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Wednesday, September 02, 2009
It's tempting to say that nobody should even bother to give the "birthers"-- those folks on the right wing who continue to question Barack Obama's eligibility to be President-- the time of day. But in all the discussions of birth certificates and birth announcements and Kenya and non-citizen parents and everything else, one crucial aspect of this issue is repeatedly ignored.

Let's hypothesize a situation where a presidential candidate who is not eligible for the office nonetheless runs for the office. What happens then?

Well, first, the parties would have the power to declare him or her ineligible. Each party has the right to determine whether candidates are eligible to run. This includes such things as ballot access requirements and requirements that the candidate be a member of the party. Presumably, the party would be able to determine eligibility for the office as well.

Second, the primary voters would have the power to decline to vote for the candidate on the ground that the candidate is ineligible. Surely, the candidate's opponents would raise the ineligibility issue.

Third, the delegates at the party nominating convention have the power to refuse to nominate the candidate on the ground that the candidate is ineligible.

Fourth, the general election voters can decline to vote for the candidate on the grounds of ineligibility. Again, the opposing candidate will surely raise the issue.

Fifth, the electors in the electoral college can refuse to vote for the candidate on the same grounds.

Sixth, the Congress, which has the constitutional power to count the electoral votes, can refuse to certify the election result on the grounds of ineligibility.

Now, if 1, 2, 3, 4, 5, and 6 all decide the candidate is eligible for the office, the "birthers" nonetheless feel the courts have the power-- and should exercise it-- to invalidate the election.

The law has a doctrine called the "political question" doctrine. It is hard to explain, but it basically means that certain decisions are committed by the Constitution to the "political branches" (the legislature and/or President) to decide, and courts can't intervene in them. One example is whether a use of military force violates the war powers clause because Congress didn't authorize it. You can't litigate this-- it is up to Congress to protect its constitutional prerogatives. Another example is the filibuster-- it's up to the Senate to determine if it believes it is unconstitutional. A third example is a President's decision to withdraw from a treaty-- again, it is up to Congress to protect its prerogatives if the President's action is improper.

The constitutional qualifications of the President are clearly a political question. Specifically, Congress and the electoral college have the specific constitutional authority to determine this issue. Beyond that, as noted above, there are a bunch of informal checks that have evolved to stop an ineligible candidate from being elected.

But if an ineligible candidate is elected, you can't have nine unelected judges stepping in and invalidating it. This is what the political question doctrine does-- it protects the judiciary against crises involving its legitimacy by allowing it to stay out of thorny political disputes. It doesn't always work and judges do sometimes find themselves in these disputes, but in this situation it is clearly applicable.

So the "birthers" are barking up the wrong tree. The American public, the electoral college, and the Congress all decided that President Obama is eligible. Their decision is final and nonreviewable.


Good analysis, and I would also add that the right to remove a hypothetical sitting President found ineligible would most likely rest with Congress either via impeachment or the 25th Amendment process following notification by the VP.
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