off the ballot; citing Judge Alsup  in Robinson v. Bowen, he said such individual judgments by 50 states would wreak chaos. On the other hand Bowen’s counsel Alexandra Gordon wanted to draw a sharp distinction between this case, where Lindsay’s ineligibility was undisputed, with the Obama and McCain questions. Gordon made one comment that might warm the hearts of birthers when she said:

I think we can all agree that whether or not President Obama is a US Citizen is very much in dispute.

Ouch!

Orly Taitz was more interested in something Judge Kozinski said:

Say … some party nominated a dog for President. I take it the Secretary of State would have authority to keep that off the ballot, right?

Attorney Barnes thought this question, too, should be decided by Congress. Taitz considers this making “minced meat” of the political question doctrine. I see it as sharp questioning.

I am very interested in the outcome of the case, as it presents the question whether or not any state can exclude a candidate for President from their state’s ballot by reason of constitutional ineligibility.

Fact-checking the transcript, I found two errors:

Attorney Barnes misspoke when he said that Eldridge Cleaver would have reached age 35 “within the time of the presidential election period.” Cleaver, born August 1, 1935, would only have been 33 on Inauguration Day.

Judge Kozinski said that the California Secretary of State at the time Cleaver ran for president was probably “March Fong Yu” (sic). That’s not even close. The California Secretary of State in 1968 was Frank M. Jordon.

Listen to the oral argument:

Read more:


1I had always considered the Cleaver v. Jordon case to be precedent, but according to the transcript, the appellate opinion was unpublished.  I saw this citation: 393 U.S. 810 [21 L.Ed.2d 87] in Keyes v. Bowen. (“L.Ed.2d” refers to a private case reporter, the Lawyers Edition, second series.) I think that citation is to a denial of Cert by the US Supreme Court.

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74 Responses to Lindsay oral arguments: peppered with “birther”

  1. avatar
    bob February 18, 2014 at 12:01 pm #

    Taitz didn’t “obtain” the transcript — she created it. Somebody in Florida listened to the court’s audio and transcribed it. But it isn’t an official document or anything. (Having said that, it seems fairly accurate.)

  2. avatar
    bob February 18, 2014 at 12:07 pm #

    Among the ways you know it is a fake transcript: Lindsay’s name (a, not e) is misspelled.

  3. avatar
    gorefan February 18, 2014 at 12:14 pm #

    Audio of oral arguments:

    http://www.ca9.uscourts.gov/media/view.php?pk_id=0000012346

  4. avatar
    Dr. Conspiracy February 18, 2014 at 12:17 pm #

    Hey, thanks a bunch for the heads up. I’ve corrected the spelling and added the word “unofficial” transcript before the word “transcript.”

    I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    bob:
    Among the ways you know it is a fake transcript: Lindsay’s name (a, not e) is misspelled.

  5. avatar
    justlw February 18, 2014 at 1:29 pm #

    Dr. Conspiracy: I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    Probably not more than once.

  6. avatar
    SvenMagnussen February 18, 2014 at 2:14 pm #

    There is no federal mechanism in the Constitution for anyone in Congress to challenge a candidate’s eligibility for the Office of the President of the United States. However, the Twelfth Amendment explicitly precludes those constitutionally ineligible to be President from being Vice President.

    Obama will never be Vice President.

  7. avatar
    Arthur February 18, 2014 at 2:28 pm #

    SvenMagnussen: Obama will never be Vice President.

    Agreed! Finally, we agree on something–let’s have a digital beer!

  8. avatar
    Arthur February 18, 2014 at 2:29 pm #

    Dr. Conspiracy: I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    Do you offer disability insurance?

  9. avatar
    Jim February 18, 2014 at 2:37 pm #

    Dr. Conspiracy:
    I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    Well, you couldn’t pay me enough…I wait for TFB post-show wrap-up. It’s much more entertaining than the actual show IMO.

  10. avatar
    Daniel February 18, 2014 at 2:50 pm #

    SvenMagnussen: There is no federal mechanism in the Constitution for anyone in Congress to challenge a candidate’s eligibility for the Office of the President of the United States.

    Are you serious? Did you completely miss all your high school civics classes?

  11. avatar
    JPotter February 18, 2014 at 2:51 pm #

    SvenMagnussen: Obama will never be Vice President.

    Have a well-earned Umm-duhhhhh on me, Sven.

    Dr. Conspiracy: I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    I made it through 40min of Volin …. once ….just last week. Am i qualified for this position? I have been working on my resumé, and this item would look great on it. ;)

  12. avatar
    Joey February 18, 2014 at 3:05 pm #

    SvenMagnussen:
    There is no federal mechanism in the Constitution for anyone in Congress to challenge a candidate’s eligibility for the Office of the President of the United States. However, the Twelfth Amendment explicitly precludes those constitutionally ineligible to be President from being Vice President.

    Obama will never be Vice President.

    Congress can refuse to certify the Electoral votes of an ineligible President-Elect. But who is eligible to be on each state’s ballot is indeed a state issue. In 2012 there were 50 eligibility challenges to Barack Obama ruled on in 22 states. No court or state elections board found him to be ineligible and there were 19 rulings which explicitly declared Barack Obama to be a “natural born citizen.”

  13. avatar
    Arthur February 18, 2014 at 3:16 pm #

    Joey: In 2012 there were 50 eligibility challenges to Barack Obama ruled on in 22 states. No court or state elections board found him to be ineligible and there were 19 rulings which explicitly declared Barack Obama to be a “natural born citizen.”

