Arizona Bill Would Require Proof of U.S. Birth For Presidential Candidates

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

395 thoughts on “Arizona Bill Would Require Proof of U.S. Birth For Presidential Candidates”

  1. VT: “Everyone, the ARTICLE III DOCTRINES of standing and justiciability DO NOT APPLY in state courts.”

    First, ‘standing’ falls under the broader category of justiciability. Please make a note of it.

    Second, your comments are misleading at best since the principles of justiciability do not belong exclusively to Article III.

    Third, let’s look at the record.

    VT: “It would be a state court action, in a court of general jurisdiction, so Article III case or controversy problems of standing or justiciability in federal courts, which are courts of limited jurisdiction, would not be obstacles. There is no need to hurl stuff about fanatics and idiocy.”

    And I said: “Wait; do you really think that justiciability issues are limited to federal courts??

    Let’s take standing for example. While questions of standing are not common in New York, they usually appear in cases involving administrative action. See Dairylea Cooperative, Inc. v. Walkley 38 N.Y.2d 6 (1975)”

    Your comments mislead the reader to believe that issues of justiciability are peculiar to federal courts only. Show me one state court that wouldn’t throw out a case because plaintiff lacked standing!! The requirement of standing is as necessary to a viable cause of action as subject matter jurisdiction for the court to hear it; yet you make it sound like an optional requirement in state courts.

    And to further clarify, I brought up Bush v. Gore as a “note well” regarding standing of candidates per an election; as in simply because you’re a candidate it does not follow automatically that you have standing to bring a cause of action regarding that election. Your appeal to the authority of the court, when it never even broached the topic in dicta, is simply childish.

    “In no way was Bush treated any differently from Gore during the counting process. There was no reason to believe that the counting procedure would treat ballots for Bush any differently from ballots for Gore. Nor did Bush contend that he was treated unequally in the counting process. In other words, Bush was not claiming that he was being discriminated against in the counting of the uncounted votes. The equal protection issue was not discrimination between Bush and Gore, but rather discrimination among ballots. The only equal protection claim was that a voter’s ballot might be disallowed while an identical ballot would be counted. This claim made it irrelevant whether both ballots were for the same candidate or if they were for different candidates; the argument was that to treat two similar ballots differently denied equal protection to the voter whose ballot was disallowed.”

    http://members.tripod.com/the_solipsist/id65.htm

    And your take is simply “BTW, Bush did have standing in the Supreme Court, per the Supreme Court, not some law prof.”

    That’s not an argument Vince.

  2. April 16, 2011 at 6:07 pm:

    “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/

    Sorry, poster, but Leo Donofrio has a lot more to learn from me than I have to learn from Leo Donofrio.

    Leo filed a case in the Supreme Court in 2008, and his friend Cort filed the same claim a week later. I predicted in writing, here at the Turley blog, that it would be dismissed, and it was. I gave the reasons throughout the thread. I was right and Leo was wrong.
    http://jonathanturley.org/2008/12/04/eligibility-questions-can-clinton-serve-obama-and-can-obama-serve-the-country/#comment-30564

    Leo Donofrio claimed that the President could be removed by a quo warranto action. I posted long legal arguments why that theory would never work.

    Claims of quo warranto were dismissed by the federal district courts in California and the District of Columbia, just as I predicted. I was right and right and Leo was wrong. Afterwards, Leo scrubbed his “treatise” on quo warranto from his website along with all his other posts.

    I did not comment on his representation of some Chrysler dealers in bankruptcy court, but I read later that he had his head handed to him by the courts.

    I learned nothing from the link to Leo Donofrio, except that Leo has embraced yet another crank constitutional theory. He was wrong earlier, and is still wrong.

    If Leo wants to come here to debate, fine. I am not posting anything on his censored site, nor am I giving him my email.

    One more time. American citizenship is governed by the 14th Amendment, not by the Jay treaty.

  3. Apr. 16 at 5:52 PM: “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.” — Bob, Esq.

    “Lets look at the record.” — Al Smith.

    Where did I say “state courts don’t adhere to the principles of justiciability.”

    Nowhere.

    Here is what I wrote.

    I suggested on April 16, 2011 at 5:24 pm that a state cause of action could be brought claiming that the AZ Secretary of State “violated the provisions of the new bill. That is a totally justiciable issue. … There is no justiciabilty problem. Nothing has been committed to another branch. In federal court, parties must have Article III standing, but not in a state court.”

    I also wrote on April 16, 2011 at 5:11 pm that the “Article III case and controversy provision does not apply to state courts. States have courts of general jurisdiction that can hear each and every dispute of any type, unless state or federal law precludes it.”

    I also wrote that “Article III case or controversy problems of standing or justiciability in federal courts, which are courts of limited jurisdiction, would not be obstacles.” April 16, 2011 at 4:33 pm.

    Bob is apoplectic with anger about something he thinks I wrote, but never did.

    Everyone, the ARTICLE III DOCTRINES of standing and justiciability DO NOT APPLY in state courts. The states may adopt similar doctrines, BUT THEY DON’T HAVE TO. Under their constitutions and statutes, the states can allow actions in their courts that cannot be brought in federal courts.

    A prime example: Article III courts cannot render advisory opinion. But in Massachusetts, the Supreme Judicial Court (established in 1692) has historically provided Opinions of the Justices that are advisory opinions at the request of the governor or state legislature on legal issues.

