Several items of proposed legislation have been offered across the country, seemingly inspired by birther conspiracy theories. The most visible is that introduced by State Rep. Leo Berman (R-Tyler) in the Texas legislature. Berman wants candidates to present their “original birth certificates.”
Since over 95% of modern births are submitted electronically from hospitals to the jurisdiction, that “original” signed piece of paper will soon be extinct. I am sure Texas Department of Health will clue the legislature in on what makes sense to require for documentation of birth. The proponents of these bills fill find, much to their chagrin, that what President Obama displayed on the Web back in 2008 is the real deal as far as what constitutes a valid birth certificate. Republicans have to deal with the same set of facts whether they are in the majority or the minority.
- Politic365 article on Texas bill
- WorldNetDaily article claiming bills moving in 4 states
- Huffington Post article with gratuitous mention of Orly Taitz
I support all of these bills – the well written ones will establish President Obama’s eligibility and the bad ones are teachable moments regarding the Constitution.
Even better is that Berman wants proof that the candidate is a natural born citizen which, of course, would be impossible to provide. The result of his proposal would be that no candidate ever gets on the ballot in Texas.
I don’t see how a law requiring proof of natural born citizenship would be unconstitutional. I assume that the courts would be required to determine whether what constituted such proof in the law was Constitutional – seems like a good way to get the court to rule on NBC.
If Hatfield reintroduces his bill in Georgia, I certainly hope he modifies the language to at least address the flaw in scope that I’ve already pointed out:
Hatfield does not propose that his fellow General Assembly members should prove their eligibility under the Georgia Constitution, nor that our statewide elected officials, such as the governor, should do so. Nor does he propose the same standard of proof for our federal representatives and senators.
Hatfield’s bill does not even demand documentation from vice presidential candidates, who have the same eligibility standards as the president. Most astonishingly, Hatfield proposes nothing to ensure the constitutional eligibility of any third-party presidential candidates; his bill covers only Republicans and Democrats.
In other words, if Hatfield’s bill passed, the only candidates in the November 2012 election whose eligibility it would scrutinize would be Barack Obama and his Republican challenger. Hatfield has written a bill so narrow that the only way it could be narrower would be for it to identify Obama by name.
This should be interesting. The TX bill specifically says each candidate has to submit an “original” birth certificate. But Obama’s original birth certificate is in HI, just like mine is in IL. The most either of us — & just about any other natural born citizen — can get is a certified copy of the original. Would anybody be eligible in TX under the current proposed language?
The question is whether or not the bill would survive a court challenge, which I suspect would depend on the definition of the word ‘original’.
The other problem with bills of this kind is that it seeks to make States make demands that are outside of their constitutional jurisdiction.
Individual states have no right, at least not that i can find, to verify or demand eligibility. The job to verify eligibility is mandated to Congress. State citizens don’t even vote for POTUS Candidates, they vote for electors who (usually) pledge to cast their vote based on the results of the nominal entries of the ballot which serves to elect the electors. In essence when the POTUS Candidates appear on the State Ballots, it’s only akin to a straw poll to determine who the electors shall vote for.
No ordinary citizen of the US ever votes for the President. You’d think state reps would know that, having presumably graduated from high school.
Of course it’s also quite likely they do know this, and that these bills are simply pandering to the great unwashed and uneducated public.
Are you saying that a state has no right to verify a candidate’s eligibility before putting them on the ballot? In what way would that violate the Constitution?
As the Constitution does allow states to pretty run the elections, I think requiring proof of qualifications would survive. As for the language that requires an “original,” under normal rules of interpretation, if there is a permissible reading of a statute, that is the interpretation the courts will take. As requiring an individual to produce the copy held by the state, or a document that may not exist (as many states are going electronic), or mandating that a state provide a document in a particular form, which would all run amock of the Constitution in various ways, a court would probably read the requirement to say that a person must provide the copy provided by the state for such purposes (i.e. the President’s COLB). Should some overzealous desk jockey try for more, he would get a judicial smack down telling him to take what the state issued.
