Without checking what the law was in 1961 (which is all we care about-that’s when Obama was born), it’s only important for people not born on U.S. soil. As Barack Obama was born in Hawaii, it’s totally irrelevant.
It shouldn’t be and that is why I put it in GQ and not GD. I’ll try to make my questions a little clearer just to avoid implying that I’m an “Obama is not a citizen” member of the TFHB. My questions are purely from a Constitutional standpoint. Irregardless of whether or not Obama is a natural-born citizen, my questions are:
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Does Congress (as verifiers of the Electoral Votes) have the power to compel anyone, Obama, McCain, me, you, or the Pillsbury Dough Boy to prove that they are an NBC, 35 years or older, resident of the US for 14 years?
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Would an objection to the Electoral Votes be sustained if the winning candidate refused to show that they were eligible to be president?
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Who has standing in court to question the credentials of a candidate?
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Assume that everyone assumed everyone else did their due diligence and so no one really bothered to check on a candidate who is (for the sake of argument) 33 years old and everyone passes the buck - Sec’ies of State leave them on the ballot (or the election was over), courts rule that common citizens have no standing, Congress counts the votes since their job is merely procedural, SCOTUS rules it is a political question, etc. What happens? Would a person who is not Contitutionally eligible actually become President? If not, what would stop it if everyone had “fuck it. not my job attitude”?
I’ve already answered these questions in earlier posts in this thread, but to repeat and clarify:
As far as I can tell from the text of the Twelfth Amendment, posted above, Congress’ job (in the situation where there’s an overwhelming majority of EVs for one candidate), is COUNTING THE VOTES and CERTIFYING THE RESULT. In the instant case, that would involve counting all the electoral votes (of which a majority are for Obama), and certifying that a majority of the electors voted for obama. I don’t see how either of those turns on whether Obama is eligible to be president.
If they have a job of verifying votes, it’s to verify that the votes they’re counting are actually those of the electors of the various states chosen in the general election.
I don’t see the text of the constitution giving any role to congress to “verify” the eligibility of the person the electoral votes are for-and generally, the constitution doesn’t look to that person much at that point-hence, why sherman said “if elected, I will not serve”-because you can be elected president if you don’t want to-as long as the electors vote for you.
Of course, congress has a subpoena power. Within broad limits, they can subpoena anyone they want. They’d need a majority vote of (probably some committee) for that.
But again, I don’t see where in the text of the constitution it makes any difference to the count of the votes whether the person the electors vote for is eligible to be president or not. It means he can’t serve on Jan. 20, but I don’t see any reason he can’t be elected on Dec. 6 (or whenever).
I don’t think there is any objection to the VOTES. there is an objection to whether the PERSON THE ELECTORS VOTED FOR is eligible to serve, but that doesn’t change their votes.
Any “rejection” of the vote would probably require a majority of both houses of congress (given that that’s what congress needs to do anything). Even if constitutionally permissible, (which I doubt), it’s never going to happen.
And let’s remember that any “rejection” by the congress to give the presidency to the person who lost the election is a coup d’etat. It’s not a constitutional procedure-it’s rejecting the entire election process.
Probably a supreme court issue. I don’t know who would have standing to sue.
Looking to the text of the Twelfth amendment (See above quote), my own interpretation (IANAL) is that if the person who got the most electoral votes was ineligible to serve as president (for whatever reason, of which there are really two: death or being ineligible (i.e. 33), the vice-presidential candidate with the most electoral votes for vice-president (which are tallied separately under the 12th amendment) would become president when the President-elect was unable to serve on Jan 20.
If nobody challenged the president-elect, you’d have a constitutional crisis. Sure, his taking office is inconsistent with the constitution-but if everybody acts like he’s president, it’s not clear what could be done. I’m not sure if there is a difference between De Facto and actual President if everyone (including the supreme court) refuses to act.
That’s how this country got started, after all-a revolutionary act inconsistent with previous law.
Quoth Diogenes the Cynic:
On looking a bit more into this, you might be right, but you posted the wrong cite for it. The Snopes article says only that that bit isn’t relevant to Obama since he was born in the US, but doesn’t dispute it for someone born outside the country. A few Google hits down, though, gives a better cite.
Congressional committees and subcommittees have subpoena power.
It may be argued that since no legislation is as stake, Congress could not issue subpoenas in such a case. This ruling doesn’t address impeachment procedures, however, and Congress can certainly use the subpoena for that.
No individual Congressperson can, remember. Only a majority vote of a committee can request one.
I know of no law that compels a candidate to produce evidence of citizenship, which makes this moot.
Unclear. I’d guess the Federal Election Commission could issue a challenge. Surely, date and place of birth has to be on some form filed with them and a false entry in most federal forms is a crime.
If a Person becomes President and proof is put forward of his or her failing to meet constitutional standards, the House would impeach and the Senate would convict. End of issue.
I’m not sure it would be impeachable. Absent perjury, it’s not illegal to be 33-so probably not a high crime or misdemeanor (but I know that impeachment is basically whatever congress says it is).
Plus, you can only impeach someone who’s actually the president. If congress was genuinely arguing whoever the president was isn’t constitutionally qualified (let’s say 33), the argument would be that he couldn’t be president-not that he was president, and should be removed-but that any service as president is constitutionally invalid.
It’s not clear to me that the procedure to do this is impeachment. I’d argue it would end up in the supreme court, and then the court would rule that individual X was not constitutionally qualified to be prez, couldn’t serve, and hence the 25th would make the Veep automatically president. If the Supreme Court refused to take the case when the issue was fairly raised by someone with standing, that would be a pretty good defense against impeachment (and relevant, as the chief justice would preside)
Actually, that raises a very interesting hypothetical: If the President were ineligible by virtue of being too young, that’s only a temporary condition. If he managed to delay the issue until he did reach the required age, would the case become moot? And if he didn’t manage to delay, would he take back the reigns from the VP once he qualified?
