# Hypothetical: Legally, what would happen if Obama wasn't a native born citizen? **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2008, 1:30pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274 "2008-11-18T13:30:37Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [November 18, 2008, 1:30pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/1 "2008-11-18T13:30:37Z")
Ok, the screwballs are out in force ([Alan Keyes](http://www.postchronicle.com/news/breakingnews/article_212186942.shtml), to name just one) still saying Obama isn’t a native-born American and isn’t eligible to be president. Let’s, just for laffs, assume some sort of magical, incontrovertible proof showed up documenting with 100% certainty that Obama was born in Kenya. (Of course it’s nonsense. But we’re just playing with hypotheticals here–if you want to start a thread to debate the current “evidence” that he’s not native born or if you want to debate the motives of the people claiming he’s not, start your own thread) So, granting this magical proof/evidence, what would happen? 1. If it happens before the electoral college, I assume no biggie. Everyone just changes their votes to Biden. 2. But what if it happens AFTER the EC meets? The VP only takes over for the president, not the president-elect, right? But in this hypothetical Obama wouldn’t be president. There’s no-one for Biden to take over for. 3. Arguably in this hypothetical, the election would have been fraudulent—would that change things? Do we have a “Do-over”? Could it be given to McCain as the runner-up since the Dems (in this hypothetical) didn’t field a viable candidate? 4. There would certainly be anger (lots). Could Bush declare marshal law (and get away with it?) Again, this is all fiction. Don’t debate how unlikely the hypothetical is–I already concede that point. But it’s in the news and I’m curious. I’m interested in the constitutional/legal issues. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [November 18, 2008, 1:37pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/2 "2008-11-18T13:37:38Z")
Being born in Kenya wouldn’t make him ineligible for the Presidency. He’s still be a natural born citizen due to the fact that his mother was a citizen and had resided long enough in the US. But, regardless, assuming he was found to be ineligible for the office, then the VP would take over. If it happened before the electoral college voted they’d just vote for Biden. If it happened after, Biden would assume the office same as if Obama died before swearing in. The election wouldn’t be fraudulent, there’s nothing that says you can’t run for office even if you’re not eligible to serve. Marshall law? What, are you joking? Biden would take over, life would move on. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 18, 2008, 1:45pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/3 "2008-11-18T13:45:10Z")
Martial. Martial law. As in Mars, god of war. I don’t know who Marshall is, but he’s not the guy it’s named for. ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [November 18, 2008, 1:47pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/4 "2008-11-18T13:47:38Z")
> [@Telemark](#): > > Being born in Kenya wouldn’t make him ineligible for the Presidency. He’s still be a natural born citizen due to the fact that his mother was a citizen and had resided long enough in the US. Apparently, it’s not that easy–there are differing opinions on that point. > [@](#): > > In fact, there are conflicting holdings that only further compound the problem of understanding this clause. United States v. Wong Kim Ark(1898) indicates that foreign born children of Americans are not natural born. But in contrast, Weedin v. Chin Bow (1927) holds that “at common law the children of our citizen born abroad were always natural born citizen from the standpoint of this government.” (From [Findlaw](http://writ.news.findlaw.com/dean/20041008.html) ) Again, none of this is gonna happen, but I think the legal issues would be more complicated than you think. ---
**Author:** ![seodoa](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@seodoa](https://boards.straightdope.com/u/seodoa)\ **Post date:** [November 18, 2008, 1:50pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/5 "2008-11-18T13:50:46Z")
> [@jayjay](#): > > Martial. Martial law. As in Mars, god of war. > > I don’t know who Marshall is, but he’s not the guy it’s named for. You beat me to it. I think the OP was suggesting that, in the event that Obama is not a natural born citizen, we start giving lots of aid to Western Europe so they can rebuild and so we can stem the flow of communism from the USSR’s ever-growing sphere of influence? ---
**Author:** ![Equipoise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/equipoise/32/151_2.png) [@Equipoise](https://boards.straightdope.com/u/Equipoise)\ **Post date:** [November 18, 2008, 3:17pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/6 "2008-11-18T15:17:58Z")
> [@jayjay](#): > > Martial. Martial law. As in Mars, god of war. Oh god, Obama’s a Martian?? ACK! He’s going to take all our guns and money away in preparation for a Martian attack!!! May God help us all! ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [November 18, 2008, 3:54pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/7 "2008-11-18T15:54:04Z")
Actually, a little research answered the main thrust of my question: > [@](#): > > Amendment 20. 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. So…asked and answered. 🙂 ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 18, 2008, 4:01pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/8 "2008-11-18T16:01:42Z")
I agree that Biden would become the President elect if Obama were to be found ineligible. But what would happen if his theoretical ineligibility were not discovered until after he was inaugurated? Would he be required to resign? Or is it a case where if you get in under the oath, you’re retroactively safe? ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [November 18, 2008, 4:34pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/9 "2008-11-18T16:34:21Z")
While it is shorthand to refer to Obama as ‘President-elect’ at this point he is not, in fact, such until the electoral college meets and casts votes for him. If, for whatever reason, he was found ineligible prior to that the electors could vote for whomever they wished. I don’t believe they’re under any obligation to vote for Joe Biden as President should Obama not be eligible. AFTER they meet then Biden would move up, but prior to the electoral college meeting their options are almost unlimited provided they stay within the ‘natural born citizen, over 35’ thing. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [November 18, 2008, 4:56pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/10 "2008-11-18T16:56:41Z")
