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December 08, 2008

Just Another Point on the Obama Citizenship Thing... UPDATE

First of all, my objection here is proceduralist. I do not expect any particular result from a subpoena to produce a birth certificate -- other than to establish he does in fact have a birth certificate and is qualified to become president.

In a way this is like Hillary's Emoluments Clause problems. I want Hillary to be Secretary of the State, if only for the drama/comedy value of it. (And also-- that she'll try to be tougher than Obama.)

Nevertheless, I am very bothered by the fact that the Constitution seems to unambiguously disqualify her, and the Congress is not even attempting a superficial fix of the situation by repealing the pay raise her Congress authorized for the Secretary of State. I don't know if that would wholly solve the problem, but at least it would be gesture in the direction of compliance with the Constitution.

For the same reason I insist upon Obama proving his qualifications for office. I don't expect him to be disqualified. I insist upon it because it's in the Constitution and it's rather bad precedent for presidents to begin deciding which parts of the constitution they'll respect.

For those who imagine an endgame of Obama's disqualification, however: Prepare for disappointment.

Not only are most of your factual predicates likely incorrect, but even if they're correct, you still won't see Obama disqualified.

The constitution mandates "natural born" but the meaning of that term is defined *by statute." Congress defines it. This is not uncommon; the constitution offers many very general prescriptions. The congress is invited, implicitly or explicitly, to craft laws implementing the vague prescriptions.

Upshot: Those looking for a very technical statutory disqualification are overlooking the fact that the Congress could, at any time, redefine "natural born" to include Obama -- so even if you "win," you lose.

A statute provided that those born on foreign soil to servicemen or diplomats serving overseas were still "natural born," for example -- which is what makes John McCain "natural born."

The notion that Republicans would stand firm and filibuster such a law, or that Bush would not sign it into law before Obama is due to be inaugurated, seems extraordinary unlikely. Especially when (as some theories have it) we're talking about Obama's mother being eighteen rather than nineteen, and that's why he's not natural born, or Obama's stepfather renounced his citizenship on his behalf, like a kid has any damn say in such things or that he should be bound by his guardian's decisions later in life. That sort of thing.

And to get what accomplished? The inauguration of President Joe Biden?

Many of these arguments about statutory disqualification are ticky-tack stuff. One of the main theories goes like this (if I have it right): Even though children born to citizens in other countries are "natural born" most of the time, a woman has to be 19 or older to take advantage of this. And Obama's mom was younger.

Something like that.

Edit: Goy explains it:

Obama's biological father was a Kenyan citizen and Obama's mother a U.S. citizen who was not old enough to register Obama's birth in Hawaii as a "natural born" United States Citizen.

The laws on the books at the time of BHO's birth (Nationality Act of 1940, rev. 1952) required the U.S. Citizen to have resided in the U.S. for ten years, five of which were after the age of 14. Ann Dunham was only 18 when BHO was born.

Now, come on: Even if this all turns out technically true, does that law, as it stands, make a whole lot of sense? Enough sense that Congress wouldn't just change the law to not specify a minimum age for the natural-born safe harbor?

It's going to strike a lot of people as a very legalistic, technical ticky-tack thing which is basically unfair and doesn't make a whole lot of sense in the first place.

So even if these theories (one of them, at least) prove right, they will not stand. The law would be changed.

At best you're hoping for some political fall-out from Obama hiding this stuff throughout the election And there would be some fall-out, certainly. But an actual disqualification?

Ponder all the facts and technical aspects of laws and court rulings and resultant Congressional inaction on the matter that would have to fall in your favor for the desired outcome to come about -- it's an unlikelihood multiplied by an unlikelihood multiplied by another unlikelihood multiplied by a near impossibility. The odds are extraordinarily low.

I Don't Understand Goy's Point... Since, as I understand it, two non-citizen illegal immigrants can come to the US and have a child here and it will be a "natural born" citizen, how can it be that an American citizen can have a child here and it's not a natural born citizen?

Are you guys sure your statutory cites still hold? The Supreme Court may have overturned the statutes you're relying upon as proof.

UPDATE [Gabe]: This ridiculous conspiracy will never end. Another Obama citizenship suit was distributed to the full Court for cert. consideration.

Keep hope alive!


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posted by Ace at 08:13 PM

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