Obama
legacy? Constitutional eligibility Supreme
Court again faced with unresolved questions over current administration
by Bob Unruh 1/24/15
Barack Obama has been focusing more and more, including in
his 2015 State of the Union Tuesday, on what pundits describe as legacy issues.
He may envision a legacy 20 or 30 years after his White House tenure of a
Web-oriented, Washington-centric health care system that efficiently dispatches
what system managers believe people need for health care – a quick abortion,
dietary rules or a painkiller for a terminal disease.
In that future, he may hope, as a result of his executive
amnesty, for a new Hispanic majority that routinely gives the Democratic Party
power as the GOP fades into oblivion. He may even visualize little plaques on
community college campuses across the 50 states noting that Americans are
attending for free in exchange for mandatory public service, because of the
work of President Barack Obama.
But it’s doubtful he’s rejoicing in the fact that it was his
presidency that raised the issue of constitutional eligibility to headlines,
courts and congressional debate, and possibly even a ruling from the Supreme
Court. The issue arose even as he ran for president the first time. It surged
on his election, was on fire after his inauguration and has been in the
courts ever since.
The issue appeared to fade after the 2012 election. But a
case that originated during that campaign season now has appeared before the
U.S. Supreme Court again.
It focuses on whether or not Obama
meets the U.S. Constitution’s requirement that a president be a “natural born
citizen.” Obama’s response over the years has been to joke about the issue,
drawing guffaws from audiences when he says his birth certificate is “somewhere
on the Internet.”
But the fact remains that a law enforcement investigation by
Maricopa County Sheriff Joe Arpaio found there likely was fraud in the creation
of the image of a birth certificate Obama released in a White House news
conference as “proof positive” of his “natural born status.”
The newest case, the subject of a request for review to the high court, was
brought on behalf of John Albert Dummett Jr. and Edward Noonan.
The appeal from California’s 3rd
Appellate District Court of Appeal was filed by the William
J. Olson P.C. law firm and the U.S. Justice
Foundation.
They argue that Article II, Section 1, Clause 2 of the U.S.
Constitution “vests in the legislatures of the several states the exclusive
power to direct the manner by which the electors for president of the United
States shall be chosen.”
“Pursuant to this expressly delegated power, the legislature
of the state of California has determined to hold statewide elections to
appoint the state’s presidential electors, delegating to the California
Secretary of State the duty to administer such elections.”
However, the brief explains, California state courts have
decided there is no way for the secretary of state “to take care that persons
whose names appear on the general election ballot as candidates for the office
of president of the United States meet the eligibility requirements of Article
II, Section 1, Clause 5.”
They argue that the U.S. Constitution imposes on the states
an obligation to “ensure that each state’s electoral votes are cast for a
person who, if elected, is eligible.”
“This court does have the responsibility and the duty to
ensure that state legislatures such as California’s do not abdicate their
constitutional role in ensuring that their state’s electoral votes are cast for
a candidate qualified to serve,” the petition explains.
Here’s where Obama comes into the case.
“In 2012, Petitioner Dummett was a write-in candidate for
president of the United States on the California election ballot. In the same
year, Petitioner Noonan was the American Independent Party’s declared
presidential candidate. Each filed a petition for a writ of mandate in the
California Superior Court, Sacramento County, seeking an order that California
secretary of state require all presidential candidates to provide proof of
their eligibility for the office … before placing their names of the official
state ballot.”
That would have included Obama.
They argued a law requiring the secretary of state to put
the names of ineligible candidates on the ballot would be unconstitutional.
But the California judges shrugged, more or less said “So
what?” and dismissed the case.
They cited the previous adjudication of a lawsuit brought by
Ambassador Alan Keyes and others over Obama’s eligibility in 2008, which found
that the verification of eligibility “is better left to Congress and the
political parties.”
That ruling said: “The presidential nominating process is
not subject to each of the 50 states’ election officials independently deciding
whether a presidential nominee is qualified, as this could lead to chaotic
results. Were the courts of 50 states at liberty to issue injunctions
restricting certification of duly elected presidential electors, the result
could be conflicting rulings and delayed transition of power in derogation of
statutory and constitutional deadlines. Any investigation of eligibility is
best left to each [political] party, which presumably will conduct the
appropriate background check or risk that its nominee’s election will be
derailed by an objection in Congress, which is authorized to entertain and
resolve the validity of objections.”
But the petition explains the founders “built a
constitutional fence to keep Congress out of presidential elections, barring
representatives and senators from serving as electors, and limiting Congress’s
powers to specifying the day of the election, to counting the votes of the
Electoral College, and to providing for an order of succession to the
presidency.”
That, the petition explains, contradicts what the California
courts have concluded.
“That Congress was not empowered to enforce Article II,
Section, 1, Clause 5 does not mean, however, that the ‘natural born citizen’
requirement is legally unenforceable. Having committed the presidential
selection process to the several state legislatures under Article II, Section
1, Clause 2, the Constitution anticipates that each state will enforce the
federal eligibility requirement,” the petition explains.
“Thus, in California – as it would be true in the other 49
states – enforcement of the citizenship requirement would best be performed
before an election by the state’s chief election official’s control over the
official state ballot, ensuring it contained only the names of eligible
presidential candidates.”
