Some of the fringe, who believe that the Supreme Court erred in its decision in US v. Wong, or who believe that Wong only applied to the children of permanently domiciled aliens, need look no further than the Code of the United States to see what Barack Obama’s US citizenship status is:
SEC. 305. [8 U.S.C. 1405] A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900.
I see no reference to the citizenship of parents in this law.
A Aha Rack Bomb is an anagram of Barack H Obama that means he is a terrorist arrest him now
It is interesting the reaction folks have to the truth. The comment above serves as an example.
The above comment is most likely tongue in cheek
Bare Hat Rack is an anagram of BARACKHATER.
Doesn’t state “Natural-Born” citizen which what Article II Section I calls for.
b-b-b-but a person born only a “citizen” is not the same a “natural born citizen”!!!
right on time, john birftoons:
Wong Kim was declared as much as a “Natural-Born” citizen in RIGHTS but wasn’t actually declared specifically a “Natural-Born” citizen. Further, neither the Wong Kim Ark case or any other case heard by the SCOTUS has ever defined “Natural-Born” citizen in the proper and interpretated context under Article II Section I, that being as a security check against FOREIGN INFLUENCE. Using that context, Barack Obama fails to be a “Natural-Born” citizen under the proper intrepretation of Article II Section I of US Constitution because his father was a Kenyan Citizen and thus Obama was born a Brtish Subject as the instant of his birth. If Obama was born in Hawaii, Obama is a US citizen at birth but Obama is not “Natural Born” citizen.
Futher, when the founders coined the phrase “Natural Born” citizen, they didn’t actually classify it as a US Citizen At Birth. As we have seen in the Law of Nations, Vattel explained that “Natural Born” citizen was a person on the country soil to parents who were citizens of of that country. The Law of Nations was a generic in that is refered to any nation rather than specifically to the US.
you don’t have to convince us, john.
you have to convince a court of law.
good luck with that.
1. There is no evidence that natural born citizen in the constitution was inspired by Vattel.
2. Vattel had not been translated into English when the constitution was drafted.
3. The term “natural born citizen” was not in the edition published at the time the constitution was drafted.
4. I might as well be talking to the wall as arguing with a birther. Evidence and logic mean nothing to them.
You have none of either
Go ahead. Prove my point.
Vattel also explains that different countries will have different rules as to who is a natural born citizen and that such laws take precedence over the Law of Nations.
However, Vattel was explicitly rejected in the Wong Kim Ark Case
Interesting argument which is at odds with the findings of the Courts.
But let’s not have such details concern you too much as it is the end result which guides you not any adherence to law and Constitution.
Wong Kim was declared as much as a “Natural-Born” citizen in RIGHTS but wasn’t actually declared specifically a “Natural-Born” citizen.
Actually, the District Court ruling which was appealed to the Supreme Court did in fact declare that Wong Kim Ark was a natural-born citizen. The government acknowledged this in its appeal brief. The Supreme Court affirmed the District Court ruling without exception.
2 is actually false. There was an English Translation at the time, but it had no mention of “Natural Born Citizen” in it. The passage was translated “natives, or indigines” or something like that.
Re Vattel, “parents” meaning EITHER parent.
Since Obama’s mother was a US citizen, he qualifies.
John: Let’s have a look at the Constitution. Who is mentioned with regard to determining Presidential qualifications? Only Congress. No mention of Vattel or John. No mention of courts either.
Conclusion: Determining whether a President is qualified, including whether he is a natural born citizen is not up to Vattel, judges or even John. Congress can, if they choose, consult John, judges, Vattel, the Baseball Encyclopedia or any other source. However, they don’t HAVE to.
With respect to Barack Obama. he is, as were all other Presidents, a natural born citizen as determined by the body charged with that determination-Congress.
Now do you get it???
Thank you for the correction.
The courts (SCOTUS) have only ruled that person may be as much a “Natural-Born” citizen in RIGHTS. However, the courts have never ever weighed the Article II Section I “Natural-Born” citizen term in it’s proper and intrepretated context; as a security check against FOREIGN INFLUENCE. Remember, the POTUS is also the Commander In Chief over all Armed Services and therefore must possess 100% Allegience to the US and must be 100% free of FOREIGN INFLUENCE. Unfortunately, little or no body of law exists to support the birther contention because the idea of Presidential Eligiblity under our Constitution has never been litigated before in our courts. Surely, the birther contention is precedent setting.
Amazing! You STILL don’t get it! It’s NOT a matter for the courts or for litigation. It’s a matter for Congress and only Congress and nothing but Congress and they have already spoken.
Why do you think everything must be litigated? What a pill you must be to live with!!
“…contention is precedent setting”
The contention that a few ignorant and bigoted birthers are precedent setting, that’s a WOW. Your ignorance meter has just been pegged
Hate to tell you this, but courts throughout the years have ruled directly against you.
Your reading of U.S. v. Wong Kim Ark is very creative. However, it would not stand up (and has not stood up) in precedent read by any judge or holding.
There are dozens of other cases that at some point in the process have held findings that directly go against you. Lynch v. Clarke (N.Y. Supreme Court) directly held you to be wrong. So has U.S. v. Rhodes (written by U.S. Supreme Court Justice Noah Haynes Swayne) also directly disagrees with you. Furthermore, there has not been one single case that agrees with your central argument, that you can be a U.S. Citizen by birth, but not be a Natural Born Citizen.
The birther contention is precedent setting, only in the fact that if any court actually ruled for you, it would set precedent. However, given the amount of precedent (both binding, and cases on point) against you, that is not likely to happen.
Interesting misunderstanding of what the courts have ruled. Could you provide some examples?
Your made up rules of allegiance and foreign influence ignore that allegiance has a well understood meaning just as jurisdiction and neither one supports your argument.
Both refer to being under full control and protection of the laws of the United States, which excludes a small though common group of people such as children born to foreign dignitaries, invading military and Indians not paying taxes. Natural born means nothing more than not-naturalized, born on US soil, regardless of the status of the parents.
But let’s not be too discouraged about these facts as it is clear that it is not facts but rather a dislike of our President which is guiding your arguments.
