Professor Charles Rice on Obama's 'eligibility'

RenewAmerica ^ | February 27, 2011 | Matt C. Abbott

[Hotlanta Mike]

There's been a lot of discussion in certain circles on the topic of President Obama's "eligibility." (Incidentally, Dr. William Oddie cogently argues in a recent commentary that Obama is an enemy of the Catholic Church. Click here to read it.)

Charles E. Rice, professor emeritus at Notre Dame Law School — and author of the book What Happened to Notre Dame? — argues that it's time for a new approach on the eligibility issue. His commentary is reprinted below.

[Springfield Reformer]

I understand what you are saying, but we are in uncharted waters here. I bristle somewhat at your use of the word “crowned,” as it reminds me of those old movies where they must expose the imposter before the crown is set on his head, else all is lost. A transference of practical authority certainly occurs at inauguration, but unlike a monarchy, “We the People” never fully surrender control of the “crown,” neither to any imposter, nor even to the whims of a Congress lacking the political will to do their duty.

Which is why in my original post I posit a practical, political burden, if not necessarily a formal legal burden, remaining on him. Yes, I agree that once he is inaugurated there is no obvious practical mechanism apart from either Congressional action or elections to fix the problem, and the judicial avenue has, through defect, been unable to confer standing to any individual located outside of those two processes. But pragmatically the burden has not left him, because deliberate impostiture, if true, would imply an exigent circumstance of the very kind “we the people” ought to be able to resolve despite failure of all other firewalls.

This is not to discredit your analysis. I have read your earlier posts and find them depressingly well-grounded in fact and law as it is widely practiced and understood. That is not a concession that modern practice is correct, but it does put limits on feasible solutions.

Which is why I remain committed to highlighting the uniqueness of the situation as a way to keep the burden on him despite the failure of the system. The Founders worked within the assumptions of the times in which they lived, and as much as I respect their work, I do not believe they fully accounted for this set of circumstances. I see this as a deliberate hack that is exploiting a weakness in the design. The hackers (plural intended) are a step ahead of us and we have complicated our response by allowing the overgrowth of judicial supremacy to disrupt our ability to bypass a malfunctioning Congress. The doctrine of standing in particular has evolved pathologically, from a guardian against an overly ambitious judiciary to a guardian against a defrauded citizenry.

So now we have a “constitutional virus,” and as anyone who has dealt with viruses knows, the best cure is prevention. That of course is why we have elections. They are the soft reboot that theoretically prevents a disruption of the system from becoming permanent. But well-written viruses are designed to survive reboots by hiding and reinfecting. So sometimes more draconian measures are required.

Short of such measures, the best solution now appears to be a combination of quarantine and future prevention. The prevention of future impostiture can be effected by legislating higher standards for qualifying candidates at the state level. But quarantining the present infection, IMHO, consists mainly in keeping the infection exposed and on the defensive by whatever in or out of the box methods may present themselves, including keeping the public mind focused on that which makes the infection alien and suspect, which must include fanning the flames of doubt concerning eligibility until it becomes natural to see him as under a burden of proof he owes the public, if not the state legislatures, which burden he has not met.

[ballplayer]

Probably Because as Eric Holder said It would be an Insult To HIS PEOPLE

[devattel]

jamese777 said:

If any Representative and any Senator wanted to submit a last minute written objection, all they had to do was stand and ask for a “point of order” which suspends normal business at the moment the Senator or Representative is acknowledged. Not one of the 534 assembled Senators and Representatives asked for a point of order. (Al Franken had not yet been seated to make 535 members of Congress). In a joint session of Congress, any member simply notifies the President of the Senate in advance if they want to take an action.

While this was relevant in 2009, it is most certainly not relevant for a large minority of members in 2011. Many of the seats up for election changed hands, so this is a perfect opportunity for the Senate and House to revisit this issue, especially after doubts as to the authenticity of Obama's social security number have been raised.

Congress truly believes there are bigger issues to tackle. However, it is very difficult to combat illegal immigration, debt, and health care correctly with a usurper at the helm. Beyond the usurping there is the all-too-obvious felonious mischief going on at the White House. Simply saying "we have too much on our plate" does not make it acceptable for Congress to avoid fundamental issues surrounding impeachable offenses. Every president I can think of has been subject to investigation for being accused of far less.

[frog in a pot]

Thank you for your thoughtful response.

…the best solution now appears to be a combination of quarantine and future prevention.

That is a sound conclusion and unless Obama is impeached, convicted and removed for some aspect of his post-inauguration behavior, it appears to be the only available choice. Further, your emphasis on keeping the burden on Obama regarding eligibility is certainly warranted.

I dwell on the Joint Session only for its lessons learned value as it is at the heart of the issue, and marks precisely when and how things went wrong. The uncharted waters you refer to, which IMO applies only to the two parent citizen requirement, are easily navigated with every day principles of contract interpretation – here with reference to the Constitution and contemporaneous writings – and the limits you raise on feasible solutions are bound only by political expediency or lack of courage.