No, the problem is that in Presidential elections, there is no “candidate” on state ballots — only a slate of electors. Theoretically you could have a slate of electors pledged to vote merely for their party’s nominee, without even naming the nominee.
If votes were cast for a Presidential “candidate” during general elections, then Al Gore would have been elected President in 2000 — there is no doubt whatsoever that he got the most votes. But in the US, we don’t vote for President.
Now, it might be Constitutional to mandate that electors take reasonable steps to verify eligibility of any candidate they vote for — that is, impose some sort of duty on the electors to make reasonable inquiry– analogous to statutes that mandate that electors vote for the person they are pledged to vote for.
As I think about this vetting situation more, I have come to the conclusion that “it ain’t broke.”
In Texas, they can get a commemorative “Native Texan” certificate, complete with Teddy bear and Lone Star Flag, suitable for framing.
But since ‘Al Gore’ (for instance) DID appear on the ballot, aren’t states within their rights to verify a candidate’s eligibility before allowing their name to be placed on the ballot?
While I would agree that ‘it ain’t broke’ with regard to letting ineligible candidates through the vetting process, clearly there are people who don’t understand the requirements – to me that’s undesirable ignorance in voters. Birther bills are, in my opinion, the best way to shine a light on this issue and clear up the ignorance.
Hawaii based their vital statistics law on the Uniform Vital Statistics Law. Here’s the operative section from the UVSL (taken from Kansas law, since they adopted it without any changes):
Here’s Texas’ law:
So, I imagine that, even if the birthers thought they were, by writing this law, going to get access to the ORIGINAL birth certificate, as held by the State of Hawaii, they’re going to be sorely disappointed.
Imagine the hew and cry when the President’s campaign submits the COLB to Texas (and any other state that wastes their taxpayer’s money taking the time to pass laws like this) and is simply and quietly put on the ballot…
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
I didn’t say it would be unconstitutional. They can demand it if they like. I said it would be impossible. Not only does no birth certificate, whether the long-form, short-form or the souvenir from the hospital with your foot print on it, indicate whether you are constitutionally a natural-born citizen, but there is no document that does this. As neither Congress nor the Supreme Court have ever ruled to say what it means, there would be no way to enforce such a requirement, since there is currently no bright line legal definition. And no, this law wouldn’t automatically get any federal court to rule on it, until such a time as the Texas legislature or courts come forth with their own definition. If that happens, then it would certainly be taken to a court that would have actual authority to say something about it.
Which is the entire point of the exercise – setting a precedent in federal court on the definition of natural born citizen (it’s also where the birthers get hoist on their own petards, in my opinion).
Actually, in my state the ballots are pretty clear that we are voting for electors pledged to support a specific candidate,, not the candidate. Other states may do it differently … but legally it is still a referendum vote, not a direct vote.
You might want to consider what the consequences might be for a state under clause 2 of the 14th amendment if they take any action that prevents their own residents from fully participating in a national election.
Are you suggesting that it would be unconstitutional for a state to refuse to place the name of an ineligible candidate on the ballot? And while it may be clear on the ballot that you are voting for electors, I’ve never seen a presidential ballot where the candidate’s name was not the most prominent one…
With their scattered victories at the midterm elections, birthers have taken on the mantle of John Paul Jones, declaring that they “have just begun to fight.” Meanwhile, Dr. C and other rational men and women seem to be losing the battle to maintain some semblance of rationality in our public discourse. I’m disheartened. A significant percentage of our nation has abandoned common sense and will soon have the political representatives they deserve–much to the harm of the rest of us. I would almost rather endure another term of George Bush than face the current murder of crazy-crows about to take roost in our capital.
I’m saying that in case where eligibility is contested, a contention could be raised that the state was depriving its voters of the opportunity of voting for a legitimate candidate. Let’s take this scenario: the state of Texas refuses to list Barack Obama on the ballot in 2012 because they don’t like the look of his birth certificate… which of course is perfectly good for all the states — or because some idiot state official actually buys into the Vatell 2-parent argument.
