Technically, IIRC, the Dred Scott case said that Dredd was property, since he was a slave. Moving to and out of a state that did not allow slavery did not alter that fact. Therefore, like the credenza in the master’s study, he had no standing to bring the lawsuit as he was not a “person” under the law.
OTOH, it was sometime around 1900 before married women were considered separate persons in the eyes of the law in Canada, so this is not as radical a decision as it sounds. It seems more like the 1850’s equivalent of the modern SCOTUS side-stepping the real issue - which was, “what happens to the status of a slave taken to a free state?”
There were plenty of freed slaves in all states with some rights; subject only to the laws of the land, which did not in those days have to be colour-blind or ignore creed, sex, national origin or any other modern criteria.
Back to the OP - There must be lots of precedent on this. IIRC, the constitution requires a senator or congressman, for example, to be a resident of the state they represent. There must have been challenges at some time to the residency requirements in the last 200 years.
One can imagine scenarios galore for the OP question - what happens to someone who is president and suddenly discovers “Oops, you were switched at birth in the hospital, you are really the crown prince of Molvania!”? Surely in 200 years of legal wrangling someone has settled what happens when you turn out to be not who you think you are?
Obviously, unless someone can produce deliberate evidence of fraud, there is no intent to defraud or deceive and the charges would be a waste of time and tossed.
Politically, I would suspect the usually scenario - any proof would be subject to he-said-she-said dispute; heck, some people don’t even accept an official document or the memory of everyone who was there at the time, or the actual birth notice in the local paper! The sides would be drawn politically, and the problem would be ignored as it does go away in less than 8 years anyway.
“I’ll sell your house, pull your teeth, and file a nuisance lawsuit to get the President thrown out of office in your behalf, all for one package-deal price. But wait, there’s more…!”
It does matter for Obama, however. In previous threads on this subject, it was established that different rules apply to children born abroad if only one parent is a US citizen, than if both are. If both parents are citizens, then all that is necessary is that one of them lived in the US at some point. (If neither parent has ever lived in the US, then you’re SOL.) If one parent is a citizen and the other isn’t, then the citizen parent has to have lived in the US for a certain number of years. When Barack Obama was born, his mother was too young to have met the residency requirements. The requirements have since been lowered, and if Obama was born today he would be a citizen regardless of where he was born, but the upshot is that Obama really does need to have been born in the US in order to be a citizen. Thus, the birthers are desperately trying to prove that Obama wasn’t born in the US.
As for your link, apparently the guys at that site think that Maya Soetoro’s Certificate of Live Birth was altered to create one for Obama.
Also, the essence of the Dred Scott was that a person was a citizen of a sovereign state (a legal theory still used by a few tax protesters) but state citizenship did not automatically confer national citizenship. The 14th (not the 13th as stated by Markxxx) Amendment overruled the Dred Scott decision and made only one type of citizenship - the national kind. To denote this difference, the state “citizenship” one has is being a resident, but it is kind of nebulous if “resident” refers to one that resides in the state (the interpretation SCOTUS uses to give services to illegal immigrants and IIRC apportionment of Representatives in Congress) or if it refers to a form of the Dred Scott idea of state citizenship allowing such things as lower resident tuition (also a SCOTUS decision).
The last contraversy over residency was when Bush and Cheney ran for President/VP. Since they were both residents of Texas, the Texas electors (not every state but just Texas as per 12th Amendment) could only vote for one of them. Cheney quickly reverted to becoming a resident of Wyoming (although still residing in Texas) and with all of the legal manouvering during Bush v. Gore, the fact that no one in the Senate objected to the electoral votes from Texas would seem to imply that as far as the Congressional interpretation is concerned, residency is where you are entitled to vote and not where you live.
Just to add, there was a case with an underage Senator who was seated once he reached the proper age, thus you need to meet the requirements for office when seated and not when elected. I could run for Congress for Colorado as a resident of Arizona and if I win, not take office until I live there for 90 days (in August 2010). We see this occasionally when dead people run for office - and win. Barring a state law, anyone can run but may not be eligible for office.
ETA: This has become much longer than I thought it would be. The short version is that Saint Cad is entirely right–that the requirements are to take office–election is a matter of state law, and there are no constitutional qualifications for presidential candidate, or even presidential-elect (as I show below in far too much detail)
That’s a useful analogy–and one I didn’t know–there is also proof that the same is true of the presidency: First, the constitution only establishes requirements for serving as president, not for being elected president, (the only requirement that specifically pertains to election is the 22nd amendment–which says you cannot be elected president if you’ve already served two terms.), or for running for president. In simple terms, there are no constitutional qualifications for presidential candidate or president-elect.
Hence, it’s entirely possible for the Governor of California to (1) run for president, (2) receive the most electoral votes for president, and (3) become president-elect. As a naturalized citizen, originally born in Austria, he would of course be ineligible to serve (and so the vice-president elect would serve as president)–but the constitution does not seem to bar him from running, or deem votes in his favor invalid.
The text of Article II is (arguably) unclear–in that it says
Now, I would read that as a requirement on service–since you aren’t “president” until your term begins–but even if people find “eligible to the Office of President” ambiguous on its own, constitutional amendments have made the answer very clear.
