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.
Heres 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 Now that he has withdrawn from the presidential contest, a test will be deferred until some future candidate in a similar situation pursues his candidacy to the advanced stage of a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.
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