There has never been an ineligible President. The gauntlet of press scrutiny, campaign, debate, election, electoral college vote and Congressional objection always works even though one group, the birthers, think it didn’t.
Since early in the birther controversy, the birthers have often said, justifying their quo warranto actions in court, that Obama could not be impeached because he is not really President, and that the Attorney General opinions that a sitting President cannot be arrested or indicted do not apply because Obama is not really the President.
One may not believe that Obama is an eligible President, or one may say that he not the rightful President, but he is the President. The Constitution sets forth certain eligibility requirements for the President, but the Constitution has been amended since it was ratified in 1789. The 12th Amendment says:
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President.
Once a candidate passes the hurdles of the election, and after the Congress counts the votes, and after any objections are resolved, the winner of the election becomes the President-elect, and after he takes the oath of Office on January 20, he is the President, no matter what Article II says about eligibility. Terry Lakin’s expressed concern that his military orders were illegal shows a lack of understanding of the Constitution, as well as the Uniform Code of Military Justice.
There is certainly no distinction in the Constitution between impeaching an eligible or an ineligible President. Obama is now the President, whether he is eligible or not. Who lives at 1600 Pennsylvania Avenue? I do not doubt that Congress, using the power of Impeachment can remove an Article II ineligible President; however, the President is the President until they do. Further, impeachment is not a magic reset button erasing all of the executive orders issued and the legislation signed. Until a President is removed from office, he is the President.
That essential denial that Obama is the President is what has always led me towards a racist interpretation of birtherism. It is the essential denial of what happened that indicates that their is a clash between Obama being President and their world view — not just a disagreement over eligibility, but a clash between the person and the office. Birthers go beyond just saying that a mistake was made; they say that it really didn’t happen. If Obama’s assumption of office were considered just a mistake, then birthers would be satisfied for Congress to correct the mistake through impeachment. Birthers, however, don’t only want Obama out of the White House, they want him never to have been there, and that is impossible.
The Constitution assigns the matter of removing the President to the Legislative Branch of the government. The courts have no role1, and I can not believe that they will ever assert one. As a practical matter, President Obama is eligible and as his own party has a majority in the Senate, and so he will not be impeached and removed from office—but he could be.
1Excepting that the Chief Justice presides over the impeachment trial in the Senate.
I disagree. Hypothetically speaking, if Obama is really ineligible, he not a “real” President but only a de facto President in nature. All of his decisions would be subject to challenge or recall. Stating Obama is eligible when he is not simply writes the US Constitution off the books. Article II Section 1 states that that ONLY a Natural Born Citizen can serve as President. Regardless, of what the people, courts or Congress might THINK, if Obama is NOT a Natural Born Citizen, then he not a “Real” President but a De Facto one where all of his decisions are subject to challenge or recall.
It would also mean, as Terry Lakin had argued, all military orders would essentially be void and unconstitutional because the Chain of Command is tainted and not longer exist. (Who sits at the top of the Chain of Command? – Obama)
Many Obots have stated this is completely absurd. Yes, it is which is why would Congress and the Courts would be very unlikely to remove an ineligible President.
Here is Apuzzo’s take on that question, sort of:
http://puzo1.blogspot.com/2013/01/barack-obama-de-facto-president-of.html
On January 20, 2013, Barack Obama was again sworn in as the President of the United States. But because he is not an Article II “natural born Citizen,” he is at best a de facto President of the United States, not a constitutionally legitimate one.
> Birthers, however, don’t only want Obama out of the White House, they want him never to have been there, and that is impossible.
Some of them probably also want to retroactively vindicate Nixon as “what he did wasn’t 1/10,000,000,000th as bad as Obama” or something. Rewriting history has always been a penchant of the nutjobs.
> Obama is now the President, whether he is eligible or not. Who lives at 1600 Pennsylvania Avenue?
Though it would’ve created an interesting situation if birthers had somehow succeeded in stopping the second inauguration. In that what-if world, would a court, or Congress, actually rule the VP is President because the incumbent President could not swear the oath?
