The Constitutional eligibility question is separate from the citizenship question. Absent an amendment of the Constitution, Congress does not have the power to tell the Supreme Court what the Constitution means. It is doubtful that a birth in Panama, in the United States only under the Congressional fiction of the sovereign territory doctrine, would pass--and it appears (although again we have not confirmed) that McCain was not born in the sovereign territory in any event and thus does not qualify. Our own view, based on the facts as I understand them, is that it is likely that if the Supreme Court is faced with this issue, it would hold McCain is not eligible to act as President.
I disagree. Congress does have the power to tell the Supreme Court what the Constitution means by passing laws specific to its responsibilities under the Constitution.
Your opinion is wonderful. But here is the real world--I am a federal tax lawyer--I have argued Supreme Court cases but that isn't what I do. But I deal with DC lawyers a great deal and this issue, and the related issue with respect to McCain is a hot gossip issue among professionals who make a living arguing cases to the Supreme Court.
The overwhelming view is that if the issue ever gets to the Supreme Court, assuming Obama was in fact born in Kenya, neither McCain nor Obama is eligible to serve as President of the United States under Article II, Sec. 1, Par. 4.
I have tried as best I can to lay out in layman's language why it is likely that is how the Court comes down--lots of people here can't get over the view that McCain ought not lose a Constitutional privilege because his father was serving his country outside the US when he was born (it would be more difficult if it was his mother--she could have returned to the US to preserve his position). The Court's usual response to those kinds of arguments is that is why the Amendment process is in the Constitution--if you think it is unfair, amend the Constitution.
Like all arguments, there are two sides; and there is a political context. Although at the moment, it looks to me as though the political context probably also cuts in favor of the usually accepted Constitutional lawyer's view.
But knowing that you don't want to hear it from me, the real bottom line is that (if Obama was born in Kenya) neither McCain nor Obama pass the test. And if it gets to the Supreme Court, expect that result.
Thank you very much for sharing your views and being impartial. We all need a doze of reality. The law is the law.
Let’s start all over, drop Obama and McCain, best luck to the runner-ups.
The Court's usual response to those kinds of arguments is that is why the Amendment process is in the Constitution--if you think it is unfair, amend the Constitution.
After doing that and 2000, they have any idea how thoroughly "reformed" the US Supreme Court will be when both political parties are finished with them? The Congress will not only clear up the problem with Article II, Section I, Clause 5, the Democrats and Republicans will positively take turns like a tag team in their rush to get amendments in reshaping Article III to end the Court's delusion forever that it is a co-equal branch of government except at the sufferance of the other two.