The birther contention is neither precedent setting nor founder in logic, fact, reason and historical precedent.
They did not classify at as anything other than a term well understood in the common law practices of those days which was, contrary to your argument, jus soli, or birth on soil. The term natural born came from English Common Law and meant anyone born on the country’s soil, regardless of the status of the parents.
Funny how John is refusing to engage in these arguments, effectively granting them to us.
“Further, neither the Wong Kim Ark case or any other case heard by the SCOTUS has ever defined “Natural-Born” citizen in the proper and interpretated context under Article II Section I, that being as a security check against FOREIGN INFLUENCE. Using that context, Barack Obama fails to be a “Natural-Born” citizen under the proper intrepretation of Article II Section I of US Constitution because his father was a Kenyan Citizen and thus Obama was born a Brtish Subject as the instant of his birth.”
By your “national security” interpretation of the NBC clause, only a person who has parents who are not foreign citizens are eligible to serve as president. However, your theory even violates the two-parent-citizen requirement enthusiastically proposed by birthers.
Even if Barack Obama’s father had naturalized as a U.S. citizen before his son was born, Obama Sr still would have been a UK citizen (unless he renounced the same to the UK Home Secretary), and so Obama Jr. would have been a UK citizen by descent, even though he would have been born in the U.S. to two U.S. citizen parents.
Your theory also would have excluded James Buchanan, Andrew Johnson, and Chester Arthur, each of whom had British citizen fathers (regardless of whether they naturalized as U.S. citizens), and thus arguably were British citizens themselves.
Unless you’re willing to also claim that each of the above presidents were not really presidents, your theory is worthless.
There is nothing in any supreme court case that suggests that someone could be born on US soil, become a citizen because of that birth, but not be a natural born citizen.
To pretend that Wong kim ark did not decide the issue is to pretend that the founders had a meaning of “natural born” for those who would be citizens and a different one for those who would be Presidential material. Of course, there’s nothing IN the case to suggest this – in fact the extensive discussion of the nearlu 500 years of unchanged meaning for the term “natural born” strongly suggests otherwise.
Thanks for that comment. I don’t believe I have ever heard it stated that way before, but it is of course true.
John: POTUS is also the Commander In Chief over all Armed Services and therefore must possess 100% Allegience to the US and must be 100% free of FOREIGN INFLUENCE.
So George W. Bush whose oil business had major Saudi investors, was not eligible to be president? Hmmm. That explains a lot.
I should note that “John” was also wrong in claiming Barack Obama Sr. was a Kenyan citizen in 1961. At that time, Kenya was a crown colony, which meant Obama Sr. was a UK citizen otherwise than by descent, and not a Kenyan citizen. Neither Obama Sr. nor Obama Jr. became Kenyan citizens until Kenya declared independence in 1963. At that time, both of them also lost their UK citizenship by operation of the Kenya Independence Act 1963, passed by the UK House of Commons.
More precisely, they lost their “citizenship of the UK and colonies” when Kenya became independent, but gained British “Commonwealth citizenship” which the President lost at the time he lost his Kenyan citizenship at age 23.
“Futher, when the founders coined the phrase “Natural Born” citizen…”
There’s your problem. The Founding Fathers did not “coin” the NBC phrase, not by a long shot. It was a commonly used term in the states prior to 1787.
In many instances, the term was used by state legislatures when granting foreigners (i.e. non-citizens) the right to hold and convey real estate.
Back in those days, only citizens could hold land. If a foreigner wished to purchase or hold title in real property, he had to apply to the state legislature for permission to hold property with the same rights as a natural born citizen.
In addition, states used the NBC term in clear contradistinction to naturalized citizens prior to 1787 in the context of naturalization itself. Here’s such a legislative enactment from Massachusetts from February 7, 1786:
“AN ACT FOR NATURALIZING MICHAEL WALSH.
“Whereas Michael Walsh, resident in Salisbury, has dwelt within this Commonwealth several years, and demeaned himself well, and has applied to the Legislature to be naturalized:
“Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, That the said Michael Walsh be permitted to take and subscribe the oath of allegiance to this Commonwealth, before two Justices of the Peace, quorum unus, of the county where he dwells; and thereupon, and thereafter, he shall be deemed, adjudged and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
Source: Acts and resolves passed by the General Court By Massachusetts. (Google Books)
“Some of the fringe… need look no further than the Code of the United States to see what Barack Obama’s US citizenship status is:
SEC. 305. [8 U.S.C. 1405] A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900.
I see no reference to the citizenship of parents in this law.”
I don’t think it serves any useful purpose to cite the U.S. Code with reference to NBC issues. First of all, Congress does not have the power to define terms in the Constitution. The question of defining NBC is strictly one of constitutional law. If the congressional law coincides with the constitutional definition of NBC, great. But if it doesn’t, the constitutional definition prevails.
Furthermore, the law only concerns whether a person born in Hawaii is a “citizen of the United States at birth.” It does not expressly mention NBC status. For those people who believe NBC and citizen by birth are two different propositions, a law concerning whether Obama was a U.S. citizen at birth does not tell them whether he is an NBC. So you’re wasting your time citing this statute.
There are three truly useful means of determining what constitutes an NBC. One is to determine what the Founding Fathers intended for it to mean. Unfortunately, John Jay’s letter notwithstanding, we have no idea what the Founders specifically understood the term to mean.
The second means is to look at the common use of the term in the years preceding the adoption of the Constitution. Birthers like to cite Vattel, but there are problems with that. First, English translations of Vattel never used the term NBC until after the Constitution was adopted. Second, Vattel was a Swiss man who wrote Law of Nations over 30 years before the Constitutional Convention. Surely there must be some evidence to show if Vattel’s theory was actually put into practice in the U.S. Contemporary (pre-1787) accounts show that NBC was actually a category of citizen opposite “naturalized” citizen – not just some condition on presidential eligibility. None of these accounts condition the citizenship of a person born in the jurisdiction on the citizenship of the person’s parents.