(But I suppose since there is no provision in the Constitution about the oath other than that the President-elect has to swear it, nobody could’ve stopped Obama from swearing the oath in private *without* any judge or whoever present, as long as he had a witness.)
Your analysis of this is right on target.
What I find most amusing about all of this, of course, is that, in addition to impeachment, members of Congress have now twice had the opportunity to object to Mr. Obama’s election when they certified the results of the Electoral College. Yet, not a single member voiced an objection – even the most outrageous of those members didn’t object. Birthers explain this by asserting that all 535 members of Congress are corrupt, just as they assert that all the judges who have dismissed eligibility challenges are corrupt. One wonders how all they reconcile all of this against their misbegotten beliefs.
One minor point: the judiciary DOES have a role in impeachment. The Chief Justice presides over the proceedings in the Senate, after the House passes articles of impeachment.
So, all three branches are involved.
Definition of de facto:
1. Actual: de facto segregation.
2. Exercising power or serving a function without being legally or officially established: a de facto government; a de facto nuclear storage facility.
I saw the electoral college vote counted and I saw Obama sworn in. He is officially established.
To this point, I don’t recall the birthers dealing with the plain language of the 12th Amendment.
I’m sure the “opinions” of a no-longer-practicing (as far as I can tell) DWI attorney in New Jersey deep pain the President and cause him countless nights of lost sleep.
So you’re saying that the entire process is for naught? If so, then you’re shredding the Constitution. Either you love it or you don’t, John. Which is it?
The presumption is that the oath can be sworn before an official authorized to receive oaths, and that would include any judge, magistrate, justice of the peace and perhaps even a notary public. President Johnson was sworn by a federal judge in Texas and Arthur by a state court judge (both in the wake of the death of the President).
Thanks for that observation. I have added a footnote to the article.
“I saw the electoral college vote counted and I saw Obama sworn in. He is officially established.”
Only that he was re-elected and the election process ran it’s course. However, no where under the law is ELIGIBILITY under Article 2 Section 1 is established. It’s a flaw in the law Doc….just like there is no vetting process in place to determine the eligibility of a candidate.
Judge England tried to make the absolutely absurd argument that since Obama has been “Living” at the White House for last 4 years, any and all crimes and allegations against him are moot and irrelavent and as the current President of the US, Obama has “Special” treatment that protects him as a candidate for re-election that is not given to other candidates.
Orly Taitz kicked England’s butt on this point.
It actually doesn’t. It speaks of eligibilty to the office, not serving in the office. They are very different things. If you read Article II under the normal rules of English grammar, it actually implies that only those alive in 1789 are eligible. Yet, at least 3 dozen of these “ineligible” Presidents have served and the country has not only survived, but done fairly well.
no matter which way they move the goalposts, BIRTHERS LOSE
any …….. day ……… now ….. ain’t happening but hey, keep giving them dollars
birthers will go down as perpetrating the biggest hoax in US history
No, that is not what Judge England argued at all. He used the 1600 Pennsylvania Avenue example to state what the status quo was, arguing that Orly was trying to change the status quo, rather than preserve it, which is a requirement for a temporary restraining order.
Judge England was completely lost. Orly was arguing that the status quo needed to be preserved with a temporary restraining order – That is CANDIDATE Obama NOT PRESIDENT Obama has won re-election and that the TRO was necessary to ascertain CANDIDATE Obama, now President Elect Obama his eligibility to occupy the office. Judge England that used “Special President Treatment” NOT given to other candidates to give CANDIDATE Obama, now President-Elect Obama a complete pass. Judge England was completely lost and confused and Orly danced circles around him.
But as Judge England pointed out – there’s a problem with Obama being president-elect and keeping him as such: he was also the current president. So the status quo would require that he remain both the president-elect, and the current president. In essence, the status quo would only require that he was also a candidate, which doesn’t make any difference.
