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
Mike A,
I told AY that I sent a message to the Enterprise via subspace – you shouldn’t have been surprised to see a photon torpedo or two…
SL,
I like it but I think the pure randomness of the monkeys would be even more frightening. Plus, we can get them to work for bananas and in the case of chimps are inclined to throw their own feces – adding yet another layer of humor at Joe’s expense. I’m not saying you couldn’t get Mexicans to throw feces at Arpaio. Hell, they might even pay for the privilege. But they are going to be fighting toilet training at the hands of Papacita and Mamacita whereas with the chimps it’s just a naturally appropriate bonus behavior.
Hi, Vince. Nice to hear from you. Your gut instinct must have told you that Birthers were lurking about.
BIL,
“And then turn a bunch of monkeys or chimps loose in the room. Every day. All day.”
That works! But, I think I can make it even better …
And then turn a bunch of illegal Mexicans loose in the room. Every day. All day.
What do you think?
“(It’s a good thing I only use my powers for good, isn’t it?)”
Yeah, um, I think I’ll stay on your good side nonetheless 🙂
We will never have a kinder and genital nation until B. Hussein O. proves gender.
http://blogdredd.blogspot.com/2009/09/obama-must-prove-gender.html
Mike A.,
Let me rephrase that as I like this better:
“It’s just sad that it took money and a Federal investigation to get the county officials off their butts as if human rights weren’t enough of a reason to long ago stand up to that thug with a badge.”
Why . . . it’s the Captain! And he brought a full away team armed with phasers set on “The Law”! You better run back across the Neutral Zone, Birthers!
Sorry about the link.
The official codification from GPO is here:
http://frwebgate2.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=m5TmLX/0/1/0&WAISaction=retrieve
Minimum Standards for Birth Certificates
Pub. L. 108-458, title VII, Sec. 7211(a)-(d), Dec. 17, 2004, 118
Stat. 3825-3827, provided that:
“(a) Definition.–In this section [enacting this note and repealing provisions set out as a note below], the term `birth certificate’ means a certificate of birth–
“(1) for an individual (regardless of where born)–
“(A) who is a citizen or national of the United States at
birth; and
“(B) whose birth is registered in the United States; and
“(2) that–
“(A) is issued by a Federal, State, or local government
agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; or
“(B) is an authenticated copy, issued by a Federal, State,
or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.
“(b) Standards for Acceptance by Federal Agencies.–
“(1) In general.–Beginning 2 years after the promulgation of
minimum standards under paragraph (3), no Federal agency may accept
a birth certificate for any official purpose unless the certificate
conforms to such standards.
“(2) State certification.–
“(A) In general.–Each State shall certify to the Secretary of Health and Human Services that the State is in compliance
with the requirements of this section.
“(B) Frequency.–Certifications under subparagraph (A)
shall be made at such intervals and in such a manner as the
Secretary of Health and Human Services, with the concurrence of
the Secretary of Homeland Security and the Commissioner of
Social Security, may prescribe by regulation.
“(C) Compliance.–Each State shall ensure that units of
local government and other authorized custodians of records in
the State comply with this section.
“(D) Audits.–The Secretary of Health and Human Services
may conduct periodic audits of each State’s compliance with the
requirements of this section.
“(3) Minimum standards.–Not later than 1 year after the date
of enactment of this Act [Dec. 17, 2004], the Secretary of Health
and Human Services shall by regulation establish minimum standards
for birth certificates for use by Federal agencies for official
purposes that–
“(A) at a minimum, shall require certification of the birth certificate by the State or local government custodian of record
that issued the certificate, and shall require the use of safety paper or an alternative, equally secure medium, the seal of the
issuing custodian of record, and other features designed to
prevent tampering, counterfeiting, or otherwise duplicating the
birth certificate for fraudulent purposes;
“(B) shall establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant;
“(C) shall establish standards for the processing of birth
certificate applications to prevent fraud;
“(D) may not require a single design to which birth
certificates issued by all States must conform; and
“(E) shall accommodate the differences between the States
in the manner and form in which birth records are stored and
birth certificates are produced from such records.
