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To: David; Congressman Billybob
Good post! You have done a lot to clearly frame the arguments.
The power of Congress with respect to elections is spelled out in Article II, Sections 1-3 and it is not to "supervise elections".

If Congress looked at the guy who got the most votes and said "this guy is not eligible" they could presumably declare him not elected.

My point was that The Constitution gives some of the power over the election to Congress and the rest is not mentioned. I take that to mean the founders wanted Congress to handle presidential elections.

If the courts cannot remove a sitting president how can they remove a president elect?

But the Constitution is couched in terms of "eligibility" to hold the office, not legality of candidacy.

...

the other [problem] is "lack of a case or controversy"--the courts don't decide hypothetical issues; as to either one of these candidates, the answer to a suit is that the guy might not get elected.

Correct.

McCain's lawyers also argued that "he was not a state actor". The meaning I took from that is constitutionally he is just another guy expressing his views under the First Amendment. McCain is merely campaigning for candidates for the office of Presidential Elector. The fact that those candidates plan to vote for him is incidental. Those electors could constitutionally vote for whomever they wish although by custom they usually don't. As such there is no controversy the court could decide until after The Electoral College votes. But at that point The Constitution doesn't allow the courts to address it.

While the court didn't rule on this point I have a lot of faith in Ted Olsen to put forth solid arguments.

So when an ineligible person gets elected, the defect continues into his administration. And leaves his actions in office open to challenge by appropriate legal process.

...

If Obama [ or McCain under your theory ] wins, there will be persons with significant economic interests and resources who do have standing to challenge his legal eligibility to serve. And guaranteed, whatever reluctance the court's have at present, some District Court judge will be willing to hear the issue and address the merits with orders permitting discovery.

I'm sure a lawyer will toss that argument in to support a claim. And I can even see where a rogue judge might allow it. But the appeals court will reverse any rulings that allow discovery on that point. There is no remedy since the courts have no constitutional power to remove an ineligible president.
But the point we have attempted to make is that getting in to a legal setting to assert the eligibility claim against both of these candidates is a difficult effort.
Correct. I'd say the founders did a very good job of designing a system that makes it difficult, if not impossible to do so.
What is the "natural born" test? There is obviously no law (decision authority) that directly addresses the issue. The problem is that a person who is born outside the geographical limits of the 50 states is subject to the legal sovereignty of the foreign power which has jurisdiction over the area where he was born. The sovereign of that area could impose whatever limits on the person the sovereign choose including the right to limit the conduct of the person by legal process in future years.

That is why you have the test; that is why the test means (among other things) that to be eligible to be President of the US, a person must have been born in the geographical limits of the US. That is the foundation of Joshua Benjamin's analysis of Obama's Indonesian citizenship as an obstacle; if a person successfully creates a foreign sovereignty limitation on their U S Citizenship of any character, they are not eligible either.

But how is this any different for someone born inside the United States who had at least one immigrant parent? They likely received foreign citizenship by blood from that parent as well. This could conceivably go beyond the second generation depending on the laws of the other country. In that case we would be ceding to other countries the ability to define who is eligible to be our president. Did the founders intend to yield sovereignty here?

Foreign citizenship can be renounced and that is likely the acceptable resolution to any controversy if it applies to either of these candidate for the office.

My problem with this whole line of attack is that it takes facts not in evidence and creates legal controversies that don't exist. Obama may have been born in Kenya. Obama may have been adopted in Indonesia. Obama may have traveled to Pakistan on an Indonesian passport.

Show me a point in US law that says a dual-national using their foreign passport will lose their citizenship.

Show me a point in US law that says a child can lose his citizenship through foreign adoption or naturalization.

Show me a point in US law that says a citizen's "natural born" status can be taken away without also taking away their citizenship. The second word in the phrase is "born" which implies a state at birth. It takes a lot of legal parsing to remove the plain meaning of that word. The founders could easily have said something about divided loyalities but choose not to.

Which gets back to my theory of a Democratically led snipe hunt. The Democrats know this issue cannot go anywhere and are quite willing to feed it as a diversion. It's candy. It's not good for you but it tastes really good. It makes you fat and slow. The Democrats know the truth of this issue and can put it to bed at a time of their choosing. I'd say the Democratically filed Berg case is likely the time of their choosing.

5,440 posted on 08/26/2008 9:47:19 PM PDT by 21stCenturyFreeThinker
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To: 21stCenturyFreeThinker
While the court didn't rule on this point I have a lot of faith in Ted Olsen to put forth solid arguments.

Olson's participation in this dance so far has been purely as a political advocate--here were his arguments; I can make the arguments for McCain as well as Olson can, but the bottom line is that he was born as a citizen of a foreign government, subject to the sovereignty of another government, and he flunks the Constitutional test.

Your analysis of juris soli also wouldn't fly as real legal analysis (I assume you are not a lawyer)--offspring of an alien who are born in the U S are not subject to the sovereignty of the foreign power at birth.

Your analysis of the practical power of Congress to address the issue is all very interesting but there is no real legal authority and no basis on which to predict how a Constitutional crisis would play out. But there isn't any doubt that once it is determined that a majority of the Electors, elected in November are Obama electors, there will be a Constitutional crisis when the facts surface. Assuming the Dems control Congress, they might be satisfied with President Biden.

As to the ultimate issue with respect to Obama--there is no doubt that he was born in Kenya. A look at the record of what he has done over the last four or five years on the subject just doesn't leave any room for doubt. The so called Birth Certificate, even if real (and it is a photoshoped fraud in its present condition), doesn't say anything on the subject--all of the states issue birth certificates to people who were not born in that state; that is one of the reasons a birth certificate is in poor repute as an identification document.

A certificate of the state of actual birth records would have more credibility--complete with a copy of the footprint; Obama hasn't released that document and isn't going to. Whatever it says supports the finding that he was born in Kenya.

5,448 posted on 08/27/2008 5:34:18 AM PDT by David (...)
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