The third means is to look at how American jurisprudence has understood NBC in the years since 1787. Although birthers have been very creative in twisting an ambiguous, out-of-context sentence here or there, they have never been able to point a court holding which is grounded upon a supposed two-parent-citizen NBC requirement, nor have they shown any opinion which describes, justifies or explains in any detail whatsoever the existence of a category of citizens by birth who are neither natural born or naturalized. For example, Donofrio and his loyal followers like to cite a portion of one ambiguous sentence in the Wong Kim Ark opinion for the proposition that citizenship by birth and NBC aren’t the same thing; ignoring the fact that if the Court really believed that to be the case, neither its copious legal analysis or its ultimate holding would make any sense, let alone the meaning of the entire sentence from which the fragment was derived.
JohnC (not John)-While I agree with most of your post, I disagree regarding Congress defining terms in the Constitution. When it comes to matters of Presidential eligibility Congress has complete and sole discretion to decide whether the candidate selected by the voters and the Electoral College is qualified. As such they must interpret the meaning of various terms, including “natural born citizen”. Their decision is final. A similar situation arises with regard to impeachment. Congress and Congress alone decides whether the acts in question constitute “high crimes and misdemeanors”. In this also, their determination is final.
Obama timeline changing …
Barry in 3rd grade in Hawaii.
JohnC: I don’t think it serves any useful purpose to cite the U.S. Code with reference to NBC issues.
It serves two useful purposes. As described in the article, there are those that deny that President Obama is a citizen at all. I think everyone will agree that being a citizen is a necessary condition to being a natural born citizen. This law in a rather plain and unambiguous way says that Barack Obama is a citizen.
Second, if the common law definition of natural born citizen is “born as a citizen” as some say, then this law very specifically makes Barack Obama a natural born citizen, whether US v Wong was decided wrong or not.
While the Congress cannot define the terms in the Constitution, it can legislate things which fall under those definitions. For example, the Constitution does not define “citizen”, but nevertheless Congress has the power to set up qualifications for certain classes of citizen, and thereby say who is and who is not eligible to be a US Senator. I say that it is a fundamental error to conflate the definition of a natural born citizen with the qualifications to be a natural born citizen. That would be like defining a “college graduate” as someone with 320 credit hours from Mount Whatever college.
“Mount Whatever college” sounds like an awesome place to get a degree in … um, comparative biology.
dick whitman establishes:
so it’s settled then — obama definitely lived and attended school in hawaii … which changes what exactly?
Previous Obama personal narratives indicate he was living and attending school in Indonesia as Barry Soetoro, Indonesian National, from 1966 to 1971.
Now we know he as attending public school in Hawaii as “Barry” in 1969. We don’t know what last name or nationality he was using in 1969.
For historical reference, it would be nice if the President would enlighten the masses as to his last name and nationality in 1969.
There’s no question of confusion that President Obama went by the name of Barry before College. Lots of people have nicknames, and it has no significance whatever.
Sven: Now we know he as attending public school in Hawaii as “Barry” in 1969.
We don’t “know” any such thing. Maybe we “know” that the Asian kid in the photo was in the 3rd grade. (Besides I though all photos of Obama in Hawaii were PhotoShopped.)
dick whitman swings and misses:
i lived and went to school in massachusetts. my going to summer school in new york during the same period doesn’t cast doubt on that, nor does it change anything about my eligibility to run for president, which was my original question …
Congress may interpret the term “natural born citizen,” but in the end, the Supreme Court’s call is theoretically final. Of course, for all practical purposes, the Court may likely never make such a call, because standing and political question doctrines effectively bar virtually any NBC case from making its way to the Court.
“As described in the article, there are those that deny that President Obama is a citizen at all.”
From my experience, those who deny Obama is a citizen do so because they claim he was born in Kenya, and that Obama’s mother was statutorily unable to transmit her citizenship to her son as an unwed 18-year-old mother. Others argue that he lost his citizenship because he was adopted by an Indonesian in Indonesia. I have not yet come across anyone claiming that a person born in the United States is not even a citizen at birth.
“Second, if the common law definition of natural born citizen is “born as a citizen” as some say, then this law very specifically makes Barack Obama a natural born citizen, whether US v Wong was decided wrong or not.”
The common law definition of NBC will only have any effective relevance if the Court decides that is the common law definition. Otherwise, it is merely an argument to present to the Court to maintain or change its position. After all, it is the Court’s prerogative to “say what the law is.”
“I say that it is a fundamental error to conflate the definition of a natural born citizen with the qualifications to be a natural born citizen.”
I am in complete agreement. It is one thing to say that, as a concept, NBC means “citizen by birth.” It is quite another thing to define who in fact is a citizen by birth in the first place. While the Congress does not have the power to do the former, it most certainly has the right to do the latter (within the confines of the Fourteenth Amendment, of course).
I’m going to go way out on a limb and state that I think the Sheriff would find Obama’s sudden change in personal narrative suspicious and in need of further investigation.
I don’t know. Maybe a phone call to the U.S State Department? Or, better yet, a request for Obama’s 3rd grade school record to compare with his Indonesian 2nd grade school record.
How about it, Sheriff?
JohnC (not John)-I maintain that the Supreme Court lacks even the theoretical ability to overrule Congress on matters relating to Presidential qualifications (or impeachment. However, I suppose we are arguing a distinction without a difference. The bottom line is that all court challenges became moot on January 20.
Even if the President misled everyone about his elementary school locations(which there is no evidence he has done) that would not change his eligibility or be an impeachable offense.
For instance- I never really cared where George Bush went to third grade- it just wasn’t relevant.
I think normally Sheriffs don’t pick out suspects, look for an inconsistency in their story, and then try to find a crime to pin on them. This is the difference between the normal world and the birther world. In the birther world. Obama has already been tried and found guilty; they just don’t have any proof, nor know what the crime is.
“I maintain that the Supreme Court lacks even the theoretical ability to overrule Congress on matters relating to Presidential qualifications (or impeachment. However, I suppose we are arguing a distinction without a difference. The bottom line is that all court challenges became moot on January 20.”
Given recent court rulings against birthers which seem to suggest that presidential eligibility is essentially a political question, you’re right that our arguments are apparently being treated by the courts as a distinction without a difference.