> [@Equipoise](#): > > Oh god, Obama’s a Martian?? I believe the politically correct phrase at this point is “Martian American”. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [November 18, 2008, 5:30pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/11 "2008-11-18T17:30:05Z")
As mentioned, even if he was born in Kenya there are few doubts Obama still has the right to run for the presidency, any legal issues will be taken care of in a senate resolution IMO. Obama and the Democrats were gracious enough to render moot any questions there were on the legal presidential candidate status of Panamanian strongman 😉 John McCain because he was born in the Canal Zone in Panama. The senate early in the campaign voted in the senate unanimously to dispose of any questions, so even in the very unlikely event that evidence can be produced for a Kenyan birth, I think the Republicans will be foolish not to make a similar move to dispose of any lingering legal doubts if any strong evidence appears questioning the birth certificate. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2008, 5:55pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/12 "2008-11-18T17:55:45Z")
> [@Little\_Nemo](#): > > I agree that Biden would become the President elect if Obama were to be found ineligible. But what would happen if his theoretical ineligibility were not discovered until after he was inaugurated? Would he be required to resign? Or is it a case where if you get in under the oath, you’re retroactively safe? Well, Vice-President Biden and eight members of the Obama cabinet could transmit a declaration to the President Pro Tem of the Senate and the Speaker of the House a declaration that Obama could not discharge the powers and duties of the office of President by reason of being constitutionally infirm. At that point, the VP immediately becomes Acting President. If Obama wished to contest this, then _he_ could transmit to the President Pro Tem of the Senate and the Speaker of the House a written declaration that no inability exists, at which point he would resume the powers of his office… …unless the VP and a majority of the cabinet respond AGAIN saying, “Nuh-uh.” At which point Congress gets to decide the issue, assembling within 48 hours for that purpose if not already in session. If they decide by two-thirds votes in each house that Obama is out, he’s out, and Biden is the Acting President. Otherwise, Obama’s in. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2008, 5:57pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/13 "2008-11-18T17:57:51Z")
And of course at any time after inauguration, the House could vote an article of impeachment against President Obama for being a non-natural-born citizen, and approve it by majority vote. The the Senate would convene with the Chief Justice of the United States presiding to try the case, and if they vote by two-thirds to remove him, he’s out completely, and Biden becomes President. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [November 18, 2008, 6:17pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/14 "2008-11-18T18:17:31Z")
> [@Little\_Nemo](#): > > I agree that Biden would become the President elect if Obama were to be found ineligible. But what would happen if his theoretical ineligibility were not discovered until after he was inaugurated? Would he be required to resign? Or is it a case where if you get in under the oath, you’re retroactively safe? Then that would prove that no one was obligated to pay taxes to the IRS and that Americans never went to the moon. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [November 18, 2008, 7:59pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/15 "2008-11-18T19:59:20Z")
Damn. Way to kill a thread, Bricker. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2008, 9:32pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/16 "2008-11-18T21:32:53Z")
> [@Lemur866](#): > > Damn. Way to kill a thread, Bricker. Perhaps I can hijack it and breathe some new life into it. What would happen if Al-Q (or a large meteor, for that matter) hits the platform on Inauguration Day? In years past, in that same small space, we’ve typically seen the President-elect, the VP-elect, the Speaker and the President Pro-Tem, and most of the cabinet members. The succession act specifies the line through the Cabinet. As a general rule, there’s a guard against a headless government by keeping a Secretary of Something away – but at inauguration, most if not all of the Cabinet members have resigned, and of course there aren’t new ones in place. And even if those resignations weren’t done… would it be the appropriate answer to have President Condi Rice for the four years after an election in which the voters selected a Democrat? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 18, 2008, 9:38pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/17 "2008-11-18T21:38:50Z")
That hypothetical would have the silver lining of getting rid of Chief Justice Roberts, too…can I get a campaign together to try to get Nino, Alito and Thomas up there as well? “Go to the inauguration! How can you miss a historic event like that? _pssst…David, Ruth, John, Stephen, Anthony…maybe you should stay home. No, really…you’re all looking a mite pale…_” ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 18, 2008, 9:45pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/18 "2008-11-18T21:45:21Z")
> [@GIGObuster](#): > > As mentioned, even if he was born in Kenya there are few doubts Obama still has the right to run for the presidency, any legal issues will be taken care of in a senate resolution IMO. Isn’t, (or at least when he was born, wasn’t), the child of a citizen and non citizen who’s born outside the United States not a citizen? I’m pretty sure this issue came up when dealing with Vietnam war babies (where soldiers serving in Vietnam impregnated Vietnamese women), and the questions raised about their citizenship. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 18, 2008, 10:15pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/19 "2008-11-18T22:15:00Z")
> [@Bricker](#): > > And even if those resignations weren’t done… would it be the appropriate answer to have President Condi Rice for the four years after an election in which the voters selected a Democrat? I would suspect that a new election would ensue immediately so she would be an intermediate. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2008, 10:18pm UTC](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274/20 "2008-11-18T22:18:37Z")
> [@Magiver](#): > > I would suspect that a new election would ensue immediately so she would be an intermediate. On what legal authority? Under the law, Rice would be the President. Perhaps she might agree to step down by appointing a Democrat as VP, having that person confirmed by the Congress, and then resigning… but that would be her choice, not a requirement. [Next page](https://boards.straightdope.com/t/hypothetical-legally-what-would-happen-if-obama-wasnt-a-native-born-citizen/473274.md?page=2)