What with all this talk about the birthers, I note that it’s just a bunch of talk in the media. If anyone were really serious about this you would think that there would be some legal action pending.
If someone had a legitimate objection to the qualifications of a president (any president), how would they go about taking the appropriate legal steps to address it? Sue the president?
(I believe that the expression “natural born citizen” has not been well defined nor tested in court, but my question isn’t about splitting hairs. Suppose there were a person who was clearly born abroad to foreign citizens and somehow got elected president.)
I believe a number of people have tried to bring suit, and basically been told they don’t have standing. The proper person to bring a legal challenge would be the returning officer for the presidentail election in each state - the person responsible for accepting and validating candidates and putting them on the ballot. ANd of course, anyone excluded by that officer could sue.
mandamus in the Supreme Court, yes, problematic, but why not mandamus from a federal District Court? is the writ of quo warranto available in US federal courts?
IANAL and I don’t think the Birthers’ arguments have any merit. Still… I think a former soldier being stop-lossed back into service, away from his family and career after he understands his military obligations to be complete, could have standing to question the legitimacy of the Commander-in-Chief who is ultimately responsible for the re-deployment. What am I missing?
I don’t understand at all what you are trying to add to the discussion.
Birthers’ arguments have no merit: My question asks what would be legal recourse if the argument did have merit?
Soldier questions legitimacy of his CIC because of his redeployment: Disagreeing with redeployments has nothing to do with legal action to show that a president does not meet constitutional requirements for office. And questioning the legitimacy of the president has nothing to do with not liking his decisions.
Even if the President turns out to have been ineligible to be President, that doesn’t mean his actions as President were illegal. If Bob gets elected President and orders troops to Mongolia, and then we discover that Bob is really only twelve years old, that wouldn’t make his orders to the troops illegal. Soldiers are obligated to obey legal orders, and the eligibility of the President is not for them to decide. They have to obey the orders they are given.
Likewise, everyone in the country is affected by the President’s decisions. That doesn’t give them standing. And even if the President is later removed from office, his actions as President would still stand, they wouldn’t be retroactively invalidated. So the deployment order to Mongolia would be a valid order no matter what the President’s factual eligibility to hold office turns out to be.
Although the seminal importance of Marbury was in establishing judicial review, you appear to have misunderstood the specifics – it is not that the Supreme Court, or any Federal court, cannot use Mandamus, but that the Constitution delimited the Supreme Court’s original jurisdiction, and Congress was powerless to amplify it beyond the Constitutional limits in the Judiciary Act of 1789. That’s why a writ of mandamus directly from SCOTUS was not a legitimate remedy for Marbury. Now, if the case had been brought in District Court and immediately taken to the Supremes by certiorari…
There were various lawsuits brought before the 2008 election, some challenging Obama’s citizenship, some challenging McCain’s. To the best of my knowledge, they were all thrown out for lack of standing (i.e., in none of them did a court actually examine either candidate’s citizenship). I think people still try to bring them against Obama to this day.
I wonder whether one candidate would have standing to challenge another’s citizenship? I.e., could Nader have sued to have both McCain and Obama disqualified? It seems to me that the answer would have to be “no” or at least a “yes” only in very limited circumstances. Otherwise anyone could get around the standing limitations simply by declaring a candidacy for President.
Okay, in this particular case, the birthers are of course 100% wrong. But as a hypothetical:
Let’s say a party nominates a competent politician, former movie star, born in Austria. A citizen objects that he doesn’t meet the qualifications set forth in the Constitution. At this point, with him being merely a candidate, I would suspect that a Federal court might issue an injunction to the ‘returning official’ (the person in charge of making up ballots and counting results) prohibiting the listing of a candidate not meeting the legal qualifications.