Obviously Obama and/or the Democratic party would have standing to compel placement on the ballot. But let’s say, hypothetically .. that they didn’t bother, simply because they know they are going to lose Texas anyway… so they figure its a wash, forget Texas, an concentrate their electoral efforts on other states.
So where does that leave Texas voters who want to support Obama? In the other 49 states he’s on the ballot, he obviously is eligible to anyone with minimal intelligence, given the fact that he’s already President and already certified by Congress.
This is different than a situation where the facts are uncontested, such as a person who admits to being only 30 years old trying to run for President, or a non-citizen trying to run. This is a situation where the party says he’s eligible, the candidate says he’s eligible, and one state is creating weird barriers to ballot access.
Given birther arguments, you could have 50 states adopting an array of different interpretations of the constitutional requirements — for example, what about the children of citizens born abroad? what if the candidate is clearly born in the US, but both parents were undocumented aliens? what if the candidate was a foundling, parentage uncertain, or an adoptee whose birth records were sealed? what if the candidate is clearly American born, but has lived in the sporadically, never for a continuous 14 years?
Do you force the party or candidate to litigate the issue again and again in multiple state forums? Or simply rule that there is a federal issue at play, and states may not impose requirements for ballot access in Presidential races that place an undue burden on such access?
First off, I don’t believe a candidate would fail to fight being ruled ineligible even by a state they knew they would lose big in – otherwise they would risk voters assuming that no response indicated no defense to the accusation. And second, yes, I would expect the issue to be litigated in as many states as necessary – I doubt that very many rulings would be needed before enough precedent would be established to easily decide the rest of the cases. I see no reason why any Constitutional principle would be threatened by a birther bill of any sort – why do you think that this is a problem that the system is incapable of handling?
> Which is the entire point of the exercise – setting a precedent in federal court on the definition of natural born citizen (it’s also where the birthers get hoist on their own petards, in my opinion).
The birthers don’t care about federal court rulings that are not in their favour. If such a “birther bill” would get SCOTUS to rule unambiguously and clearly what a “natural born citizen” is, they would still claim it’s all part of the big conspiracy.
So why applaud something simply because it would shove it down bithers’ throats once more? They don’t listen anyway.
The same reason why Obama does not release any more records that the birther would like to see. It serves no point.
Besides, I still don’t see how such a bill would get around the “full faith and credit” clause of the Constitution. Texas may say “we want proof” but they will have to take Hawaii’s word as proof. There’s no getting around that, no matter how cleverly you formulate that bill. Anything that would effectively amount to circumventing the “full faith and credit” clause would be ruled unconstitutional and void by the courts.
Yes, anything that will pass Constitutional muster must respect the full faith and credit clause. Also, the point of a court ruling is not to convince the birthers, but to make it impossible for them to convince anyone else…
Yeah, but when? Conventions are in late August. Ballots are printed in October probably. So you basically have September to hand over the COLB, have it rejected by the State, hit state court, appeal the state court decision, appeal to circuit court, appeal to SCOTUS (did I miss a level or two?). Sounds like a few years, not weeks to me. Even if they skipped State and lower Federal Courts and went right to SCOTUS, would there be enough time?
Yeahbut… what about in the Primaries? If the candidates had all passed muster during the Primaries there would be no need to re-certify for the General would there?
Such cases are expedited. Just look at Bush v. Gore.
Pardon me for being cynical, but I really do think the entire point of this exercise is for politicians to swindle birthers out of their votes and support. Just submitting one of these bills seems to make them a hero to the birthers, and if one got passed and signed they’d be even bigger heros. These politicians know perfectly well that none of these bills will be the slightest hindrance to Obama getting on the ballot in 2012, but they also know that when this happens, the birthers will blame the SoS or some judges — they’ll still be heros.
Being a hero to a fringe minority while thoroughly tainting yourself as “wingnut vote hunter” for the majority does not sound like a good deal to me.
Except for someone who thinks his political career will end soon anyway and plans to become a “birther televangelist” afterwards, milking donations from the misguided…
> Yeah, but when?
I suppose already the lowest court would evaluate “what would hurt more – validating the eligibility afterwards or allowing a likely unconstitutional law to render the entire election void” and grant a preliminary injunction against (enforcement of) such a law (if that is possible; my knowledge of US law is not complete).
