Posted on 09/15/2011 5:11:27 PM PDT by sourcery
Congress, then, has no role in determining who is eligible to be president. Does the federal judiciary have a role, then? The scariest remark that I have read by conservatives is that federal courts have some role in judging the qualifications of someone chosen by the Electoral College. Federal courts' jursidiction, including the Supreme Court (except for a few narrow powers of original jurisdiction), are only what Congress confers upon the courts. Beyond that, the Supreme Court could not even exist in our nation until the president and Congress are elected: when Washington was president and the first Congress was elected, there was no federal judiciary at all, and there could not have been until someone was elected president.
(Excerpt) Read more at americanthinker.com ...
Those words utterly falsify the argument made in the linked article. SCOTUS is granted the authority to decide any issue whatesover that is a case in law or equity (check) and which arises under the Constitution (also check.) Yes, Congress is granted sole authority to judge whether or not its members satisfy any membership or elligibility requirements, but the Constitution makes no such special grant of authority to anyone at all with respect to Presidential eligibility--which is why the words of Article III utterly and beyond any possibility of rational or legal counter-argument refutes the author. SCOTUS is granted to authority to decide whether someone is or is not Constitutionally President. Period. Full stop. End of discussion.
>SCOTUS is granted to authority to decide whether someone is or is not Constitutionally President. Period. Full stop. End of discussion.
Not quite (end of discussion); the Supreme court has no authority to alter or amend the Constitution. So if, for example, Obama were really 16 years old NOTHING they said would change the fact to make Obama qualify for President because they cannot change the requirement for age. Likewise, if Obama were not a Citizen, then nothing they could do could make him a Natural Born Citizen because “natural born citizen” is a subset of “citizen.”
Apparently there is only one qualifier and that is skin color.
Correct me if I’m wrong but does each state have the responsibility to verify that an individual is qualified to be President? From my understanding, only one state signed the document, claiming that Obama was qualified and that was Hawaii.
The Twentieth Amendment provides as follows:
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.
What does it mean that a "President-elect" shall have "failed to qualify"? To become a President-elect, a candidate must have received the votes of the electors.
Therefore this "qualification" process is something that happens after the electors' votes are counted and before the President-elect formally takes office as President.
What is required under the Constitution for a President to qualify? Only two things: (1) the person must be eligible to be President and (2) must take the oath of office.
The logical conclusion is that because the process of counting the votes of electors is committed to Congress in the form of the president of the Senate presiding over a joint session of both Houses, that that is the time and venue when an objection to qualifying a President-elect is to be made on the basis of not being eligible.
If an objection is made to the president-elect's ability to qualify and it is sustained in that venue, then the procedures of the Twentieth Amendment are followed for determining who is to be the President.
If an objection is failed to be made, and an ineligible President-elect is nevertheless qualified as President, then the only recourse at that point is for the House to impeach him for this defect and the Senate to remove him, under their constitutional powers.
Please explain how “natural born citizen” is a subset of “citizen”?
You can find the types of statutory citizenships of the U.S.A. at www.uscis.gov., then click on ‘Citizenship’.
Natural born citizenhip is never mentioned BECAUSE it is not a type of citizenship, just an elgibility requirement to be President of the United States.
SCOTUS absolutely has the power granted to it by the Constitution to rule upon the eligibility of the President. Thoug they have little power to enforce such a ruling.
Yet there also is no magic wand that makes the Court correct in how they rule and that being so, the other two branches could in theory defy and challenge such a ruling. Thus a Constitutional crisis.
Congress could seek to impeach Justices, hold their own hearings, create law that flys in the face of judicial rulings, defund, etc....
The Executive could also simply use the power of the Presidency to bully the Court (or the Congress) through Executive orders, declare the Court to be in rebellion of the Constitution and issue orders of arrest, etc...
The really sad part in regards to the issue of Presidential eligibility is that ‘We the People’ have very little power once all three branches coose to ignore the issue.
Precedent is now being set and the ‘eligibility clause’ of the Constitution and the meaning of ‘natural born’ citizen is being made meaningless.
As an orginalist the definition would be defined as it was at the time of the Constitution. There is ample legal writings at the time and since then that define the term as being one born to two American citizen parents.
Leo Donforio. a lwayer of New Jersey, has done great work in recovering multiple legal cases and legal works that define ‘natural born’ citizen.
Yes, of course.
