Posted on 07/17/2008 4:34:13 PM PDT by Libertarianize the GOP
Congress is the place to challenge McCain’s or Obama’s qualifications to be President
The New York Times has twice ran articles questioning whether John McCain’s birth in the Panama Canal Zone would disqualify him to be President based on Article II of the U.S. Constitution: “No Person except a natural born Citizen . . . shall be eligible to the Office of President”. “Natural born” is not defined. The blogosphere is ripe with speculation that Obama may also fail to meet the qualification, since his supporters posted online an inauthentic copy of a birth certificate purporting to be for Barack Obama. The allegations have raised the specter of a challenge to either candidates’ eligibility to be President. Congress, not the courts are the constitutionally correct place to determine whether a President elect meets all of the qualifications to hold the Office of President. The place to challenge the qualifications of any Presidential candidate who wins the election would be in the United States Congress.
The Constitution gives Congress the authority to oversee the counting of the electors’ ballots and to deal with cases where there is no clear qualified winner. Both Article II Section 1 and Amendment XII of the US Constitution call for President of the Senate to count the electors votes. There are procedures for Congress to make the choice if no one has a majority. Amendment XX has procedures for dealing with a situation where “the President elect shall have failed to qualify”. All the duties surrounding the issue of counting the electors ballots and selecting the President if no clear winner exits are designated to Congress, the courts have no role to play.
It is not spelled out but if a challenge to a President’s qualifications were made at the time the electors’ votes are counted Congress would have to deal with the issue. Evidence could be presented and testimony heard, then a decision would have to be made. There is nothing in the Constitution giving the courts authority to make the decision; lawyers think the courts are always the place for making decisions so they don’t think of other options that fit better with the structure of the Constitution. It does not matter whether the challenge is to the election of McCain, Obama or anyone else, the process would be the same.
If the defect in the President’s qualifications were to come to light after the President was sworn in then the procedures for impeachment would be appropriate, since running for office in violation of the constitutional requirement for being a “natural born Citizen” would be high Crime or Misdemeanor.
The Senate has already expressed the opinion that McCain is a “natural born Citizen” and eligible for the Office of the President. Senator Patrick Leahy (D-Vt.) and Claire McCaskill (D-Mo.) introduced the resolution during April of this year after the first New York Times article. There is no way that Congress is going to deny parents serving overseas the possibility that their children can become President so John McCain is safe. Obama might be required to present a Birth Certificate if his qualifications were challenged and then the issue would be resolved.
For this election I don’ t think either candidate has anything to worry about but there needs to be a way to determine the qualifications of a President elect just to be certain that someone ineligible does not sneak through. All of the authority for counting the electors and dealing with a President elect who fails to qualify rest with Congress. Congress is the appropriate place to determine the President’s qualifications.
Selection three if before the electors vote most would be bound to vote for the VP of the same party.I'm not so sure there. Electors are not really bound to vote for anyone as far as the Constitution is concerned. So called "faithless" electors can and do vote differently. Some states specify minor penalties but it is not clear that those laws are Constitutional. The only way electors are bound to their candidate is that they are chosen from the truest of the true believers. Once their candidate is disqualified they would be free to choose another.
Whatever would happen would make the 2001 election look like a cakewalk.
Are you attempting to argue that the U. S. Supreme Court does not have the authority to interpret the U. S. Constitution. Is that your assertion? Really?The Constitution spells out Congresses role specifically in the selection of the president. It's a different case from the usual "Marbury vs Madison" Constitutional review.
I'm sure they would spend a lot of time arguing about it though.
Try this article
What Colleges Forget to Teach
Tuesday July 15, 17:20:02 GMT-0700 2008 · by Interposition · 14 replies · 386+ views
City Journal Winter 2006 Robert P. George
http://www.freerepublic.com/focus/f-news/2046068/posts
Morally bound, not legally bound.Correct.
They might even feel morally bound to vote for the winning VP candidate in the case of the withdraw of the presidential candidate. But it's not likely they would all agree. There would be lots and lots of politics involved and not much room for either the Supreme Court or Congress to clean it up. As I said, 2001 would look like a cakewalk in comparison.
In 2004 we had a similar situation in Washington State; only it took one normal vote count, two recounts, and only on the second recount did the Democrat claim victory after losing in the first two counts. She then declared it “a model of democracy”, I guess she meant democracy in Orwellian new-speak where democracy now means rule by a party calling itself Democratic. Unfortunately instead of following the State Constitution on election challenges the RNC came in and took the issue to court which six months latter they appropriately lost. The Democrats controlled the legislature and we would likely have lost there too; but at least the voters, most of whom thought the election was stolen, could have blamed the Democrats for being unfair and playing politics with important decisions.
You might find the article I linked in post 25 to be of interest, it is a couple of Conservative college profs lamenting in part and towards the end how schools educate students to simply accept rule by courts instead of what is provided for in the Constitution.
You might find the article I linked in post 25 to be of interest, it is a couple of Conservative college profs lamenting in part and towards the end how schools educate students to simply accept rule by courts instead of what is provided for in the Constitution.That was a great article.
I think situations like this present an opportunity for people to learn more about their government. I'm a big fan of American Heritage magazine. They take current events and put them in a historical context. They add the background information that makes the present make sense.
People are always criticizing our system and explaining how simple it would be to "fix" it with common sense approaches. What they miss is that the system is the way it is for a reason. If you try to change the system without understanding how it came to be the way it is you are likely to repeat all the mistakes of the past.
Well, it's late here and I'm babbling so I think I'll go to bed. Thanks for the interesting discussion.
Thanks
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