Are the Birthers on to Something?
Beneath all of the coverage of the Republican primaries this election cycle, something rather startling is afoot.
What if the Republican nominee ran for the White House unopposed?
Granted, this is still a rather far-fetched supposition. But there are currently six separate ballot challenges to Barack H. Obama winding their way through various state courts. Particularly disconcerting to the Obama administration is that the courts in these states haven’t summarily dismissed these challenges, as requested by the President. Instead, hearings are underway or scheduled in all six.
While challenges in deeply the deeply red states of Alabama and Tennessee probably won’t surprise anyone, the challenges in deeply blue Illinois and Massachusetts undoubtedly will. And challenges in North Carolina and Georgia, two swing states the DNC was hoping to turn from purple to blue, have to be driving insiders in both the Democratic Party and Obama campaign nuts. Especially the one in Illinois, considering that Obama 2012 is headquartered in Chicago.
The principle issue being raised in these challenges could actually disqualify Mitt Romney, as well as the potential Vice-Presidential aspirations of Marco Rubio. It isn’t inconceivable that they could eventually make their way to the Supreme Court – and if that is the case, the entire 2012 election would be tossed for a serious loop. I mean, can you imagine a Presidential election without one candidate who would be eligible? As strange as that sounds, it could happen. And that is why I’m finding it a bit strange that there hasn’t been more extensive coverage in the media.
The issue being presented to the courts is no longer that the President was born on foreign soil, thereby making him ineligible for his office. Rather, it is the contrast between the 14th Amendment (which states that anyone born on US soil is a citizen) and Article II, section 1, which states that the President needs to be a “natural-born” citizen. Or have been a citizen at the time the Constitution was ratified – and I doubt we’re going to find anyone meets that standard. At issue is that nowhere in the Constitution does the term “natural born citizen” receive a concise definition. Granted, common sense would seem to dictate that anyone born in the US is a natural born citizen. But this is a matter of law, and so common sense will not play a part.
What does matter in these things is a thing called precedent; that is, what have previous courts ruled on the matter. And oddly enough, there isn’t any precedent upon which the legal definition of a “natural born citizen” can be ascertained. The Supreme Court was asked once before to provide clarity on the issue, in the 1872 case of Minor v. Happersett. But the court demurred, on the issue, saying the case had nothing to do with the plaintiff’s citizenship but whether women had the right to vote (women’s suffrage was still a state-by-state issue in 1872). However, the court did issue this cryptic message in their decision:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.” [emphasis mine]
In this decision, the Court essentially created the possibility of three types of citizens: natural-born , born (children of non-citizens or naturalized citizens born in the US), and naturalized. The implications are profound – in essence, the only potential federal office holders (since the chain of command established by the 25th Amendment makes almost all members of Congress and cabinet members potential Presidents) could be persons who can trace their citizenship not to their birth certificate, but to their lineage. Is Nancy Pelosi a natural-born citizen under this definition? How about John Boehner? Is Leon Panetta?
Besides the long-term implications, there are the very near-term ones to consider. As I mentioned, Mitt Romney would not be considered a natural-born citizen under this definition. Try this on for size: the case or cases wind their way through the appellate process and make it to the Supreme Court. Let’s say the who process moves faster than light-speed (for the court system) and the Supreme Court rules that natural born citizens are the children of US citizens only in September. (A decision, by the way, that is not improbable even if the timing is). As a result of such a ruling, Barack Obama would have to step down – and any laws and executive orders signed by him would become moot. Further, both parties would find themselves without a viable candidate for the Presidency (I suppose Joe Biden would become the Democratic nominee, by default).
The whole thing just snowballs from there, of course. What are your thoughts on how this could play out – not just the decision, but the potential impact. Let me know in the comments below or hit me up my email.