You had every right to bristle at my use of the word “crown”; it indeed is offensive. It was an attempt to portray an act not contemplated in the Constitutional duty to certify the Electoral College votes. The duty, of course, was either to properly review and reject invalid votes, or to properly review and accept valid votes. The lack of such a review by Congress, in the face of a public record that cast substantial doubt as to Obama’s NBC status, was a significant political failure, if not a legal breach of the statute.

None of us in our individual, family or business lives would be so easily persuaded to overlook or dismiss such a major responsibility. Yet for some unknown reason, the agents we pay to actively defend our Constitution did exactly that.

FRegards.

[frog in a pot]

Thank you for responding, the example really was not an attempt to trick you or play games, after all we are on the same side of the larger argument. As expected, you immediately noted an equation with the terms 27,2 and 29 was inconsistent with the event.

To put a practical (even disturbing) light on the matter, imagine the response if we ask any enlisted member of the military services (with perhaps a handful of notable exceptions) for the name of the president in the oath they swore.

[Uncle Sham]

"What federal official requested that Obama present his bona fides? Obviously, there was no such request."

We don't know this one way or the other. Section three says that we are supposed to know.

"Did Obama fail to qualify during the 2009 Joint Session? Clearly he did not fail."

Once again, if nobody knows whether he is eligible or not, He HAS failed to qualify because the burden of qualifying is on him. We simply do not know whether or not he has qualified or what evidence exist that he has. If you want to refer to occupying the office of President illegally as successfully qualifying for that office you are free to do so.

"While I am asking, what evidence do you, or any of the rest of us for that matter, have that Obama is or is not “qualified”.

The fact that we have no evidence of his qualifying actually is evidence supporting the notion that he has not done so. Once again, the burden is on him.

"So we are presently beyond your Step 3, there was no showing the President elect failed to qualify."

I just showed you.

"You next cite 3 USC 19 U. S. Code as it relates to Vacancy in offices of both President and Vice President. Applicability of that section is limited to the case of where due to a failure to qualify there is neither a President nor Vice President. Unless something happens to Joe, that statute doesn’t help either."

I cite it purely to buttress my assertion that the term "failure to qualify" as it pertains to the Presidency in Section three has nothing to do with the Electoral College results but has everything to do with the eligibility requirements in Article Two.

[frog in a pot]

You did quickly and correctly understand the defect in the motel riddle, so for that I wish you luck with your “illegal President” argument.

[danamco]

Then “of course” we can soon expect Dr. Corsi to be on Sean Hannity promoting his new book like Hannity usually do with all the RINO “Establishment’s” books, right???

Hannity dropped Jerry Corsi as a hot potato after having him on his program just after it was on national TV that Corsi was arrested in Kenya!!!

[danamco]

I think Obama is going to push for Egypt-style riots here so he can forego the 2012 election altogether. Either that, or Homeland Security will accidentally let one of the threats they’ve been ignoring actually be successful. Maybe both.

Isn't that the foreplay (no sex referral!) that we see is vividly showcased in Madison/WI, or what Glenn Book is telling also???

[danamco]

IIRC Nancy Pelosi suddenly jumped out from her seat and created an deafening applause and cheering loudly IMMEDIATELY in the chamber, which lasted several minutes, before Cheney even was finish speaking, and thereby covering her own ASS, hmmm!!!

[danamco]

It seems to me that you both are not addressing Nancy Pelosi’s fraud certifications, which brings this issue to another level, as the Speaker of the House, hmmm???

[danamco]

Why do you suppose that is?

I would say definitely the dreaded RACE CARD, still at play, as late as yesterday according to the Whit-Hut!!!

[frog in a pot]

It is fair to say Uncle Sham and I intended to address only the limited question of whether Obama did or did not fail to qualify for his office; i.e., whether he is a legal president.

You raise a good point about Nancy. Given a certain set of facts, she may be complicit in an eligibility fraud.

As you know, the 12th A. Joint Session is the Constitutional "day of reckoning" for any alleged flaws and defects in the most recent presidential election - it is the day the Congress is required to certify to the nation the validity of the election!

If the President elect’s eligibility had been established during the Session, Nancy’s action, while negligent and hair-brained, would perhaps have been dismissed as a clerical oversight. On the other hand, her action may have had value as a political tool during the Session to uncover acceptable HI birth records that may exist or, in the absence of such records, to discredit those involved in the scheme.

Of course, Congress was unable to screw up the political courage to inquire as to his eligibility. This notwithstanding the substantial national outcry based on well-founded questions and doubts brought to its attention.

The way it evolved, Congress may as well have set up an open bar on the floor during the Session; on our tab, of course.

[danamco]

You raise a good point about Nancy. Given a certain set of facts, she may be complicit in an eligibility fraud.

My point here is that initially the HI DNC refused to accept Barry's eligibility to put him on their ballots, until Nancy Pelosi and her enablers had to step in the smelly cow pasture and made a fraudulence certification of his eligibility, totally covered up by the Dung Head Media, but exposed by CFP, hmmm!!!