I should note, though, that while impeachment involves the political question of whether a person should remain in office given the finding of “high crimes and misdemeanors,” it’s hard to say that presidential eligibility is a political issue. Either a person is constitutionally eligible to hold office, or he isn’t. That strikes me as a fundamentally legal inquiry, albeit with profound political implications. Therefore, it is a question, in my judgment, on which the Supreme Court has the authority to adjudicate.
Nonetheless, aside from the political question issue, the Supreme Court will at minimum avoid dealing with NBC questions by barricading itself behind a moat of standing objections.
JohnC: From my experience, those who deny Obama is a citizen do so because they claim he was born in Kenya
This indeed characterizes the movement, but there is a “fringe of the fringe” who use arguments from anti-immigrant activists, who claim that only permanently-domiciled aliens can parent US citizens. The primary thrust of this movement is to deny citizenship to the children of illegal aliens born in the US, but sometimes it goes further.
Mainly I wrote the article just to mess with the birthers.
Impeachment is not a purely political matter. It is not intended to be the equivalent of a vote of no confidence in a parliamentary system, where a government can fall over simple policy differences, without any suggestion of wrongdoing. For impeachment, Congress must find actual high crimes and misdemeanors, though they can define the term as they like (even to lying about sex).
Similarly with qualifying a President elect. Consider the 2000 election and what might have happened with the current Congress in place. Congress could have ignored the Bush v Gore decision (and some legal scholars would have supported that, given the low opinion most hold that decision in) and refused to count the Florida votes for Bush, thus giving Gore the Presidency. The Court couldn’t have done a thing to stop them.
The intent of the Constitution, IMO, was to have these decisions made by elected representatives who can be held accountable, rather than unelected judges.
Could a Republican Congress find Obama ineligible if he won in 2012? In principle yes, though they would look absurd doing so, since they didn’t object in 2008 (though when has that stopped them?). Of course, if they did that, Biden, not the Republican would be President.
JohnC (not John): ” it’s hard to say that presidential eligibility is a political issue. Either a person is constitutionally eligible to hold office, or he isn’t. That strikes me as a fundamentally legal inquiry, albeit with profound political implications. Therefore, it is a question, in my judgment, on which the Supreme Court has the authority to adjudicate.
Nonetheless, aside from the political question issue, the Supreme Court will at minimum avoid dealing with NBC questions by barricading itself behind a moat of standing objections.
That “moat” of standing objections exist precisely because the Court lacks jurisdiction under our Constitution which [i]clearly[/i] puts the determination of eligibility in the hands of Congress.
You [i]may[/i] be right that there are limited circumstances where the Supreme Court could weigh in — but those circumstances don’t apply here precisely because “standing” is essential for a court to intervene.
(a) a proper party
(b) a justiciable issue
(c) a court of proper jurisdiction
“That “moat” of standing objections exist precisely because the Court lacks jurisdiction under our Constitution which clearly puts the determination of eligibility in the hands of Congress.”
I don’t think the Constitution is clear on this matter at all. All we know is that a president may be impeached and removed for “high crimes and misdemeanors.”
Is serving as president without being eligible to do so a “high crime” or “misdemeanor”? If the person fully knew he wasn’t age 35, or hadn’t resided in the country for 14 years years, perhaps one could argue such a situation rose to that level. But what if the president operated on a flawed but reasonable understanding of NBC? It’s difficult to say that would come under what we conceive of as a “high crime” or “misdemeanor.”
Lacking the “high crimes and misdemeanors” rationale for impeaching a president, the Constitution offers no mechanism for dealing with simple eligibility questions. I don’t blame the Founding Fathers – they probably figured the eligibility questions were so straightforward that no one would get to the final stages of an election cycle without the truth coming out.
At best, courts have inferred that the removal of the president under any circumstance is only a political issue, largely on the basis of the impachment provision. Nonetheless, that is reading something in the Constitution which is not expressly there (and arguably not impliedly, either).
“You may be right that there are limited circumstances where the Supreme Court could weigh in — but those circumstances don’t apply here precisely because “standing” is essential for a court to intervene.”
I think the standing question is more of judicial politics and voluntary restraint than it is of solid law. I don’t blame the Court for not wanting to get involved in the business of overturning elections, mind you, because it stands to politicize the Court in the process. (We all saw what happened when the Court unecessarily dabbled in state election law in 2000.) Frankly, the Court should be involved in electoral politics as little as possible, so I’m in agreement with the Court’s position. But I’m not blind as to the merits of that position.
There is no clear and self-evident legal reason why a person should not have standing to challenge the authority of a public official who is not legally allowed to exercise such authority. Perhaps because of this, the Court has placed its political considerations within the context of legal standing tests.
For example, the Court bases its standing analysis on three basic factors: injury, causation, and redressability. The Court has taken the position before that the average taxpayer does not have a cognizable injury simply because the Constitution may be violated. The argument is usually that the person is not harmed any more than any other taxpayer. But isn’t that theoretically enough? After all, the numerosity of plaintiffs in certain cases doesn’t prevent the existence of class action litigation. Nonetheless, the Court’s (political) interpretation in connection with constitutional violations is that no cognizable injury exists.
Even if the injury factor is met, the Court could always hold that it cannot be properly traced back to the fact that a person is unlawfully serving in public office. And redressability is the catch-all: if nothing else, the Court can simply determine it can’t solve the citizen’s problem, and the case is over.
These are political considerations, even if they are wrapped up in legal dressing. That doesn’t mean that’s a bad approach to deal with an admittedly grey area in our Constitution. But let’s not delude ourselves about what the Court is doing.
“Impeachment is not a purely political matter… For impeachment, Congress must find actual high crimes and misdemeanors, though they can define the term as they like (even to lying about sex).”
But therein lies the rub. The Constitution fails to explain what constitutes a “high crime” or “misdemeanor.” As a result, Congress has plenary authority to decide whether particular alleged conduct constitutes a “high crime” or “misdemeanor,” and whether such alleged conduct warrants the removal of the person from office.
The lowdown is that this is a political process that nonethless requires that the Congress make gestures that the removal is for “good cause.” That’s a fairly low bar to surmount.
