To Coin a Phrase, It's Time for the Birthers to Move On (.org)

Birtherism--the belief that President Obama is not a natural born citizen of the United States--is a cancer, a blight, a toxin eating away at the public consciousness. Consider what good shape we are in right now to really smack the Democrats around in 2010. And yet, every time I've turned on the TV or the radio this week, people are blathering about the Birthers.

Not that anyone talking about it agrees with them. Everyone from Coulter and Malkin on one side and Paglia and Gibbs on the other have emphasized about how messed up the Birthers are. They use words like "rabid", "crazy", and "fanatic". Moreover, although coverage of the "conspiracy" has recently picked up and contrary to the claims of Birthers that the media ignored the issue until now, serious discussion from a serious news outlet (I mean NR, of course) started in June of last year. It prompted then-candidate Obama to release a copy of his Certification of Live Birth ("COLB"), which irritatingly enough only encouraged the Birthers.

That's the problem with this little conspiracy and why I don't bother arguing with the Birthers anymore. Anything the President does gets twisted into evidence that he isn't a citizen. That's why I bailed so fast. As you can see from that link, I wasn't initially hostile to the idea that the President had something to prove. It's just...once he did, I moved on. Robert Gibbs is right. There is simply nothing the President can do that will satisfy the Birthers.

Even if he could release the "original" long-form certificate (which he can't--Hawaii only issues short-form COLBs), it wouldn't end the conspiracy-mongering. First, because the Birthers who are so certain that the COLB is faked and that the Hawaii officials who have claimed that the original record lists Obama's birth in Hawaii are never going to believe that a long-form provided by the President isn't fraudulent. Their insistence that everything will be fine as long as he releases just one more document is belied by the way they treated the COLB, which was deprived of credibility because it came from the President and was handled by Democrats. The demands to see the "long-form" certificate are thus convenient since it's the one thing the President can't provide and which, necessarily, is in the custody of Democrats in Hawaii right now.

Second, even were Obama able to produce the original or a certified "long-form" certificate, it wouldn't stop the conspiracy theorists who think he somehow renounced his citizenship as a child or can't be a natural born citizen if he ever held dual citizenship or--the most fringe and most offensive suggestion I've seen--that the children of aliens (legal or illegal) born in this country cannot be natural born citizens. The Birthers seem pretty desperate to carve out some exception to the American conception of birthright citizenship so as to exclude the President even if he was born in Hawaii.

Which leads me to the point I'd intended to start with: Birtherism is Bad. It's bad for you; it's bad for me. More importantly and for obvious reasons it's bad for the Republican Party. And most importantly it's bad for America. It is fundamentally anti-democratic. It is inherently anti-constitutional. Let me explain:

The Birthers want the courts to void an election and overthrow a President. That is not something that the Constitution gives courts the authority to do. In fact, the Founders kept the courts away from elections and away from sitting presidents. Ultimately, the Constitution gives Congress the power to unseat Presidents. Not the courts. Hence, when I say that Birtherism is inherently anti-constitutional, I mean they are asking for something so heinously contrary to American tradition that it makes my blood boil.

(Incidentally, that is why I have occasionally treated Birthers so poorly in the comments here and on Twitter and why we here at the HQ have entertained discussion on this topic so infrequently. People--including myself--tend to go from zero to FLAMING DEATH very fast on this topic.)

In the same vein, it is anti-democratic because they are looking to overturn the judgment of a majority of voters in this country that President Obama is eligible to serve. They want to disregard the wishes of a majority of voters. They want to throw out their votes. I find that equally offensive as their desire to ignore the Constitutional scheme with regard to removing Presidents from office.

The Twelfth Amendment gives to the Electors (that is, the members of the Electoral College) the power to vote for the President. Ultimately, it is their judgment--backstopped by Congress, which certifies their votes--that carries the day. And in the present case, the Electors deemed Obama fit for the Presidency. That should be the end of the discussion. The voters voted. The Electors elected. They fulfilled their constitutional roles and the courts have no business going around them.

Somewhere, somehow, people got the impression that all disputes are meant to be resolved by the courts. But it's just not true. The Constitution gives the courts no special authority to overrule the Electoral College. Many have suggested that the Constitution would not list requirements for the presidency if there was no one to enforce them. The Birthers are ignoring the most basic component of our democracy: the voters. They get to enforce the requirements for the presidency. The Birthers are ignoring the Electoral College. They also get to enforce the requirements for the presidency. And the Birthers are ignoring the Congress, which certifies the vote. All three are designated by the Constitution to participate in the process of choosing a President. Do you know who isn't constitutionally part of that process? The courts.

