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
Jim,
Can you prove without a shadow of doubt you were born on Earth?
Jim,
I can see you don’t understand sarcasm–and birthers like you also refuse to believe the truth about Obama’s birth.
BTW, you’re still avoiding my questions–so I’ll repeat them once more:
Why don’t you believe officials of the state of Hawaii who have verified that Obama was born in that state–and the document that they provided as proof?
Does Hawaii have a different type of birth documentation for Obama than it does for other people born in that state?
Slartibartfas
Do you think Madison, Hamilton, and Jay believed a woman should be president?
Elaine M
I too have been in education for 20 plus years. One of mu students is currently attending Boston U. Her family are liberals too. I just heard they are moving because of the conservative make-up of our town and heading to Salem, Massachusetts. I guess we both gain!
Jim,
Can a female be a natural born citizen that is at least 35 years old and has resided in the US for at least 14 years? If so, then the US Constitution says that a woman can be the president…
Vince Treacy
1, April 15, 2011 at 7:02 pm
“… the release of his certificate of birth having to go directly to the DNC is suspicious.”
Knock it off, Jim Byrne. The COLB went to the press, including factcheck and politifact.
Who actually sent it to them?
Vince Treacy
Since you appear to be an expert on the Constitution, Where specifically does it say a female can become president? I know the qualifications don’t disqualify a female but everyone knows that when those written women were not allowed to vote or hold political office. So those qualifications can be easily interpreted as to the author’s intent.
Elaine M.
Glad you agree. It can’t be proven one way or the other.
Mike Appleton
Since you appear to be an expert on the Constitution, Where specifically does it say a female can become president? I know the qualifications don’t disqualify a female but everyone knows that when those written women were not allowed to vote or hold political office. So those qualifications can be easily interpreted as to the author’s intent.
Jim,
Right! And they can’t prove that Obama was born “naturally” either. Maybe he hatched from an alien pod! Ohmigod! An extraterrestrial may be living in the White House!
Vince Treacy
Just because Hawaii granted a COLB, Does that mean they can prove without a shadow of doubt that Obama was actually born in HawaII?
Vince,
If it was possible to do the ubiquitous one guy slowly claping building to thunderous applause on the internet, I’d be the guy starting the clap.
BIL,
“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.”
ROTFLMAO – I bow to your green genius!
Vince,
Welcome back. I have to echo Mike A’s comment about Bills of Attainder. I wouldn’t have thought of that!
How can one state like Arizona have so many dirty politicians? Is it the dry heat that attracts them there?
What Mike A. said, Vince. Well played, sir.
“… the release of his certificate of birth having to go directly to the DNC is suspicious.”
Knock it off, Jim Byrne. The COLB went to the press, including factcheck and politifact.
Why not tell us about Helton’s email on the authenticity of Lucas Daniel Smith’s Kenyan birth certificate?
To Jim Byrne, the COLB is in fact a signed certificate. Hawaii laws and the regulations allow the use of a stamped signature, I believe by Onaka. It is visible at the Factcheck.org site.
Everyone is entitle to his own opinions, but not his own facts. Pat Moynihan.
Great point about bills of attainder, Vince.
Actually, I just finished the “long form” of my Bill of Attander entry, so I am going to repost it if the program allows it.
Posters at this site should remember that JT is an authority on the Bill of Attainder Clause of the Constitution. Article I, sec. 10 also bars the states from passing such bills.
I think the Arizona bill amounts to an unconstitutional bill of attainder, which is defined as (1) a law or legislative act that (2) inflicts punishment on (3) a named individual or on easily ascertainable members of a group (4) without a judicial group.
The bill is incredibly tailored to single out President Obama for punitive treatment. In an arbitrary and capricious manner, it allows the use of decades-old baptismal or circumcision records, or census records, to verify birth if a candidate cannot produce the so-called “long form.”
But it does not allow use of a current, valid passport, one of the most reliable forms of proof of birth. Why not? Because Obama has at least two, official and personal. And the State Department honors Hawaiian COLBs. It has to under the 2004 Public Law. So the exclusion of passports is perfectly tailored to exclude Obama.
Moreover, the law prevents the Secretary from even considering the COLB, an officially issued certification of the birth of the individual, verified by the officials of the issuing state with custody of the original records. The law requires the Secretary to ignore a document which the State of Hawaii has certified is prima facie evidence of an individual’s birth, and makes the Secretary look at inherently weak evidence, like census records.
There is no effort to explain how the evidence that is the first thing a court would consider should be disregarded entirely. Without a rational legislative purpose, it must be concluded that the legislators had a punitive intent to frame a law that singled out Obama for detrimental treatment.
Remember that in looking at a bill of attainder, the courts look for a punitive intent by the legislators and can examine the legislative record. Nixon v. Administrator of General Services,433 U,S, 425 (1977). The record shows the Arizona legislators were out to get Obama.
And there is no rational basis for the legislative purpose of the law. At Doc Conspiracy’s site, it was noted that the bill applied to the President but not the Vice President. That is inherently irrational, since both must meet the qualifications for the Presidency. If they were concerned about the Presidency, and not merely Obama, they would have covered both offices. But they did not. Therefore they were out to get Obama.
The bill requires information not needed to determine natural born citizen status, like name of hospital, attending physician, and signatures of any witnesses. The 14th Constitution requires only birth in the United States, subject to its jurisdiction. It purports to disqualify a candidate for the absence of hospital, physician and witness information.
But the bill does not require information that is essential to constitutional eligibility. The bill does not even inquire as to issues of jurisdiction , that is, was the infant born to diplomatic parents. These requirements are not rationally related to the determination of natural born status, and are tailored to exclude Obama, leading to the conclusion that they are meant to inflict punishment on him.
So I hope the Professor will perhaps consider the Bill of Attainder aspects of the bill.
Posters at this site should remember that JT is an authority on the federal Bill of Attainder Clause of the Constitution. Article I, sec. 10 also bars the states from passing such bills of attainder.
I think the Arizona bill amounts to an unconstitutional bill of attainder, which is defined as (1) a law or legislative act that (2) inflicts punishment on (3) a named individual or on easily ascertainable members of a group (4) without a judicial group.
The bill is incredibly precisely tailored to single out President Obama for punitive treatment. In an arbitrary and capricious manner, it allows the use of decades-old baptismal or circumcision records, or census records, to verify birth if a candidate cannot produce the so-called “long form.”
But it does not allow use of a current, valid passport, one of the most reliable forms of proof of birth. Why not? Because Obama has at least two, official and personal. And the State Department honors Hawaiian COLBs. It has to under the 2004 Public Law. So the exclusion of passports is perfectly tailored to exclude Obama.
Remember that in looking at a bill of attainder, the courts look for a punitive intent by the legislators and can examine the legislative record. Nixon v. Administrator of General Services,433 U,S, 425 (1977). The record shows the Arizona legislators were out to get Obama.
And there is no rational basis for the legislative purpose of the law. At Doc Conspiracy’s site, it was noted that the bill applied to the President but not the Vice President. That is inherently irrational, since both must meet the qualifications for the Presidency. If they were concerned about the Presidency, and not merely Obama, they would have covered both offices. But they did not. Therefore they were out to get Obama.
So I hope the Professor will consider the bill of attainder aspects.