What actually makes impeachment infrequent is the pragmatic understanding that it is politically disruptive, it is unlikely to produce dramatic political change (because the successor will likely be of the same party as the removed president, and will serve out his term), it may be seen as a political attempt to undo a valid election, and that it may potentially set the standard for future behavior when the parties have changed sides. As a result, it is political calculation, and not the existence of high constitutional impediments, which truly prevents impeachment from becoming similar to your standard no-confidence procedure.
“Similarly with qualifying a President elect. Consider the 2000 election and what might have happened with the current Congress in place. Congress could have ignored the Bush v Gore decision (and some legal scholars would have supported that, given the low opinion most hold that decision in) and refused to count the Florida votes for Bush, thus giving Gore the Presidency. The Court couldn’t have done a thing to stop them.”
I don’t see where in the Constitution the Congress has the power to refuse to count electoral votes from any state. It apparently has the quasi-judicial power to determine which set of competing electoral votes should count (such as the 1876 election), but not the power to simply refuse to count votes altogether. If it did, then Congress, not the electors, would have the power to elect presidents by an effective extra-constitutional veto.
[Note that the Florida legislature has constitutional authority to appoint its electors as it saw fit. Accordingly, it could have gotten around the Bush v. Gore decision by simply appointing electors pledged to Gore. But because the Florida legislature was controlled by Republicans (and perhaps because of the lack of will to cast doubt on the finality of Bush’s purported victory), this wasn’t about to happen.]
Furthermore, our constitutional system is based on mutual respect of the various branches of government. Certainly, Congress can pass a law, and then say to the Supreme Court, “Where’s your army?” But if Congress assumes such a role, the Supreme Court becomes nothing but a congressional rubber stamp, and destroys a key component of our constitutional separation of powers.
Not true at all:
1. Opposing candidates (and possibly ordinary citizens) can challenge ballot eligibility prior to the election in state courts.
2. Members of Congress can challenge eligibility at the time of the counting of the votes. It only takes a single Representative and a single Senator to have the challenge heard.
What the Constitution mandates is settling eligibility issues (as they should be) BEFORE the election or, at the latest, before the Inauguration. What the Constitution absolutely seeks to avoid is continual challenges during a Presidential term, when the focus is supposed to be on governing. Thus, the birthers, by having failed to mount proper cases at the proper time and continuing to persue their cases long after they are moot are violating the Constitution.
“This indeed characterizes the movement, but there is a “fringe of the fringe” who use arguments from anti-immigrant activists, who claim that only permanently-domiciled aliens can parent US citizens. The primary thrust of this movement is to deny citizenship to the children of illegal aliens born in the US, but sometimes it goes further.”
Actually, Wong Kim Ark is pretty clear that even a temporarily-domiciled person is within the “allegiance” of the United States such that he can give birth to an NBC:
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'”
Of course, these arguments are completely lost on (or ignored by) the extreme fringe, let alone the fringe.
“Mainly I wrote the article just to mess with the birthers.”
“1. Opposing candidates (and possibly ordinary citizens) can challenge ballot eligibility prior to the election in state courts.”
The Constitution speaks of persons being “eligible” for the office of President of the United States, so it is only reasonable that courts have found a constitutional basis for getting involved in eligibility issues prior to an election (since eligibility is something which can be determined before a person is elected or takes office). Of course, this argument can also be used to reason that courts have an equivalent role in eligibility issues after after swearing in as well, since the mere taking of office cannot render the issue of eligibility moot.
As for remedies, it is one thing to remove a person’s name from the ballot. It is another thing entirely to remove a sitting President of the United States on the account of lack of eligibility. The Constitution is unfortunately dead silent on this issue, which implies either it wasn’t considered by the Founders, or it was assumed that courts could handle this as well. I find it difficult to imagine that impeachment was foreseen as a vehicle for remedying a simple constitutional eligibility question absent alleged wrongdoing. But the courts seem to latch onto that.
“2. Members of Congress can challenge eligibility at the time of the counting of the votes. It only takes a single Representative and a single Senator to have the challenge heard.”
Fair enough, but this still doesn’t address the Constitution’s silence on the question of removing a sitting president who is not accused of wrongdoing.
JohnC: so it is only reasonable that courts have found a constitutional basis for getting involved in eligibility issues prior to an election
In the case of Eldridge Cleaver, the Hawaii Secretary of State refused him a position on the ballot because he was ineligible to be president. Cleaver sued and the case eventually was decided by the Supreme Court of the State of Hawaii, who determined that the State could refuse him a ballot position on the grounds of ineligibility. Cleaver had the same result in California. (Cleaver had not reached the age of 35 years.)
I see a Christmas tree drawing or coloring in the background on the bulletin board. He may have been visiting at that time or he was in Grade 5 and the other child was in Grade 3. Perhaps he came back to be checked out by the conspirators who were training him for the Presidency.
JohnC-I think it’s well established that when the law or the Constitution lays out a specific process, then that is the one to be followed. For removal of a President it does so (impeachment) and in considerable detail. For a court to take it upon itself to substitute its judgement for that of Congress would be improper and dangerous. Ballot qualification is quite different and falls within the ordinary purview of Secretaries of State, so oversight by state courts is reasonable.
Even impeachment is (or should be) reserved for acts committed in the President’s official capacity and involving government entities. Clinton’s impeachment was very questionable in my opinion, not because lying under oath isn’t serious, but because it was done in a deposition in a private lawsuit. Impeaching Nixon, had he not resigned, would have been well justified, because his crimes didn’t just involve his campaign organisation, but the FBI, IRS and other government agencies.
It’s in the 20th Amendment, Section 3:
Congress clearly has the power to consider whether the President has “failed to qualify” – as well as determining the manner of selection of the President if neither the President-elect nor VP-elect are qualified.
“I think it’s well established that when the law or the Constitution lays out a specific process, then that is the one to be followed. For removal of a President it does so (impeachment) and in considerable detail.”
The impeachment process is described in considerable detail, as you say, but it is clearly geared for addressing wrongdoing.
Article II, Section 4 states:
“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Article I, Section 3 states:
“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
Nowhere does it say or imply that a President may be impeached in the absence of wrongdoing. In fact, the wording of Article I, Section 3 makes it quite clear that a “conviction” is strongly associtated with DIShonorable conduct.