Calvin Coolidge was sworn in by his father who was a justice of the peace and a notary public
http://www.eyewitnesstohistory.com/coolidge.htm
“In 1923 President Coolidge first took the oath of office, administered by his father, a justice of the peace and a notary, in his family’s sitting room in Plymouth, Vermont. President Harding had died while traveling in the western States. A year later, the President was elected on the slogan “Keep Cool with Coolidge.” Chief Justice William Howard Taft administered the oath of office on the East Portico of the Capitol. The event was broadcast to the nation by radio.”
http://www.inaugural.senate.gov/swearing-in/event/calvin-coolidge-1925
john’s right, Orly was dancing circles all day–just ask St. Vitus.
john: Judge England was completely lost and confused and Orly danced circles around him.
eggzactly, that’s why Orly won the case, the judge ruled in Orly’s favor. What, she lost? wow,don’t tell john he doesn’t know.
That wasn’t a loss, it was a strategic restructuring.
But Obama being President was/is part of the status quo.
But this is nitpicking anyway; there is no way a court could’ve enjoined Congress from performing one of its acts, or the Chief Justice from doing something that isn’t legally required anyway.
You can argue about the status quo argument all day long, even if you won it, the case would still be lost. (Don’t you birthers love the argument where you go “even if you were right, he is still ineligible because…”? Have a taste of it: “Even if you were right, Orly would still have lost because the court could not grant her the relief she requested anyway.”)
Orly danced circles around a black hole until she was sucked in. “Take that, laws of gravity!”, she yelled. Observers however agreed the singularity was unimpressed.
That’s just plain birther Stalinist propaganda (I don’t give you the benefit of the doubt anymore that you simply don’t understand simple English and simple court proceedings).
Orly claimed Obama was only the President-elect but the court lectured her that he was/is also the President. The judge never claimed Obama is the President because he resides at the WH – or that he is “off limits” because of that – but that he resides at the WH because he is the President (and not just a President-elect).
Your distortion of this simple fact is akin to the claims that one judge used “case law from a fictional trial in a movie” or that another dismissed the case “because it was twittered”. You can save that crap for the birther echo chambers and try not to insult our intelligence here.
i don’t think there was that much press scrutiny. obama has worked the media well, to his political credit (axelrod, cutter, gibbs), but i don’t think it matters, to complain about it, as some conservatives do.
in searching for bobby fischer, the classic chess teacher/mentor says about the son playing chess in the park (the chess hustlers gather in the park) “made his job harder”… and then his mom says…. “then your job is harder”. great movie.
anyway, the point is, which ever side can win over or manipulate the media wins the media. it makes the other side’s job more difficult, but that’s the arena of American politics. if you step into the ring, expect to get hit, what’s at stake is the power of governing. i do hope the relationship of the press is never compromised by the threat of denial of access.
no, i don’t think, in mr. obama’s case, there was that much scrutiny, by the media. now we have citizen journalism (like this very site), which would make ben franklin happy. and that makes me happy.
True. But there is no other role for the judiciary in the process. It is not subject to court review and extends only to removal from office and, as I recall, possible prohibition from holding federal office in the future.
Bottom line is that impeachment is a political process and a person can be removed from office for almost any reason that can get enough votes in both houses of Congress.
Since john is continuing to assert that the actions of an ineligible President can be voided on that basis, let me point out that for any office of the government, there may be required qualifications for eligibility, and there is a process for designating a particular person as holding that office. And it is established law that once a person is properly designated as holding that office, their actions cannot be voided if it is subsequently found that they do not meet the eligibility criteria. In contrast, if it turns out that the process for designating them was not properly followed, then their actions are voided.
I’m not saying it’s a huge role, but an important one. Guess who decides what evidence is admitted?
John, you obviously do not understand the power which the ratified amendments to the Constitution have to SUPERCEDE and even in effect cancel the specifications and requirements of former Constitutional language when the two conflict. Doc’s piece on this topic explaining the 12th Amendment simply more elegantly restates the posting I contributed to his previous article on the Birther Bills last night at half-past Midnight, which I repost here now:
( BEGINNING OF PREVIOUS POSTING)
john: Not necessarily. If Obama is not eligible then he not eligible to be impeached because was never a “real” President. Impeachment is for high crimes and misdomeners. Being ineligible is not a crime. Actually, there is no precident on the removal of a president who is not eligible. Impeachment is only for eligible presidents. However, I highly doubt the courts will ever remove him.
