Is Arizona's Birther Bill Constitutional?

Arizona's brand of crazy:

Arizona's "birther bill" has passed the state Senate. The bill requires a sworn statement confirming the candidates residents and... drum roll... (sorry for the caps):

Let's look at the Constitution:

Article. II.

Section. 1.The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress [. . .]

[. . .] The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen [. . .] 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.

(Emphasis supplied.) In his concurrence in Bush v. Gore, Chief Justice Rehnquist wrote:

Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. [. . .] In McPherson v. Blacker, 146 U.S. 1 (1892), we explained that Art. II, §1, cl. 2, “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. Id., at 27. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.

(Emphasis supplied.) It is clearly true that the Constitution conveys broad power upon the States to determine its Electors for the "chusing" of the President. This clause, standing alone, would appear to provide constitutional cover for almost any legislative enactment by a State on this issue, including the abolition of elections for the Presidency.

However, the Constitution also provides that "No Person except a natural born Citizen [. . .] shall be eligible to the Office of President." To what degree can the State impose requirements that may exclude a "natural born citizen" from seeking the office of the Presidency? Arizona would argue that its bill intends to insure the application of this constitutional requirement. However, it is clear that not all "natural born citizens" may be able to meet the requirements of the Arizona bill. Most states do not issue birth certificates in the manner required by the proposed Arizona law.

For this reason, I believe the Arizona birther bill would violate the Constitution.

It goes without saying I hope that the bill is insane. But it also appears to be unconstitutional.

Speaking for me only

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    So the article (5.00 / 2) (#3)
    by CST on Thu Apr 14, 2011 at 11:31:24 AM EST
    I linked to in the open thread is all about how Mitt Romney has the same "birther" issues as Obama (home state will not/has not released official birth certificate to press).  Of course the right wing does not bring them up.

    But if he wins the nomination (or for that matter, some other Republican with this problem - which I bet there are a few), and this bill passes in Arzona, they won't have any major candidate on their ballot.

    All that being said, I don't think that will ever happen since I don't think this bill will survive that long.  But it would be an ironic twist if they legislate their way out of having a say in who becomes president.

    Load of rubbish (none / 0) (#27)
    by diogenes on Thu Apr 14, 2011 at 03:35:09 PM EST
    "home state will not/has not released official birth certificate to press"

    Does anyone here really believe that if a candidate for President of the United States openly waived all privacy rights and made a personal written request to a governor that a state would REFUSE to release a birth certificate to the public?  Since privacy of personal and medical records belongs to the SUBJECT, that person (whether Obama or Mitt Romney) could in all likelihood file a lawsuit to force the release of said records if the state officials were recalcitrant.


    The State Department accepts (5.00 / 0) (#30)
    by MKS on Thu Apr 14, 2011 at 03:46:43 PM EST
    the certificate of live birth as an official document sufficient to satisfy citizenship requirments.  That is enough.

    Why do you want to single out Obama for special treament?


    I'm not (none / 0) (#42)
    by diogenes on Fri Apr 15, 2011 at 12:01:59 PM EST
    I referred to both Obama and Romney--"a candidate for president".  Why could't either one produce enough documents to meet the Arizona requirements, constitutional or not?
    There is no constitutional requirement to release private medical records or tax returns, for example, and presidential candidates routinely do so.  Give Arizona what it wants and be done with it already.  

    Because one shouldn't feed trolls (none / 0) (#43)
    by MKS on Fri Apr 15, 2011 at 01:04:08 PM EST
    The birthers' real position is that regardless of where Obama was born, he cannot be President because his father was not a citizen....

    Conspiracy cultists always have one more question....You can never satisfy them.  So, cut them off and stand up to them now....

    Romney's birth certificate?  That is just window dressing.....to cover a racially motivated attack on Obama....  


    you're right (none / 0) (#32)
    by CST on Thu Apr 14, 2011 at 03:49:55 PM EST
    The state of Hawaii has already released the birth certificate to the press.

    My bad.


    If I were President ... (5.00 / 1) (#11)
    by Robot Porter on Thu Apr 14, 2011 at 12:38:00 PM EST
    you could get a birther debate going around me.  I no longer have my original birth certificate.  And my "certificates of live birth" has a number of inaccuracies, including several which could suggest I'm not a "natural born citizen".

    And, I guess, if this law passed I'd also have problems in Arizona.

    I think most people would have that problem (5.00 / 1) (#16)
    by ruffian on Thu Apr 14, 2011 at 01:50:52 PM EST
    Back in 'the day' there were a million formats for birth certificates.

    I suspect the Department of Homeland Security has come up with a standard form now though to keep all the babies in compliance...


    Mine would surely be scrutinized... (5.00 / 1) (#17)
    by kdog on Thu Apr 14, 2011 at 02:05:46 PM EST
    I've got such a Rumplestiltskin-esque middle name no one would ever believe somebody would name their kid that...they'd say it is surely a counterfeit.

    ha! My Dad had no middle name (5.00 / 3) (#23)
    by ruffian on Thu Apr 14, 2011 at 02:52:19 PM EST
    what kind of lazy parents can't come up with a middle name?