But what does Obama have to do with his birth certificate? It’s my understanding the state of Hawaii will release birth certificates to anyone who has a legitimate reason.
I would assume any state agency would comply with a court order to do so, even if Obama didn’t want it.
:dubious: But do we know that is really his mother? I demand a DNA test.
You answer the question yourself. Impeachment is the route to remove a president.
The question I was answering also posited that the Supreme Court didn’t take up the case, so impeachment had to be the answer. That the Court wouldn’t handle the case says nothing at all as a defense. This would be a matter between the other two branches.
As for the crime involved, it is impossible to claim for 33 years that you are actually older, even innocently and inadvertently, without committing a technical instance of fraud at some point.
Please note that I hate hypotheticals of this sort that are so unrealistic that they require movie logic to resolve. The correct answer to all such fictions is that the real world would handle it ad hoc because there would be no precedent. The same minds that come up with the unrealistic hypotheticals find this unsatisfying, and this is the internet where we believe seven impossible things before breakfast, so we discuss them all the way through. But the right answer is always: we’ll find out when and if it ever happens.
Your real-world analysis is spot on (although I think of these more as law-professor hypotheticals—totally unrealistic, but designed to get to a interesting question you would rarely if ever see in the real world).
However, I think your claim about fraud misses the gist of the hypothetical—IF there were fraud, it would be easy (and we wouldn’t be impeaching the prez because he was 33, but because of his fraud). It’s also easy to construct a hypothetical in which there wasn’t any fraud-voters were just dumb. (math skills going down the drain and the like)
More importatly, lying in your youth isn’t a crime in office. WE couldn’t impeach Cheney for his DUI, we couldn’t impeach Bush or Obama for historical drug use, and we can’t impeach the young president for lying about his age when he was younger.
And my point with the supreme court goes back to the argument that there’s no high crime or misdemanor in being 33. If you really wanted to get down to it, the means of removal would more likely be a majority of the cabinet voting that the prez was incapable of serving under the 25th.
With respect to the supreme court, if we have a dispute between the two branches-where the prez says he can serve, and congress says ‘dude, you’re 33’, the court is traditionally the body that resolves such disputes. If it refuses to get involved, we have a constitutional crisis, but likely a preservation of the status quo.
You bring up an interesting point by introducing the 25th Amendment. The question is one of timing. Would there actually be a cabinet in place to declare the President unfit to serve? Would all the previous administration’s cabinet have tendered their resignations or been let go by the new president? Would they have standing to move against him? If the age issue surfaces at the time of the inauguration, then Congress wouldn’t have approved any of the new cabinet. I’d say that an impeachment is a more likely process under those circumstances.
I also continue to insist that the age issue is not a matter of youthful indiscretion. There is no way to run for president without filing paperwork with the FEC and elsewhere that has the penalty of perjury associated with it. That makes any false claim of age a prosecutable violation and that’s all that’s needed.
This is actually an interesting issue for other reasons-in general, the senate doesn’t actually confirm the new cabinet till after the inauguration. So rice is still sec. state on jan 20. If something tragic happens at the inauguration, and the succession goes to state she becomes president, not whoever obama’s sec-state is.
Sure in reality. But let’s imagine the hypothetical where the Candidate is scrupulously honest, and the FEC hires people who can’t do math/read the constitution.
With another reminder that ( Barack Obama was born in Hawaii; Hawaii was part of the US at the time), the “5 years past the age of 16” is a complete misreading of the law. Snopes didn’t pick up on this, and the cite from Chronos doesn’t mention it, but here’s what the relevant portion says:
Title 8, Chapter 12, Subchapter III, Part I
The five-year period can end at 16 - not start there. So that is the minimum age for one of the parents to be if the child is born outside the US and one parent is a non-US citizen.
If we imagine a hypothetical parent named “Stanley” who is 18 years of age and lived in the US to that point, if they had a child with someone from another country, and if for some reason the baby boy was born outside of the US, he would still be a US citizen.
Just to show you why this is a complex thing (without really opining on the law in 1961-I don’t have the energy to chase it down)–the provision you quote was amended to read as it does in 1986. Hence, the five-year limit doesn’t apply to Obama’s 1961 birth.
There is a process by which the count of electoral votes can be challenged, but it is basically a question on the authenticity of the votes of the electors, not a question of the constitutionality of the decision of the electors.
I apologize for the following long quote from 3 USC 15. In fairness, I did trim a little bit off the beginning.
Not being familiar with state laws, my guess is that the states would have the burden of examining whether a candidate for office would be eligible for that office before putting his name on the ballot. I can’t see why that would be different for electors pledged to a particular candidate.
Ravenman-good find with the statute. It seems to go a little further than you suggest-it forbids rejecting any elector’s vote if their status has been certified, and if state only makes one return (i.e. there’s not two sets of votes).
This would apply to Obama-nobody’s contending the electors weren’t properly certified, and nobody is contending there are two, competing sets of votes from those electors.
So under the statute, there’s no discretion to reject Obama electors.
So who files the Birth Certificate for someone born at home?
No, let’s not. This is not even a hypothetical; it’s pure idiocy.
A simpler case might be that of a foundling with an assumed approximate birthdate, such that (so far as the candidate, FEC, and everyone else can determine) the candidate appears to be of age, but that new evidence then comes to light concerning the true birthdate.