ABSITIVELY !!! If someone brought a quo warranto action against a President-Elect in the District of Columbia [and SCOTUS accepted it], there is NOTHING to stop them from doing so. That is, unless you want to undo 208 years of Supreme Court jurisprudence - as specified in Marbury v. Madison, where the Court asserted the right of judicial review.
From Marbury v. Madison:
"The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States ..."
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it ..."
"It is emphatically the province and duty of the Judicial Department to say what the law is ..."
"This is of the very essence of judicial duty ..."
"The judicial power of the United States is extended to all cases arising under the Constitution."
"Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?"
"This is too extravagant to be maintained."
"In some cases then, the Constitution must be looked into by the judges ..."
The theory of judicial review in Marbury and its progeny is that it is the quintessential function of a court of law to interpret legal documents and define legal terminology, and since the Constitution is a legal document, it is a natural function of the federal courts to interpret that document.
For example, the term "natural born citizen" is a legal term used in the Constitution, and it would appropriately be the function of the federal courts to interpret that term with the Supreme Court having the final say.
To take another example, the Constitution says Congress can impeach and convict the president for "high crimes and misdemeanors." The federal courts could appropriately define this term; for example they could lawfully rule that a traffic violation was NOT a high crime or misdemeanor, and therefore the president could be made to answer for such a breach of the law in the regular courts. This is to some extent an academic point, because if the Senate were to decide that some particular crime did not rise to a high crime, even though the Supreme Court and the House of Representatives thought so, it could decide simply not to convict.
In this latter example, while the Supreme Court would have the legal power to decide what is a "low crime or misdemeanor" as opposed to a "high crime or misdemeanor" it does not have the power to try and convict a president of a high crime or misdemeanor, because that power has been committed to another branch of government under the Constitution.
Similarly, while the Supreme Court would have the final say on what the term "natural born citizen" means as a matter of law, they would not have the power to determine as a fact-finding matter that a particular president-elect did not qualify for office on that basis, as the Constitution contemplates the venue for this purpose being the Joint Session of Congress presided over by the President of the Senate.
I enjoy and am inspired by his speeches and I am grateful he's in the Senate. Way to go Florida!!!
But, he isn't eligible to be President, since he isn't a Natural Born Citizen.
If he's on anyone's ticket as VP, there's no way I can vote for them unless the SCOTUS first redefines the NBC eligibility differently than the original intent of the Founders.
>Please explain how “natural born citizen” is a subset of “citizen”?
>
>You can find the types of statutory citizenships of the U.S.A. at www.uscis.gov., then click on ‘Citizenship’.
Actually you just answered it, the set Citizen is the union of the subsets of “Natural Born Citizen” and “Statutory Citizens” and “Dual Citizens.”
>Natural born citizenhip is never mentioned BECAUSE it is not a type of citizenship, just an elgibility requirement to be President of the United States.
The reason it is in the requirements to be President is because “Statutory Citizens” owed their allegiance to some foreign country (and it would not do for the commander of the Armies and Navies to have any possible allegiance to someone with whom he might have to war with... or to try to commit the forces under his command in what would otherwise be a neutral affair).
Procedurally, you are correct. However, your assertion that the Supreme Court WOULD NOT be able to determine as a fact-finding matter that a President-Elect did not qualify for office is FACTUALLY incorrect.
If a petition for quo warranto were brought PRIOR to the count of Electoral Votes in Congress, the courts would likely reject the petition out of hand due to lack of ripeness. Therefore, the counting would necessarily have to have been concluded before the submission of a petition of quo warranto.
Let us assume there is a [presumably] winning candidate with at least 270 votes in the general election. Let us further assume that there is a question as to whether he [or she] is a natural-born citizen:
The procedure for the counting is as follows:
United States Code
Title III
§ 15. Counting Electoral Votes In Congress
”Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.”
The United States Code does not SPECIFICALLY describe an objection to the qualifications of a Presidential Candidate. However, it does describe the method of objection to Electors. Presumably, an objection to the legitimacy of Electors could be made upon the basis of the [lack] of qualification of a particular candidate.
ASSUMING that a candidate WAS certified by Congress as the President-Elect, a petition for quo warranto could then be made in the following manner:
District of Columbia Code
Division II. Judiciary and Judicial Procedure
Title 16. Particular Actions, Proceedings and Matters.
Chapter 35. Quo Warranto.
Subchapter I. Actions Against Officers of the United States.
§ 16-3501. Persons against whom issued; civil action.
”A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.”
§ 16-3502. Parties who may institute; ex rel. proceedings.
