Friday, April 10, 2009

Amendment XX of the Constitution says Barack Obama is not president because he doesn't qualify - and what to do about it

Some people regard questioning Barack Obama’s constitutional eligibility to be akin to tilting at wind mills; but I don’t. If Obama does not meet the constitutional requirement to be a natural born citizen and is therefore ineligible to be president, the consequences are enormous. If the constitution which is paramount in assuring the kind of government we have and our individual rights and liberty is ignored, the future of the United States is at risk – and Obama could settle all this by producing evidence he was born in the United States but he doesn’t; which raises the obvious question – can he?

Recently the Supreme Court decided not to hear the Donofrio case concerning whether Barack Obama is a natural born citizen and therefore qualified to be President [the case brought by Leo Donofrio who alleged Obama does not meet the Constitution's Article 2, Section 1 "natural-born citizen" requirement for president]. Shockingly, David Horowitz said of those who claim Obama is not natural born as being afflicted with "Obama Derangement Syndrome." Horowitz told people to "shut up about the birth certificate." He asked, "What difference does it make to the future of this country whether Obama was born on U.S. soil?" This is the wrong response to the decision by the Supreme Court. [It should be also remembered that a challenge to Obama's eligibility was brought in court before the Electoral College voted and Congress accepted the results but the issues were not decided.]

When the U.S. Constitution is clear on a matter, are we not supposed to make an effort to have the country re-think "what difference does it make to the future of this country?" If we don’t then what good is the Constitution if it can be ignored whenever it suits?

There is no doubt that the Constitution is very clear on this point and even the Obama apologists agree with that. Article II, Section 1 states: "no person except a natural born citizen ... shall be eligible to the Office of President." This is not ambiguous; if a person is not a natural born citizen, that person is ineligible to be president.

It’s true that Barack Obama received the required number of electoral votes to be elected president and received more popular votes than his opponent; but does that mean that the issue of eligibility should be disregarded? Is it too late to do anything about having an ineligible person occupying the White House and signing legislation into law; no, it is not too late?

Actually the U.S. Constitution addresses such a circumstance and tells us exactly what to do in the current situation. The election is not some kind of deadline. Even the true election by Electors is not the deadline. There is no deadline.

Here is the 20th Amendment of the Constitution in its entirety with selected portions highlighted:

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission [the 20th Amendment was ratified in 1933].

If it is found that Obama is not natural born, then the Constitution says Joe Biden shall be President until the President thing gets sorted out. This may be a horrible consequence but it is exactly what the Constitution says we shall do. It does not "suggest"; it says "shall."

Are we to apply the Constitution only in cases where it is convenient to do so?

The Constitution even suggests that there is a qualification process: "if the President elect shall have failed to qualify;" it says "…the Vice President shall act as president until a president shall have qualified."

What happens in the event Barack Obama is not president? That means he cannot be validly elected. The people and the Electoral College cannot overcome this and the House of Representatives can't make him president. He takes the oath of office, and assuming he's aware he's not a citizen, then it's a perjured oath. Any appointments made by an ineligible president would have to be recalled, and their decisions would be invalidated and all laws signed by him would not be enforceable.

Terrible you say; not to freedom loving people who believe in the Constitution.
So what can be done about this since the Supreme Court has refused to hear many cases raising the issue?

Under the common law such as is the basis of our system of jurisprudence, there is something called a writ of quo warranto. "What is quo warranto? It is a right under the Ninth Amendment* which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents.

Here is a writing on the subject. Revival of the writs must be combined with reviving standing for private prosecution of public rights, subverted by the decision in Frothingham v. Mellon, 262 U.S. 447 (1923), which is discussed in an article by Steve Winter, The Metaphor of Standing and the Problem of Self-Governance.

Frothingham is sometimes cited for opposition to quo warranto but the majority opinion (Chief Justice Earl Warren) Frothingham v. Mellon did not recognize a constitutional barrier against federal taxpayer lawsuits. Rather, it denied standing because the petitioner did not allege "a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power." Because the purpose of standing is to avoid burdening the court with situations in which there is no real controversy, standing is used to ensure that the parties in the suit are properly adversarial, "not whether the issue itself is justiciable." Clearly in the Obama eligibility issue there is "a breach of constitutional limitations" and federal "taxpayer lawsuits" are appropriate.

No doubt the consequences of removing Obama from the presidency are great and could require suppressing civil disorder which may arise from segments of the population but the alternative is equally grim – a destruction of the Constitution and the freedom and liberty for Americans it provides.

*Amendment IX
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

1 comment:

smrstrauss said...

Re: "Obama could settle all this by producing evidence he was born in the United States but he doesn’t."


He posted and showed to the press, published by FactCheck and PoliFact, the Hawaiian governments' certification of live birth, which is the only birth certificate that Hawaii sends out to people asking for their birth certificates these days. And that certification clearly says that Obama was born in Hawaii.

Moreover, Obama was born in 1961, which was when Hawaii did not register the births of people outside of Hawaii. That was not allowed until 1982.

Thus Obama has proved that he was born in Hawaii and thus is a natural born citizen.