Posted on 02/12/2011 8:34:33 AM PST by Uncle Sham
It seems that we might have been directing our efforts to determine whether or not this nation has a legally serving President at the wrong target. Congress should not be left out of the debate as though they where not in some way involved in answering this question. They are very much involved and deserve our scrutiny. Congress is COMMANDED by the U.S. Constitution to verify eligibility of a President-elect or name a replacement. Here is the case.
First off, what is a “President elect” in the full legal sense of the description? Since we are talking about the Constitution, we must assume that the term is referred to ONLY in its legal sense. The identity of a "President elect" is not established at election time, nor is it established after the Electoral College cast their votes. It is only established once Congress has ratified the Electoral College votes as legal and binding.
Winning the election in November is just step one of a four-step process. Step two is the Electoral College. Step three is Congressional review and ratification of those results which finally establishes just who the President elect is. Step four is section three of the Twentieth amendment. Miss any one of these four steps and there is no LEGAL Constitutional President. Like perhaps, now.
Twentieth Amendment, Section three:
”3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
Note the time indicated in the initial passage. It clearly refers to that period AFTER Congress has ratified the Electoral College results because the beginning of a term of office can only occur once there is someone to "begin" that term. Not only this, but Congress ratifies the Electoral College on January 15th. The beginning of a Presidential term is January 20th which is after the Electoral College ratification process is completed.
In addition to the Constitution, here is U.S. law...
U. S. Code, CITE: 3USC19
TITLE 3--THE PRESIDENT, CHAPTER 1- PRESIDENTIAL ELECTIONS AND VACANCIES
Sec. 19. Vacancy in offices of both President and Vice President; officers eligible to act
”(a)(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.“
Once again, from the U. S. Constitution, Article Six Oath of Office for elected officials:
” The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
The portion in bold stating “or if the President elect shall have failed to qualify” in section three of the Twentieth amendment is particularly interesting in that it plainly seems to infer that a “qualification” of some sort must be made in order to serve as President. Certainly, one cannot argue that it does not require a qualification process for one to “qualify”. To infer that the lack of a “specified” qualification process means that stated eligibility “qualifications” for the office of president can be ignored is fallacious. The wording of this passage in the twentieth amendment clearly infers that a qualification is required, regardless of how this is done.
There is only one set of qualifications listed anywhere in the Constitution that are not health related and they are listed in Article two, section one.
” No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
Section three of the Twentieth amendment comes in to play as the LAST step in a process to ensure that a President is in fact legal. To satisfy meeting the requirement of the Twentieth amendment to “qualify”, a President elect must present evidence that he meets its requirements for eligibility to serve. This means that a proper birth certificate HAD to be presented by the president elect in order to serve as president. In fact, without establishing whether or not the President elect is "qualified", Congress would not know whether or not to step in and name a temporary replacement as the amendment requires. Certainly, this means that the proof of "qualifications" must be presented to Congress.
If someone does not have a birth certificate as the governor of Hawaii has stated, how was this proof of eligibility established? Where is that certificate and to whom was it presented? If this was done, why would we not have the right to verify and inspect it under the freedom of information act?
If it was NOT done, then under the provisions of the twentieth amendment, Barrack Obama has “failed to qualify” and cannot be serving as a legal president of the United States of America. Remember, the Constitution says in Article two, section one that "NO PERSON" who does not meet the eligibility requirements may serve as President. There is no wiggle room in this language.
Based upon the above, I conclude that:
1. We currently have a vacancy at President because no one has yet “qualified” as required in the Twentieth amendment. The terms "The President elect shall have failed to qualify" clearly places this burden upon the President elect and not on someone raising their hand in objection.
2. Anyone serving in Congress (see “Congress” in bold in section three of the Twentieth amendment), or anyone who is currently serving under the oath of office in Article six has "standing" and can DEMAND that their oaths be met by receiving proper “qualifying” documentation from Mr. Obama. The charade at the time of counting the Electoral College votes does not limit their ability to do so at any time they so choose. The very fact that they are duty-bound by oath to "support" the Constitution REQUIRES them to respond to any and all attacks against it. No judge can deny any of them the standing to do so. It would ask them to break the law in their effort to enforce the law.
3. Perhaps this issue would get addressed sooner if we started pressing legal charges against all of our local representatives and senators covered by the oath of office in Article six for disobeying their oaths to support the Constitution as it pertains to the language of section three of the Twentieth amendment. Put PRESSURE on them to represent the document that gives them their authority in the first place. This includes our brand new supposedly "Constitution loving" Tea Party" representatives.
What a mess, huh!?
I could see Biden as Acting President until this mess is sorted out.