    Neither did (5.00 / 1) (#26)
    by Zorba on Thu Apr 14, 2011 at 03:14:03 PM EST
    my dad.  And then there's Harry Truman, whose middle name was "S."  Just the initial.

    Dumb (5.00 / 1) (#21)
    by ScottW714 on Thu Apr 14, 2011 at 02:40:39 PM EST
    Who designated Arizona keeper of Constitution rights of all US Citizens ?  If there is one state that shouldn't be allowed to wave the Constitution, it's Arizona.  

    But what it really boils down is they want to interpret the language, because I don't believe the SCOTUS has ever done so.  What exactly is a Natural Born Citizen ?  

    This is Nazi type legislation, because at some point they will have to define an NBC.  One parent is American, the other not, born in Yugoslavia, NBC ?  Dual citizenship parent, born in China, and moved here at age 40, NBC ?  Born on US soil to Mexican tourists or non-citizens, NBC ?  As mentioned above, adoption, were one may hold several birth certificates will have to be addressed, because IMO waiting for the candidate to appear will only allow the to interpret a NBC anyway they want.

    This is non-sense Nazi's had to figure out, certainly not something I want the state with the worse track record in regards to upholding Constitution rights, to decide.

    And for the record, all the above, I guarantee the party affiliation and the party affiliation of AZ's supreme court will be the determinant for a US Presidential Candidate, not actual facts, like say... birth certificates.  No way they let a US born person with undocumented parents on the ballot.

    AZ does not decide who is on the Presidential ballot, period.  Then next month they will be whining about the Feds overstepping their boundaries with health care, all in all  likelihood, filling a lawsuit, while simultaneously passing legislation that effects people who aren't even in their state.

    And lastly, isn't odd for the last continuous state to join the union be so hell bent on enforcing citizenship ?  100 years, they weren't even under US Constitutional law, but now they are experts, ditto with the idiot up in Alaska.

    Holder has to shut this down ASAP, because if they don't, this is going to run amok with all the idiot states, deciding they are going to interpret the US Constitution, and before you know it, South Carolina with be parsing the word slavery in the 8th Amendment.  Not really, but in regards to more right wing pet 'interpretations', this will not stop and the clowns in Arizona will be walking around with surface to air missiles, claiming the the Constitution allows them to bear arms.

    SCOTUS defined a natural born (none / 0) (#31)
    by MKS on Thu Apr 14, 2011 at 03:48:07 PM EST
    citizen in the 1898 Wong case.

    Short answer: No, not constitutional. (none / 0) (#1)
    by scribe on Thu Apr 14, 2011 at 11:25:51 AM EST
    The reason is that the only requirements which may be placed upon the election of federal officials are those textually contained in the Constitution.  

    There was a case back in the 90s - IIRC out of Arkansas - which dealt with the state appending a term limit to congresscritters, depriving them of the opportunity to run/be on the ballot if they'd used up their number of terms.  S.Ct. tossed it, based on the restriction not being in the text of the Constitution.

    That analysis falls short here it seems to me (5.00 / 1) (#2)
    by Big Tent Democrat on Thu Apr 14, 2011 at 11:30:18 AM EST
    The Constitution provides States with the broad power to determine who shall be its electors. In theory, they need not even have an election.

    Arizona would argue that it is not making any change to the qualification for the Presidency, merely to the manner in which it "chuses" its Electors.

    You must take the next step and argue why the Arizona law deprive eligible person the opportunity to be chosen by the Electors of Arizona.

    That is why I think the second step of analysis is necessary.


    I think that Arizona's law does make a (5.00 / 2) (#9)
    by MO Blue on Thu Apr 14, 2011 at 12:30:44 PM EST
    change to the qualification for the Presidency.

    Don't see the Constitution disqualifying someone for being born out of wedlock.


    Not all birth certificates contain information on the identity of the father.  

    Yup, US Term Limits (none / 0) (#15)
    by andgarden on Thu Apr 14, 2011 at 12:49:51 PM EST
    may not do enough work here.

    It's shameful (none / 0) (#4)
    by Militarytracy on Thu Apr 14, 2011 at 11:49:40 AM EST
    Will it be like the BYU honor code and only enforced with some people and not others?  It is the way of much of the West.  What I would really like to see is all the red states pass something like this, and then the President wait till the 11th hour like Republicans do to us all the time....having every media outlet just freaking out about it....and then the President quietly and gently lay his long form birth certificate softly on the table with a very sad look on his face.  If he could get a little Iron Eyes Cody tear in the corner of his eye it could be blissful.

    Somebody call Dr. Drew... (none / 0) (#5)
    by kdog on Thu Apr 14, 2011 at 11:53:41 AM EST
    maybe he can make a housecall and help AZ kick this paper addiction...its embarassing the family.

    Is the state of Arizona (none / 0) (#6)
    by Zorba on Thu Apr 14, 2011 at 12:13:00 PM EST
    constitutional?  Just kidding.  Sort of.  Can the other 49 states somehow kick one state out of the union?  I suppose the Civil War settled the question of states taking themselves out of the union, but could all the other states gang up on one and remove it against its will?

