This is not meant to be a debate about whether or not he’s an american citizen. I’m just curious as to what would be the steps that would occur if he (or any president) was found out at a later date to not be eligible for the office.
Would the VP automatically move into the position, or would the entire election be deemed invalid, and require a new vote?
I would assume that this would be hashed out in the courts initially. Someone would have to bring suit against Obama, and I’m guessing that it would end up in front of the Supreme Court. Based on the premise that he is not eligible,
Would he be tossed out on his ear and Biden moved into the oval office?
Would he be subjected to criminal charges?
Would he be afforded the protection of the Secret Service?
The GQ answer is, assuming your hypothetical litigant has standing to sue, the Supreme Court would reject the suit under the political question doctrine, as many of the district courts have done with this question. Questions that are specifically reserved for the consideration of Congress, in this case whether the winner of a Presidential election is qualified to be seated and whether a sitting President should be removed, are off-limits for the Court - especially when the standards are not clear.
If for some reason they didn’t do that, it would be Biden per the Twelfth Amendment. There would not be criminal charges, as no crime would have been committed. He would probably be afforded Secret Service protection, as the choice would be left to Biden.
Proven how? In one of the suits by a Birther that was dismissed, the relevant court took the time to spell out, in its ruling to dismiss the complaint, why it was doing so, and it adverted to the Constitutional provisions for counting electoral votes, suggesting that any judgment that someone receiving electoral votes did not qualify would be made by Congress at that time. You cannot get any more definitive a statement tht something is a non-justiciable political question than a Constitutional specification that something is Congress’s job.
Is this question for me? I’m throwing a hypothetical out there. I really don’t know what the mechanism would be to prove something like this. I made an assumption that this would have to work its way through the court system, but after that, I’m not really sure where it would go. Part of me wonders if anything at all would be done. I mean, after two + years of his being in the white house, what would be the point? On the other hand, if he’s not eligible, he’s not eligible.
Richard Parker answered the question from a standpoint that I was not aware of. I didn’t know that this would be kicked back to congress. Interesting.
The same way he would be removed if he turned out to be less than 35 years old: Congress would have to remove him per impeachment. And since the rumor was around at the time he was sworn in, and no Senator bothered to raise it when the electoral votes were counted, that is exceedingly unlikely.
The normal procedure for challenging the eligibility of a person to exercise the office he has is the writ of quo warranto. Courts do as a matter of fact hear and rule on challenges to elected officials’ right to their office in quo warranto cases, and in some cases (proven vote fraud or miscount, for instance), they have deprived them of the office. There is no standing doctrine that elected officials’ qualifications are political questions. The elected official has never been the President of the United States, of course, but I don’t see why the rules would be different for him.
Of course, to win a quo warranto writ, the birthers would have to present real evidence, something they’re conspicuously lacking.
I suppose the House could impeach, but the case would be hard to make, because there has to be a high crime or misdemeanor. What law makes it a high crime or misdemeanor to be constitutionally ineligible for the presidency?
The term “birther” refers to the people that are pursuing this through the courts, I take it.
If what Polycarp says is true, and one suit has already been dismissed, how often will this case be heard?
Is there no way to prove this one way or the other, or would the court take the approach that the person(s) bringing the suit would have the burden of proof on them (i.e. they’d have to prove Obama is not eligible… Obama is under no obligation to prove his eligibility).
Another question if I may. Why is this even an issue? Does Obama not have a birth certificate which has started this nonsense, or is there something else that I’m not aware of?
There’s no case holding it to be so, but if there were, this issue would never get to the Supreme Court in the first place. There is a fairly well-established doctrine in the area of seating duly elected officials though. See Powell v. McCormack, 395 U.S. 486 (1969), and progeny. It isn’t the holding of Powell that Congress determines constitutional eligibility, but it is pretty strongly suggested. Several district courts have cited it in birther cases, and I’d say that’s the likeliest outcome in the Supreme Court.
The rules wouldn’t be different. They would be the same. So far as I’m aware, no elected official has been removed for constitutional ineligibility. Removing someone because they weren’t actually elected (e.g. by fraud) is a very different scenario.
The issue at this point is that Obama has produced a document that is considered the legal equivalent of a birth certificate, but not the actual birth certificate itself. Hawaii has strict rules on who can get that, and since the document produced is considered the birth certificate in all jurisdictions, there is no need to.
The birthers want the actual certificate. However, it that were to be produced, they’d most likely come up with some excuse as to why it’s a forgery.
The thing that normally prevents bringing multiple suits like this is that the Court resolves some key issue, and the defendant can use that decision against new plaintiffs who try to make the same argument.
But in this case, every suit has been dismissed for lack of standing, sometimes among other grounds. That means that anyone who wants can keep trying, because no issue has been decided except the standing of each litigant who is rejected.
There are several previous threads here on this topic. It’s a bit tedious to separate the “What would the procedure be?” threads from the “What are the birthers thinking?” threads from the “Let’s have a mean-spirited fact-free debate for the hell of it” threads.
But they’re here for the reading if you want to search.