There is no particular guarantee that a candidate in the general election was on a particular state’s primary ballot. For example, Obama was not on the Michigan primary ballot in 2008.
You’re assuming the majority would care enough about the candidate pushing this issue to make it a primary factor for not voting for the candidate. That’s a faulty assumption, as the vote tallies for Michele Bachmann, David Vitter, and similarly unhinged or corrupt candidates prove.
There is no such thing as a “national election.” The states have elections because their state constitutions or legislative rules require them. If a state chose, they could have the legislature send electors, they could even choose them by casting lots. There is a strong tradition that implies at-large elections, but there is no Constitutional requirement for them.
I do not think this would be consistent with the 14th amendment (et al.).
I am not sure if this is entirely correct. The 14th does state that the right to vote in an election for electors cannot be abridged, but that would be assuming an election were held. The way I see that language is that, if there is an election, the right to vote may not be abridged.
However, I find it highly unlikely that any state would actually remove the election for electors anytime.
There is no law, regulation or paperwork you could present to convience someone who refuses to believe whatever you are trying to document.
Even if the so-called “long form” was released, there would be many who believe it was still forged, faked, hacked, planted, etc…
No matter how much evidence is presented, there are still those who do not believe we landed on the moon, and there is no paperwork that will ever prove to some that Obama is a US citizen, because they will simply never be willing to accept the evidence presented to them.
Also, remember the obvious ulterior motives. Every event,.accomplishment, quote, persons associated or connection to the President no matter how remote, obscure or invented is twisted for nefarious and political objectives. Many are racially motivated based on fear and ignorance. Birthers want more “records” because they are pathetic, little crap stains desperate to stalk anything and anyone which could reveal something to smear the President, his family, the administration and the Democratic Party.
Fright wing media and birther lawyers and websites promote these fears for financial gain.
Thus the existential dilema faced by Dr. C. and likeminded people, i.e., why should they continue to document and argue if the people they’re trying to reach are impenetrable?
While there’s no single answer to that question, I believe that live, non-confrontational conversation is the best way to counter misinformation, and that this site offers useful information to use in that effort.
Anderson Cooper interviewed Leo Berman last night. Leo did not seem quite ready for prime time:
At the very end of the interview,Rep. Berman refers to the Supreme Court. He should read Dr. Conspiracy’s site. If he had, he would have known that the Supreme Court had dismissed the latest petition for cert that day.
And here is another link to the interview:
I have been thinking that the requirement of an “original” birth certificate can be interpreted reasonably to mean a certificate that is “original” as opposed to a photocopy.
That seems to be a reasonable requirement. Obama, Palin, Romney, Huckaby and the rest of them would have to produce the actual document issue by their state of birth, rather than a scanned or photocopied reproduction. The court would require the original as the best evidence of the fact to be proved. Probate courts always require the “original” will rather than a photocopy. Once the Obama campaign sent in the copy that it gave to factcheck.org, the case would be over.
Poor Berman has to go back to legislative counsel (if he ever went to them) to get a redraft. (They have probably been laughing all along). The new bill would have to define “original birth certificate” as a state certified document issued at the time of the candidate’s birth.
If a state of birth does not issue such documents any more, and refuses to make an exception for a presidential candidate, then the ballot state could try to keep him or her off the ballot.
I do not think that the ballot state can do so under the Full Faith and Credit Clause. That Clause has two elements. First, the State must recognize the public records of the other states. Second, Congress may prescribe the manner by which the records shall be proved. That is a power delegated to the United States by the Constitution, and not reserved to the States.
Congress has exercised that power in the statute defining birth certificates. Here it is again, as codified in a note following Title 5, United States Code, section 301 (5 U.S.C. 301 nt.):
The definition reads:
“(3) Birth certificate. – As used in this subsection, the term `birth certificate’ means a certificate of birth–
“(i) an individual born in the United States; or
“(ii) an individual born abroad–
“(I) who is a citizen or national of the United States at birth; and
“(II) whose birth is registered in the United States; and
“(i) is a copy, issued by a State or local authorized custodian of record, of an original certificate of birth issued by such custodian of record; or
“(ii) was issued by a State or local authorized custodian of record and was produced from birth records maintained by such custodian of record.