    Exactly!

    Which is why we’ve got to tear down the system and start over with judges who will follow the dictates of few dozen lunatics rather than the law!

    Signed,

    A. Birther.

  14. avatar
    Thinker February 18, 2014 at 3:25 pm #

    I think that, when she files this, the defendants should submit a motion to strike since it is not a certified transcript. Then, after she spends hundreds of dollars on a certified copy and submits it, the defendants should point out that it does not support her argument.

    Since courts do not sanction her, self-sanctions seem to be the way to go to make it hurt her wallet.

    bob:
    Among the ways you know it is a fake transcript: Lindsay’s name (a, not e) is misspelled.

  15. avatar
    Keith February 18, 2014 at 4:23 pm #

    SvenMagnussen:
    There is no federal mechanism in the Constitution for anyone in Congress to challenge a candidate’s eligibility for the Office of the President of the United States. However, the Twelfth Amendment explicitly precludes those constitutionally ineligible to be President from being Vice President.

    Obama will never be Vice President.

    No Caca!

  16. avatar
    SvenMagnussen February 18, 2014 at 5:28 pm #

    Arthur: Agreed! Finally, we agree on something–let’s have a digital beer!

    LET ME FEENISH!!!!!!!!! Ha ha ha. Just kidding.

    A constitutionally disabled President can be challenged by an individual or a State injured by the action of the ineligible President as a violation of the Bill of Rights.

    The American people have the right to elect an ineligible President as their leader. An individual or a State has the right to object, demand an exemption and any other relief when they can show a direct injury due to the actions of the ineligible President.

    Orly needs to stop think’n like a Constitutional Lawyer and start think’n like a personal injury lawyer.

  17. avatar
    Benji Franklin February 18, 2014 at 5:37 pm #

    Joey: who is eligible to be on each state’s ballot is indeed a state issue. In 2012 there were 50 eligibility challenges to Barack Obama ruled on in 22 states. No court or state elections board found him to be ineligible

    But that is the case when ” No court or state elections board found him to be ineligible”.

    Don’t you think for the offices of POTUS and VPOTUS, that if a controversial interpretation of the Constitution’s eligibility requirements, not so applied in all states, was used to EXCLUDE a candidate from the ballot in only one or some states, that would transfer potentially determining power over the election results to the possibly arbitrary and unfettered political choice of a handful of (or even one) state officer, or legislature?

    Wouldn’t that, for these two offices, violate equal protection of any otherwise qualified candidate to have the eligibility-granting standard for their right or privilege to run protected equally in all states which determine the election’s outcome?

  18. avatar
    SvenMagnussen February 18, 2014 at 5:40 pm #

    Joey: Congress can refuse to certify the Electoral votes of an ineligible President-Elect. But who is eligible to be on each state’s ballot is indeed a state issue. In 2012 there were 50 eligibility challenges to Barack Obama ruled on in 22 states. No court or state elections board found him to be ineligible and there were 19 rulings which explicitly declared Barack Obama to be a “natural born citizen.”

    Congress does not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President. Congress cannot disable the will of the people unless he is impeached for high crimes and misdemeanors and tried in the Senate.

    The Courts do not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President, unless an individual or a State seeks a redress grievances caused by the ineligible President and only to obtain an exemption or other relief. An individual or a State cannot have a Court remove or seek removal because it violates the Constitutional rights of the majority to elect an ineligible President. Individuals and the States have the The Bill of Rights to protect them from the will of the majority, but only to the extent they are directly injured.

  19. avatar
    Dr. Conspiracy February 18, 2014 at 6:12 pm #

    Read the 20th Amendment and Title 3 of the United States Code, Chapter 1, Section 11. Both are here:

    http://www.archives.gov/federal-register/electoral-college/provisions.html

    I hope this has been a teaching moment for you.

    SvenMagnussen: Congress does not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President. Congress cannot disable the will of the people unless he is impeached for high crimes and misdemeanors and tried in the Senate.

  20. avatar
    JPotter February 18, 2014 at 6:15 pm #

    SvenMagnussen: Congress does not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President. Congress cannot disable the will of the people unless he is impeached for high crimes and misdemeanors and tried in the Senate.

    Oh, Sven, you poor dear, you are missing out on the wonder and drama of America’s greatest electoral (*hint, hint, and again I say, HINT*) traditions.

    It’s very sweet of you to believe that Presidents are directly elected. Sweet, but … dumb.

  21. avatar
    CarlOrcas February 18, 2014 at 6:19 pm #

    SvenMagnussen: Congress does not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President.

    Then why does the Constitution require Congress to certify the election?

  22. avatar
    john February 18, 2014 at 6:32 pm #

    “Obama will never be Vice President.”

    Obama can certainly be the Vice President and actually Obama can be the POTUS for unlimited amount of terms. The Constitution dictates a person CANNOT BE ELECTED into the office of the POTUS more than twice. There is no limit on how many times a person may SERVE as the POTUS. Obama can SERVE as the POTUS an unlimited amount of time but he can only SERVE through Presidential Sucession. Obama can never again be ELECTED for the office of the POTUS.

  23. avatar
    Arthur February 18, 2014 at 6:43 pm #

    SvenMagnussen: A constitutionally disabled President can be challenged by an individual or a State injured by the action of the ineligible President as a violation of the Bill of Rights.

    What is a “constitutionally disabled President (sic*)”?