”The Attorney General of the United States or the United States Attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.”
§ 16-3503. Refusal of Attorney General or United States Attorney to act; procedure.
”If the Attorney General or United States Attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.”
If the Attorney General or the United States Attorney refuse to institute a quo warranto proceeding, then the petition may be brought before the Federal Court. If the Federal Court refuses to act, an IMMEDIATE appeal can be made to the Supreme Court. If the Supreme Court ACCEPTS the petition for quo warranto, then it will remand it BACK to the Federal Court for a hearing. Presumably [no matter which way the Federal Court ruled], a DIRECT appeal would be made to the Supreme Court for a FINAL decision.
Now, chances are that such a hearing would extend beyond the January 20 constitutionally-mandated Inauguration Day – so it would be likely that the 20th Amendment [paragraph III] would be invoked. On that day, neither a President-Elect or [possibly] a Vice-President Elect would have qualified [since they run as a single ticket]. Therefore, the Speaker of the House of Representatives would act as President until either a President-Elect or Vice-President Elect will have qualified.
Amendment 20 - Presidential, Congressional Terms. 1/23/1933.
”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.”
And, from: United States Code:
Title III
§ 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.”
”(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.”
”(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.”
”(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that – “
”(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and”
”(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.”
”(d)”
”(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.”
Citing the quo warranto provision of the judicial code does not address the question.
I could similarly cite the code provisions authorizing the convening of grand juries and the issuances of indictments for criminal offenses.
But that doesn’t mean that the provision authorizing the issuance of indictments by grand juries applies to a crime committed by the president.
Under the Constitution, only the Congress can prosecute a crime (assuming it is a high crime or misdemeanor) against a sitting president.
So the question of whether a federal court has the power under the Constitution of issuing an order that a president-elect is not qualifed to take office is not answered by merely citing the existence of a quo warranto provision in the code.
The question remains as to whether the Joint Session of Congress referred to in the Constitution is the determiner of qualification of a president-elect. To my mind, the better answer is yes, based on the architecture and language of the Constitution.
I recognize this may prove inadequate. The impeachment and conviction power of the Congress proved inadequate in the case of a sitting president who committed the crimes of perjury and obstruction of justice in a civil suit against him for sexual harassment.
Where the Congress is composed of supporters of the president and spineless members of the other party, there is no adequate remedy for the people for a corrupt or fraudulent president.
I don’t have a better answer than the one the framers came up with. Like them, I would be reluctant to place in the hands of judges the power to decide who should be president or to remove a president.
And before anyone mentions Bush v Gore, that was a completely different set of constitutional issues.
The answer is simple.
First you have to decide if "an elgibility requirement to be President of the United States" is meant to be applied to "citizens," or just to anyone who happens to be here during an election cycle.
So, are presidential candidates drawn from a pool of "citizens" or not?
Once you answer that question, then you can ask if the highest office in the land was meant to be filled by any citizen or only from a more constrained pool of citizens. To discuss this point, you have to acknowledge that the Constitution does refer to "natural born Citizen." This fact cannot be ignored. We cannot discard it for conviencence.
So, what was meant by "natural born Citizen," so as to separate them from the larger pool of "citizen," assuming that we presume that only citizens can become President?
-PJ
I was citing procedure for the selection of a NEW President, NOT the removal of a sitting President.
Take the case of the natural-born citizen issue that I previously cited.
The Presidential term ends at noon on the next January 20th following the general election. If a candidate [even a sitting President] were deemed in Congress to be unqualified [by not being a natural-born citizen] during the Electoral Vote Count process, then he WOULD NOT be eligible to be President as of 21:00 [and one second].
Of course, that affected candidate who was deemed ineligible by Congress [even a sitting President] would obviously go to court before the inauguration - since Congress HAS NO right to determine what a natural-born citizen is under the Constitution [it IS NOT within the powers granted to Congress]. That is the province of the courts. AND, it WOULD go all the way to the Supreme Court.
OTOH, if Congress certified the candidate in question [natural-born citizen-wise], the losing candidate could petition for quo warranto and there is precedent for this [since the losing candidate has a personal stake in the outcome]. It would then go to the courts - again all the way to the Supreme Court.
If the Supreme Court ruled that the winning candidate [who WAS NOT a sitting President] was ineligible, then he WOULD NOT be allowed to take the oath of office at noon on the 20th of January following the general election. This IS NOT a ruling against a sitting President and WOULD NOT result in the Supreme Court removing a President from office.