John, the 12th Amendment, ratified AFTER Article 2 was ratified, altered the calculus of whether a President is eligible under the Constitution. It employs the word “shall”, the imperative command from which the provisions of the Constitution get their status as requirements, in a way that deals with a situation where a candidate for President who has received more than half of the votes in the electoral college, might later have their compliance with the Article 2 requirements challenged.
It reads: “…The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; ….”
So “shall be the President” legitimizes the status of the sufficient EC vote getter as a “real” President, establishing an Article 2-modifying blanket of POTUS eligibility for that person, and its up to Congress then to decide whether any later discovered insufficiency of compliance with the original Article 2 eligibility requirements (or any other unacceptable circumstance like being an android or the like) merits impeachment going forward. (END OF PREVIOUS POSTING)
So John, this means Article Two Eligibility Requirements are not requirements for the Presidency if the candidate gets more than 1/2 of the electoral college votes – that’s the only requirement at that point and it completely nullify’s previously (in the Constitution) stated additional requirements. This circumstance is not a “flaw in the law”. Amendments always contemplate the previously existing Constitutional requirements and it is UNDERSTOOD that they supercede previously ratified conflicting requirements like those of Article 2.
So again, Constitutionally, (the latest Amendments are always potentially the most powerful part of the Constitution) Obama is a REAL President and he can be impeached.
Citizen journalism is awesome. Each and every one of us now has the opportunity to say they’ll participate in the New Media, and then blow it off.
Even today’s media has trouble with scrutiny when all one side give is rumors and innuendo. Proof that the President was born elsewhere would have gained their attention media the Birthers never provided any (beyond an intentional punked versions and another from a convicted forger who will show evidence he was ever in Kenya). Claiming forgery of an image of a document which was placed on the White House website as a courtesy to voters is not much interest to a real media outlet. When the Fox staff looks at stories, how to they compare stories of the debt ceiling and sequester with stories of the claims of a pyramid power copier salesman?
But since you like the new media, now you can participate by going on a radio show and defending your position. Thus showing all of the world the failure of the MSM.
Ha! Glenn Beck raped and murdered a girl in 1990. Did the MSM investigate it?
Where did Mitt Romney bury the girl he strangled in 1987? Did the MSM investigate?
Talk about working the media well.
A.k.a. the de facto officer doctrine.
Even that may be contested, I think. You are saying if it turns out some mistake was made in the process of making FDR President, his presidency would be voided?
I believe the de facto officer doctrine applies in that case as well.
The only exception to the de facto officer doctrine I know of is if somebody assumes an office that does not actually exist (lame example: a “Super-President of the United States” overrules Presidential acts and Congress and the military obey).
Yes, I’m referring to the de facto officer doctrine.
But as for errors of process in designating someone to hold an office — we have the very recent example of a federal appeals court overturning actions of the NLRB because they find Obama’s recess appointments to that board defective.
I think in your example about FDR the short answer would be yes. I know how absurd it sounds to say everything he signed would be voided. But in fact, the process followed to designate a President — the counting of the electoral vote, and the administration of the oath of office — are done so publicly that what is absurd is that anyone could doubt that it was done properly. I suspect they are done very publicly for that exact reason.
i’m no lawyer, but i’m pretty sure capital crimes are the responsibility of the state, not the media. however if there is evidence the media knows about…
i won’t believe what you are charging until i hear it from harry reid on the senate floor, unless of course jonbenet comes back to life and testifies.
like politics, the outcome of media has an eventual balance, but i think that sixty minutes interview with obama and clinton certainly put to rest any inklings of media bias.
incidentally, i noticed snope’s use of john woodman and fox’s jean clude trembley.
http://www.snopes.com/politics/obama/birthers/birthcertificate.asp
A typical scenario in sitcoms, when I was growing up, was for a married couple to discover that they weren’t married because the Justice of the Peace who married them was somehow ineligible (I don’t remember why he was, if he was a con man, or just ineligible). Are you saying that this scenario wouldn’t have happened?
