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
Nice of you to strip his mother of her citizenship there for the convenience of your superfluous nipple, badtroll.
The term ‘natural born citizen’ HAS a definition and a state legislature has no authority to codify it
Minor v Happersett (1875) –by unanimous decision of the Court
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”
No subsequent decision of the Court has been handed down in which the child of a foreigner, here temporarily, would be considered a natural-born citizen.
That, however, doesn’t mean Bush v. Gore is necessarily good law though, Vince.
Dred Scott was also once the law.
Not to stir that topic up too much, but I’m just sayin’ . . .
Intemperate name calling by Bob. Consider the source. Erwin is not the Court. It is just his opinion. Bush v Gore is the law.
I can hear it now.
But I wanna say one thing to the American people.
I was not born in Kenya. These allegations are false and I need to go back to work for the American people
Thank you
I guess it all depends on what your definition of is,is.
Slarti,
That’s probably the only occasion we’ll ever see a reference to bdaman’s superfluous nipple, er, birtherisms and “wise” in the same paragraph.
Bdaman,
All of the terms in the Constitution mean something – you’ve just taken a position that is invalidated by admitting the accepted legal definition. That doesn’t seem particularly wise to me…
and I believe a good lawyer could get an annulment
It wouldn’t be necessary
Kevin “The term ‘natural born citizen’ HAS a definition”
It’s kept in a file cabinet with an arrow pointing to Obama’s original birth certificate. The only problem is no one is allowed to see it.
Bob Esq.,
I guess two wrongs do make a right 🙂
Do you think the Florida Supreme Court had the authority to further extend the deadline?
Also
Did the State of Hawaii decide that Obama was a natural-born citizen? I know that Dr. Fukino said that Obama was a natural born American Citizen, but was that within her power to decide? As far as I know she can state that the records indicate that Obama was born in Hawaii, but that is as far as her authority goes.
If the child of a diplomat was born in a hospital in Hawaii, state law would require that birth to be registered with the DOH. Would that child be a natural-born citizen? Should we let Dr. Fukino decide that?
Bdaman,
In the hypothetical that President Obama needed a court to acknowledge that his parent’s marriage was fraudulent, he would have standing to present the argument I outlined (and I believe a good lawyer could get an annulment).
Bob,
Bore me? That was exactly the kind of substantive answer I wanted. I never considered Hawai’i as a defendant as I am aware that, absent evidence that DOH officials have perjured themselves and further evidence that casts doubt on the prima facie evidence of the COLB, the full faith and credit of Hawai’i is the immovable object awaiting the (easily) resistible force of the birthers. I think that such a suit would necessarily be even more frivolous on its face than action against the SOS – it’s hard to judge the level of frivolity of the birthers – and that my strategy would be more effective at getting past the standing hurdle. I am well aware that the full faith and credit of the COLB ensures that all birther efforts will ultimately be futile (although they’ll probably help President Obama get reelected…) and that this discussion is nothing more than a hypothetical – as Arizona has shown, any actual birther laws are likely going to be so flawed that the only question will be which grounds the court uses to strike them down. Hypothetically speaking, I believe that it is possible for birther litigation to survive a motion to dismiss on standing, but that’s the end of the line…
If Hawaii says Obama is a natural born citizen.
It was included in the second public statement.
Health Director Dr. Chiyome Fukino said she hoped to end lingering rumors about Obama’s birthplace.
“I … have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American citizen,”
So Dr Fukino is now a constitutional scholar and the head of the Health Dept.
Barack Obama Sr. was already married and hence could not enter into a legal marriage with Dr. Dunham – the law here isn’t very clear (it involves at least US and British law [maybe Kenyan, too]), but I believe a good lawyer could make it work… (in the impossible event that the birthers proved President Obama was born in Kenya to any legal standard).
Where and when did a court annul the marriage? When was it known that Obama Sr. was married to another woman? Was it at the time of Obama Jr’s birth? If she was not legally married how and why was it necessary for her to get a divorce decree from Obama Sr. She should have been able to prove he was a bigamist and had the marriage annulled. She sought and was granted a divorce.
Read section II Kevin the divorce decree says they were legally married. This is recognized by a court of law.
http://www.scribd.com/doc/12234409/Divorce-Decree-1964-13-Pages-Merged
Bdaman,
Bush v. Gore was not justiciable.
http://scholarship.law.duke.edu/faculty_scholarship/800/
Per the state court issues, I’ll remind you that the Fl legislature was set to send its own set of electors, for Bush, up to Washington if Gore won the recount; which is what was happening when Scalia and cadre stepped in and violated the separation of powers doctrine at the highest apex possible.
Why? Because if they adhered to their Article VI oath and let FL send its two slates of electors, then the 12th Amendment would have kicked in and settled the matter legally.
Kevin,
I don’t mean to bore you, but the target defendant, as I see it, is Hawaii and its administrative departments responsible for certifying Obama’s birth as a NBC.
If Hawaii says Obama is a natural born citizen, guess what portion of the constitution says it’s the final word? Did you say the full faith and credit clause?
Okay, and if you were a citizen of Hawaii, with supposed standing to sue, and you attempted to challenge it, would the full faith and credit clause, combined with the equal protection, privileges and immunities clauses of the 14th amendment still bar you in some collateral way from bringing suit? (as in can a citizen of Hawaii be deemed ‘more equal and privileged’ than other state citizens to bring suit?)
This is the point Kevin, once the state has said it’s so, it’s tantamount to the highest court in the land making it’s final decision on the matter.
I never ever saw how this issue could ever see the light of day in a court of law without an entire state leading the way.
Again, sorry to bore you.
Read and learn, Mr Treacy. Read and learn.
The Jay Treaty Strongly Indicates That Obama Is Not Eligible To Be President.
http://naturalborncitizen.wordpress.com/2011/03/02/the-jay-treaty-strongly-indicates-that-obama-is-not-eligible-to-be-president/
Bob Esq., You’re trying to ruin everything! If Bush v Gore was a legal nullity, and the decision of the Florida Supreme Court was ultra vires, that would mean that Bush won the election. Wouldn’t it? If we’re going to discuss the legality of the one Court’s decision base on jurisdiction don’t we also need to look to see if the Florida Supreme Court had the authority to extend the deadline for recount?
“A lot of your legal ignorance and incoherence is on display here.”
This coming from the man who says state courts don’t adhere to the principles of justiciability??? I held back earlier, but now I’ll just come out and say it. You’re categorically wrong you idiot.
“BTW, Bush did have standing in the Supreme Court, per the Supreme Court, not some law prof.”
Awfully fallacious, I mean convenient reasoning there. Which fallacy are you relying on here?
Here’s what the law prof said:
“Bush v. Gore obviously attracted enormous public and media attention. Yet, one crucial aspect of the case was largely overlooked: justiciability. For all of the discussion about the decision, no one seemed to pay much attention to whether the Court properly had the legal authority to hear the case. Most likely, this is because justiciability doctrines are complicated and unfamiliar to the public. Perhaps, too, this is because neither of the parties raised justiciability issues in their briefs. This, however, does not excuse the Court’s failure to raise it, because it is firmly established that justiciability issues are jurisdictional, and courts are to raise them even if the parties do not.” See, e.g., Allen v. Wright, 468 U.S. 737, 750-52 (1984); Warth v. Seldin, 422 U.S. 490, 498 (1975).
What did SCOTUS say?