You see this clearly in the Twelfth Amendment, which sets out procedures for presidential election, where it provides for the “death or other constitutional disability of the president”
This clearly provides for the possibility of a individual elected president who is subject to a constitutional disability–i.e. who is unqualified to serve. It just doesn’t make any sense unless it is possible to to elect a president who is unqualified to serve.
Second, you see this in the twentieth amendment, which provides for what happens if the president-elect “has not qualified” by the time the president is to take office.
Importantly, note that this is different from the failure to choose a president–the text of the amendment frames them as alternatives–hence clearly anticipating the possibility that a president-elect would not be qualified to serve.
Finally, there are practical examples: not all states require all presidential candidates to be eligible to serve. It’s relatively easy to find minor-party candidates who ran for president while clearly ineligible to serve–and who were allowed on the ballot in several states (for the example I use, five states in the 2008 election) http://en.wikipedia.org/wiki/Róger_Calero
Some states do restrict ballot access to constitutionally qualified candidates–which is a good policy–in that it’s silly to let voters waste their votes on a candidate who can’t serve—but they certainly aren’t constitutional requirements (as the constitution, as already pointed out, simply doesn’t have any requirements on running or election).
NB: This is all interesting constitutional theory. It has absolutely nothing to do with the eligibility of our current President, who was born in the State of Hawaii.
So it seems that you have answered the OP, but the question remains how to remove the President from office. The courts have repeatedly held that a common citizen cannot sue to hold the federal government to the Constitution (which I disagree with philosophically. Quis custodiet ipsos custodes and all that) due to a lack of standing. Would it be the Vice-President only? Can anyone affected by a decision of the executive branch have standing?
The example I gave in a previous post (and currently unanswered) would be if fined, could Toyota claim LaHood is not Sec’y of Transportation since Obama’s presidency is invalid due to not being an NBC? Note: I am not claiming that he isn’t but would Toyota have standing in court to make a claim since Obama appointed LaHood?
Let us note that there are four qualifications for actively serving as President, according to the Constitution, three of which are in fact ones that one can remove a disqualification under – and one of which all Presidents have in fact acted to qualify under.
[He must be] a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution. Obviously, without a time machine this one is impossible to remove.
[He shall] have attained to the Age of thirty five Years… Obviously, a President elected at the age of 34 would qualify a short way into his term, by virtue of celebrating his 35th birthday.
[He shall have] been fourteen Years a Resident within the United States. It is possible that someone might have been born the child of American citizens, even born within the 50 states, and have for a variety of reasons not lived within the country for quite 14 years at the time he was elected.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–’‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’’ In other words, though chosen as President, and in fact being president in some metaphysical sense as of noon on January 20 or succeeding on the death of the incumbent, he cannot actually act as President until he’s executed that oath. That’s the disability that every President has discharged when he first takes office.
On the subjunctive, yeah, “were” is appropriate, but this is one of those rare cases where the present subjunctive should be used: “If Obama be proven…” because of the conditional-tense question which follows.
First of all, that’s a gross overstatement. There are plenty of private citizens who sue the federal government to force it to comply with its constitutional obligations. For example (just to pick two of hundreds, if not thousands of such cases that have reached the Supreme Court), Haynes v. United States - Wikipedia in which a felon sued the U.S., claiming a law that required felons to register any guns they owned violated his right against self-incrimination, and Boumediene v. Bush - Wikipedia, where a detainee sued claiming he had a right to due process. Plenty of ordinary people can, and do sue the federal government to force it to comply with its constitutional obligation–in these cases, protecting constitutional rights.
IANAL, and so don’t know who would have standing. If anyone did, the VP probably would --since he’d be the prez if the president was not eligible.
However, the constitution is clear that you remove a president only by impeachment–and so see a pretty good argument that, since the constitution explicitly gives the power to make such determinations to the legislative, rather than the judicial branch, the court shouldn’t decide such a case as to a sitting president because the constitution gives the power to make such determinations to a co-equal branch of government.
I feel like Bricker here, stressing that there are times and places for lawsuits and times and places for the elected branches to act.
It’s been made pretty clear that there is no such thing as standing to bring suit for the removal of the President on his failure to qualify, and that the courts htemselves have pointed to Congres as the proper remedy: either refusal to seat a non-qualifying President when counting the electoral votes, or by impeachment, of which the two houses are the sole jduges of what warrants impeachment and wht warrants conviction and removal after impeachment.
(In theory there is a third way to remove the President: if President Hy Pothetical suddenly orders the Atlantic Fleet and available aircraft to the coast of Gabon because he has secret evidence that the goverment of Gabon are lizard men from Neptune, the Vice President and the majority of the Cabinet can act to suspend him under the provisions of Amendment XXV, at least until he returns to his senses.)
Another way of saying this is before complaining that the Supreme Court won’t decide a case, you have to go back a step–and ask why it should decide any cases.
The Supreme Court is empowered to decide cases in certain defined categories because the constitution says so. Article III gives federal courts the power to decide disputes about the constitution, the laws arising thereunder, and a few other areas (original jurisdiction, appeals of diversity cases, and so on). It also makes the Supreme Court the final appeal in such cases–the court that gets the last say.