“(4) Consultation with government agencies.–In promulgating
the standards required under paragraph (3), the Secretary of Health
and Human Services shall consult with–
“(A) the Secretary of Homeland Security;
“(B) the Commissioner of Social Security;
“(C) State vital statistics offices; and
“(D) other appropriate Federal agencies.
“(5) Extension of effective date.–The Secretary of Health and
Human Services may extend the date specified under paragraph (1) for up to 2 years for birth certificates issued by a State if the
Secretary determines that the State made reasonable efforts to
comply with the date under paragraph (1) but was unable to do so.
“(c) Grants to States.–
“(1) Assistance in meeting federal standards.–
“(A) In general.–Beginning on the date a final regulation
is promulgated under subsection (b)(3), the Secretary of Health
and Human Services shall award grants to States to assist them
in conforming to the minimum standards for birth certificates
set forth in the regulation.
“(B) Allocation of grants.–The Secretary shall award
grants to States under this paragraph based on the proportion
that the estimated average annual number of birth certificates
issued by a State applying for a grant bears to the estimated
average annual number of birth certificates issued by all
States.
“(C) Minimum allocation.–Notwithstanding subparagraph (B),
each State shall receive not less than 0.5 percent of the grant
funds made available under this paragraph.
“(2) Assistance in matching birth and death records.–
“(A) In general.–The Secretary of Health and Human
Services, in coordination with the Commissioner of Social
Security and other appropriate Federal agencies, shall award
grants to States, under criteria established by the Secretary,
to assist States in–
“(i) computerizing their birth and death records;
“(ii) developing the capability to match birth and
death records within each State and among the States; and
“(iii) noting the fact of death on the birth
certificates of deceased persons.
“(B) Allocation of grants.–The Secretary shall award
grants to qualifying States under this paragraph based on the
proportion that the estimated annual average number of birth and
death records created by a State applying for a grant bears to
the estimated annual average number of birth and death records
originated by all States.
“(C) Minimum allocation.–Notwithstanding subparagraph (B),
each State shall receive not less than 0.5 percent of the grant
funds made available under this paragraph.
“(d) Authorization of Appropriations.–There are authorized to be
appropriated to the Secretary for each of the fiscal years 2005 through
2009 such sums as may be necessary to carry out this section.”
Mike A.,
If Capone was brought low by using tax evasion? I’m happy for whatever tool can be used to bring down Arpaio. It’s just sad that it took money to get the county officials off their butts as if human rights and a Federal investigation weren’t enough of a reason to long ago stand up to that thug with a badge.
I think it is useful to take a look at what the full faith and credit clause says:
“Section 1 – Each State to Honor all others. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Please note the role of Congress in providing the manner of proof of public records. Congress has passed a general law on Birth Certificates, including a full definition.
Congress has exercised that power in the statute defining birth certificates, Pub. L. 108–458, 118 Stat. 3638, 3823 (Dec. 17, 2004). Here it is again, as codified in a note following Title 5, United States Code, section 301 (5 U.S.C. 301 nt.):
The definition reads:
“(3) Birth certificate. – As used in this subsection, the term `birth certificate’ means a certificate of birth–
“(A) of–
“(i) an individual born in the United States; or
“(ii) an individual born abroad–
“(I) who is a citizen or national of the United States at birth; and
“(II) whose birth is registered in the United States; and
“(B) that–
“(i) is a copy, issued by a State or local authorized custodian of record, of an original certificate of birth issued by such custodian of record; or
“(ii) was issued by a State or local authorized custodian of record and was produced from birth records maintained by such custodian of record.”
As I have said many times, under this definition, the COLB is a “birth certificate.” It is a “certificate of birth” issued to “an individual born in the United States” who is a “citizen or national of the United States at birth” and whose “birth is registered in the United States,” and that certificate “was issued by a State or local authorized custodian of record and was produced from birth records maintained by such custodian of record.”
The definition is binding on all federal agencies, and will be binding on all the States when regs are issued. The new passport regulations of the Department of State are codified in Title 22 of Code of Federal Regulations. Here is the link to the regs. You will see PL 108-458 in the list of authorities.