General election has been held, and electors pledged to our hypothetical ineligible candidate have been chosen in enough states to give a simple majority of electoral votes. At this point, SCOTUS and all other Federal courts declare it a political question. The proper remedy is for Congress, the duly constituted ‘returning authority’ charged with counting the electoral votes, to declare the candidate ineligible. If they choose not to do so, there is no other remedy, because the courts will not compel Congress to do its job in the way they think best.
Said candidate has been duly elected and inaugurated. The remedy here is also spelled out in the Constitujtion – the House impeaches the candidate; the Senate tries him/her and removes him/her from office. The Senate is “the Court for the Trial; of Impeachments”; that’s its legal title in that special circumstance. And the Article III courts will again declare it “a political question” in which they will not involve themselves, because the Constitution spells out a remedy not involving them. They are not authorized to remove a member of Congress or an impeachable office holder from office, because the Constitution spells out how to do so, and they’re not that means.
In short, even if Orly Taitz should prove beyond a shadow of a doubt that BHO was born in Kenya of immigrant Martian lizard men who were anachronistically Al Qaeda members, the proper response of a Federal judge should be, “That’s nice. Now what do you want me to do about it? Case adjourned.” It is Congress’s job to deal with the consequences, not the courts’.
This can’t be right because when you vote for president, you are voting only for a slate of electors. They can vote how they like. I don’t know if their vote is even public. Of course, nowadays they are pledged to vote for a particular candidate, but I know that in 1948 at least one elector chosen on a slate pledged to Truman actually voted for Thurmond and nothing happened to him. I don’t think anyone could stop them from voting for Caligula’s horse.
Now I believe the results of the electoral vote are transmitted to the house. Perhaps an objection could be raised there. Perhaps the chief justice could refuse to swear him in. The only thing I am pretty sure of is that no one else has any clear idea either.
Other murky points. Suppose the candidate’s 35th birthday is on January 19th? Then presumably the electoral college could still choose him. But what if it is January 21st?
Has any candidate for congress ever been refused because of not fulfilling the formal qualifications?
The nearest case I am aware of is that when Robert Kennedy ran for the US senate from NY in, I believe, 1966, someone actually did get a court hearing claiming that RFK was not a resident of NY state. The court ruled that while you could argue either way (he did have a NY residence, but had lived in DC since 1961), it really didn’t need a court decision; let the voters decide. They elected him.
I suspect one thing that would make a suit difficult is that a motion to dismiss on the grounds that the plaintiffs have zero evidence would almost surely be granted.
Simply put, there are a number of court cases that have been brought by soldiers who fought their redeployment specifically on the grounds that the Commander-in-Chief is not a natural-born US citizen and he occupies his office illegally. The courts dismissed these out of hand, saying these plaintiffs lack standing. I would personally have felt better about the proceedings if the judges involved had said something along the lines of “The President’s birth records and citizenship have passed muster already, and you have failed to present evidence to the contrary.” What they said instead was more along the lines of “We’re not commenting on the legitimacy of the President’s birth records and citizenship because you reek of unimportance.”
You misunderstand the nature of “standing” as a legal concept then. Consider this, by way of hypothetical example:
[Fake Moderating]
Krokodil, for repeated use of abusive language outside the Pit, you are banned from this board.
[/Fake Moderating]
Naturally, you complain to the Admins. that you didn’t do anything wrong. But notice, I’m not a Moderator. I have no right to ban you. So it doesn’t matter in the slightest whether your post was innocuous, pure as the driven snow, or cantankerous and vitriol-filled – I had no right to do what I did. (And I would be roundly reprimanded, probably warned if not myself banned, for actually doing it.
Standing is like that. Before a court will expend the effort to examine the validity of a given plaintiff’s claim, they first ask if he/she has any grounds to bring that claim before the court, if he/she is injured in any way or enabled by statute to bring such an action. And if he or she is not, then there is no reason to expend the effort to review and decide the merits of the case – there’s no actual case to be decided on. What was held forth as a lawsuit by the plaintiff was a “nuisance suit” because he.she had no grounds on which to bring it.