    *Use a capital when the title directly proceeds the name: “President Obama is a natural-born citizen.” Don’t use a capital when the title doesn’t include the person’s name: “All presidents must be natural-born citizens.”

  24. avatar
    JPotter February 18, 2014 at 7:00 pm #

    peppered with “birther”

    Loaded up on spices the other night, will be time for grilling soon. Found many wonderful things, but thankfully no “birther” pepper. That would have totally killed the mood!

    john: Obama can certainly be the Vice President and actually Obama can be the POTUS for unlimited amount of terms. The Constitution dictates a person CANNOT BE ELECTED into the office of the POTUS more than twice. There is no limit on how many times a person may SERVE as the POTUS. Obama can SERVE as the POTUS an unlimited amount of time but he can only SERVE through Presidential Sucession. Obama can never again be ELECTED for the office of the POTUS.

    Is your tortured mind suggesting Obama will pull a Putin-esque self-reinsatall job? Y’know, use his connections, after leaving office, to place himself into a position in the line of succession … and then have everyone ahead of him ‘removed’?

    I could swear we have covered this before. How those ineligible to the office (which would include a two-term president, as well as anyone under 35 or non-NBC) would be passed over for succession.

    But, hey, don’t let that slow up your conspiracy roll.

  25. avatar
    CarlOrcas February 18, 2014 at 7:01 pm #

    john: There is no limit on how many times a person may SERVE as the POTUS. Obama can SERVE as the POTUS an unlimited amount of time but he can only SERVE through Presidential Sucession. Obama can never again be ELECTED for the office of the POTUS.

    Wrong……again. Last sentence of 12th Amendment to the U.S. Constitution:

    “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

  26. avatar
    Dr. Kenneth Noisewater February 18, 2014 at 7:06 pm #

    john:
    “Obama will never be Vice President.”

    Obama can certainly be the Vice President and actually Obama can be the POTUS for unlimited amount of terms.The Constitution dictates a person CANNOT BE ELECTED into the office of the POTUS more than twice.There is no limit on how many times a person may SERVE as the POTUS.Obama can SERVE as the POTUS an unlimited amount of time but he can only SERVE through Presidential Sucession.Obama can never again be ELECTED for the office of the POTUS.

    Incorrect he would run into the 12th and 22nd amendments which would prevent Obama from serving more than 2 terms. No surprise you have no idea what the constitution actually says since you’ve never gotten a single thing right.

  27. avatar
    MattR February 18, 2014 at 8:16 pm #

    Dr. Kenneth Noisewater: Incorrect he would run into the 12th and 22nd amendments which would prevent Obama from serving more than 2 terms.

    I don’t think it is that clear cut. As John points out, the 22nd Amendment states that no person shall be elected to the office of president more than twice. It does not say that any person elected twice is no longer eligible to assume the office in other ways. I think you could argue that Bill Clinton and GWB are still meet the constitutional requirements to be elgible to hold the office of president (as set forth in Article 2) even though the constitution prohibits them from being elected to the office of president for a third time (via the 22nd Amendment).

  28. avatar
    CarlOrcas February 18, 2014 at 8:46 pm #

    MattR: I don’t think it is that clear cut.As John points out, the 22nd Amendment states that no person shall be elected to the office of president more than twice.It does not say that any person elected twice is no longer eligible to assume the office in other ways.I think you could argue that Bill Clinton and GWB are still meet the constitutional requirements to be elgible to hold the office of president (as set forth in Article 2) even though the constitution prohibits them from being elected to the office of president for a third time (via the 22nd Amendment).

    I think you’re wrong but, for the sake of discussion, just how would you see a former two term President navigating his way back into the job?

  29. avatar
    JPotter February 18, 2014 at 9:04 pm #

    How to Bring Back Bill
    http://www.csmonitor.com/2006/0613/p09s02-coop.html

    Heh.

  30. avatar
    MattR February 18, 2014 at 9:05 pm #

    CarlOrcas: I think you’re wrong but, for the sake of discussion, just how would you see a former two term President navigating his way back into the job?

    Simplest would be election as VP and then POTUS dies or is incapacitated. Otherwise they would have to be elsewhere in the presidential line of succession – Speaker of the House, President pro tempore of the Senate or have a cabinet level position under a future president. Granted, these are all very unlikely scenarios – both in terms of a former president holding a position that is part of the line of succession and having a scenario where someone on that list takes over as president. But I think it is possible and constitutional.

  31. avatar
    Sam February 18, 2014 at 9:32 pm #

    An individual can only serve as POTUS for a max of 10 years. In some cases the max would be 6 years 364 days

    The 22d Amendment

    No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.

  32. avatar
    Dr. Conspiracy February 18, 2014 at 9:40 pm #

    And capitalize when speaking of a particular president, as in: “The President will address the nation tonight.”

    Arthur: *Use a capital when the title directly proceeds the name: “President Obama is a natural-born citizen.” Don’t use a capital when the title doesn’t include the person’s name: “All presidents must be natural-born citizens.”

  33. avatar
    Dr. Kenneth Noisewater February 18, 2014 at 9:49 pm #

    MattR: Simplest would be election as VP and then POTUS dies or is incapacitated.Otherwise they would have to be elsewhere in the presidential line of succession – Speaker of the House, President pro tempore of the Senate or have a cabinet level position under a future president.Granted, these are all very unlikely scenarios – both in terms of a former president holding a position that is part of the line of succession and having a scenario where someone on that list takes over as president.But I think it is possible and constitutional.

