Arizona legislators are again wading into national politics. With the controversial immigration bill moving toward the Supreme Court, House has passed a bill that would require all presidential candidates to prove they were born in the U.S. by producing their birth certificates. It is a bill that this clearly crafted to exclude the current documents produced to show the birth of President Barack Obama. I am currently scheduled to discuss this legislation with Lawrence O’Donnell tonight
The legislation that would require presidential candidates to produce a birth certificate before they can be on the ballot in Arizona to show that he or she is a natural-born citizen of the U.S. and eligible to be president.
The bill requires that Arizona’s Secretary of State actually inspect the birth certificate. In a bizarre twist, it will also accept a baptism certificate.
Of course, any barrier to Arizona for Obama would not be a huge loss since, in 2008, Obama lost the state by nine percentage points. While that was a race against a native son (McCain), Arizona has only gone Democrat once (inn 1996) since 1948. However, 13 other states are not following suit with their own proposals.
Here is the full language of the bill.
The language is crafted to specifically require a long-form birth certificate or an array of other documents, including the bizarre addition of a baptismal record (which is hardly more authoritative than the current Hawaiian record).
The question is whether this will violate the U.S. Constitution. On one level (as with the immigration law), Arizona can claim to be merely carrying out federal conditions (in this case the conditions of Article II, Section I of the Constitution).
However, it would run against the language of the Full Faith and Credit Clause under Article IV, Section 1. Hawaii already recognizes this birth and Arizona would be refusing to accept that recognition. A birth certification would appear to fall under the language of “”public acts, records, and judicial proceedings of every other state.”
Of course, Arizona can claim that, when there is a rivaling express provision under Article II, a state is not required to give Full Faith and Credit. Moreover, the state could argue that Full Faith and Credit requires proof in the form of these documents. On this latter argument, they are likely to cite the statement of Justice Joseph Story in Mills v. Duryee that makes references to authenticated copies:
It is argued, that this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence, when admitted. This argument cannot be supported. The act declares, that the record, duly authenticated, shall have such faith and credit as it has in the state court from whence it is taken. If in such court it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court.
Notably, the Full Faith and Credit Clause is not generally viewed as requiring the recognition of same-sex marriage under a public policy exception as discussed in Pacific Employers Insurance v. Industrial Accident.
However, the issue of Arizona imposing higher showings to establish eligibility for office raises significant constitutional questions. I will be discussing this issue tonight on MSNBC.
Here is the key language:
A. The national political party committee for a candidate for president for a party that is entitled to continued representation on the ballot shall provide to the secretary of state written notice of that political party’s nomination of its candidates for president and vice‑president. Within ten days after submittal of the names of the candidates, the national political party committee shall submit an affidavit of the presidential candidate in which the presidential candidate states the candidate’s citizenship and age and shall append to the affidavit documents that prove that the candidate is a natural born citizen, prove the candidate’s age and prove that the candidate meets the residency requirements for President of the United States as prescribed in article II, section 1, Constitution of the United States.
B. The affidavit prescribed in subsection A shall include references to and attachment of all of the following, which shall be sworn to under penalty of perjury:
1. A certified copy of the presidential candidate’s long form birth certificate that includes at least the date and place of birth, the names of the hospital and the attending physician, if applicable, and signatures of any witnesses in attendance. If the candidate does not possess a long form birth certificate as required by this paragraph, the candidate may attach two or more of the following documents that shall take the place of the long form birth certificate if the candidate swears to their authenticity and validity and the documents contain enough information for the secretary of state to determine if the candidate meets the requirements prescribed in article II, section 1, constitution of the United States:
(a) Early baptismal or circumcision certificate.
(b) Hospital birth record.
(c) Postpartum medical record for the mother or child signed by the doctor or midwife or the person who delivered or examined the child after birth.
(d) Early census record.
2. A sworn statement or form that identifies the presidential candidate’s places of residence in the United States for fourteen years.
C. In addition to the requirements of subsection B, the presidential candidate may also submit a notarized affidavit from two or more persons who witnessed the presidential candidate’s birth.
D. If the secretary of state receives any documents in place of a long form birth certificate pursuant to subsection B, paragraph 1 and cannot determine if the presidential candidate meets the requirements prescribed in Article II, section 1, Constitution of the United States, the secretary of state may establish a committee to assist in the determination or hold hearings and submit any documents for forensic examination.
E. If both the presidential candidate and the national political party committee for that candidate fail to submit and swear to the documents prescribed in this section, the secretary of state shall not place that presidential candidate’s name on the ballot in this state. If the candidate and national political party committee for that committee submit and swear to the documents prescribed in this section, but the secretary of state believes that the preponderance of the evidence shows that the candidate does not meet the citizenship, age and residency requirements, the secretary of state shall not place that presidential candidate’s name on the ballot in this state.
F. A member of the house of representatives, a member of the senate or any other citizen of this state has standing to initiate an action to enforce this section.
Source: Arizona Republic
Jonathan Turley
Good morning, Swarthmore mom. (In the absence of sunlight, a good workout is in order, I think… Feeling a bit surly today… Anyway… sunny and 75… very nice… Enjoy.)