Would Joe Biden have standing? Would it matter if he made some kind of token effort to exercise what he felt were his rightful powers as president, which would be refused?
Also, you are not required to be a ‘resident’ of the state to represent it in Congress. The Constitution says only that “when elected, shall be an inhabitant” of the state, which is legally different from “resident”. And the Judicial branch has been very careful about not interfering in this, letting the Legislative branch (Congress) & the voters decide on this. About all the Courts have done is to strike down any attempts by various states to add more restrictions on this, like residency requirements or term limits.
And in practice, many members of Congress, once elected, purchase a home in the DC area, and move their whole family with them there. So we would normally consider them to be ‘residing’ there. Though many do maintain an address in their home state, too.
Good point. No, in setting up this hypothetical situation I was contrasting the court having jurisdiction here with its not having jurisdiction after the election. I’m not sure who would actually have standing; SCOTUS has busily been redefining standing questions more restrictively since around 1980. Any Dopers-at-Law want to take a crack at the question?
I still don’t think mandamus is appropriate, as there probably isn’t a governmental agency that has a non-discretionary duty in this regard. It’s kind of the opposite of Marbury, really, seating someone who shouldn’t be as opposed to refusing to seat someone who should be.
The remedy is in equity. While an injunction typically stops someone fromdoing something, it’s also been used to compel action, by language like “You are enjoined from continuing to leave unbuilt the levee called for and more particularly described in Public Law #08-432.” But as I noted above, once the magisterial duty falls on Congress or the President, the courts are generally loath to act to compel action, separation of powers being what it is.
First of all, any lawsuit in regards to election procedures is bound to fail because non-NBC’s have run for President acknowledging that they can never take office and that the VP elect would take office. My google-fu is weak this morning so I don’t have any examples even though I know they exist.
Here is how I would do it if I were a birther:
Violate some federal law signed by Obama that was passed within 10 days of the adjournment of Congress. (Standing established)
The timeframe is critical because if a President (and I am arguing Joe Biden is the President) doesn’t sign the bill it becomes law under Article I Section 7 UNLESS the President uses the pocket veto.
The alternative would bring a civil suit under a bill that was passedmore than 10 days before adjournment, vetoed and Congress didn’t override the veto. The legal argument being that since President Biden didn’t sign or veto the bill (A I, s7), it is a law. This may be impossible to use so I’ll assume I used alternative 1.
At my trial, make a motion to dismiss under the fact that I violated no law.
To support my position that Obama is not President, I would use the fact that:
a) No state bars non-NBCs from running for President
b) Furthermore, no state checks a candidate’s eligibility for Presidency
c) Furthermore, no Federal body checks for a candidate’s eligibility for Presidency (notice te House and the Senate do theoretically determine their member’s eligibility to be seated)
d) Non-NBC’s have run for president
Therefore running for and being elected President is NOT prima Facie evidence that a person is eligible for that office
Present evidence that Obama was born in Kenya
I think I will have to hire Underwear Gnomes as legal council because my argument is basically
a) Claim Obama was born in Kenya
b)
c) Profit! (or call OpalCat as a witness)
Argue against Obama’s evidence such as:
a) When I subpoenaed the long form, I meant the REALLY long form
b) A Hawaiian Certificate of Life Birth can be used if a resident of Hawaii gives birth in a foreign country like Kenya (ignore that it explicitly states he was born in Honolulu)
c) When every public official says that they have seen the documantation and confirm that it proves he was born in Hawaii, ignore it. After all, they’re Democrats
d) Under the law at the time, his mother could not pass on her citizenship via jus sanguinis because of her age
e) Something about how Indonesia makes a person give up citizenship if you apply for residency and Obama has never applied for Citizen Reinstatement Level 1
f) My personal favorite: Hawaii is not part of the US because it was illegally annexed (ref: Public Law 103-150) and if Obama were born in Honolulu, then he was born in the KINGDOM of Hawaii.