If the affected candidate WAS the sitting President, and was deemed ineligible [although certified by Congress], then he could start to take the oath of office at noon on the 20th of January following the general election. BUT, as of 12:00 [and 1 second], he would NO LONGER be President AND he WOULD NOT have completed the oath of office. THEREFORE, the Supreme Court ruling would stand and he [as NOT President] would be ineligible. THEREFORE, the Supreme Court WOULD NOT have removed a sitting President, which is a power NOT granted to them. BUT, the [former] sitting President would be excluded from taking office for a second term.
*****
Under the Constitution, only the Congress can prosecute a crime (assuming it is a high crime or misdemeanor) against a sitting president.
Quo warranto isn't a crime - it is a civil action ...
*****
So the question of whether a federal court has the power under the Constitution of issuing an order that a president-elect is not qualifed to take office is not answered by merely citing the existence of a quo warranto provision in the code.
I beg to differ - as I have demonstrated, above ...
The question remains as to whether the Joint Session of Congress referred to in the Constitution is the determiner of qualification of a president-elect. To my mind, the better answer is yes, based on the architecture and language of the Constitution.
Show me in the Constitution or United States statutes where that is specified, other than vague terms such as failed to have qualified. Also, show me where the Constitution specifies that Congress can make determinations on the meaning of phrases such as natural-born citizen in the Constitution. Also show me where the Supreme Court is prohibited from making determinations of the language of law [the Constitution being the supreme law of the land].
I recognize this may prove inadequate. The impeachment and conviction power of the Congress proved inadequate in the case of a sitting president who committed the crimes of perjury and obstruction of justice in a civil suit against him for sexual harassment.
I agree with you on this - I did not care about the sex, but the perjury and obstruction of justice were DEFINITELY impeachable offenses. I know a former DEM Senator who feels HORRIBLE that he voted to acquit - he voted party over his principles. I told him that I have NO sympathy for him and that he would just have to live with it ...
And before anyone mentions Bush v Gore, that was a completely different set of constitutional issues.
Agreed. It was a straight 14th Amendment Equal Protection case. 7-2 decision with Ginsburg and Stevens [naturally] dissenting. Those chicken shits put politics above the Constitution. Breyer and Souter made the courageous [and correct] decision to concur on the Equal Protection violations.
If it had been the other way around [Gore v. Bush], I suspect it would have been a 9-0 decision in favor of Gore.
Yes, I use Leo Donofrios arguments all the time.
Actually, natural born citizen is born in a nation of citizen parents.
Native born (jus solis) + derived citizen (jus sanguinis) = natural born citizen.
ONLY NATIONAL LAW MAKES BINDING PRECEDENT.
The Supreme Court’s definition of the natural-born citizen clause in Minor [Minor vs. Happersett} is not common law, natural law, or international law. Vattel is not cited by the Supreme Court in Minor. And Vattel does not make US law. The Court’s holding in Minor is national law. It is United States law.
Those other sources may have been consulted, but when the Court held that Minor was a citizen under Article 2 Section 1 BECAUSE SHE WAS BORN IN THE U.S. OF CITIZEN PARENTS, that definition became national law. Therefore, Minor supersedes all other sources on this point. It is a direct Constitutional interpretation and definition.
The other sources are not necessary. Relying upon them actually weakens the authority of Minor. There is no need for insecurity in the face of supporting Supreme Court precedent.
On November 22, 2008, Justice Scalia addressed the Federalist Society, stating:
“Natural law has nothing to do with originalism. I mean, I believe in natural law, but unfortunately I have no way to show or demonstrate that my understanding of it is the same as yours, or is the same as anybody else’s. I don’t enforce natural law. I suppose God enforces natural law. I enforce United States law. United States law should not contravene natural law, but that’s not my problem… I worry about, ‘What does this text mean?’ ” (Emphasis added.)
Earlier in that same speech, Justice Scalia stated:
“What has happened can only be compared to the naive belief that we used to have in the common law… Erie Railroad, you know, blows that all away… and we sort of chuckle at how naive the world could have been ever to have thought there was a common law…”
Do not get sidetracked by extraneous theoretical sources. We have United States Supreme Court precedent which defines a natural-born citizen – under Article 2 Section 1 – as a person born on US soil to parents who were citizens. Neither Obama nor McCain fit that definition. Neither are eligible to be President.
While some may argue McCain was eligible based upon a reference to Vattel, McCain simply does not fit the strict US Supreme Court definition of natural-born citizen as defined in Minor. To fashion an exception for McCain not found in the actual text from Minor is purely partisan and unfair.