Fair enough. I have to say, though, that this thread has been very informative for me. I am getting the answers I need to make sense of the whole thing.
I’m not surprised it’s been covered. My interest in the subject was kindled by a strange email I received that outlined all of these “facts” that were not being reported my the mainstream media. The story was quoted as an AP story, which is about as mainstream as you can get. A quick google search took me to snopes, which, as you might expect, debunked it as a hoax.
So, my question wasn’t whether or not Obama is a legal office holder. It was more of the “what if” variety and what the procedures would be to remove him from office. I think there is a factual answer to that. I had no desire to have this turn into a flame-fest, and no one has.
A quick search for “birther” over the past year turns up twelve of them.
Naturally the search function is not perfect, and returns a few gems like Egg yolk concerns- which studies to believe?, but curious readers can indeed get a plate full of Obama-birth-certificate discussion.
I don’t think there is a factual answer, as the Supreme Court has not faced the issue directly, so people can only speculate or argue based on similar situations in the past. The case of Barack Obama is not a good precedent, because no court facing the issue of his citizenship has seemed to believe the evidence presented by the “Birthers”, even if they’ve rejected the suits on other grounds.
However, there’s a strong case to be made that it’s not up to the Supreme Court, but rather up to the Congress when it receives the votes of the electors (under Article II, Section 1, of the Constitution). At that stage, if there are any doubts about the process, including whether one of he candidates was eligible, Congress could resolve those doubts.
And in 1876 Congress appointed an Electoral Commission to resolve doubts about the processes of the election in several states, so there is a possible mechanism for Congress to deal with disputes about a presidential election.
The doctrine of collateral estoppel prevents an issue already decided in one court from being litigated again in another court. If the cases so far brought have all turned on lack of standing, they basically prevent the petitioners in those cases from ever bringing suit on the issue again, because the issue of their standing is decided and can’t be argued again. On the other hand, people who haven’t had their standing decided can still bring cases.
If I’m not mistaken, the only person who has standing to bring a quo warranto case is the person who claims to be wrongfully deprived of the office. So I think the only people with standing to bring quo warranto on the birth issue would be John McCain or possibly Joe Biden.
Even of you ignore the Birthers’ complete and utter lack of factual evidence, there is a more funadmental problem, and that is the idea that this is a matter than can be redressed through the courts, as Giles suggests.
The constitution proscribes the mechanism for a person to take office, and that is through the states, to the electoral college process, and through certification by a joint session of Congress. Once this has happened, there is no method defined for challenging the right of an individual’s qualifications. He is qualified by definition because the Congress has approved his election.
I think this is what is so interesting about it. Assuming the current balance of power continues in the House and Senate, I don’t believe they would even open an inquiry, which would be perfectly within their rights.
Once it is out of the courts, there is no way to mandate the procedure. And since the responsibility seems to clearly lie in the legislative branch, they could ignore it completely, vote to not open an investigation, or to even assign a special prosecutor to this. Which makes me wonder what the ‘birthers’ are hoping to gain from all of this.
Even if by some strange twist Obama isn’t a citizen, he’s been elected and he’s in office. Removing him via this rule would simply not happen.
For what it’s worth, the judge’s Order Dismissing in one of these cases, while largely focused on the lack of standing of each of several plaintiffs, did address the ‘political question’ issue. I presume it was dictum rather than ruling in the strict sense, but it’s still worth noting.
“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President …”
What I find interesting about that is how the Founders apear to have just sort of assumed that this would be self-enforced by the candidates themselves, as in, “I’d love to be president, but unfortunately I’m not a natural born citizen.”
Or that it would be enforced by common knowledge of the public that somebody didn’t meet the qualification, or that the coalitions putting forward the candidate (that later became our political parties) would also self-enforce it.
What happens if a candidate wants to hide that disqualifier? What happens if a political party is so enamored with a candidate and his/her winning prospects that they aren’t interested in exploring that eligibility question, either?
I guess it requires a court challenge. And I don’t see how a court, if determining a person was constitutionally ineligible, could or would allow him or her to continue in office.
Perhaps that would be considered a “high crime and misdemeanor” for which the President would be impeached and removed. (And I cringe to imagine members of the president’s political party completely blowing off the Constitution and for purely partisan political reasons voting not to remove him or her. I recall something like that happening already.)
I think that part of the Constitution should be reworked through an amendment. Its importance was when the country was in its formative stages, when paranoia over Crown loyalists was still high. Since then we’ve had more than two centuries of this country being forged through immigration.
I don’t think a citizen from another country should be able to move here and run for president after just a year or a few years. But if you’ve lived the vast majority of your life as an American, why should it disqualify you in this day and age if you were born somewhere else?
My understanding of why the Constitution was worded in that way was to prevent a foreign leader from coming in and taking over, as the new Republic was not a really strong political animal yet. Many at the time felt that was a strong possibility. Many also felt the way the government was set up was a “good enough for now” situation, and something better would replace it in a generation or two. No cite, just paid attention to someone who sounded smarter than me at that stuff.