The constitution gives congress the exclusive power to decide disputes over (1) whether a federal official should be removed from office, or (2) certain questions of certifying the results of federal elections.
The Supreme Court would be ignoring the constitution to refuse to defer to congress in cases of (for example) impeachment–where the constitution itself says that congress is the final decision-maker. It would also be absurd–since the Court would be refusing to defer to congress–even though the very document that gives the Court the power to decide certain cases says it doesn’t get to decide this one.
There is no absurdity to say that some wrongs are beyond the power of the Supreme Court because the constitution gives that power to some other decision-maker; this is emphatically true when the only reason the Supreme Court gets to decide cases is because it is so empowered by the constitution.
Further, Saint Cad’s hypothetical problem involves a (1) “factually” ineligible president, and (2) a final decision maker that rules he is eligible (or refuses to hear the case). This is a possible problem regardless of who makes the final decision.
For example, let’s say that the next president-elect is the Hon. Doogie Howser. He’s 20 years old. If the house votes 434-1 not to impeach, you’d say there’s a problem–they got it wrong, and that it’s wrong for you not to have a way to correct that “error.”
However, the problem doesn’t necessarily go away if we say that the Supreme Court decides presidential eligibility, instead of congress.
Let’s say (for the purpose of argument) that the Supreme Court decides Doogie’s eligibility. Now, let’s say you sue to have him declared ineligible, but hire a cut-rate lawyer. He fails to prove your case–fails to show he’s only 20 years old. Or, let’s say, your “evidence” is inadmissible–the rules of evidence say that the court will not consider it. In either case, the Supreme Court decides in favor of the president, finding him eligible.
You’d have an equally valid problem in that case–and be equally without any remedy. Why? Because–by definition, the Supreme Court is now the final appeal. You can point to the “fact” that the president is 20–but that is exactly what you did in court. The president argued that he was eligible. Whether in Congress or in Court, the decision maker was faced with two competing sets of facts, one of which you agreed with, and one of which you disagreed with, and found one of them to be correct.
That isn’t a flaw in the system–it is how the system works. The final decision-maker in a field cannot make (in one sense of the word) a wrong factual decision–because it is the one empowered to decide what the facts are, and to apply them to the law. That remains true regardless of which entity gets to make the final decision as to presidential eligibility. The problem just isn’t fixed if we allow the courts to decide instead.
You are of course correct that if injured I would have standing in court. What I was talking about was if the Federal government just had a general disregard for a Constitutional provision. If we want conspiracy theories, let’s say they refuse to call a Constitutional Convention despite 2/3 of the states calling for it. I understand that the state has standing but aren’t we all affected when the government isn’t held to the Constitution?
Clearly the states are the injured party, but could I sue if I’m in a state that did not have Jim Crow laws considering that Congress refused to reduce the Southern states’ representation from 1878-1964 which is (very indirectly) a violation of my rights since MY representative should have a higher proportion of a vote?
I completely understand the legal reason for having to have standing in a court to sue and can see why in the above example a court would say it is up to the states to sue since they are the ones directly affected, but I think there are a few cases where that legal theory runs into the counter-theory that allowing the Federal government to disregard the Constitution affects us all. After all, it does start out “We the people . . .”
Although not a birther, I think that the lawsuits against Obama are a good case in point. The fact that the certification was filed 4 days after the birth should be enough to show that the birth was in Hawaii. But the lawsuits showed a failure in the system that at no point in the system does anyone actually check to make sure the presidential candidate is eligible. The states pass the responsibility to the parties. The parties put forth whoever was nominated. There is a thought that Congress could disallow the votes of electors but I remember that we had that discussion here any many believed that Congress could only disallow unqualified electors. At what point do we stop and say, “Wait a minute! You need to prove your eligibility to <fill in blank - state election officials, Congress, Federal Election Commission, Cecil> to run for President or Vice-President.” If Governator Ahhhnold wanted to run, at what point would he be disallowed? Who would have standing to have him eliminated from the ballot? Remember, you don’t have to be eligible to take office in many states to be a candidate. Would it be a political question? If so, when would Congress disallow him? The Electoral Count Act of 1887 would seem to tie the hands of Congress if the credentials of the electors are signed off by the state’s executive.
I think that is the sort of situation where no one has standing (because of lack of jurisdiction) but in a way EVERYONE has standing because disregarding the Constitution at such a fundamental level hurts everybody. Hell, even if it was ruled a political question, it would at least give SOMEONE jurisdiction/authority to say, “Show us your birth certificate. Not that one, the long one with the doctor’s signature.”
Well, in the case of Barack Obama, I suspect that other candidates would have had standing. including Senator McCain, Ralph Nader, and Senator Clinton (the last being disadvantaged by having to run against the then Senator Obama in the primaries). I’m sure that all three researched Obama’s eligibility and came to the conclusion that he was eligible.
In addition, if it’s up to Congress, then Senators McCain and Clinton could have raised the issue in Congress. But, of course, they didn’t.
