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But doesn't Congress have the specific duty in the Constitution to supervise the election. This is different than a Marbury v. Madison constitutional review since Congress is specifically given the duties of managing the election. The challenge should be taken up when the electoral vote is accepted. After the inauguration it would be up to Congress to impeach as well. The court cannot remove a president.
I can see the same ruling coming out after the election as before for this class of plaintiff.
I think your point is that there may be some other plaintiff later that can show actual harm was done and possibly get standing. A corporate interest that can show some decision has harmed them. I can't see how the court would allow them to sue based on the Presidents eligibility for office. The court would restrict them to challenging specific decisions.
From your #5400: You're taking the the definition of "natural born" to mean born inside the United States. It would take a lot of serious legal parsing to get that meaning out of it. It's hard to imagine the founders intended for the children of ambassadors who were born abroad to be ineligible. Much less soldiers stationed abroad.

I am not going to get very far into this with you but I want to address a couple of your legal points.

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.

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

Your view of legal standing is correct. The dismissal against McCain is simply that the plaintiff was not the guy to make the claim. McCain is still ineligible.

Earlier on the thread, a number of people here would like to encourage or participate in a legal challenge. All very good. 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.

Standing is one of the principal problems; the other 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.

That defense might well be argued to have disappeared if both McCain and Obama get the nominations--the argument is then in the context that both are not eligible.

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.

How a court would decide this issue in the modern world, you don't know. And the issue has a number of nuances. But as to McCain, he is clearly not eligible under this test; and as to Obama, assuming he was born in Kenya which I believe it is abundantly clear that he was, Obama is not eligible either and that is how the court should come down.

As to the other objections to Obama, the courts should probably hold him ineligible also. However if the issue comes up in a context in which he has prevailed in the election and can prove he was born in Hawaii, I assume the courts will hold him eligible in any event although that decision does fly in the face of the legal proposition.

Sure, we ought to amend the Constitution and fix this--suppose you have a national disaster and the President, Vice President, Speaker, etc. are gone and you are down to looking at cabinet officers--how much time do you want to be required to spend looking at their history leaving the country without a President?

Your final point--future challenges; is also correct. If Obama 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.

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.
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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.
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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.