I think that scenario is unlikely, but not because of the de facto officer doctrine. Courts tend to require a pretty good reason to invalidate a marriage, and a fraudulent JoP wouldn’t come close.
Agreed, but we are also talking about what-if scenarios.
Georg Jellinek (http://en.wikipedia.org/wiki/Georg_Jellinek) coined the term “normative power of the factual” which is, I believe, effectively part of the law of nations – so that no country can claim that because some legal body/decision in some country 200 years ago was, strictly speaking, “defective”, this would have to unravel everything that is based on it.
E.g. it turns out that Prince Doowahdiddy of Povania wasn’t legally empowered to sign over the province of Floomsty to France in 1683, all French elections since then are void, therefore all legal actions taken by France since then are void, therefore the European Union never legally … – you get the picture.
Even *if* it turns out Povania never was a kingdom but always a democracy.
For the same reason, no sane country would claim “because of that thing we just discovered, we legally own Paris and will take it back, by force if necessary”. Even if one could make a case that a strict reading of the law (of nations?) would justify that.
Therefore even without the de facto officer doctrine applying in the strict sense, you cannot seriously reset 50+ years of history just because you found something “defective” in the distant past, apart from the fact that this is technically impossible.
Besides, I don’t see how “not following proper procedure to install the President” was worse than “an ineligible President”.
And I note that the de facto officer doctrine applies, AFAIK, regardless of any “procedures” and “processes”. That’s the core of it, that the person holding the office was, for whatever (!) reason, not entitled to hold it (because he was ineligible, because he signed the wrong form, because he actually lost the elections, because the wrong institution signed off on the papers etc.).
As I said, the only exception is if that office didn’t exist in the first place.
A bit up the thread I gave an example of the other exception, but let me repeat it here, hopefully more clearly this time. Somebody was unhappy with a decision of the NRLB and went to court to say the NRLB action was void because some of the members received a recess appointment when the Senate was not in recess. They won at the appeals court level, so apparently this argument is not regarded by the courts as crazy.
Article II Section 1 Clause 5 defines the eligibility requirements for the office of the President.
Obviously this Clause precludes an ineligible candidate from serving.
The ineligible candidates include native born citizens who are not natural born, naturalized citizens and non-citizens.
It follows that if a candidate violates Article II Section 1 Clause 5 of the U.S. Constitution then that raises a constitutional question.
It follows that the constitutional question must be resolved before a political question can arise.
Even the Legislative Branch must obey the U.S. Constitution. If they do not then they have violated their oath of office.
No, it does not, because it is superceded by the 12th Amendment, which states: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.”
Shall be President-no wiggle room there.
I guess we should count our blessings that at least this catagory consists of pretty much no one, since all native born citizens and natural born citizens are the exact same thing.
Political questions in this context are constitutional questions, in that they arise out of the constitution….but considering you can’t even get natural born citizen correct, why should I be suprised that you don’t understand the political question doctrine. It’s pretty clear that the law just isn’t your bag.
Uh uh, if there happen to be any persons alive who were citizens at the time the Constitution was ratified, they would still eligible.
The sum of which is zero.
Another group of people who are ineligible would be those who renounced their citizenship, in writing, before they were born. The sum of which is also zero.
Another group……
We can do this fantasy island routine all day, inventing people who can’t possibly exist, who would be ineligible.
Lucky for you, the President is a natural born citizen. Maybe you would like to here a work from our founders?
Don’t want to accept the concept of natural born citizen from a bunch of “obots?” How about RedState.
http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/
That is Orly’s problem in a nutshell. All that dancing around in circles has caused her to become disoriented. That would explain why her appeal of her Occidental College sanctions has been twice rejected by the appellate court due to her failure to follow the rules.