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Who's Job Is It Anyway?

Three recent troubling lawsuit decisions have gotten me wondering who is responsible for ensuring that our presidential candidates meet the legal requirements of the office they are attempting to win? After some investigation, it appears that at the present time, that would be ‘no one’.

It seems a bit ridiculous. There are very few actual legal requirements for the office of President of the United States. Yet there appears to be no one who is responsible for making sure that the candidates meet those requirements before an election. Those requirements are:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In addition, the 22nd amendment adds another requirement:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

Those seem like very reasonable requirements and easy to check out, but the first requirement seems to be a little confusing in today’s time. What does Natural Born Citizen actually mean, legally?

Initially, under the first naturalization law passed in 1790, children of citizens born overseas or otherwise outside of the of the limits of the United States were considered Natural Born Citizens. However, the laws and designations have changed over time to mean possibly different things. Legally we have to use the definition of the laws at the time a person was born to determine if they fall into the proper legal citizen category.

However, three recent decisions, Robinson v Bowen (2008), Hollander v McCain (2008) and Berg v Obama (2008) have all ended the same way. With no discussion on the merits of the complaint but rather a finding that US Citizens have no standing to call into question the meeting of the legal requirements of President of the United States. We, the people, are told that it is none of our business.

I find that answer troubling. Let’s, for example, say that neither John McCain (who was born in Panama) and Obama (who may or may not have been born in Kenya and may or may not have given up citizenship when enrolled in an Indonesian school that would not have allowed dual citizenship) are eligible to hold the office of the President of the United States. At what point does this get determined and by whom?

First place one may think to look would be to the Federal Election Commission.

The FEC is an independent regulatory agency established in 1975 to administer and enforce the Federal Election Campaign Act (FECA). That statute limits the sources and amounts of the contributions used to finance federal elections, requires public disclosure of campaign finance information and–in tandem with the Primary Matching Payment Act and the Presidential Election Campaign Fund Act–provides for the public funding of Presidential elections.

Unfortunately, they are not charged with determining the legal ability of an individual to run for President, they only ensure that the financing of those campaigns is done legally.

Philip J Berg, a moderate Democrat (who also filed suit against George Bush for being complicit in the 9/11 attacks and also worked hard in challenging the 2000 election results), brought a suit originally in the spring but was told that the suit then had no merit because Obama was not an official candidate. So, when he was nominated officially, he is told that he has no standing because he is just a single citizen and that any harm “is too vague and its effects too attenuated to confer standing on any and all voters”. This decision was based on the earlier decision in Hollander v McCain (2008) which was thrown out with a similar finding. In recent US Supreme Court decisions, it has been determined that in questioning government, individual citizens do not meet Aritcle III of the U.S. Constitution, limiting federal judicial power to handling cases and controversies in which plaintiffs have clear standing through specific, personal injury.

In the decision, the judge suggests that we seek a means to challenge the legal standing of a candidate through Congress, that they should write laws allowing for that to occur. What this means, very plainly, is that there currently is NO WAY for anyone to challenge that a candidate for the office of President of the United States is legally allowed to take the office or not. There is no organization, no office, no person, no legal body anywhere that can say that a candidate, or indeed a sitting President, can or cannot hold that office.

“Until that time,” Surrick says, “voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring.”

Does anyone, at all, feel good about these decisions? Does anyone think that we should at least ensure that the constitution is being upheld by making sure that someone has that responsibility before a candidate puts their name on a ballot?

In one area I agree with Philip Berg. He asks us what constitutional crisis will we encounter if, after we elect someone, it is determined that they are not legally allowed to hold that office. I concur, and believe that this is the sort of thing that should be dealt with long before they are brought to the public for voting on.

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