I respectfully beg to differ on a few of the points you re-posted from Publius:
“Should there be a suspicion as to Obama’s qualifications under Article II, Section 1, one representative and one senator may challenge a state’s Electoral Votes for Obama. Then the senators would return to the Senate chamber, and the House and Senate would separately debate the matter.“
Actually, there is no explicit provision in Article II, Section I that specifies this procedure. However, under Article I, Section 8, Paragraph 18, Congress has the power :
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Congress has established Electoral College law in support of Article I, Section 8, Paragraph 18 and is listed as Chapter 1 of Title 3, United States Code (62 Stat. 672, as amended). Specifically, the argument lies in Section 15.
I am agreement up to this point – Congress passed an Election Law under Article I, Section 8, Paragraph 18. It provides for objections to the electoral voting process, by members of Congress. It IS a way to disqualify electoral votes, but NOT necessarily the ONLY way. Also, it does NOT address the issue of a candidate’s eligibility verification, nor does it state that Congress has the SOLE power to raise objections and/or verify eligibility.
One may INFER that is what the law means, but this has NEVER been challenged to SCOTUS on the basis on constitutionality. Therefore, it is not settled law - just because the law is on the books, does NOT make it constitutional.
This issue comes down to standing. But, in this case, it is NOT specified in the Constitution. NOR is it specified in U.S. law.
For issues not specified in the Constitution or in settled U.S. law, the 9th Amendment, 10th Amendment, and the concept of “original intent” seem to apply.
The 9th Amendment states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th Amendment states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The concept of “original intent” has been embraced by SCOTUS on numerous occasions when the Constitution and U.S. Law have failed to specifically address an issue. Examples include Gideon v. Wainwright (right to a court-appointed attorney), Miranda v. Arizona (rights need to be read to a suspect), United States v. Nixon (executive privilege), and Roe v. Wade (abortion – a “right to privacy” issue).
NONE of these aforementioned cases has any actual basis in the Constitution or in settled U.S. law, yet SCOTUS decided that they did – via the concept of “original intent”.
Under the concept of “original intent”, this is what I see:
1. CLEARLY, the Founding Fathers DID NOT want a non natural born citizen to be eligible as POTUS.
2. The 9th Amendment allows citizens to claim rights not enumerated in the Constitution or other U.S. law. (i.e. bringing suit to SCOTUS when others such as the Solicitor General do not bring a case forward).
3. The 10th Amendment deems that the powers not delegated by the Constitution to the United States, nor prohibited by it, are vested in the States or the people (in this case, the people having the right to ensure an eligible candidate).
Therefore, in absence of the current Executive Department (i.e. the Attorney General and the Solicitor General) enforcing the Constitution, nor Congress ensuring a candidate’s eligibility, ANY citizen SHOULD be allowed to demand verification.
As far as:
“Congress is a sovereign body, and in theory no court, even the US Supreme Court, has the authority to order Congress to do something.”
Although not vested with any authority or military force to enforce any of its decisions, SCOTUS DID establish the concept of “judicial review” in Marbury v. Madison and, over the last 232 years HAS become the de facto final word in the public’s mind.
If SCOTUS were to order the BC verification, Congress would go along with it – or face the wrath of the electorate in the next election.