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=5692d4f912e9abd4a397315db82410d5;rgn=div5;view=text;node=22%3A1.0.1.6.33;idno=22;cc=ecfr#22:1.0.1.6.33.0.1.1
So Jim Byrne is wrong. The COLB does entitle Hawaiian born citizens to passports. Everyone in Hawaii has received the COLB since 2000, and they all can get passports.
That is just another birther myth.
I do not think a state can substitute its own definition for the one enacted by Congress. Even if a state passed a law that said that a candidate had to have a birth certificate issued at birth, I think that it would be invalid because it conflicted with the federal definition.
So I think that Arizona would be bound by the COLB issued by Hawaii no matter what is in this law. I do not think that the state of Arizona can do this under the Full Faith and Credit Clause. That Clause has two elements. First, the State must recognize the public records of the other states. Second, Congress may prescribe the manner by which the records shall be proved.
Now the power to prescribe the manner of proof and the effect of the public is a power delegated to the United States by the Constitution, and not reserved to the States. The Supremacy Clause makes it binding on all the States. It is an express power. It is spelled out in the Constitution. The AZ legislators are just ignoring it.
The Framers wisely saw the need for a uniform national rule to govern these records. The Arizona bill is an invitation to confusion and chaos. Each of the 50 states could enact their own rules, leaving a patchwork of eligibility across the country.
SL,
I have an idea to make it fun though.
Put in a bunch of switches. Hundreds where Arpaio can see them. And then turn a bunch of monkeys or chimps loose in the room. Every day. All day.
There’s sweating and then there’s sweating.
Muahahahahaha!
(It’s a good thing I only use my powers for good, isn’t it?)
Buddha:
I think we could have guessed that if Arpaio were ever brought down, it would have nothing to do with his humiliation and mistreatment of prisoners, but with that old go-to vice, avarice. You can bet that county commissioners have been fearful of uttering any criticisms for years, and are only now timidly acknowledging some problems, not because of chronic human rights abuses, of course, but because they can couch it in the language of financial abuses.
BIL,
“I hope they give him life in the electric chair. They don’t have to turn it on. Just strap him in and let him sweat.”
Come on! You’re taking all the fun out of it!
rafflaw,
“What is a measly $99 Millions among fellow crazies?! Sheriff Joe has expenses to deal with.”
Yes, yes … you’re right … like the $456K bus he bought – illegally – to transport prisoners …
Maricopa County sheriff’s bus is back in spotlight
County effort fails to secure loophole to OK ’09 purchase
by Yvonne Wingett Sanchez – Apr. 6, 2011 12:00 AM
The Arizona Republic
A quiet effort by certain Maricopa County officials to make peace with Sheriff Joe Arpaio by retroactively authorizing the potentially illegal purchase of a $456,000 bus appears to have backfired.
The custom-made bus, purchased by the Maricopa County Sheriff’s Office in 2009 to transport jail inmates, sits unused in a parking lot, where it was damaged during fall hailstorms.
For most of the past two years, county officials and the Sheriff’s Office have argued over whether it was legally obtained.
Faced with poor public relations and costly political battles, at least some county officials recently tried to insert a provision into a state budget bill to retroactively authorize the purchase. That provision would have absolved Arpaio’s office of any violations in buying the bus with jail-enhancement funds and without following state procurement rules.
A version of the bill approved Friday by the Legislature and sent to Gov. Jan Brewer for signature did not include the language authorizing the bus purchase. However, it was later discovered that the bill had not been properly amended, so lawmakers on Tuesday asked Brewer to return the bill to clarify.
The Legislature is expected to revote it today, without retroactively authorizing the bus purchase.
Although rumors swirled late Tuesday that there would be an attempt to work the bus exemption back into Senate Bill 1621, Senate rules do not allow amendments when a bill is getting its final vote, as SB 1621 will today.
County Supervisor Andy Kunasek indicated that county officials would try to find another way to legalize the purchase.