Which brings me to the lawsuits. They're bad, folks. Really bad. Most are poorly written, with formating errors and fractured English to make any person cringe. But more importantly, they are legally deficient. Many of the plaintiffs lack personal injury--like the guy who volunteered for duty in Afghanistan and then un-volunteered himself. Even more fail to state a cause of action; that is, a theory on which they are suing. This isn't entirely their fault, though. As I implied above, the law is not designed to unseat presidents. Most of the suits try and bootstrap their way there, but the real problem is that there is no remedy the courts can provide.

Setting aside for a minute the fact that the Constitution commits the power to remove sitting presidents to Congress and gives the courts no particular authority to depose them, what could a court do? Void all acts of the Executive Branch for the past six months? Order new elections? Declare McCain the winner? Install Biden as a replacement? Ask the Queen for her iPod back? You get the picture. The courts will rightly invoke the political question doctrine--the idea that it is merely a co-equal branch of government and not overseer of the other two--and decline to rule on the issue.

You may wonder, what about lawsuits short of asking to remove the President? Perhaps the Birthers could sue merely for the release of the original birth certificate or a long-form certificate. Sure, but now we're back to standing. How have you particularly been injured by the failure of the President (or the State of Hawaii) to release the original certificate when they've already released a COLB which is accepted by every court and agency, state or federal in the U.S.? You're not going to be put in any better position with regard to his constitutional eligibility for the presidency than you already are. Hence, no injury.

Now, the original birth certificate might contain other juicy information. I have conjectured that it might have an embarrassing religion listed (assuming that Hawaii listed religion like my own state of Texas did) or perhaps a scandalous father's name omitted. But no one is entitled to that information. It would not form the basis of a plausible lawsuit, though it would be ammunition the President would not want to give away.

Furthermore, holding out on this is making the President's political opponents look bad. It's certainly not costing him any time or money; his campaign paid for the early suits and now the DOJ is defending them. He can sit back and forget about the whole thing. In the meantime, Birtherism is a useful distraction from the real issues. As Drew observed earlier in the week, it's very convenient that just as Obama is getting pounded in the polls, Gibbsy finally wants to talk about Birtherism.

In short, my message is for the waverers: don't fall for Birtherism. First, the President is a natural born citizen; he proved it the only way current Hawaii law allows. Second, under no circumstances should you support a movement that wants the courts to start overthrowing lawful elections and, in fact, I want you to join me in condemning the very notion. Third, don't make this the Republican version of the "selected not elected" movement. It was ridiculous from the Left after Bush v. Gore. We really need to move on to the stuff that matters.

Update on the Futility of Trying to Engage Birthers:

It's probably more fun and at least as useful to just call them names. For example, a lunatic in comments:

If that COLB is authentic, then why is it Hawiaan officials tell us, "I saw the long document. It's legit." If this COLB was authentic, there would be no need for them to state this. The fact that they do shows their own admission that the COLB, which Obama has promoted as proof, is not proof at all.

Did you get that? Obama releases a COLB--the one and only document that Hawaii provides when you make a birth certificate request. People claim it's fraudulent. So Hawaii officials say it's accurate. Somehow, in their fevered little brains the fact that Hawaii officials had to publicly comment on this--owing to the Birthers own screechy protests--is taken as proof that the COLB is fraudulent. o_O

Another example, from a long-time commenter (this makes Baby Jesus cry):

It has legs because of Jug Ears's actions in trying to suppress the actual BC.

Suppress the "actual BC"? Oy. The COLB is out there. That's the document Hawaii gives you if you ask for a birth certificate. He has no obligation to show more than he has.

And this from a new one:

Is it really too much to ask for an elected President to show a Valid Birth Certificate?

He did, fruitcake. That it didn't satisfy you is your problem and (I wish) not mine or the President's.

Finally, the persistence in claims that Obama went to Pakistan using another citizenship (he didn't) or that his National Records EO somehow would keep Hawaii from releasing his birth certificate (it doesn't). But try explaining that to them. You just get frantic denials.

posted by Gabriel Malor at 09:35 AM

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