    The problem being though is that little part in the 12th amendment stating that “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States” A president who has been elected to and served two terms is constitutionally ineligible to be President, thus they aren’t eligible to be Vice President either.

  34. avatar
    MattR February 18, 2014 at 10:04 pm #

    Dr. Kenneth Noisewater: A president who has been elected to and served two terms is constitutionally ineligible to be President,

    But the 22nd Amendment does not state that someone who has been elected to and served two terms is ineligble to be President. It simply states that he cannot be elected to the office of President more than twice. IMO that leaves open the door for them to reach office in some other way. It may very well be that your interpretation is correct, but I don’t think it is a slam dunk either way.

  35. avatar
    RanTalbott February 18, 2014 at 10:24 pm #

    Arthur: Do you offer disability insurance?

    Of course not: obviously, anyone who takes the job already suffers from some sort of disability. The “no exclusions for pre-existing conditions” law only applies to health insurance.

    I wonder if there’s a way to capture the subtitles Youtube generates to make a transcript. Their software produces some real howlers, especially when people talk quickly and say some words too close together for it to separate them.

    If you could at least semi-automate the speaker identification, you could feed the transcript to that app that creates computer-voiced cartoons from text, and make a parody almost instantly. I see a vein of comedy gold just begging to be mined…

  36. avatar
    Benji Franklin February 18, 2014 at 10:24 pm #

    SvenMagnussen: Orly needs to stop think’n like a Constitutional Lawyer and start think’n like a personal injury lawyer

    Orly’s ludicrous lawsuits illustrate the danger of thinking that Presidential eligibility can be definitively determined by someone with hatred for Obama, and the constitution of a dentist.

  37. avatar
    Arthur February 18, 2014 at 10:25 pm #

    Dr. Conspiracy: And capitalize when speaking of a particular president, as in: “The President will address the nation tonight.”

    Although it’s common to see “President” capitalized in the context you describe, the style manuals I’m familiar with argue otherwise. Here are some on-line examples:

    “The president addressed Congress.”
    http://writingcenter.unlv.edu/writing/Grammar%20-%20Capitalization.pdf

    and . . .

    “Rule 5
    Capitalize the titles of high-ranking government officials when used before their names. Do not capitalize the civil title if it is used instead of the name.

    Examples:
    The president will address Congress.
    All senators are expected to attend.”
    https://www.grammarbook.com/punctuation/capital.asp

    Here is a lowercase usage in a recent article from the New York Post, “The president spoke in stark terms about persistent ‘inequality’ in the country during his tenure, despite a stock-market boom.”

  38. avatar
    Robb February 18, 2014 at 10:38 pm #

    any person over 35 who is a NBC is eligible to be president period, regardless of previous terms served. As most conlaw textbooks will tell you, this is considered an intentional oversight by the drafting committee in order to allow emergency “former statesmen” to enter the arena – an early draft said “intelligible to be president” as opposed to elected president.

    now, this would be difficult to imagine, but a popular leader could easily run for congress with a president and veep who all have the platform of resigning then making him (presumptive speaker) the president. the people might not go for it, but who knows. however, for those counting, we had one very close situation- the Chief Justice was once the third in line, and Taft had been president (granted once and with no 22nd yet)

    another strong option would be in a scandal environment where neither party wants a “new player” to assume the role (think Nixon, the new player is ford), so they settle on a stop gap previous leader they all trust.

  39. avatar
    Robb February 18, 2014 at 10:44 pm #

    http://www.volokh.com/2012/01/26/constitutional-cliffhangers-third-term-presidents/
    and
    http://www.volokh.com/2006/06/19/bill-clinton-for-vice-president/

    there are a fair number of sources on this online and In law reviews, and it’s a valid argument either way which, if it ever comes up, will likely be the biggest decision of all time

  40. avatar
    Keith February 18, 2014 at 11:05 pm #

    SvenMagnussen: Congress does not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President. Congress cannot disable the will of the people unless he is impeached for high crimes and misdemeanors and tried in the Senate.

    Your assertion here is full of the stuff that comes out of the south end of a north bound horse.

    The American people do NOT elect the President. The American people DO elect the Electoral College.

    The Electoral College votes for the POTUS and the VPOTUS and SUBMITS the results to CONGRESS which most certainly DOES have the CONSTITUTIONAL DUTY to validate the Electoral College result.

    That is a straight-up, no analysis necessary, easily understood reading of the Constitution of the United States.

    The Courts do not have Constitutional authority to hear, examine or investigate a Constitutionally ineligible President because they cannot prevent the American people from electing an ineligible President, unless an individual or a State seeks a redress grievances caused by the ineligible President and only to obtain an exemption or other relief. An individual or a State cannot have a Court remove or seek removal because it violates the Constitutional rights of the majority to elect an ineligible President. Individuals and the States have the The Bill of Rights to protect them from the will of the majority, but only to the extent they are directly injured.

    Your assertion here is full of the stuff that comes out of the south end of a north bound horse.

    The Courts, individuals, and states have NOTHING to do with challenging a theoretically ‘ineligible’ President. NOTHING.

    Let me repeat that again: NOTHING. At no time, and under no circumstances. Period.

    Once a President has been sworn in to office, he or she is the President. The only way that President can be removed from office before the term is up is through incapacitation (Ike for instance, temporarily; or Lincoln and Kennedy, permanently), resignation (Nixon), or impeachment.

