Birtherism: Questions remain

I apologize for even mentioning birtherism in this context, but hopefully this can start an informative discussion of some kind. My question about birtherism, on a practical level, is as follows: even if it were true that Obama does not meet the constitutional citizenship requirement for the presidency, what remedy is there? Who decides that he needs to be removed from office, how is that decision enforced, and what happens to all the laws and executive orders he signed?

My theory is that there is essentially nothing to be done, just as there was nothing to be done when Bush stole the 2000 election. The Electoral College still elects the president; the state-level restrictions on how their electors can vote have no federal enforceability. A faithless elector could be sanctioned by the state that nominated him or her, but their vote is still their vote. Once the Electoral College elects the president and Congress certifies the results, that person is (or rather, will inevitably become) the president. One could conceivably have impeached Bush for conspiring to steal the Florida election or impeach Obama for falsifying his birth records, but if the Electoral College thinks someone is qualified to be president, that person effectively is qualified. There’s no constitutional mechanism for going back on that decision once Congress certifies the results.

Just as the Constitution effectively means what the Supreme Court says it means at any given time, so also do the constitutional requirements for the president mean what the Electoral College says they mean. Once it’s finalized, there’s no way to invalidate a presidential election. The Constitution could theoretically be amended to fix this lack of enforcement mechanism, but as things stand to me, it seems that the constitutional eligibility requirements are practically unenforceable in the sense that there’s no remedy or punishment if they’ve been violated.

Of course, I’m no expert. Perhaps a commenter is. But I think this is interesting as a broader point, because I suspect that there are many other constitutional provisions that are similarly unenforceable and that this may be a feature of constitutional law more generally.

16 thoughts on “Birtherism: Questions remain

  1. I thought American citizenship is also automatically given if you have a US citizen parent, no matter where you are in the world? Obama’s mum is a white lady from Kansas, so he’d actually need to have committed TWO birthy frauds to not qualify for prez.

    As an Australian I do not know what an Electoral College is, but can only assume that like all colleges nowadays they are having budget cutbacks.

  2. The Electoral College was originally the method of selecting the president because the founders were worried that direct election would have bad results — hence the states could each nominate electors (the number of which were based on the size of the state’s congressional delegation), who would in turn elect the president.

    At this point in history, basically every state has decided on a “winner take all” approach where the winner in their state gets 100% of their Electoral College votes. This can lead to a situation where, as in 2000, the winner of the majority vote winds up not technically winning the election. Formally, all electors are free to vote for whoever they want, though normally the states will pick people who are totally loyal to the party of the winner so that this wouldn’t come up — in 2000, some people were hoping that so-called “faithless electors” would ultimately deliver the election to Al Gore, though that obviously didn’t happen.

    The obvious solution to this stupid system is to amend the constitution to have direct election of the president, but the constitution is incredibly hard to amend, so as with most things, we Americans decided to live with our current Rube Goldberg system.

    Another wrinkle: to my knowledge, the presidency requirement is the only aspect of American law that depends on the distinction “natural-born citizen,” so the meaning of the term isn’t clearly defined.

  3. Fun trivia fact: John McCain’s “natural born citizen” status was actually ambiguous, given that he was born in the Panama Canal Zone. Congress passed a resolution saying he was qualified, however, so they presumably would’ve certified the Electoral College results if he won (or at least wouldn’t have denied them on that specific basis).

  4. Prior to all of this, I’d always taken it for granted that “natural-born citizen” meant “citizen at birth”, thus covering the children of diplomats and soldiers and other foreign-based US citizens.

  5. A little googlin’ shows me I may be wrong…it is ambiguous, and nobody has been president who wasn’t born in the US (except the first several up until Van Buren), but the requirement seems to be just that one is born a citizen, although it is not 100% clear.

  6. I don’t see any special situation here. A president who is not a “natural-born citizen” would have to be impeached. But any criminal has to be sentenced. The fact alone is not enough. Even if I kill someone there might never be a trial or the jury might acquit. Any law means what the court/jury says it means. No law is enforceable beyond that.

  7. There would be an asterisk placed by his name on the list of presidents…

    Moreover, if it was proven that Obama was not born on US soil, perhaps this would underscore the fact that maybe this particular constitutional law is not that meaningful.

  8. Anon is right — the political question doctrine would call for judicial abstention, meaning that impeachment or refusing to re-elect would be the only available remedies. And in fact that’s precisely what the courts have done when Birthers have brought lawsuits against Obama.

