Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
Some of the cases concerning President Obama, or the candidate then-Senator Obama, had alleged or speculated that the President was not born in the United States, but rather was born in some foreign country or another.[1] It should be noted that there is currently no requirement under federal law, nor was there under state law in 2008, for any federal candidate, that is, candidates to the U.S. Senate, the House of Representatives, or the office of President, to publish, produce, or release an official “birth certificate.”[2] Under the inclusive democratic tradition within the United States, there has never been any federal officer or bureaucracy which acts as a “gatekeeper” controlling who may be a federal candidate.[3] Rather, there is in this country a general legal presumption of eligibility of the adult citizenry to hold political office[4] and, as noted as early as 1875 by former U.S. Court of Appeals Judge, and former Member of Congress (and chairman of the Committee on Elections), George W. McCrary, in his book, A Treatise on the American Law of Elections, discussing federal congressional elections, the legal presumption is always of eligibility, and thus the initial burden of proof is always upon those who challenge a candidate’s eligibility, and not on a candidate to “prove” eligibility:
- ↑ The importance to some in arguing that President Obama was born outside of the United States is that, given that the President’s father was not a U.S. citizen at the time of the President’s birth, the federal laws then, in 1961, would have required for citizenship “at birth” of one born outside of the United States to only one citizen-parent, that such citizen-parent have resided in the United States for not less than ten years, at least five of which were after the age of fourteen (8 U.S.C. §1401(a)(7)) (1958 ed.), a requirement that the President’s mother, because of her age, would not have met.
- ↑ Under state ballot access procedures for presidential electors, candidates or the political parties which nominate candidates for the presidency are generally required under the laws of the various states to certify in writing that the candidate is the nominee of the party and is eligible to the office. U.S. Senate, Committee on Rules and Administration, Nomination and Election of the President and Vice President of the United States, 2008, S. Doc. 111-15, at 269–343 (survey of state laws regarding selecting delegates to the national nominating conventions), and 347–428 (“Summary of State Laws Relating to Presidential Electors”) (2010).
- ↑ See, e.g., Federal Election Commission, Advisory Opinion 2011-15, September 2, 2011. The so-called “vetting” of a candidate for elected federal office conducted by a federal bureaucracy or official as a prerequisite to run for office is alien to and unknown in the American democratic tradition. “Vetting” of candidates under the open democratic process and tradition in this country is a multi-step, and often grueling public process of meeting state ballot access requirements, facing opposition research by contestants for one’s own party nomination in primaries, by political opponents from other parties in the general election, and examination by an independent press, media, and the public. See Hollister v. Soetoro, 601 F.Supp.2d 179, 180 (D.D.C. 2009), aff’d 368 Fed. Appx. 154 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1017 (2011); Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1377 (M.D. Ga. 2009), aff’d, Rhodes and Taitz v. MacDonald, 368 Fed. Appx. 949 (11th Cir. 2010), cert. denied, Taitz v. MacDonald, 131 S.Ct. 918 (2111). The final procedure of counting the electoral votes for President, challenging any electoral votes, and certifying the electoral result is conducted by Congress under the Twelfth Amendment and the procedures of the Electoral Count Act of 1887, 24 Stat. 373, ch. 90, 49th Cong., February 3, 1887. See now 3 U.S.C. §§3–21. See generally CRS Report RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, by Jack Maskell and Elizabeth Rybicki.
- ↑ Chief Judge Posner of the United States Court of Appeals for the 7th Circuit noted, in another context, in Herman v. Local 1011, United States Steelworkers of America, 207 F.3d 924, 925 (7th Cir. 2000): “The democratic presumption is that any adult member of the polity… is eligible to run for office. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793–95, 819–20 (1995); Powell v. McCormack, 395 U.S. 486, 547 (1969).”
denied, 129 S.Ct. 920, and app. for stay denied, 129 S.Ct. 1030 (2009); Wrotnowski v. Bysiewicz, Secretary of the State of Connecticut, 958 A.2d 709 (Conn. 2008), app. for stay denied, 129 S.Ct. 775 (2008); Donofrio v. Wells (Secretary of State of New Jersey), Motion No. AM-0153-08T2, app. for stay denied, 129 S.Ct. 752 (2008); Hollister v. Soetoro, 601 F.Supp.2d 179 (D.D.C. 2009); aff’d No. 09-5080 (D.C. Cir. 2009), cert. denied 562 U.S. ___ (January 18, 2011), and rehearing denied, 562 U.S. ___, No. 10-678 (March 11, 2011); Keyes v. Bowen, Case No. 34-2008-80000096-CU-WM-GDS (Sup. Ct. Cal. March 13, 2009), appeal denied., Ct. of Appeals of Cal., 3rd App. Dist. (C062321, October 25, 2010), review denied., CA Supreme Ct. (February 2, 2011), cert. denied., S.Ct. Docket No. 10-1351 (October 3, 2011); Stamper v. United States, case No. 1:08 CV 2593 (N.D. Ohio 2008); Cohen v. Obama, Civil Action No. 08 2150 (D.D.C. 2008); Barnett, Rhodes, Kerchner v. Obama, 669 F. Supp. 2d 477 (D.N.J. 2009), aff’d 612 F.3d 204 (3rd Cir. 2010), cert. denied, 131 S. Ct. 663 (2010).