    The Courts, individuals, and the States have absolutely nothing to do with impeachment (although the Chief Justice of the SCOTUS does preside at the Senate trial), and should have nothing whatsoever to do with the others.

    If you are going to comment on the way the American System of Government works, please, PLEASE, do yourself (and us) a favor and learn how that system works. Just reading the Constitution (and here I mean the American Constitution, not the Confederate one or the old Articles of Confederation) through a couple of times without even any commentary should be enough to demonstrate the errors in your post.

  41. avatar
    CarlOrcas February 18, 2014 at 11:16 pm #

    MattR: Simplest would be election as VP and then POTUS dies or is incapacitated.

    The 12th Amendment precludes that possibility:

    “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

    MattR: Otherwise they would have to be elsewhere in the presidential line of succession – Speaker of the House, President pro tempore of the Senate or have a cabinet level position under a future president.

    Being in the line of succession does not work either. Anyone on the list who is not eligible to be President is just skipped over. Henry Kissinger comes quickly to mind as Secretary of State is 3rd or 4th in line. I’m sure there have been many others.

  42. avatar
    CarlOrcas February 18, 2014 at 11:35 pm #

    Robb: another strong option would be in a scandal environment where neither party wants a “new player” to assume the role (think Nixon, the new player is ford), so they settle on a stop gap previous leader they all trust.

    I was in Washington during Watergate and there was lots of talk about succession and it is my recollection that Henry Kissinger, as Secretary of State, was definitely out of the running because he was not a native born citizen.

    Just checked and the Secretary of State is 4th in line after the Vice President, Speaker of the House and President pro tem of the Senate.

    Check the list http://en.wikipedia.org/wiki/United_States_presidential_line_of_succession and notice that Sally Jewell, the Secretary of Interior, is listed as ineligible because she is a naturalized citizen having been born in England.

  43. avatar
    MattR February 18, 2014 at 11:43 pm #

    CarlOrcas: The 12th Amendment precludes that possibility:

    And my counterargument is that someone who has been elected to and served 2 terms as POTUS is still constitutionally eligible to the office. There is no part of the Constitution that explcitly says that he is ineligble.

    Anyone on the list who is not eligible to be President is just skipped over. Henry Kissinger comes quickly to mind as Secretary of State is 3rd or 4th in line.

    Agreed, but then again I am arguing that GWB, for example, is still eligible to be President (unlike Kissinger or Salley Jewell). He if just forbidden from being elected directly to the office by the 22nd Amendment.

    Robb: however, for those counting, we had one very close situation- the Chief Justice was once the third in line, and Taft had been president

    The other time we were close to a non Pres/VP from being President was 1916. I have heard that Wilson had a plan if he lost the election to name the president-Elect, Charles Hughes, as his Secretary of State which was third in line at the time. Then both Wilson and his VP, Thomas Marshall, were going to resign so that Hughes could immediately take office as president during a time of war.

  44. avatar
    robb February 18, 2014 at 11:46 pm #

    CarlOrcas: I was in Washington during Watergate and there was lots of talk about succession and it is my recollection that Henry Kissinger, as Secretary of State, was definitely out of the running because he was not a native born citizen.

    Just checked and the Secretary of State is 4th in line after the Vice President, Speaker of the House and President pro tem of the Senate.

    Check the list http://en.wikipedia.org/wiki/United_States_presidential_line_of_succession and notice that Sally Jewell, the Secretary of Interior, is listed as ineligible because she is a naturalized citizen having been born in England.

    that is correct, anybody ineligible to BE president is skipped, we’ve never seen what happens when they are on this grey area of debate. if you follow my two links, they explain the issue is based solely on if “eligible for election” first impacts the 12ths “eligible” (which negates or allows a veep method), or if it impacts the articles eligibility which would defeat any method to get in.

    so on the current list, we have a few people not allowed due to the articles, none not allied due to the 12th, and Kissinger was only due to the articles – we have no idea what would happen, just lots of speculation in law reviews.. though the spirit is clearly for not eligible period, th early drafts were changed from that wording, implying that the courts could legitimately find that they were eligible (if standing to argue in courts, likely it would be congressional hearings to decide to confirm or not the person)

  45. avatar
    robb February 18, 2014 at 11:48 pm #

    MattR: And my counterargument is that someone who has been elected to and served 2 terms as POTUS is still constitutionally eligible to the office.There is no part of the Constitution that explcitly says that he is ineligble.

    Agreed, but then again I am arguing that GWB, for example, is still eligible to be President (unlike Kissinger or Salley Jewell).He if just forbidden from being elected directly to the office by the 22nd Amendment.

    The other time we were close to a non Pres/VP from being President was 1916.I have heard that Wilson had a plan if he lost the election to name the president-Elect, Charles Hughes, as his Secretary of State which was third in line at the time.Then both Wilson and his VP, Thomas Marshall, were going to resign so that Hughes could immediately take office as president during a time of war.

    (sorry ipad makes it hard to limit to just the desired portion of the quote):
    this has actually been suggested several times, and is well accepted as a consideration most presidents would do. consider how quickly bush worked to integrate obama’s team and start switching to their leadership – I have great faith our leaders would do what is needed to ensure proper transfer/safety, even if it means cutting a few months off if this time

    *edit*
    this also leads us to a different issue – th order of succession is unconstitutional (per many law reviews and the 9/11 report itself) – the 22nd requires officers, and congresspersons are not officers per the constitution. imagine that court case when we don’t even know who we follow (heck, it might then revert to the old law which means the CJ couldn’t even be in the decision)

  46. avatar
    John Reilly February 19, 2014 at 12:01 am #

    I believe Madeline Albright was/is not eligible.