    If we kick out a state... (5.00 / 0) (#12)
    by sj on Thu Apr 14, 2011 at 12:40:59 PM EST
    ... can it be Texas?

    In case it's necessary:  I kid.


    There are a couple of (5.00 / 1) (#14)
    by Zorba on Thu Apr 14, 2011 at 12:42:57 PM EST
    other states I'd nominate, too.    ;-)

    I would like (5.00 / 1) (#24)
    by cal1942 on Thu Apr 14, 2011 at 02:59:18 PM EST
    to nominate eleven states.

    I still hold out hope for Texas (none / 0) (#20)
    by Militarytracy on Thu Apr 14, 2011 at 02:40:19 PM EST
    They have San Antonio and Austin like Alabama has Birmingham :)

    Love Austin and (none / 0) (#36)
    by sj on Thu Apr 14, 2011 at 04:49:34 PM EST
    hear good things about San Antonio.  But those are small oases in a big desert.  :)

    Phil Ochs had something to say (5.00 / 0) (#22)
    by Peter G on Thu Apr 14, 2011 at 02:52:18 PM EST
    about that.  And if he had something to say, sir, he's going to say it now.

    You are assuming (none / 0) (#7)
    by nyjets on Thu Apr 14, 2011 at 12:24:00 PM EST
    You are assuming that the other 49 states diagree with what Arizona is doing. I would imagine that there are other states that agree in part with what Arizona is trying to do with 'undocumented' immigrants. And there are probable people in all of the 49 states that agree as well.

    nowhere does the constitution (none / 0) (#8)
    by cpinva on Thu Apr 14, 2011 at 12:28:14 PM EST
    grant the individual states the authority to determine who does and who does not qualify to be president, that is solely the purview of congress. it is up to congress to determine if the "natural born citizen", age and residency requirements have been met.

    the only right specifically granted to the states, with respect to elections for pres./v.p., is in choosing the state electors, period.

    to argue otherwise is to aver that the authors were idiots, who thought it would be a great idea for each state individually to make up its very own rules, for determining who qualified for federal elective office, vs having one uniform standard, throughout the land. if that were the case, they wouldn't have bothered putting those qualifications in the document to begin with.

    AZ's law is unconstitutional on its face, since it has no standing in the matter.

    Re: Birthers (none / 0) (#10)
    by Harry Saxon on Thu Apr 14, 2011 at 12:35:07 PM EST

    According to Jon Stewart, the people Donald Trump sent to Hawaii to investigate President Obama's birth certificate are really just knocking back tropical drinks and checking out women on the beach.

    Click or TPM Me

    Natural Born Citizen (none / 0) (#13)
    by Julene on Thu Apr 14, 2011 at 12:42:32 PM EST
    Can we have a link to what constitutes Natural Born Citizen? I thought you were a natural born citizen no matter where you born as long as one of your parents is a citizen. Or at least that has been the accepted practice as far as I have known.

    And, I too - am wondering as an adopted person - which birth certificate would be allowed - the one at my birth indicating my birth mother only, or the one that has both of my adopted parents on it.

    In the 1989 Wong case, (none / 0) (#18)
    by MKS on Thu Apr 14, 2011 at 02:08:55 PM EST
    the U.S. Supreme Court held that a person born on U.S. soil to two citizens of China was a natural born citizen of the U.S.  

    Great opinion--traces the history throughout the centuries of the concept of being a natural born "subject." ....  This is bascially a doctrine of English Common Law going back to Elizabeth I.

    That is the most direct precedent.


    Thank you, thank you, folks (5.00 / 2) (#33)
    by Zorba on Thu Apr 14, 2011 at 04:18:31 PM EST
    You've been a great audience.  Donald and Yman will be here all week.  Next time, try the veal.  Don't forget to tip your waiter.

    1898 Wong case...oops (none / 0) (#19)
    by MKS on Thu Apr 14, 2011 at 02:09:34 PM EST
    Wong year? (5.00 / 2) (#25)
    by Yman on Thu Apr 14, 2011 at 03:08:38 PM EST

    What, (none / 0) (#34)
    by Zorba on Thu Apr 14, 2011 at 04:21:08 PM EST
    Jewish people don't circumcise their sons in any other country?  Who knew?  (And I don't see a line in the circumcision certificate for "country," either.)

    Why would anyone (none / 0) (#35)
    by scribe on Thu Apr 14, 2011 at 04:46:03 PM EST
    need a circumcision certificate.  I mean, it's pretty frickin' obvious.

    And how will they apply that exception to Jewesses?  It's blatantly discriminatory on its face.

    And how will they know where the circumcision actually took place?

    I don't even know (none / 0) (#37)
    by sj on Thu Apr 14, 2011 at 04:55:34 PM EST
    what to say to that.

    Gak (none / 0) (#38)
    by Ga6thDem on Thu Apr 14, 2011 at 05:48:13 PM EST
    I can't even believe we're discussing this. It seems the whole country has gone down the rabbit hole.

    Now I've read it all... (none / 0) (#41)
    by kdog on Fri Apr 15, 2011 at 09:42:55 AM EST
    Hooded Serpent = Suspect...duly noted AZ.