This is an excerpt from one of the best-researched essays on the topic of the office of President and “Natural Born Citizen” qualification, written by Charles Gordon titled “Who Can Be President of the United States: The Unresolved Enigma”. It was published in 1968, during the time when then Gov. George Romney of Michigan ran for the 1968 Republican Party nomination for President.
Here’s the excerpt, with my emphasis added to highlight the important sections:
There remains the traditional method of construing the Constitution
through a ruling of the federal courts. Under the Constitution,
those courts exercise judicial power which extends “to all Cases, in
Law and Equity, arising under this Constitution.” However, until
an actual controversy develops there is no possibility of obtaining a
ruling by the federal courts. Those courts have always interpreted
their constitutional mandate as precluding the rendering of advisory
opinions. And they have not regarded this limitation as modified
by the statutory authority for declaratory judgments. The statute restricts
such declaratory judgments to cases of “actual controversy.”
This authorization has been read somewhat restrictively, and declaratory
relief has usually been granted only to one actually threatened with
sanctions or with imminent impairment of status or of personal or
property rights.
Thus, the alternative has been for those who aspire to the Presidency
to press their candidacy in the belief that citizenship acquired
at birth abroad qualifies them as natural-born citizens. Since no such
candidacy has until now developed beyond the speculative stage, there
has not yet been any occasion to test this belief. Such a test could
have developed when the candidacy of Governor Romney was being
actively pressed. Now that he has withdrawn from the presidential
contest, a test will be deferred until some future candidate in a similar
situation pursues his candidacy to the advanced stage of a preference primary
or an election ballot. I shall not attempt to chart in detail all the
possible avenues which could be explored in seeking such a test. However,
a few major routes are readily apparent.
The election mechanisms established by the various states may
provide the initial opportunity for obtaining a judicial ruling. Every
state has an election board or officer to supervise the election process.
Contests could develop at two stages in that process. In the first place,
some states now provide for a presidential preference primary to
select delegates to the national nominating conventions of the major
political parties. Often, it is necessary to file petitions for delegates
committed to a particular candidate. A state election board usually
can pass on the eligibility of one who seeks to appear on the ballot.
Its ruling for or against the qualifications of a particular candidate can
be challenged in the state's courts. The books are full of state cases
involving disputes as to various aspects of primary elections. And
in recent years the federal courts have underscored their interest in the
federal constitutional aspects of state elections, even when they only
concern party primaries. Indeed, a number of statutes implement the
authority of federal courts to intervene in election disputes where
deprivation of rights is alleged.
Since interpretation of the presidential qualification clause involves
a federal constitutional question, such an issue would unquestionably
wind up in the federal courts, either by an initial suit in such
courts, by removal of actions commenced in state courts, or by
Supreme Court review of a state court's decision. And it is not
inconceivable that a candidate, as well as the party apparatus itself,
might encourage an administrative ruling at the state level in order to
justify a “friendly” suit seeking a judicial pronouncement. Indeed,
an adverse ruling would be an obvious predicate for a declaratory judgment
suit in the federal courts.
If a judicial determination can be obtained, an early presentation of
the issue in connection with a primary election would be desirable. If
there is no judicial intervention at that level, the likelihood of a
judicial ruling doubtlessly would diminish. It would still be possible, of
course, to challenge the qualifications of a party's nominee through various
state remedies seeking to strike his name from the ballot in particular states.
But once a major party becomes committed to a Presidential candidate,
the stakes become so momentous that the courts
might hesitate to intervene. Nevertheless the possibility of a judicial
contest at this stage of the election process cannot be discounted. There
is no certainty that the Supreme Court, in its present activist mood,
would shrink from entering what some may regard as a “political
thicket” to decide any controversy, merely because the decision will have
far-reaching consequences. Therefore it is conceivable that a judicial
holding might be obtained, particularly if it is favorable to the candidate.
Finally, it may develop that there has been no judicial determination and
that a person with the disputed qualifications is actually elected
President. Some ingenious soul might resort to judicial proceedings
to restrain the electoral college from voting or to block the new President's
induction, but it hardly seems likely that such an effort would
be seriously regarded. More significant is the possibility that after
the new President takes office someone may seek to oust him through
the ancient writ of quo warranto - challenging an office holder's right
to his office - or its modern equivalents. Although it has no specific
statutory sanction, such a writ is still recognized in federal practice.
But at this stage of the election process, the possibility of a judicial
expression is so remote as to be virtually nonexistent. In the first place,
a person seeking to launch such a contest would have to overcome the
seemingly insuperable hurdle of legal standing to sue. In the federal
practice his lack of direct interest would seem fatal. More importantly,
an effort to vitiate the free choice of the American people in electing
a President would entail the gravest consequences to the national
security and order and to the balance of authority in our scheme of
government. Although courts have adjudicated controversies involving
titles to governorships and other high offices, it seems likely that at
this stage the federal courts would regard it as the type of political
controversy in which they should not intercede. Another possible,
but far-fetched, line of attack might seek to challenge the validity of laws
enacted over such a President's signature.
It is quite possible, of course, that the courts might find the issue
political and nonjusticiable at any milestone of consideration. However,
the climate for obtaining judicial guidance would be infinitely better if
such a ruling is solicited at the earliest stages of the electoral process,
before an overpowering national interest for stability has developed.
In the end, I personally can see no other alternative than for the Courts to decide this, as Congress is too partisan to seriously tackle this question. Despite nearly 30 attempts by Congress to legally define or otherwise alter the interpreted meaning of "Natural Born Citizen" since the 1870s, no Bills have ever made it to the floor for an actual full Congressional vote.
|