The petition says such questions are “profoundly important”
and if not resolved “will render the ‘natural born citizen’ clause in the U.S.
Constitution a dead letter.”
The petition also cites the Alabama Supreme Court’s “no opinion” on the eligibility
question.
But the dissenting minority of
Justice Tom Parker and Chief Justice Roy Moore concluded the case has serious
constitutional significance, warranting an
investigation of the qualifications of 2012 presidential candidates by
Alabama’s secretary of state.
In that case, Moore wrote in his dissent that the circuit
court should have granted the plaintiffs’ request to order the state secretary
of state “to implement the natural-born-citizen requirement of the
presidential-qualifications clause in future elections.”
“Although the removal of a president-elect or a president
who has taken the oath of office is within the breast of Congress, the
determination of the eligibility of the 2012 presidential candidates before the
casting of the electoral votes is a state function,” Moore wrote.
He said the case was of “great constitutional significance
in regard to the highest office in our land.”
“Should he who was elected to the presidency be determined
to be ineligible, the remedy of impeachment is available through the United
States Congress, and the plaintiffs in this case, (Hugh) McInnish and (Virgil)
Goode, can pursue this remedy through their representatives in Congress.”
But eligibility is defined in the Constitution and states
should bear that responsibility, he said.
“The dissenters [in the Alabama case] explained that
‘constitutional provisions are presumed to be self-executing’ [and] ‘usually no
legislation is required to effectuate a constitutional provision that is
prohibitory in its language.’ … They pointed out that courts have upheld
decisions by state officials to exclude candidates who were not qualified for
other reasons, such as age,” the new petition explains.
In fact, California officials previously have excluded
presidential candidates specifically because they did not meet the
constitutional age requirement.
“The selection of a president remains as the founders
intended, a matter entrusted to the various state legislature,” the petition
explains.
“All this petition asks this court to do is to ensure that,
in fulfilling [an oath of office supporting the Constitution] by exercising
their constitutional duty to determine the matter of selection of electors,
these state legislators and state officers give meaning to the eligibility
requirements for the office president.”
“If eligibility cannot be considered by states in putting
nominee names of a ballot, “The ‘natural born citizen’ requirement will be
rendered a nullity,” the petition said.
And let’s not leave it to political parties, the petition
strongly suggests.
“Political parties cannot be trusted to properly vet the
eligibility of a candidate who may bring the vast benefits of incumbency to
their party,” the lawyers said.
Congress can act, but under the Constitution that would be
through impeachment after an inauguration. And “there is no clear authority for
the federal judiciary to step in after the fact, and directly or indirectly
declare that the president is ineligible.”
“However, the judicial branch cannot escape responsibility
when a case properly brought to it requests that it act to ensure compliance by
state legislatures with their basic duty to determine the manner of election fo
the president …. Consistent with Article II, Section 1, Clause 5.”
Whether or not the case will be accepted is yet to be
announced.
When earlier eligibility cases were
presented to the justices, they looked the other way. That was confirmed by a series of remarks by Justice Clarence Thomas, who appeared
before a U.S. house subcommittee several years ago and responded to the issue.
Thomas was before the House subcommittee when Chairman Rep.
Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity
in the judiciary.
“I’m still waiting for the [court decision] on whether or
not a Puerto Rican can run for president of the United States,” said Serrano,
who was born in the island territory. “That’s another issue.”
Yet after Serrano questioned him on whether or not the
land’s highest court would be well-served by a justice who had never been a
judge, Thomas not only answered in the affirmative but also hinted that Serrano
would be better off seeking a seat in the Supreme Court than a chair in the
Oval Office.
“I’m glad to hear that you don’t think there has to be a
judge on the court,” said Serrano, “because I’m not a judge; I’ve never been a
judge.”
“And you don’t have to be born in the United States,” said
Thomas, referring to the Constitution, which requires the president to be a
natural-born citizen but has no such requirement for a Supreme Court justice,
“so you never have to answer that question.”
“Oh really?” asked Serrano. “So you haven’t answered the one
about whether I can serve as president, but you answer this one?”
“We’re evading that one,” answered Thomas, referring to
questions of presidential eligibility and prompting laughter in the chamber.
“We’re giving you another option.”
And regarding the removal of a sitting official who is
ineligible, there is state Supreme Court precedent.
It was in the 1930s in North Dakota when Thomas H. Moodie
was “duly elected to the office of governor,” according to the Keyes case.
Later, “It was discovered that Thomas H. Moodie was not
eligible for the position of governor, as he had not resided in the state for a
requisite five years before running for office, and, because of that
ineligibility, he was removed from office and replaced by the lieutenant
governor.”
North Dakota’s historical archives document the case.
The Democrat was nominated by his party for governor in 1934
and beat his Republican opponent, Lydia Langer.
“As soon as the election was over, there was talk of
impeachment, but no charges were filed,” the state’s archives report. “After
Moodie’s inauguration on January 7, 1935, it was revealed that he had voted in
a 1932 municipal election in Minnesota. In order to be eligible for governor,
an individual has to have lived in the state for five consecutive years before
the election. The State Supreme Court determined that Governor Moodie was
ineligible to serve, and he was removed from office on February 16, 1935,” the
state reports.
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