  47. avatar
    CarlOrcas February 19, 2014 at 12:06 am #

    MattR: And my counterargument is that someone who has been elected to and served 2 terms as POTUS is still constitutionally eligible to the office. There is no part of the Constitution that explcitly says that he is ineligble.

    We’ll have the agree to disagree on this.

  48. avatar
    MattR February 19, 2014 at 12:33 am #

    CarlOrcas: We’ll have the agree to disagree on this.

    I actually lean towards thinking the intent was that no one should serve more than two terms, but the way it is written I think there is enough wiggle room to argue it either way. It is definitely not as wacky as birther theories about what NBC means and it may be the most intelligent argument John has made on this site.

  49. avatar
    CarlOrcas February 19, 2014 at 12:59 am #

    MattR: I actually lean towards thinking the intent was that no one should serve more than two terms, but the way it is written I think there is enough wiggle room to argue it either way.It is definitely not as wacky as birther theories about what NBC means and it may be the most intelligent argument John has made on this site.

    The birthers are late to this argument. 40 years ago we consumed too many pitchers of beer and platters of steamed crabs at The Dancing Crab arguing about this when I worked in Washington.

    Some of the discussions made john look reasonable.

  50. avatar
    RanTalbott February 19, 2014 at 3:46 am #

    Dr. Conspiracy: I wonder if I could hire somebody to listen to Carl Gallups’ Freedom Friday show for me.

    Well, somebody sorta did. Happened upon this link to a partial transcript from a week ago: http://www.freerepublic.com/focus/chat/3119060/posts?page=438#438

    Mostly the usual crap, but the description of DARPA is definitely worth reading for the laughs.

    I find it slightly odd that the writer paraphrases Gallups, but quotes Zullo. I also find it slightly worrisome that I’m taking the time to wonder whether there’s any significance to it. It may be that I need to cut back my exposure to birthers…

    p.s It’s “March Fone Eu”, not “Yu”

  51. avatar
    RanTalbott February 19, 2014 at 3:56 am #

    Arrgh: I was rushing to beat the edit timeout, and screwed up: the SOS’s name was “March Fong Eu”. So we each got two out of three names right the first time ;-)

  52. avatar
    Dr. Conspiracy February 19, 2014 at 8:18 am #

    I have changed the article to say:

    “March Fong Yu” (sic).

    RanTalbott: Arrgh: I was rushing to beat the edit timeout, and screwed up: the SOS’s name was “March Fong Eu”. So we each got two out of three names right the first time

  53. avatar
    sfjeff February 19, 2014 at 11:36 am #

    Dr. Conspiracy: “March Fong Yu” (sic).

    RanTalbott: Arrgh: I was rushing to beat the edit timeout, and screwed up: the SOS’s name was “March Fong Eu”. So we each got two out of three names right the first time

    I would have sworn it was March Fong Yu, but Wikipedia has Eu.

    She was Secretary of State for California for 19 years- which considering California’s history of discrimination against Chinese Americans is pretty fascinating. As I recall basically she became an institution- for most of us at the time she was just the Secretary of State.

    Had not thought about her in years.

  54. avatar
    SvenMagnussen February 19, 2014 at 1:13 pm #

    CarlOrcas: Then why does the Constitution require Congress to certify the election?

    You should spend more time reading the Federalist Papers and less time reading ObamaConspiracy.org

    The Founding Fathers devised a system to elect the President and Vice President to prevent a popular usurper from being elected by the people. The Electors in the Electoral College, it was theorized, would faithlessly vote to ensure a popular usurper would not be elected if the Electors felt it would be in the best interest of the country. Although faithless Electors may face punishment due to state law or party political doctrine, faithless votes count in the federal system.

    But, if faithless voting is unsupported by the opinion of enough members of the House and Senate, the vote will not be certified. The House and the Senate only vote to certify the reading of the vote and not the eligibility of any candidates.

    The Founding Fathers never intended for the Eligibility Clause to be used to eliminate a candidate from the ballot. A state may choose to use the eligibility clause to eliminate a candidate from its statewide ballot, but that’s not why the Eligibility Clause is in the Constitution. The Eligibility Clause is used after an ineligible candidate is sworn in by an individual or a State to seek a redress of grievances.

  55. avatar
    SvenMagnussen February 19, 2014 at 1:33 pm #

    robb: that is correct, anybody ineligible to BE president is skipped, we’ve never seen what happens when they are on this grey area of debate. if you follow my two links, they explain the issue is based solely on if “eligible for election” first impacts the 12ths “eligible” (which negates or allows a veep method), or if it impacts the articles eligibility which would defeat any method to get in.

    so on the current list, we have a few people not allowed due to the articles, none not allied due to the 12th, and Kissinger was only due to the articles – we have no idea what would happen, just lots of speculation in law reviews.. though the spirit is clearly for not eligible period, th early drafts were changed from that wording, implying that the courts could legitimately find that they were eligible (if standing to argue in courts, likely it would be congressional hearings to decide to confirm or not the person)

    Ineligible Members of the Cabinet are not skipped in the line of succession. Members of the President’s Cabinet are presumed to be honorable people. Consequently, they are formally addressed as The Honorable F. Name L.Name, Secretary of State.