    But Bob claims I said that “state courts don’t adhere to the principles of justiciability.”

    Well, Bob, Esquire, please post the link to where I wrote that.

    One more time, the ARTICLE III STANDARDS of standing and justiciabilty do not apply in state courts. That is what I wrote, and that is the law.

    I am sick and tired of these distortions and false descriptions of my postings. The name calling is no substitute for actually reading what I wrote.

    I don’t expect Bob to agree, but the actual words are posted here for all to read and judge for themselves.

  4. Buddha,

    Two quick notes:

    Capslock is cruise control for cool.

    Also, while I’m on a mildly clever allusions to Macbeth kick, I think this phrase sums up Birthers’ theories (yes there are multiples of them, remember when it was “he was born in Kenya” and then it was “he can’t be a citizen because his dad wasn’t a citizen” and then it was “he can’t be a citizen because his mother was underage” and then it was back to the Kenya thing) very nicely: Full of sound and fury, signifying nothing.

    To the Birthers,

    We get it, you don’t like President Obama. There’s some ineffable difference between him and past presidents that just makes you KNOW he can’t be a REAL American president. He is. He’s done illegal and immoral things since being elected, but he was in fact elected. Which is more than you can say for some.

  5. Pete thanks for that. With my mother in ailing health when I finally figured out it was Elton John in reminded me of the time when I took my mother to see Elton on his solo tour many years ago. There was a lady sitting behind us who tried to shhHHHH my mother. My mother in turn turned around and said, shut up you bitch !!!!!

    Thats Classic mom

    Reminds me of another. I’ll never forget when I smarted off at her in the bathroom and she punched me square on the lips and knocked me over backwards into the tub.

    Thanks for bringing up memories for me of my mother.

  6. bdaman wrote:

    “A person who either, sucks at life, or has no direction in life.”

    In other words, a person who fails at life. What did I say?

    Since you addressed me as a fizzlebot, I must meet your definition. Now where’s my million dollars? You said, “I will give one million dollars to the first fizzlebot who can answer that question.” You didn’t say you would give it the “first fizzlebot who can answer that question to my satisfaction.” You simply said you would give the money to the first one who can answer it. I’ve done that.

  7. Bil, Dred was reversed by 14th Amd, but Bush has not been reversed. It is sadly still the law. Bob can have his own opinion, but not his own facts.

  8. Buddha, I like the cut of your jib, too. I agree with you that there are legitimate reasons to criticize Obama but his birth certificate ain’t one of them.

    No worry about the giant squid, I’ve got Jameson Irish Whiskey to save me. Ahoy!

  9. fizzle means a fool, fool it is a part of the izzle dailect, in which you take the first letter and add izzle, in which most are like this.

    A person who either, sucks at life, or has no direction in life.

    “your a fizzle!” is also like saying “your an asshole face bitch tit ass fuck neck elephant masterbating hilllbilly raping fuck mouth testicle aids chin nazi piss garggling gooch shredding pedophile abortion fuck.

    http://www.urbandictionary.com/define.php?term=fizzle

    Don’t change the dizzle,
    Turn it up a little.
    This is the bizzle
    Snoopy D. O. double Gizzle!
    Yeah, it’s off the hizzle.
    For shizzle,
    For rizzle!
    This is the show, we call Doggy Fizzle!

    Now redefine fizzlebot

  10. Nemo,

    I’ll have to say I like the cut of your jib, Cap’n.

    Keep those hatches battened and avoid those giant squid!

    Be seein’ ya around the blog, matey.

  11. Bdaman wrote:

    How can anyone be expected to ensure that a person qualifies without first defining the term?

    I will give one million dollars to the first fizzlebot who can answer that question. I will not, however, define “fizzlebot”.

    Captain Nemo what say you ?

    Just because a term, like “natural born citizen,” hasn’t been explicitly defined in a SCOTUS ruling doesn’t mean the term has no meaning. Words exist outside of the courts, and their meaning is determined from the context in which they are written or spoken. They can be determined from their popular and ordinary meanings from English language dictionaries if they aren’t defined in legal dictionaries or the common law. So, one can determine if a person qualifies as a natural born citizen by using the popular and ordinary meaning of the term, which is a person born on US soil who is under its jurisdiction (e.g. not a diplomat’s child).

    One can also rely on Blackstone and the common law to define the term which is akin to “natural born subject.” The term can also be found in Bouvier’s Law Dictionary which says that a natural-born subject is the same as a native citizen. That native citizen is defined in Bouvier’s as “A person born within the jurisdiction of the United States, whether after declaration of independence or before, if he did not withdraw before the adoption of the constitution; or the child of a citizen born abroad, if his parents have ever resided here;….”

    I suppose a birther could argue that “natural born citizen” is an ambiguous term because “natural” under the law could mean illegitimate, but I think it’s clear from the context that the founding fathers didn’t mean “illegitimately born citizens.” In that case, Alexander Hamilton would most assuredly have been President.

    Quite frankly, you don’t have to define “fizzlebot” because its meaning is apparent from the context. It appears to be an amalgamation of the words “fizzle” and “Obot.” To fizzle is to fail and an Obot is an “Obama Robot.” Considering the way, you use the word, you’re calling me and Slartibartfast “fizzlebots.”

    Now where’s my million dollars?

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