And it IS a mess. A tremendous mess.
Good visual: One of those high-rise apartment buildings in China, built without a good foundation, that topples over like a tree in the forest.
Another good visual: Those man-made islands (The World) off the coast of Dubai, that are sinking back into the ocean.
No proper foundations in either case.
Our country cannot operate without proper foundations for its institutions, including that of POTUS.
I don't see myself as "quick" to do anything. All of these Vittel based arguments have been around a long time and have been considered in the journals and among Constitutional lawyers in a number of different settings.
And there is not, as you suggest, any doubt what the founder's intended.
But after the founder's acted and we had the Constitution, we amended it--so the Constitutional bar looks at the Amendment as having changed the application of the provisions of the Constitution pertaining to citizenship.
The prevailing view is that the adoption of the born in the USA citizenship rule is viewed as conveying all of the rights privileges and immunities of citizenship including but not limited to natural born rights to any person who is born here.
In the context of the present political environment, the natural born clause is in general disrepute among the Liberal legal establishment generally--they are all in favor of a single international rule of legal principals they like. They don't have the courage to just say they are going to ignore the constitution although that is clearly where they would like to go. In the context of the personal attacks on Goldwater and Romney (the elder) on natural born grounds, they do not view themselves as being in a position to ignore the provision.
But it is going to get very narrow application. In the present situation, if Obama can prove he was born in the USA, he is going to win. If we can prove he was not born here, we would win.
Thank you for your reply.
I see your point about if it is able to be proven in court that he was not born here, that is a slam dunk.
Still, I think the courts need to visit and make clear exactly what is a NBC, and I don’t see any reason to veer from the original intent of the Constitution.
I was thinking spending time in the Greybar would be too good for this marxist POS, who not only has committed a massive fraud on America but is committing high treason as well. But then I thought, maybe if he were placed with an appropriately caring cell mate along with EVERY piece of PROPERLY conceived material from The Declaration on until he could regurgitate it verbatim, well, it might do wonders for his attitide. Oh, and before release, he would have to be able to recite the Bible from Genesis to The Revelation without a teleprompter. Might take a while. ;^)
There is nothing to prevent a state from passing a law requiring that the President must file his PROOF of meeting eligibility requirements with the state and that such a filing is open to public challenge in court.
Such a law could stipulate that any legislation signed by a President who refuses or is unable to meet this requirement to file shall be declared null and void within the borders of the state. No orders affecting any of the states citizens from such a usurper would have legal standing within the borders of the state. In addition, the act could command all legislators at the national level to institute whatever legal mechanism is required to challenge the standing of such a usurper.
It seems to me, any state-passed law that ENFORCES the Constitution would be judged as "Constitutional". Perhaps this can be done through a ballot initiative if the legislators refuse to look into it. We do not have to WAIT until the next Presidential election to handcuff a possible usurper. This can be done NOW and immediately protect a state's citizens from having to live with ILLEGALLY made legislation or orders.
BTTT and I concur 100%. Excellent!
If your are referring to the Fourteenth amendment, it does not contain any reference to the term "natural born citizen". Thus it cannot possibly eliminate or change whatever "natural born citizen" meant. They would have had to eliminate it from Article two, section one in writing to do so.
The prevailing view is that the adoption of the born in the USA citizenship rule is viewed as conveying all of the rights privileges and immunities of citizenship including but not limited to natural born rights to any person who is born here."
Here are two liberals agreeing that parentage is indeed part of the natural born status as they are discussing Senate Resolution 511 back in 2008.
At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.
“My assumption and my understanding is that if you are born of American parents,you are naturally a natural-born American citizen,” Chertoff replied.
“That is mine, too,” said Leahy.
The prevailing view is that the adoption of the born in the USA citizenship rule is viewed as conveying all of the rights privileges and immunities of citizenship including but not limited to natural born rights to any person who is born here.
Are you saying that even if a child is adopted by a foreigner and obtains (however it is obtained) citizenship of the adopted parent, he is still a NBC? I really find that hard to swallow, if that is what you said (and I could be wrong). No court has ever determined this, anyway.
“McLame was ineligible from day one and the GOP knew it. The RATS knew it. Everyone knew it...”
Nope. His parents are both US citizens, and he was born in Panama while they were stationed there under valid military orders.
Same as my son and eldest daughter, who were born in Germany while my wife and I were stationed there.
WRM, MSgt, USAF(Ret.)
Nope again. Law says if the president elect is determined ineligible or becomes incapable of serving, the VP becomes president, and a new VP is selected...
A direct answer is no. Just where do you think I sand that?