    An ineligible person in the line of succession is presumed to a person of honor and will respectfully refuse to take the Oath of Office to become President of the United States. If they take Oath of Office, even though they are ineligible, they become President of the United States. The Eligibility Clause cannot be used to prevent them from taking the oath or remove them office. An ineligible President can be impeached for high crimes and misdemeanors, but they cannot be impeached for ineligibility. The Eligibility Clause can only be used by an individual or a State to seek a redress of grievances from the actions of the ineligible President.

  56. avatar
    welsh dragon February 19, 2014 at 1:50 pm #

    SvenMagnussen: Ineligible Members of the Cabinet are not skipped in the line of succession.

    Do you ever bother to check anything before posting ?

    3 USC s19 e “Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution…” ( subsection (d) brings Cabinet Members in the line of succession)

  57. avatar
    Joey February 19, 2014 at 2:28 pm #

    We did have a Vice President who MIGHT repeat “might” have been constitutionally ineligible.
    Charles Curtis who was Herbert Hoover’s Vice President was not born in a state of the Union. Curtis was born in 1860 in Kansas Territory a year before Kansas became a state in 1861.
    Vice President Curtis was also an enrolled member of the Kaw Indian Nation.

  58. avatar
    Dr. Conspiracy February 19, 2014 at 2:44 pm #

    That makes no sense at all. A popularly elected president cannot by definition be a “usurper.”

    SvenMagnussen: The Founding Fathers devised a system to elect the President and Vice President to prevent a popular usurper from being elected by the people.

  59. avatar
    Jim February 19, 2014 at 2:52 pm #

    Dr. Conspiracy:
    That makes no sense at all. A popularly elected president cannot by definition be a “usurper.”

    Except in birfestan…where bigoted dreams trump reality.

  60. avatar
    CarlOrcas February 19, 2014 at 3:16 pm #

    SvenMagnussen: The Founding Fathers devised a system to elect the President and Vice President to prevent a popular usurper from being elected by the people.

    (Insert loud klaxon sound here.)

    Unresponsive! To say nothing of just plain stupid.

  61. avatar
    CarlOrcas February 19, 2014 at 3:20 pm #

    SvenMagnussen: Ineligible Members of the Cabinet are not skipped in the line of succession. Members of the President’s Cabinet are presumed to be honorable people. Consequently, they are formally addressed as The Honorable F. Name L.Name, Secretary of State.

    Thank you, Sven. I haven’t had that good a laugh in a while.

  62. avatar
    Benji Franklin February 19, 2014 at 3:32 pm #

    Jim: Dr. Conspiracy:
    That makes no sense at all. A popularly elected president cannot by definition be a “usurper.”

    Except in birfestan…where bigoted dreams trump reality.

    AND where bigoted dreams are in reality Trump.

  63. avatar
    Majority Will February 19, 2014 at 3:46 pm #

    SvenMagnussen: You should spend more time reading the Federalist Papers and less time reading ObamaConspiracy.org

    You’re in no position to lecture anyone on American law and history.

    The many, many delusions and fantasies of the sole inhabitant of the kingdom of Svenistan do not apply in reality.

  64. avatar
    JPotter February 19, 2014 at 4:36 pm #

    MattR: It is definitely not as wacky as birther theories about what NBC means and it may be the most intelligent argument John has made on this site.

    “most” intelligent perhaps, but definietly not intelligent.

    John’s statement was that Obama could serve unlimited terms, w/o ever being elected again. This would require him becoming Speaker or President of the Senate, and then “arranging” a vacancy (succeeding Cabinet officers are only ‘acting’ presidents) … every time Obama felt like enjoying another term.

    The easier route to infinite terms, and just as likely, would be for O to get himself appointed to a Cabinet position, then arranging some catastrophe that wipes out the top of the gov’t (bombing a SotU address, for instance), after which he becomes “Acting President” … and takes advantage of the confusion and power vacuum to declare marshal ( :P ) law and install himself as Dictator for Life.

    Because, you know, that’s the plan all along.

  65. avatar
    Rickey February 19, 2014 at 5:11 pm #

    SvenMagnussen: You should spend more time reading the Federalist Papers and less time reading ObamaConspiracy.org

    The Eligibility Clause is used after an ineligible candidate is sworn in by an individual or a State to seek a redress of grievances.

    Please point out where in The Federalist Papers it says that “The Eligibility Clause is used after an ineligible candidate is sworn in by an individual or a State to seek a redress of grievances.”

    I should warn you that I have a copy.

  66. avatar
    JPotter February 19, 2014 at 5:24 pm #

    SvenMagnussen: You should spend more time reading the Federalist Papers and less time reading ObamaConspiracy.org

    Reminds me of all those birfers putting so much emphasis on dissenting opinions from SCOTUS. They’re an excellent resource, but the country doesn’t run on them.

  67. avatar
    Northland10 February 19, 2014 at 6:29 pm #

    Funny how the founders never specified how a person who does not qualify under the eligibility clause is to be prevented from being elected or from serving as President. It is almost as if they felt their system of Electoral College and certification by Congress was sufficient. So far, they have been proven right. No person who fails to qualify under the eligibility clause has been elected, sworn in or assumed the office.

  68. avatar
    Thomas Brown February 19, 2014 at 9:59 pm #

    Yo Sven… You mean the Federalists who favored a strong central government?

