Posted on 10/23/2008 10:32:41 AM PDT by David
The legal issues regarding how ineligibility to act as President under Article II, Sec. 1 of the Constitution might be challenged are the subject of a number of posts. There is, I think, broad misunderstanding of some elements of the Berg proceeding as well as some of the other actions.
Two articles in the on line version of the Michigan Law Review summarize, the fundamental legal issue (Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008)), www.michiganlawreview.org/firstimpressions/vol107/solum.pdf, and procedural issues regarding possible challenge of ineligible candidates (Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31 (2008)), www.michiganlawreview.org/firstimpressions/vol107/tokaji.pdf .
A third article in the same publication addresses unusual considerations in connection with the candidacy of Senator John McCain (Gabriel J. Chin, Commentary, Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008). www.michiganlawreview.org/firstimpressions/vol106/chin.pdf
As we all, by now understand, Article II, Sec. 1 of the United States Constitution requires that to be eligible to hold the office of President of the United States, a person must be a "natural born" citizen.
Although the Constitution does not define the term "natural born", as Professor Solum points out, it appears to have been derived from the English Common law term "natural born subject". Since the US has citizens, not subjects, the word was changed.
However there is little room for doubt that incorporation of the concept in Article II, Sec. 1 was designed to address the proposition that a person is subject to the legal sovereignty of the head of state in the physical location where the person is born. The founders rejected the idea of a head of the US Government who was subject to another sovereign.
And achievement of that objective requires that persons not born in the geographical limits of the 50 states be ineligible to serve as President.
Goldwater was viewed as eligible because the territory of Arizona where he was born was not subject to any other sovereign in the period between his birth there and its incorporation in the state of Arizona.
Senator McCain is an honorable man. His original birth records are posted on line for everyone to see. He was born in a Private Hospital in a foreign country. He isn't eligible under the test.
It is routinely suggested that the term "natural born" should include persons who become citizens as a result of their birth under applicable citizenship law. That suggestion does not address the problem presented by the fact that such a person who is born in the territory of another sovereign is a subject of a foreign head of state.
However McCain has an additional problem. On its face, modifications to citizenship statutes which would have made him a citizen at birth (because both his parents were US Citizens) were adopted after he was born and do not appear to have retroactive application (although that issue is subject to argument).
Professor Chin's article, on its face, is responsive to an opinion by Professor Tribe and Ted Olson, addressed to the Senate, arguing that McCain should be viewed as eligible. It would appear that given the political motivation of the Tribe and Olson opinion, and the obvious legal merit of Chin's article, there isn't much room for doubt that McCain is not eligible. Not only does he not meet the Constitutional test of freedom from sovereignty of a foreign government, he did not receive citizenship as a result of his birth.
Obama is in much the same legal position as McCain. Although he has effectively concealed purported original birth documents in Hawaii, and otherwise obstructed access to persons and records that would demonstrate his true place of birth, a fair reading of the record of his efforts at concealment and statements by parties with knowledge leaves little room for doubt that he was in fact born in the country of Kenya.
There are several "third-party" candidates for President however there is also little room for doubt that none of them are going to receive sufficient votes to be elected.
Thus the American electorate is faced with a situation in which the Presidential candidates of both of the major parties are ineligible to hold the office of President.
The consequence of installation of one of them as President will be legal challenge to the efficacy of every act they take as President. It is only a matter of time until District Court challenges to laws they sign or executive action they take from persons who have economically significant interests could involve the central government in well funded litigation resulting in a Constitutional Crisis.
At what point does the legal system address this issue?
The real fault lies with our quasi two party system and the nominating process. The parties should have recognized that failure to address this issue prior to nomination represents a threat to their franchise and the power they exercise over the political process.
Professor Tokaji's article addresses this issue.
We first considered this question in a number of posts in late June. At that time, we pointed out, as does Professor Tokaji, the apparent difficulties in a legal challenge prior to election.
It is difficult to find legal standing (a direct injury to a specific plaintiff) because it is always possible that the defendant, or responsive candidate's organization, would not prevail in the general election, thus mooting any complaint.
As a threshold proposition, it must be recognized that any legal challenge at any point, is likely to be very expensive. The lawyers for the moving party need to have significant support. Our experience in this kind of litigation is that it is seldom restricted to one lawsuit in one jurisdiction. Thus lead counsel needs to have access to several senior experienced lawyers who can travel to respond to collateral litigation that would affect the main case.
