There has never been an ineligible President. The gauntlet of press scrutiny, campaign, debate, election, electoral college vote and Congressional objection always works even though one group, the birthers, think it didn’t.
Since early in the birther controversy, the birthers have often said, justifying their quo warranto actions in court, that Obama could not be impeached because he is not really President, and that the Attorney General opinions that a sitting President cannot be arrested or indicted do not apply because Obama is not really the President.
One may not believe that Obama is an eligible President, or one may say that he not the rightful President, but he is the President. The Constitution sets forth certain eligibility requirements for the President, but the Constitution has been amended since it was ratified in 1789. The 12th Amendment says:
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President.
Once a candidate passes the hurdles of the election, and after the Congress counts the votes, and after any objections are resolved, the winner of the election becomes the President-elect, and after he takes the oath of Office on January 20, he is the President, no matter what Article II says about eligibility. Terry Lakin’s expressed concern that his military orders were illegal shows a lack of understanding of the Constitution, as well as the Uniform Code of Military Justice.
There is certainly no distinction in the Constitution between impeaching an eligible or an ineligible President. Obama is now the President, whether he is eligible or not. Who lives at 1600 Pennsylvania Avenue? I do not doubt that Congress, using the power of Impeachment can remove an Article II ineligible President; however, the President is the President until they do. Further, impeachment is not a magic reset button erasing all of the executive orders issued and the legislation signed. Until a President is removed from office, he is the President.
That essential denial that Obama is the President is what has always led me towards a racist interpretation of birtherism. It is the essential denial of what happened that indicates that their is a clash between Obama being President and their world view — not just a disagreement over eligibility, but a clash between the person and the office. Birthers go beyond just saying that a mistake was made; they say that it really didn’t happen. If Obama’s assumption of office were considered just a mistake, then birthers would be satisfied for Congress to correct the mistake through impeachment. Birthers, however, don’t only want Obama out of the White House, they want him never to have been there, and that is impossible.
The Constitution assigns the matter of removing the President to the Legislative Branch of the government. The courts have no role1, and I can not believe that they will ever assert one. As a practical matter, President Obama is eligible and as his own party has a majority in the Senate, and so he will not be impeached and removed from office—but he could be.
1Excepting that the Chief Justice presides over the impeachment trial in the Senate.