As stated many times, under this definition, the COLB is a “birth certificate.” It is a “certificate of birth” issued to “an individual born in the United States” who is a “citizen or national of the United States at birth” and whose “birth is registered in the United States,” and that certificate “was issued by a State or local authorized custodian of record and was produced from birth records maintained by such custodian of record.”
I do not think a state can substitute its own definition for the one enacted by Congress.
Even if a state passed a law that said that a candidate had to have a birth certificate issued at birth, I think that it would be invalid because it conflicted with the federal definition.
So I think that Texas would be bound by the COLB issued by Hawaii no matter what Berman puts into the bill.
Yes. There is no way around the full faith and credit clause short of a Constitutional Amendment.
Fox News hosts pretend birther author’s novel is non-fiction
Fox News is helping a former Republican congressman spread the myth that President Barack Obama was born in Kenya.
Appearing on Fox News Monday, John LeBoutillier explained that his new fictional book uses “real things” like Obama’s grandmother once claimed she was present for his Kenyan birth.
LeBoutillier’s new book, The Obama Identity: A Novel (Or Is It?), seems to be referring to a 2008 World Net Daily article where a Pennsylvania man is said to have a telephone recording of Obama’s grandmother.
“Ed Klein and I, when we wrote this book, used real things in a book of fiction,” LeBoutillier told Fox News hosts Steve Doocy and Brian Kilmeade.
“There’s so much real stuff in this book. Like you asked me before we came on the air about Obama’s grandmother living today in Kenya. And we have her in the book. It’s fiction but in reality, she has claimed consistently that he was born in Mombasa, Kenya. She said this adamantly on the record. We took that and used it in the book in a very funny way,” he said.
“I’m sure that will resonate well with everybody,” Kilmeade replied sarcastically.
“I’m sure the White House will be thrilled,” LeBoutillier joked.
The former New York congressman explained that his fictional Obama truly believes that he was “the one” Americans have been waiting for.
“The day he is inaugurated in our book he goes right from the Capitol back to the Oval Office and goes in there and he is greeted by his staff in a way that you wouldn’t believe. They wash his feet. They have Filipino stewards come wash his feet and fan his smoking and blow the smoke out the White House window,” LeBoutillier said.
“It’s symbolic of how everyone around Obama treats him. They treat him as Brian said. He’s like the second coming. He’s the one, the messiah, this man who has been parachuted into this country to save us from ourselves,” he continued.
“[T]he only way to handle Obama, I think, is to make fun of him because the guy is a ridiculous creature that we’ve been handed by the left.”
“Once again, the book is fiction,” Doocy pointed out.
“Or is it?” LeBoutillier added.
“I think it’s both,” Kilmeade concluded.
It’s not the first time Fox News has given a platform to birther notions. In July 2009, Fox News anchor Bret Baier reported that a US soldier was refusing to deploy because Obama was not born in the US. “Baier never pointed out that Obama’s American birth certificate has been produced and authenticated,” News Hounds noted.
In August 2008, FactCheck.org confirmed that it had examined and verified Obama’s birth certificate.
In April of this year, Fox News correspondent Wendell Goler asked White House press secretary Robert Gibbs, “Do the complaints of birthers complicate the president’s dealing with the American Muslim community?”
“I got to give you credit, Wendell, for getting a lot of crazy people in one question,” Gibbs replied.
“I’ve said this many times, Wendell. If you’re — if after I asked that the President’s birth certificate be put on the Internet hasn’t dissuaded you from where he was being born, I’m almost positive that no argument is somehow going to dissuade you from that,” Gibbs added.
This video is from Fox News’ Fox & Friends, broadcast Nov. 28, 2010.
If America didn’t have a prohibition against public persons suing people for libel & slander Obama’s wealth could rival Soros’ & the Sallies would be collecting for Fox, etc.