Unlike others commenting on eligibility, I have always maintained that both McCain and Obama were not eligible. I brought my law suit all the way to the Supreme Court – prior to the election – arguing against both candidates’ eligibility. I was the first person to raise this issue with the American people. And I hold them both accountable for the damage done to our Constitution as a result of neither having more concern for the nation than they did for themselves.
Leo Donofrio, Esq.
http://naturalborncitizen.wordpress.com/2011/06/30/the-express-lane-to-natural-born-clarity/
Obviously. I was making an analogy between the exclusive grant of criminal prosecution power to the Congress under the Constitution and the exclusive grant of power to qualify the president-elect to Congress under the Constitution. If Congress determines that a president-elect is not qualified they are not convicting him of a crime. But that is not relevant to the analogy I am making, which has to do with the exclusive power of Congress in both circumstances.
Just as the mere existence of a grand jury procedure does not take away Congress' exclusive power to prosecute the president for a high crime, neither does the existence of a quo warranto procedure take away Congress' exclusive power to determine the qualification of a president-elect.
In the hypothetical you posited as to the losing candidate aggreived by an arguably wrong determination of natural-born citizen by the Congress, I disagree that he would be required to jump through the quo warranto hoops in order to bring his case as to the proper interpretation of the meaning of "natural-born citizen" before the federal courts. He would have standing to bring a case directly naming the Congress as an adverse party denying him a constitutional right in depriving him of office based on an unreasonable interpretation of "natural-born citizen".
If a court were to determine that the aggrieved candidate is likely to win on the merits and the other conditions for a preliminary injunction are met, he could promptly obtain a preliminary injunction to prevent the other person from being sworn in as president in order to preserve the status quo. In that case, the provisions of the Twentieth Amendment and the US Code would determine who is president pending the outcome of litigation.
If the aggreived candidate ultimately wins in court, the proper remedy would be a court order directing the Congress to apply a corrected definition of "natural-born citizen" under the Constitution in Congress' determination of qualification of the president-elect. However, the court could not go further than interpreting the legal term, because anything beyond that, such as second-guessing a finding of fact by the Congress as to a president-elect's age or place of birth, would be to usurp the role granted to Congress under the Constitution.
Show me in the Constitution or United States statutes where that is specified, other than vague terms such as failed to have qualified. Also, show me where the Constitution specifies that Congress can make determinations on the meaning of phrases such as natural-born citizen in the Constitution. Also show me where the Supreme Court is prohibited from making determinations of the language of law [the Constitution being the supreme law of the land].
Clearly you failed to even read my posts you are responding to. I did not claim that "the Supreme Court is prohibited from making determinations of the language of the law." I SAID THE EXACT OPPOSITE!!! The Supreme Court under the doctrine of judicial review has FINAL authority in interpreting the meaning of legal phrases under the Constitution. Just as the Court would have the power to distinguish "low crimes and misdemeanors" from "high crimes and midemeanors" so it would have the power to determine the meaning of "natural-born citizen." (I am annoyed at having to retype this because you didn't bother to read what you responded to.)
As to Congress determining in the first instance what a Constitutional phrase means, this happens as a regular course of action. To pick one out of many examples, when Congress decides to regulate something under the Commerce Clause, it first decides whether it has the power to do so based on what it considers the term to mean. The Supreme Court comes in a later point in time when a legal challenge is made and then second-guesses what Congress determined, having the final say.
As to whether Congress has exclusive power to determine whether a president-elect is qualified, I concede that it is not clearly and explicitly stated. If it was crystal clear, then then we would not be debating it.
But in many places the Constitution does not completely expand on its meaning. If the Constitution laid out explicitly and clearly the meaning of just the First Amendment, it would have to be 1000 pages longer.
That the Constitution intended the Congress to be determiner of the qualification of a president-elect is evident from the scheme of powers granted to the branches and the explicit contemplation of a failure to qualify process.
Consider the case of a defect raised as to eligibility AFTER a president has been sworn and taken office. In my view, a claim that a president has falsely assumed his office would be necessarily a "high crime or misdemeanor" and therefore it would be the exclusive role of Congress to decide whether to remove the president.
If the Constitution grants this power exclusively to the Congress after the president takes office, then it is consistent with this scheme of separation of powers for Congress to have this power also during the period between the time the president-elect is determined and when he takes office.
As to the rest of your post, it appears we are agreed.
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