Now, perhaps we may think that Congress should sit in judgment of whether a sitting President is eligible to serve in that office – and that is a fair debate – but the impeachment procedure is clearly not appropriate. A similar, non-impeachment process would have to be devised and utilized.
It is worth pointing out that the Constitution does not specifically say that removal must be accomplished by impeachment. Additionally, the 20th Amendment expressly provides that the vice president is to serve as president if the president-elect “failed to qualify” at the beginning of the new term. Unfortunately, the amendment does not state how such matters of “qualification” are to be determined, whether by Congress or the courts, or whether eligibility is a subset of “qualification” (although I think that is the case).
“For a court to take it upon itself to substitute its judgement for that of Congress would be improper and dangerous.”
Perhaps, but that does not answer the question of whether the courts have the power to render such a judgment nonetheless.
“Even impeachment is (or should be) reserved for acts committed in the President’s official capacity and involving government entities.”
But is the lack of eligibility an “act”?
“Congress clearly has the power to consider whether the President has “failed to qualify” – as well as determining the manner of selection of the President if neither the President-elect nor VP-elect are qualified.”
Any strained interpretation of the 20th Amendment that permits Congress to reject a state’s electors at its discretion would be an unconstitutional and disastrous usurpation of power from the states. It would render meaningless the Constitution’s provision that the state legislatures have the right to appoint electors “in such Manner as [they] may direct.”
Seems like a reasonable ruling. What is significant for purposes of our discussion is that the ruling was rendered by a court, and not a legislative body.
JohnC: But is the lack of eligibility an “act”?
Typical birther rhetoric says that President Obama knowingly put himself forward as a candidate knowing full well that he wasn’t eligible. Such, if it were true, would be an “act” [no pun intended].
A determination that the President-elect has “failed to qualify” would not require rejection of electors — if that was the case, they wouldn’t refer to “President-elect”. There can’t be a “President-elect” until AFTER the electoral votes have been tallied — so obviously the Amendment contemplates a situation where the person who has already been elected is determined by Congress to be unqualified. I don’t see any other rational interpretation of that clause, given the alternative phrasing:
“shall not have been chosen” would pertain to situations where there were unresolved issues over the vote itself — such as challenged electors.
“shall have failed to qualify” implies a determination that is made subsequent to the determination of who the “President elect” is.
In any case, the power to make that determination clearly lies with Congress.
Lack of eligibility is not an impeachable act. My reading of the 20th Amendment is that it is clearly Congress’ call to determine all aspects of Presidential qualification, including who actually won the vote and whether eligibility is met. They can take as long as they need to make that determination; the Amendment clearly provides for a case where the decision stretches past Inaguration day. But once they decide the President-elect is qualified, I see no option to revisit that question at a later date. That may be an imperfect process in some eyes, but I don’t believe perfection was ever promised.
I suggest the article “Justiciability of Eligibility” by Daniel Tokaji. He outlines the difficulties in bringing a federal challenge of Presidential eligibility. It would fail each of the three prongs of standing: Concrete and particularized injury; traceable to the acts of defendant; redressable by the court. Additionally, it would implicate the prudential limitations on standing and raise a political question.
An alternative to federal suit is a lawsuit in state courts before the election. States are not necessarily bound by the same standing rules (although many have adopted similar rules). He also notes the uncertainty about whether Congress can simply refuse to count electoral votes. It has refused to count votes before – Horace Greeley’s votes from Georgia weren’t counted in 1873. He had died after the election but before the Electoral College met.
“Typical birther rhetoric says that President Obama knowingly put himself forward as a candidate knowing full well that he wasn’t eligible.”
True, but of course we’re dealing with what the Constitution actually permits and requires, not the fervid legal/political fantasies of birthers.
One can make the argument that a sitting president could be impeached for knowingly hiding his lack of eligibility. But that presupposes that it was determined he wasn’t elibigle. But if it were somehow determined the president wasn’t eligible, he would have been disqualified by the 20th Amendment before Congress could ever get around to impeaching him.
“In any case, the power to make that determination clearly lies with Congress.”
Sorry, I still don’t see it in the examples you provided.
I see what is supposed to happen if the president-elect does not qualify, but nothing as to who shall make that determination. One can argue that the provisions you cited don’t prevent Congress from making that determination, but it certainly doesn’t exclude the courts, either.
The DNC committed the “act” of putting an ineligible candidate on the ballot for the electors to vote on.
BO may have contributed to the fraud committed by the DNC, but, who knows, he may have told the Chairman of the DNC he was ineligible and she did not care.
Your point is well taken. The President may believe he has done nothing wrong and took the oath to become President in good faith. Impeachment is not plausible because the President has not committed an act considered a high crime or misdemeanor.
What I see is that the 20th Amendment REQUIRES Congress to act; i.e. they must either certify the President-elect or install the Vice-President elect or find someone else to hold the office on a acting basis. The office can’t be left vacant. The Constitution may not specifically forbid judicial action, but it certainly doesn’t require it. So what would happen, if Congress decided a President-elect was qualified and a court found otherwise? I don’t know, but I would tend to side with the body actually mentioned in the Constitution, which is Congress. They are also the body accountable to the voters which is critically important as well.
The one thing that seems quite certain, if you read Judges Land, Carter, et al., is that they believe the courts lost all jurisdiction once the President took office. I consider that to be 100% correct and would rate the odds of any court overturning that as exceedingly poor.
The birther hive…
That would be a decision for Congress.
That would be a decision for Congress. Historical discussions show that Congress tried to add Quo Warranto to the Office of the presidency and they rejected this as it would be unconstitutional.
It is clear that there is no other way to challenge a duly elected President than through impeachment, even if it is uncovered that he is somehow not eligible.
The alternative would open up any presidency to countless challenges, diluting the office of the president.
Congress went through exactly this argument and rejected that eligibility can be challenged in Courts after the President was sworn in and found qualified by Congress.
Or, the Constitution leaves this to Congress not the Judiciary, for obvious reasons.
For obvious reasons I’d say. If the Constitution were to allow for challenges to the Office of the president, it would effectively render the office without any value as anyone would be able to raise objections.