What I have said consistently, is that it is the widespread and generally accepted view of the Constitutional Law Bar as well as the scholarly Law review documents on the topic, that any person who is born in the geographical territory of the several states is a citizen and obtains all of the rights of citizenship including but not limited to natural born citizenship for purposes of Article II of the Constitution.
To be distinguished from a person who becomes a citizen at birth in a foreign country who is thereby subject to the sovereignty of that country at birth.
Under the Constitution as modified by the 14th Amendment, the issue is place of birth. If a person is born in the USA, he is a natural born citizen; if he his not born in the USA, he is not.
Fine that you think all that--you are welcome to think whatever you want to think. But here is the way it works.
The term "natural born citizen" remains in Article II--it means exactly what it meant when it was put there except as modified by the 14th Amendment.
Among the other obvious things it continues to mean is that to be Natural Born for this purpose, a citizen must have been born within the geographical territory of the US. Nothing in the 14th Amendment modified that--the 14th Amendment says and was intended to say that any person born within the geographical territory of the several states becomes a citizen at birth with all the rights privileges and immunities of a citizen at the time of birth.
Bad policy? Maybe. I would change it. But it is what it is--if you are born here, you are a full citizen. Get Congress to propose an amendment if you don't like it.
As to this citizen parent stuff, there is nothing in the Constitution that says you need to have citizen parents to be natural born wherever you are born.
The material from Vittel is just ancillary legislative history--US Courts may look at legislative history to decide what a provision means; they may see it differently from the way you see it; they may just reject it.
There may have been circumstances prior to the 14th Amendment in which a citizen born here would have been denied Natural Born status because of the conditions under which their parents were in the US at the time of birth--there isn't any real authority for that proposition and whatever a Court might have held in the 18th Century, my opinion is that even faced with the kind of parentage you envision now, without the 14th Amendment, the Court would hold a person born in the US is Natural Born. That's moot because under the 14th amendment, a person born here gets all the rights privileges and immunities incident to citizenship including, but not limited to Natural Born status.
Here are two liberals agreeing that parentage is indeed part of the natural born status as they are discussing Senate Resolution 511 back in 2008. At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President. “My assumption and my understanding is that if you are born of American parents,you are naturally a natural-born American citizen,” Chertoff replied. “That is mine, too,” said Leahy.
Again, just ducky that they said that. You may not know that particular exchange was staged in connection with a floor resolution established, not for the purpose of dealing with McCain's problem but for making a record with respect to Obama's condition.
And whatever they may have said; the bottom line with McCain is that he was born in a foreign country and is not a Natural Born Citizen.
If the McCain issue comes up, it will be in the context of a disqualification of Obama on geographical place of birth grounds. In that political context, the Court is not going to hold McCain eligible with the same deficiency in his citizenship. Not going to happen.
Sorry I have another question now. I just like to make sure I clearly understand what people write. You said:
What I have said consistently, is that it is the widespread and generally accepted view of the Constitutional Law Bar as well as the scholarly Law review documents on the topic, that any person who is born in the geographical territory of the several states is a citizen and obtains all of the rights of citizenship including but not limited to natural born citizenship for purposes of Article II of the Constitution.
Even if one or both parents are foreigners?
Even if one or both parents are foreigners?
Yes.
That doesn't mean you wouldn't make arguments to the contrary; it doesn't mean you wouldn't introduce the correspondence among members of the Constitutional Convention regarding Vittel; but the real bottom line is that if he can prove he was born in the USA, he is almost certain to prevail on the Natural Born issue; if we can prove he was not born in the USA, he should lose.
Ok, here's the relevant text in the Fourteenth.
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Nothing is mentioned of the natural born citizen status of Article two. It simply points out that "citizens" are those who are "born" or "naturalized" within the jurisdiction of the United States. It did not eliminate the category of "natural born citizenship" as it was defined at the time of the founding of this nation.
The political hack Jack Maskell took care of everything and brainwashed all 535. Period!!!
Yes, no question about it, but they ALL got snookered by political hack Jack Maskell for "CYA" including SCOTUS!!!
To me it looks like when in the “old” days we used old fashion carbon copy paper to copy and write someones signature on another paper, long before the digital era, and certainly poorly done!!!
But ONLY by two US citizen=(S) by (blood) parents, right???
Interesting take!!!
I just wonder WHY Hawaii DNC refused to endorse his candidacy on THEIR ballot first time around, hmmm???
Reminds me of my bad self when I used to hold up my husband’s signature to a window to copy it...this, to me, is not a legitimate signature and therefore makes his eligibility not legitimately verified....making him KAPUT as POTUS. I wish someone, somewhere, somehow would get on the ball and prove this man is a fraud!
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