It would not have been surprising to find that a suit, initiated against appropriate parties during the summer might well have involved several million dollars of expense--and perhaps have been unsuccessful.
Several suits were initiated against McCain. I have speculated those actions were part of an effort on behalf of another Republican candidate to affect a credentials challenge on the floor of the convention. The cases were not well funded and were not pursued.
At present, Philip Berg, a Clinton supporter in Pennsylvania, has initiated a suit against the Obama campaign in federal district court. The initial defendants were not parties against whom the plaintiff had standing to assert present claims; the suit does not appear to present a justiciable controversy; and the consensus view is that the case will probably be dismissed without reaching any effective remedy.
The judge might, in the interest of addressing the substantive issue of the place of Obama's birth, permit some discovery before deciding that the case is without merit. But he is under no obligation to do so.
There are several other cases pending which seek comparable remedies. Those cases are not as far along as the Berg case.
Although Tokaji's article concludes that an action prior to the election is not likely to meet with success we believe that creative counsel might have been able to craft a complaint that would have survived challenge given that both candidates are ineligible for the same reason. That did not happen.
Tokaji's article continues to describe the possible basis on which challenge might occur after the election and anyone who is interested in this topic should read the entire article.
Although there is no obvious immediate direct recourse to legal process, it seems probable that given the significant change in the course of Constitutional government likely to result from an Obama election, sufficient funds will be obtained to pursue several of the various remedies.
It should be noted that there is another suit pending which is not subject to the considerations addressed here.
Andy Martin, an author, has initiated an action in Hawaii seeking access to the vault birth records of Obama. Although that suit does not seek an ultimate remedy determining Obama's eligibility to hold office, proof from Hawaii records that he was not born in Hawaii or that he was born in Kenya might well resolve the election issue as to Obama.
There is room for doubt as to the quality and probability of success of Martin's legal effort.
Do either of you recall BO’s hand written notes passed to Claire McCasgill on the uneccessary Senate Bill passed last April in regard to McCain’s eligibillity. It was posted on the 6,000 response BO COLB thread last July.
Copies of those records have given a pause of reliability and plausability to the accusations of a foriegn birth and imposter fraud.
“Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President;”
This Clause has no particular relevance to McCain and the following Clause, which it is reported McCaskill and Obama attempted to REMOVE shows that:
“; and Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936:”
It seems clear that McCaskill and Obama were attempting to create a blanket Resolution covering ALL Foreign Born candidates. Why do that if not to benefit a Foreign Born Democratic Candidate, who did not have a US Military background?
McCain did not need this resolution, Richardson did not need this Resolution, so far as I can see nobody needed this Resolution unless somebody in the race was born outside the USA and was “Covering his/her Ass” and the only individual in the race that that could apply to was Senator Obama! "
Yes, but there was much more posted here.
Someone attached as a photograph the handwritten recommendations that Obama was submitting to Claire. They were scratched out and amended. His writings and suggestions were to expand citizenship and elligibility to all those born abroad to US citizens. It sounds as if Obama was using Claire as a front for his suggestions on the Bill as opposed to directly submitting himself.
I went back to the humungous thread but gave up after post 400. I tried a FR search but was unsuccessful. There were several posts on multiple threads regarding this early last summer.
http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103224.html
I lifted the following link from the Archives for July /08
from texasdarlin’s blog/website.
The article mentions the discussions re McCain’s eligibility and Claire McCaskill.
Can’t get too far back on FR but this might help.
That’s not specifically what I was referring to. I remembered specifically OBAMA submitting notes and interjections into the proposed bill that would benefit ONLY HIM and they are very important to the issue at hand. It is all documented here on FREE Republi, not in BS articles from WAPO.
His interest and his submission of broadening the elligibility to include foreign births is something he specifically needed. The issue of democratic Senators sympathetic to Mccain’s cause was pure and simple bullsh1t and a farce to help Obama’s upcoming predictament.
I remember reading about McCain and Richardson here at FR and thought it odd they would be under scrutiny at this stage of their political careers - but this was before all the junk came out about Obama.
It was a move on his part to smooth his own problem no doubt. He never does anything unless it is to his personal advantage.
Must be awful being him.
Sorry about the WAPO....
http://www.freerepublic.com/focus/news/2040486/posts?page=456
Bump.
Thank you for all the pings.
I appreciate your ‘timely’ response Nully!
What? 13 months isn’t fast enough???
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