    Sure. Nobody here knows anything about the period or the documents of the Founders. Certainly not how William Corbett used his newspaper The Porcupine’s Gazette to lampoon anti-Federalists like my ancestor Matthew Lyon. Or how Lyon sent his eldest son to Philadelphia to study printing with Franklin, and bought him a Franklin Press so he could see his son become the Publisher he always wanted to be himself.

    Do enlighten us, Sven. We’d be lost without your infallible ability to interpret their words. We are mere mortals, and you are a god.

  69. avatar
    Andrew Vrba, PmG February 19, 2014 at 10:13 pm #

    Oh, if Sven is a god, it is surely the god of dumb#@!ery!

  70. avatar
    The Magic M February 20, 2014 at 6:38 am #

    Northland10: It is almost as if they felt their system of Electoral College and certification by Congress was sufficient.

    Birthers, as much as they love to deify the Founders when it suits them, are quick to effectively call them stupid by claiming they simply didn’t foresee someone would swindle his way into office (O RLY?).
    Or of course they are feeding their delusion that the Founders didn’t foresee that “the entire Congress would be complicit with the usurper” and that therefore magically other, extra-Constitutional processes apply (which just happen to agree with what birthers want, i.e. “string up everyone in DC and every single Obama voter”).

    SvenMagnussen: The Eligibility Clause cannot be used to prevent them from taking the oath or remove them office. An ineligible President can be impeached for high crimes and misdemeanors, but they cannot be impeached for ineligibility.

    Why would he need to be?
    The 20th Amendment is clear on what happens in that case.
    (Don’t confuse “de facto President” = “everything he did was valid” with “must be impeached”.)

  71. avatar
    robb February 20, 2014 at 9:26 am #

    SvenMagnussen: Ineligible Members of the Cabinet are not skipped in the line of succession. Members of the President’s Cabinet are presumed to be honorable people. Consequently, they are formally addressed as The Honorable F. Name L.Name, Secretary of State.

    An ineligible person in the line of succession is presumed to a person of honor and will respectfully refuse to take the Oath of Office to become President of the United States. If they take Oath of Office, even though they are ineligible, they become President of the United States. The Eligibility Clause cannot be used to prevent them from taking the oath or remove them office. An ineligible President can be impeached for high crimes and misdemeanors, but they cannot be impeached for ineligibility. The Eligibility Clause can only be used by an individual or a State to seek a redress of grievances from the actions of the ineligible President.

    it seems as though this has been responded to well, but I’ll go ahead and hit three points that were not addressed:
    1) unless they are a current or retired judge, they are not the honorable except in foreign situations as codified by foreign law (similar to how Obama gains different titles honorarially when he visits certain dignitaries). along with this, any not eligible to be president is automatically skipped, as not only can’t he office literally not vest in them, but the law specifically says this (go to the website and you’ll see a listing of the current order, with stars next to those skipped)

    2) individuals have no standing what so ever in regards to a preisdential issue, and the states have there method of redress SINCE THEY ARE THE ENTITY THAT ELECTS THEM (granted, most have tied their hands to the electorate, but they still are the EC appointers)

    3) a president (or officer, congressperson, etc) may be impeached for ANY reason, be it eligibility (if ineligible they literally are never president so not an issue) or even just breathing. as we saw in us v Nixon, the dissent clearly stated the majority was letting congress get away with any sort of impeachment they wanted, even a coin flip.

    3.5) notice how I said it didn’t vest, that’s a valid area to argue over. I’m under the opinion that the courts can indeed say that the elected-president doesn’t meet the criteria, and thus his veep (or next assignee pursuant to the 20th(?? not sure which) is vested as president instead. now, the court might not have this area since congress must approve the vote. however. since the only case law we have deals with congress allowing another congressman who isn’t valid (judge if qualifications of own membership), it is in the air how this part works

  72. avatar
    James M February 21, 2014 at 11:41 am #

    SvenMagnussen:
    There is no federal mechanism in the Constitution for anyone in Congress to challenge a candidate’s eligibility for the Office of the President of the United States. However, the Twelfth Amendment explicitly precludes those constitutionally ineligible to be President from being Vice President.

    Obama will never be Vice President.

    We’ve discussed this before, but the Twelfth Amendment only applies to Vice Presidential elections. A vacancy appointee has a different path.

    Scenario:
    Sitting Vice President resigns or is removed from office.
    Former President is nominated by sitting President who has previously been elected to two terms, and this individual is confirmed by Congress. The Twelfth Amendment does not constrain this Congressional process.
    This non-elected, ineligible Vice President is nevertheless in the line of succession for the Presidency.

    The check against abuse of this theoretical pathway toward a permanent dictatorship is with the Congress.

  73. avatar
    James M February 21, 2014 at 11:45 am #

    welsh dragon: Do you ever bother to check anything before posting ?

    3 USC s19 e “Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution…” ( subsection (d) brings Cabinet Members in the line of succession)

    US Code can be amended ad-hoc by the very people who would be seeking to exploit this loophole.

  74. avatar
    robb February 21, 2014 at 1:21 pm #

    James M: US Code can be amended ad-hoc by the very people who would be seeking to exploit this loophole.

    1) there is no such thing as amended ad-hoc, such amendment would be unconstitutional. legislative hearings and voting are not ad-hoc, and can indeed change this. however;
    2) since laws must be in compliance with the constitution, which requires all holders of the office to be “qualified” – a term which means NBC and 35+(with residency timing), nothing more nothing less. this the only loophole is for an appointment/vesting of a previous 2-term president, not any of the other methods Steven was referring to

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