That’s why Congress observed that Quo Warranto for the Office of the President is unconstitutional. Constitutional offices are different from statutory offices.
For good reason
No it only proves that he was in the 3rd grade at Noelani when the picture was taken. He could have been enrolled while on a visit back to Hawaii for short time. Senator Inoue vaguely remembers Barack as a classmate, and even stated that it could be that he wasn’t there the entire 3rd grade year. Maybe only for a quarter or a semester.
You referred to “Senator Inoue” – which is mistaken.
The child in the photograph with the young Obama is Scott Inoeue, who is now a chiropractor living in California.
Senator Dan Inouye was born in September 1924 and would have been 36 years old at the time of Obama’s birth in 1961. See:
Actually, we know that Obama made trips to Hawaii to visit his grandparents during the time he was living in Indonesia, so there is nothing about the photo which is either surprising or sinister.
What we do know is that there is someone that remembers that the President attended school in HI. I thought the birthers always claimed that there was no one that remembered the President as a child in HI? Now that we have proof the birthers try and use it to question things that are not germane to the issue? Talk about shifting the goalposts…And Sven, he would have been using his US passport, not a diplomatic consular one or Indonesian refugee one…
Also, please note that I mispelled the name of the Senator in my post above — the Senator’s last name is Inouye.
(The school chum’s last name is Inoue, without the y.)
And yet nor the electors, not the courts, not Congress objected to this, thus ending any case that the DNC placed an ineligible candidate on the ballot. In fact there is no evidence to support this.
My husband was in Officer Candidate School when my two older boys were 6 and 8. We stayed with my parents for that short period which I believe was either two or three months. My boys went to school in western Washington for that period. When my husband finished we went on to our PCS assignment.
I have several children in preschool who use a shortened form of their name and in one case their middle name. The idiocy of this Barry business is just plain stupid. I won’t even call it ignorance.
I think you are referring to Congressman Abercrombie who was the classmate of Obama.
I don’t understand the problem. The State of Hawaii says Obama was born there. My senator says anybody born in Hawaii is eligible to be president. Where is all this “ineligible” stuff coming from besides unsubstantiated rumors?
JohnC (not John): True, but of course we’re dealing with what the Constitution actually permits and requires, not the fervid legal/political fantasies of birthers.
I beg to differ. “The fervid legal/political fantasies of birthers” is all that’s happening, or is likely to happen.
The college classmate of Obama, Sr., that is.
How do we know this, BlackLion?
Is it plausible, since Indonesia will not allow an American Ex-Pat become an Indonesian National without first renouncing their U.S. Citizenship, that Barry Soetoro, Indonesian National and former U.S. Citizen was issued a U.S. Visa to enter the country through Hawaii to visit his grandmother?
Furthermore, is it plausible, Barry was enrolled in Hawaii public schools at the 3rd grade level as an Indonesian National.
Is this the reason Barry’s elementary school record has been sealed?
Alright, Sven, in the holiday spirit, I’ll play along:
1. Your entire case that he was ever an Indonesian national rests on a school registration from Jakarta. As far as I know the document hasn’t been authenticated. But even if it were real, what says his step-father didn’t simply claim something that wasn’t true? Well-off school districts are constantly finding parents who falsely claim residence in order to enroll their children. What proof did the school in Indonesia demand? Possibly none. Or maybe they looked at the father’s passport and that was enough?
2. Someone who renounced citizenship might have been able to get a visa to visit family. They could possibly have enrolled in schools, maybe even attend college and law school. But Barack Obama has held jobs including with a recognized law firm and a University. They are (and were at the time he was hired) required to verify eligibility. This requires either proof of US citizenship or lawful permanent residency. Are you claiming he applied for and was granted permanent residency after renouncing citizenship? Seems highly debatable that that would be possible. Did he reacquire citizenship based on being very young when he supposedly renounced it? Seems unlikely. However, if he did, I would argue that he thus reacquired natural born citizen status as well, since that is the status he was born with (2 can play that game).
I think if you want to come here and propound silly theories you need to account for ALL of the facts. Otherwise, I will have to apply Occam’s Razor and conclude that he never was an Indonesian citizen and the school document is either a forgery or a simple white lie by his step-father.
Part of the Indonesian myth is the big lie that only Indonesian citizens could attend school. That comes from the familiar fallacy of denying the antecedent. “All Indonesian citizens have a right to an education” (Indonesian Constitution) becomes “only Indonesian citizens may obtain a public school education”.
Dick (Sven) Whitman: Is this the reason Barry’s elementary school record has been sealed?
And why do you think President Obama’s elementary school record has been sealed?
Yes, if Indonesia restricted school attendance to citizens only, they would be, as far as I am aware, the only country in the entire world to do so.
“Is it plausible”
Sven- If you asked “Is it possible” I would say yes its possible. Its possible that you were born on Krypton.
Is it plausible? Not by a long shot. The most plausible(per Merriam-Webster: superficially fair, reasonable) actuality is that he travelled on a U.S. passport and has always been a U.S. Citizen.
That will remain the most plausible explanation as long as Birthers just make up theories about possible reasons why the President might not be eligible, instead of bringing forth actual evidence.
I think we’re talking about two sides of the same coin. Our discussion concerns what the Constitution actually provides, and what the courts likely will do. It goes without saying that the birthers see things very differently – it’s only because they’re so vocal that we’re even here discussing the legal equivalent of how many angels can dance on the head of pin.
“What I see is that the 20th Amendment REQUIRES Congress to act; i.e. they must either certify the President-elect or install the Vice-President elect or find someone else to hold the office on a acting basis. The office can’t be left vacant.”
The 20th Amendment on its face does not require that Congress act to the exclusion of the courts. Nor does it require that Congress certify the vice president as president “or find someone else.” In the event the president-elect is not eligible, the vice president-elect “shall” act as president.
“The Constitution may not specifically forbid judicial action, but it certainly doesn’t require it. So what would happen, if Congress decided a President-elect was qualified and a court found otherwise?”
