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.
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.