How many times have you seen something like this comment I just picked up from YouTube?
If Obama is not eligible to be president, every law and treaty he signed will be invalid. This will have huge implications for years to come.
If the Internet is any indication, beliefs such as this are widely held. It’s not necessarily true, though. Chief Justice Renquist described the “de facto officer doctrine” in Ryder v. United States (94-431), 515 U.S. 177 (1995):
The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.
However, the question remains as to which circumstances the de facto officer doctrine applies. The Supreme Court (unanimously) did not apply the doctrine in the aforementioned Ryder case. The court distinguished Ryder from other similar cases (e.g. Ball v. United States, 140 U.S. 118) because the officer in Ryder (two military appeals judges) were were not properly appointed according to constitutional process (and for other reasons), whereas the disability in other cases was due to a misapplication of a statute.
It is of course a mistake to take Ryder as a blanket rule that invalidates the de facto officer doctrine when constitutional issues are part of the mix. Ryder deals with appointment rather than election; it deals with judges rather than members of another branch of government; it deals with an objection raised before the action being voided.
Also when the de facto officer doctrine is not applied, the acts of an illegal officeholder are not erased en masse (Andrade v Lauer 729 F.2d 1475). An individual act has to be challenged because no one has standing to claim an injury in fact for “everything.” This question is going to take more research on my part. In the mean time, I suggest the reader look at several substantive comments left by others to this article.
- De Facto Officer Doctrine and Quo Warranto – Two dead ends – NBC’s blog
- The “De Facto” Officer Doctrine, Columbia Law Review Vol. 63, No. 5 (May, 1963), pp. 909-922
- Birthers and de facto officers – Military Law and Justice blog
- STATE_V_OREN.92-113; 160 Vt. 245; 627 A.2d 337
- The “de facto officer” doctrine…Chicago Tribune Ad For Obama Records Extended Entries
- Andrade v Lauer 729 F.2d 1475