That’s a great question. But what if this were the scenario: Congress determines that a 33-year-old Canadian citizen who naturalized as a U.S. citizen is qualified to serve as president. The U.S. Supreme Court then points out that this is completely foreign to the clear purpose and effect of the NBC clause. Are we to say that a clear violation of the Constitution may stand because the person has now been sworn in?
I would hope that’s not the case. On the other hand, I can understand how the courts would want to take themselves out of potentially explosive meddling in political affairs. It is therefore not surprising that they view the matter of determining the eligibility of a sitting president as assigned to a coordinate (i.e. political) branch of government per Baker v. Carr, and hope that a scenario such as that described above would never come to pass.
This is one of those grey areas in the Constitution in which one branch of government simply may have to rely upon the good faith of another to jointly carry out the mandates of the Constitution. In a way, this is how the system works every day, since Congress and the executive branch are not expressly required under the Constitution to adhere to decisions made by the judicial branch, yet they have generally recognized the authority of court decisions since at least Marbury v. Madison.
Obviously the passage of the Family Education Rights and Privacy Act in 1974 was part of the conspiracy.
Yes, that’s likely what the Constitution would lead the Courts to conclude. Only Congress has the power to impeach an elected president, even if the President is later found to lack in eligibility.
There was an interesting discussion in Congress during the discussion of a controversial election in the 1800’s I believe and they came to a similar conclusion that the alternative: Leaving the office of the president open to legal challenges would be far worse.
No records have been sealed, they are sealed by State and Federal Law.
Why these lame accusations? Do you have no shame?
Not very plausible given the fact that a child cannot renounce his citizenship and Indonesian law does not allow a child of Barry’s age to gain Indonesian citizenship.
You see, anything goes in the unconstrained minds of people who have little interest in the facts. The facts however lack any evidence that Obama renounced his citizenship.
As Dr Conspiracy once explained
Congress has to act and put SOMEONE in the office as it cannot remain vacant, nor can the term of the previous occupant be extended. They either certify the President-elect or the Vice-President elect or someone else (presumably the Speaker), but they do not have the option to certify no-one and leave the office open.
In the case of the naturalized 33 year old, presumably his presence on the ballot would have been challenged in enough states to deny him the election. If no one did so, then, if he were elected, Congress would have to decide. The argument of his ineligibility would be a strong one that Congress should heed. However, if they chose to ignore it, he would become President, and be completely legitimate in that office, removable only by impeachment for wrongdoing (and it’s perfectly legal to be a 33 year old naturalized Canadian). In the absence of a timely filed case by a party with standing, there would be no role for the Courts. The Courts are not a Constitutional advisory committee whose job is to “point out” what the Constitution says or means; they exist to resolve actual cases with standing, justiciability and the other requisites of a real case at law.
The 20th Amendment allows for 3 possibilities as to person elected President:
1) Counting of electoral vote results in election of qualified president
2) Some insufficiency or defect in the electoral vote results in there being no winner, and hence no President elect.
3) The electoral vote results in the designation of a President-elect who is not qualified.
If #1, then the newly elected President takes office on January 20th.
If #2 or #3, then the procedures specified by the amendment are followed: if there is a qualified Vice-President elect, that individual act as President, otherwise Congress designates the means of choice.
The fact that Obama became President represents an implicit finding by Congress that he was and is qualified. (The 20th Amendment does not allow for the seating of an unqualified President; therefore the Congressional act of certifying the electoral vote necessarily implies agreement that the President is qualified).
This does not mean that there is no role for the Courts, but it DOES mean that ONCE Congress acts, there is no “case or controversy” — going back to the jurisdiction and standing questions.
Given that the 20th Amendment puts the determination of Presidential qualification in Congress’ hand, that means that the matter needs to be put at issue before Congress acts, and then litigated by a person with standing.
Two possibilities come to mind:
1. A Congress controlled by one party refuses to seat an elected President of the other party, claiming lack of qualifications. That candidate, or his party, then seek to Judicial review to compel his seating, based on a showing that he is in fact qualified. (This is basically the Powell v. McCormack case)
2. An objection is raised in Congress to a President elect on grounds that he is unqualified, but either the Presiding officer of the joint session refuses to recognize the objection, or the objection is heard and voted down by the majority of both houses. The congress members who raised the objection then go to court seeking a writ of prohibition to prevent seating of the President.
I think this is a harder case because of standing and separation of powers issues. The case would be stronger if raised on procedural grounds (Congress refuses to entertain the objection) than on substantive grounds (Congress hears the objection but votes it down). If raised on substantive grounds, the Supreme Court clearly would have to accede to Congress if any possible reasonably interpretation of the facts or law justified Congress’ determination. The ONLY possible way that the Supreme Court could intervene would be if there was a set of uncontested facts that unequivocally rendered the President ineligible.
As to the hypothetical 33 year old naturalized Canadian — he would clearly be ineligible, but the matter would STILL have to be properly raised in Congress or by other appropriate means PRIOR to the time that Congress acts to certify the election. Courts simply do not have the power to intervene without the proper procedural groundwork being laid — that is a hallmark principal of American jurisprudence and the limited powers of the judiciary.
My reply got lost above. The Courts are not advisory bodies to which one can refer interesting Constitutional questions. You can’t ask them whether a proposed law might be unconstitutional; you have to pass it and wait for someone affected by it to contest it in court. Similarly Congress can’t ask the Courts to tell them whether a President-elect is qualified, nor can the Courts jump in because they think Congress made a poor choice. There has to be an actual case with standing, justiciability, etc. If the 33 year old naturalized Canadian got all the way to being certified by Congress without anyone with standing filing a case, well, I guess Americans would just have to manage for 4 years with a hockey rink on the White House lawn.
Expelliarmus: As to the hypothetical 33 year old naturalized Canadian — he would clearly be ineligible, but the matter would STILL have to be properly raised in Congress or by other appropriate means PRIOR to the time that Congress acts to certify the election.
And can anyone (except a birther) believe such an objection would not be raised?
Sven, neither is plausibe….You keep forgetting that as a minor he could not renounce his US citizenship. So there is no way he could have been an Indonesian citizen…Since he was born in HI he would be attending school as a US and HI citizen…That is much more plausible that him becoming a citizen of a country that he was not born in nor visited before his mother had married Soetero…