Bdaman. The country is not divided over the “birther” issue. Republicans are divided over the “birther” issue.
That’s what you think. How do you know this beyond a shadow of a doubt?
anon nurse, Good morning to you too. It is 75 and sunny here. The sun helps the mood as you know.
anon nurse, I guess I would have to wait and see who he hires. He could be the republican nominee.
bdaman Trump is at a Tea Party event in Florida today.
Swarthmore mom,
Good news this cold, rainy morning… 🙂
What are your thoughts about Trump in the race, especially as an independent?
http://blogs.wsj.com/washwire/2011/04/11/trump-will-probably-run-as-independent-if-he-doesnt-win-gop-nomination/
Bdaman. The country is not divided over the “birther” issue. Republicans are divided over the “birther” issue.
Gyges, at Apr 15, 12:39 PM, asked “So, how exactly is allowing a baptism record NOT violating the Establishment clause?
“The way I figure it, that bit’s got to be bait. If the Obama administration chooses to challenge the law based on those grounds it just adds to the anti-Christian mythology that’s been built up around him and the Democratic party in general.”
Very, VERY, astute point, Gyges.
The bill clearly violates the principles of separation of church and state in the Constitution. I think the applicable clause is the bar to religious test for office.
The “No Religious Test Clause” of the Constitution, in Article VI, sec. 3, provides that “… no religious test shall ever be required as a qualification to any office or public trust under the United States.”
Under the bill, if a candidate cannot get a long form (an undefined term) from her state of birth, then she has to produce two of these four kinds of proof:
(a) Early baptismal or circumcision certificate.
(b) Hospital birth record.
(c) Postpartum medical record for the mother or child signed by the doctor or midwife or the person who delivered or examined the child after birth.
(d) Early census record.
The requirement for a baptismal certificate is an obvious religious test for office. If she can only produce one record from (b) through (d), then she is off the ballot unless she produces a baptismal record, a religious document.
The anti-Obama forces have been claiming for a long time that Obama was never baptized, as part of their claim that he is a Muslim. This is a way to bolster their charges. If the Obama campaign does not produce a baptismal certificate, then they can claim that he was never a Christian.
Just another constitutional strike against the bill. It also violates the full faith and credit clause and the bill of attainder clause.
Three strikes. Out.
Everybody, all together now, in full singing voice:
“For its one, two, three strikes, you’re out,
At the old ball game.”
Jim
1, April 15, 2011 at 11:37 pm
Anonymously Yours
You proved my point. When Utah went to statehood, women lost that right.
******************
What point are you really trying to make Jim? Montana Rankin…in office 1916 womens right to vote….1920…..Utah Statehood 1896…Womens Right to Vote….1920…. If the state did not give them the right to vote in 1920 the Federal Government assured them they did have the rights…..Again Jim what you are trying to say is…that a state can make a law….that affects a national office….clearly you are wrong…. they may be able to make laws affecting internal state issues….in this context….the Federal Voting Rights 14th, 15th and 19th amendments extends to states…which are the floor…the state set the ceiling….
I’ve had my nose pinned on the Atlantic last several days.
http://911surfreport.com/forecast.php
What I find funny is just like the It’s about Regime Change after all post. Can you really trust anything Obama say’s?
Ambercrombie came out and said he would be the one to find the long form and dispose of this conspiracy and failed. It’s like being on a Merry Go Round and the Fair. Round and round we go where it stops nobody knows. They want you to focus on all of the overwhelming evidence that he in fact was born in Hawaii but not on the one thing that would prove it conclusively once and for all. Why not produce it and be done with it. Even without this issue I don’t think Obama has a chance in hell of re-election.
Does Obama want to keep the Country divided on the issue? I thought he was suppose to be a world unifier. In my opinion Obama is the exact opposite of what he said he would be.
As professor Turley has pointed out time and time again, Obama is cut from the same cloth as Bush but now suddenly it’s o.k.
Jim,
You see 2 years later ALL WOMEN were granted the right to vote…. You are such a clod…NO STATE COULD PRECLUDE A PERSON LEGALLY FROM VOTING….
The AZ law doors not require proof beyond a shadow of a doubt, either.
Great explanation Professor with Lawrence O last night,you looked much more comfortable and able to get your points out,versus your stint with chris matthews on his show which left you trying to make points but being talked over by the rude matthews.
I can see you going on Lawrence O again, you both were on point and IMHO both brought out points that you both could expound on.
Sounds like a way to get votes without talking about serious and complicated issues. And of course, if the birth certificate issue affected 1 or 2 percent of the voters, it could be enough to swing the election. It’s amazing how close these elections have been lately.
Otteray,
For you:
um, hit Post Comment too quick. Correction: “The Flying Spaghetti Monster.”
I would not want to be pelted with meatballs for getting it wrong.
Jim, the President was born in Hawaii. I know this because the Flying Spaghetti touched him with his noodly appendage and it was so. May the sauce be with you. rAmen.
Since the ballots for President are put together by the states, the states get to decide how a name is put on the ballot. The Constitution lays out the requirements. Therefore Arizona can do what it is proposing.
“Only one absolute certainty is possible to man, namely that at any given moment the feeling which he has exists.” – Thomas Huxley