“I think we’re going to figure out how to use that bus,” he said. “I’m hoping that with the fresh eyes at the County Attorney’s Office, maybe they can figure something out.”
Kunasek said County Attorney Bill Montgomery is working on a “theory that would make it legal.” Montgomery, however, would not share his theory.
The Board of Supervisors has tried to publicly soothe relations with Arpaio’s office despite its cooperation with federal investigations into the Sheriff’s Office and allegations of misspending tens of millions of dollars in detention funds.
“It certainly looks like they’re trying to make a treaty with Joe and it probably has something to do with the upcoming election,” said David Berman, a research fellow at Arizona State University’s Morrison Institute for Public Policy. “Joe’s still got clout with voters for re-election. But people have a lot of contempt for the county right now.”
All five members of the Board of Supervisors are up for re-election in 2012.
Since the 2009 purchase, county officials have maintained that they could not legally title or register the bus.
Supervisors and county management maintained they needed either an opinion from a court or retroactive legislation to pardon the Sheriff’s Office and permit the bus to hit the road.
Supervisors began to soften their stance with Arpaio and his staff after their federal lawsuit against the bus maker was thrown out of court. But there is some dissention on the board over who authorized the effort to seek special legislation.
Supervisor Fulton Brock said his colleagues gave him permission to do so.
“We discussed it in executive session, and I was given authorization by my colleagues to go down to the Senate and physically speak to them and get legislative assistance to break this logjam,” Brock said. “I was authorized by my colleagues to go down and speak to the Senate to see if we could ask budget folks to come up with a way to get that bus out of the mothballs and get it into service.”
Supervisors Don Stapley and Mary Rose Wilcox dispute that they “authorized” Brock to push such a provision. Supervisor Max Wilson said there is confusion as to what exactly the board believed Brock was going to do.
“I don’t think we should do special legislation to right a wrong,” Wilcox said. “Here we are, in a budget crisis, and they’re trying to reward somebody who violated procurement. It’s crazy.”
Stapley added, “I don’t remember ever voting on that. Is it legal to make an illegal act legal? I sure as heck am not supporting any legislation on this. I never did like the idea because it kind of smacks as the kind of thing that’s sort of a cover-up. It could be viewed as a cover-up of an illegal act for the fact that they didn’t go through procurement.”
Asked about ideas being researched by Montgomery, Stapley responded, “I think they’re stretching the bound of legal theories to beyond anything that’s plausible.”
The Arizona Attorney General’s Office had been investigating the sheriff’s use of jail-enhancement funds and recently turned that case over to the U.S. Attorney’s Office.
Republic reporter Mary Jo Pitzl contributed to this article.
Read more: http://www.azcentral.com/news/election/azelections/articles/2011/04/06/20110406sheriff-joe-arpaio-bus-purchase.html#ixzz1JdG66rsD
They may have to wear pink underwear and eat moldy, bologna sandwiches but they could have traveled like rock stars!!
To recognize the continuation of this argument after all the proof of its falsity that has been produced, is to give credence to the agents of feudalism and treason masquerading as patriots and the moronic minority that follows their ravings. How apt that the cudgels have been taken up by Donald Trump, whose whole career is based in falsehoods and hucksterism. Jim you are either a liar writing out of duplicity, or a fool who is steeped in propagandistic ignorance. To continue to argue this is akin to arguing that the world is more than 6,000 years old, to someone who ignorantly believe The Garden of Eden reflects historical truth. In short a waste of effort.
Buddha,
So…tell us how you really feel about Arpaio.
Can’t say I disagree!
rafflaw,
“Sheriff Joe has expenses to deal with.”
It costs a lot to feed an ego as big as his!
😉
SL,
Excellent news on Arpaio. He’s a stain upon all of law enforcement and all Americans of good conscience. Nasty lil’ fascist racist redneck. I hope they give him life in the electric chair. They don’t have to turn it on. Just strap him in and let him sweat. But I’d settle for 12.5 years for aggravated theft.
Stamford,
What is a measly $99 Millions among fellow crazies?! Sheriff Joe has expenses to deal with.