  9. I received an interesting take on the birther issue from a cab driver in Nevada several months ago. He was actually a super nice guy, and we were totally getting along (it was a long cab ride) until he started telling me how Harry Reid, that “bitch” Nancy Pelosi and Obama were ruining the nation. (He later also revealed his stance on concealed carry, and on labor, and over the course of the ride I became somewhat afraid that he would ask me about the purpose of my visit, which was, after all, union business. His glove compartment was closed, but not locked, and I kept my eye on it for the duration.)

    Anyway, his view was that the birth certificate was important, not because he believed that Obama was not a natural-born American citizen, but because he thought that the birth certificate would reveal Obama’s secret Muslim allegiances. His idea was that Obama’s given name, at birth, was actually Barry, and that he later changed his name to Barack when he converted to Islam, and that Obama didn’t want his birth certificate disclosed because it would reveal that he had chosen his Muslim name voluntarily, rather than having been haplessly cursed with it by his mom and dad.

    I hope the revelation of the document puts his fears to rest.

  10. Don’t forget that, technically speaking, the Electors in the Electoral College who vote for a state are chosen by the party that wins the most votes. Each state has multiple sets of Electors pre-chosen by each of the major parties (Dems, GOP, and sometimes one of the third parties). When the GOP candidate ‘wins the state’, it means the GOP-chosen Electors can vote however which way they want. Interestingly, the Electors vote by writing the name on a sheet of paper and in the tally, this has sometimes led to interesting results (e.g. if an Elector writes Baruch Obahma, the vote doesn’t go to Obama). There have been occasions when Electors have voted against the wishes of the Party, but never enough to swing an election.

    Also, (the other) Chris is right that the ‘natural-born citizen’ in the Constitution is often interpreted for election purposes as popping out on US soil, which is one of the reasons why military bases and embassies in other countries are considered ‘US soil’ (except for Gitmo, which is why there’s that whole issue).

  11. Actually, the natural-born citizen thing is pretty well-defined.

    1. “A little googlin’ shows me I may be wrong…it is ambiguous, and nobody has been president who wasn’t born in the US (except the first several up until Van Buren).” Everybody who was a citizen, irregardless of where they were born, when the Constitution was adopted was grandfathered in as a natural-born citizen. Alexander Hamilton, who was born in the British West Indies, could have run for President.

    2. “John McCain’s “natural born citizen” status was actually ambiguous” No, it wasn’t. John McCain was born to two US citizens in a military hospital on a US Navy base in Panama. His birth location is actually regarded as US soil.

    3. “Chris is right that the ‘natural-born citizen’ in the Constitution is often interpreted for election purposes as popping out on US soil” That interpretation is also incorrect. John McCain still would be a natural-born citizen even if he hadn’t been born on a US military base, but in Panama proper. Anybody born to two US citizens anywhere (other countries, in the middle of the ocean, outer space, Mars, you name it) is a natural born citizen. George Romney (Mitt’s dad) ran for President, and was born to two US citizens in Mexico.

    4. “I thought American citizenship is also automatically given if you have a US citizen parent, no matter where you are in the world? ” No, that’s not correct. If only one of your parents is a US citizen and you were not born on US soil, then your natural-born citizenship is decided upon by whether your parents file a document with the State Department after your birth. Thus, George Romney and John McCain are undoubtedly natural-born citizens. If Obama had been born outside the US (since his father was not a US citizen), then it was possible that his mother never filed the proper form and he was not a natural-born citizen. Of course, since Obama was born on US soil, that possibility is irrelevant, but it would have been a possibility if he had been born outside the US.

    5. “I’d always taken it for granted that “natural-born citizen” meant “citizen at birth”, thus covering the children of diplomats and soldiers and other foreign-based US citizens.” It’s actually only foreign diplomats and employees of foreign governments. The Supreme Court decided in Wong Ark Kim (1898) that children of Chinese traveling merchants who had been born in California were also natural born citizens, even though their parents had not actually ever immigrated to the US at all.

  12. Not to detract from the legal speculations/debates, but as jms suggests, the birther affair is in part based on Islamophobia, which has levels of paranoid psychosis in this country. That is, however, only one of a tripod of hates behind this frivolous media storm (cum free publicity for Trump’s campaign). The other two are xenophobia (which extends even to the fear that someone MIGHT be of foreign origin) and racism. Consider the fact that only a few years ago the same birthers were agitating for a constitutional amendment to allow the Austrian-born Arnold Schwarzenegger to run for President. This suggests that xenophobia can sometimes be overcome in favor of a conservative hero (especially of a muscular Terminator type), but racism is even stronger than death, so that even an American could be regarded as less legitimate of a president than a foreigner if s/he is of the wrong color (or worse, scion of a taboo union). This amounts to an affective repeal of “negro” citizenship as such. The same prejudice may be seen to account for the rest of the blanket opposition to Obama by the Republican base.

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