January 28, 2011
State Eligibility Law: Obama's Achilles' Heel in 2012?By Monte Kuligowski
In his recent AT piece, Paul Kengor looks at Obama's aggregate poll numbers and concludes that the president may cruise to reelection in 2012. And Kengor didn't even factor in the additional votes Obama may secure with our tax dollars via entitlements, subsidies, and his ever-increasing army of government workers. Neither did he factor in the effects of widespread voter registration fraud complements of ACORN-type front groups.
On the other hand, it does appear that much of Middle America has awakened to the consequences of electing Obama in 2008. The Tea Party movement is not going away; in fact, it is getting stronger. And based on the amount of fiscal damage the Democrats have already wrought, it doesn't appear that the economy will be lifting Obama at election time.
There is something else that might provide a little optimism: the eligibility laws of the states. Presently, at least ten states are working on election law eligibility requirements for candidates who wish to be placed on their respective 2012 ballots for the presidency.
Two objectives may be obtained via election law requirements. The first is to compel the United States Supreme Court to define one aspect of presidential eligibility. The second is to force Mr. Obama to release his hospital-generated birth certificate.
Getting a definition of "natural born Citizen"
The Constitution requires "natural born Citizen" status as a requisite for the U.S. presidency. But no one can say authoritatively what the phrase means. The Supreme Court has had no on-point litigation from which to provide a definition. Additionally, in 2008, neither Congress nor the states had any legislation in place defining the phrase.
The historic view of the phrase "natural born Citizen" -- going back to Emmerich de Vattel's "Law of Nations" -- requires a birth in the country and (in our context) U.S. citizen parents at the time of the candidate's birth. Another view is that only U.S. citizen parents are required in order to qualify. And, of course, some believe that the constitutional language is merely referring to a birth in the U.S., irrespective of parental citizenship.
Defending Obama's birthplace narrative and secrecy has become a pop-media standby. But the requirement of citizen parents for eligibility has traditionally been the preeminent question when considering whether one is a "natural born Citizen." Avoiding conflicting interests, influences, loyalties, or allegiances is the undisputed reason for the requirement. A son of a foreign national taking the reins of the U.S. presidency is presumably what the founders wished to prevent.
State legislators should define the phrase "natural born Citizen" in their election eligibility codes, requiring U.S. citizen parents at the time of the candidate's birth as a requisite to being placed on the presidential ballot. With such a law in place, you can rest assured that the issue would make its way to the Supreme Court -- on a fast track.
It's likely, but no one knows for sure whether the Court will agree that a presidential candidate must have been born to citizen parents to qualify as a "natural born Citizen." Either way, a ruling on the issue and a definition of the phrase are what the country needs.
Forcing Obama into transparency
The other objective that may be achieved via election law requirements would be the release of Obama's hospital-generated birth certificate.
Mr. Obama knows how much money he has spent defending lawsuits to avoid releasing his detailed birth certificate showing his hospital and physician of record. The dollar amount spent to avoid transparency must be staggering.
Recently, Hawaii governor and staunch supporter of Obama Neil Abercrombie announced that he would end the controversy by verifying the existence of Obama's birth certificate. The only problem was that Abercrombie discovered that a detailed birth certificate couldn't be found in the Hawaii vital records.
Regardless of whether the details of the president's birth can be documented, Mr. Obama has a problem. If a detailed birth certificate does exist, it reasonably may be inferred to contain candidacy-ending information. Who believes that Obama would stubbornly refuse to release his records if they contained harmless information?
Mr. Obama has been able to legally avoid releasing information because no eligibility law defining "natural born Citizen" and requiring specific proof was in effect at the time of his election. The states effectively waived their constitutional rights in 2008. But apparently, that mistake will not be repeated.
Additional thoughts for legislators
The key for state legislators drafting eligibility law for 2012 is specificity. Merely requiring that each candidate submit his/her "birth certificate," or that candidates "prove constitutional eligibility," as many drafts read, is not enough.
The document Mr. Obama posted online, his "Certification of Live Birth," has been referred to by some as a "birth certificate." It is therefore possible that Obama's incomplete certification could pass a state's eligibility requirements under generic wording. If the law merely calls for submission of a "birth certificate" to the state secretary, a court could rule that Obama's certification is sufficient. Legislators drafting eligibility law must be sure to require each candidate to produce a hospital-generated birth certificate showing the hospital and physician of record -- or at bare minimum, medical records showing the same. An Obama-type certification should be acceptable only to document non-hospital births.
After recommendation, one state lawmaker, Rep. Leo Berman of Texas, has already informed me that he will take my advice and add some extra language to his eligibility bill for the reasons stated above.
The new eligibility laws of the states could prove to be quite consequential. Therefore, the laws need to be drafted with precision and with focus, for time is of the essence.
If enough carefully written state eligibility law is passed in time, I believe either that Obama will be stopped or that we will find out what he's been hiding. As a bonus, we might also get a ruling on the definition of "natural born Citizen."
Monte Kuligowski is an attorney whose work has been published in several law journals.