What If He Can’t Be President?

I’m pretty sure that I’ve never mentioned the birth certificate issue up until this point, even in the heat of the campaign.

I have to confess that I have no idea what to make of the fact that, despite all of the lawsuits (most of which were thrown out due to lack of standing, which in turn makes one wonder, if a US citizen has no standing to challenge whether or not a presidential candidate is eligible to be president, who does?), the Obama campaign could easily put this to rest by simply unsealing the birth certificate, which (coincidentally with his trip to Hawaii to see his dying grandmother) became explicitly unavailable to the public by order of the (Republican) governor’s office. Instead, it has spent thousands in legal fees fighting efforts to force it to present a valid original certificate of birth.

But let’s ignore that for now. Let’s be purely hypothetical. Suppose, just for the sake of discussion, it does turn out in fact that Senator Obama has been less than forthright about his past (something that would be hardly unprecedented) and turns out to not be constitutionally eligible for the office, due to (say) having been born in Kenya to ineligible parents. I think that, assuming that we actually follow the Constitution (sadly, a novel concept these days), and he thereby does not become the next president, there will be (among other things) massive race riots. But here’s the interesting question: who becomes the next president in his stead?

The Constitution is unclear. According to Article Two, it has rules of succession for presidents, but not for presidents-elect. There are three time periods of interest here. The first is if it comes to light after he has been sworn in to office. In that case, it is straightforward. Joe Biden becomes president (a scary thought, at least to me, and assuming that he hasn’t been replaced in the interim for some reason).

Suppose it happens after the Electoral College meets, and has already elected him? Though the Constitution doesn’t say so explicitly, I would suspect that the SCOTUS would rule that he was presumptive president, lacking only the oath of office, and that the post-inaugural rules would still apply, but this is not obvious, and there is no precedent of which I’m aware. Again, in this case, the Veep-Elect would become the President-Elect, and it would be President Biden in January.

But right now, which is why all the law suits are being filed in several states, things are up in the air. The idea is to influence the electors, who don’t actually elect the president until December 15th, two weeks from today. They are pledged to vote for Senators Obama and McCain, and they were chosen for their loyalty to those respective slates, but there is no legal or Constitutional requirement for them to do so. Thus, if a revelation about Senator Obama’s citizenship status were to become a significant issue, it would be up to them to deal with it. While they can, in theory, elect whomever they wish, if they were to knowingly elect someone ineligible, that would be a violation of their constitutional duty. I would assume that if they did so, they might be subject to prosecution by the Justice Department, though it is unclear on what basis. I’m not sure that you can prosecute someone for violating the Constitution per se, and I’m unaware of any applicable federal law, so it might be that the only recourse would be a lawsuit to get the electors’ votes overturned.

But if they were to choose to follow the Constitution, and elect someone else, who might it be? Some would no doubt argue that it would be best to follow the precedent of Article Two, and elect Senator Biden instead. But it could equally be argued that Senator Clinton might be the most appropriate pick, since she came so close to defeating Senator Obama in the primary. There are no other obvious consensus candidates. Of course, the fascinating thing is that there could be a split among the Democrat electors between Clinton and Biden. A two-way split wouldn’t be a problem, since there are over twice as many Obama electors as Clinton electors, but if there were some other candidate in the mix, it could allow the minority McCain electors to prevail. In turn, they could also decide to have a do-over of the primaries, and elect a (say) President Romney to deal with the economy. Heck, they could even put in Fred Thompson or Sarah Palin (though it’s hard to imagine a consensus forming around either). The most unlikely thing (at least with three potential candidates — two Democrat and one Republican) would be a tie vote that would throw it into the House. But hey, after this election, anything could happen. Particularly in light of all that would have had to have happened to get to that point.

[Update early afternoon]

I’m asked in comments to clarify my statement about two-way versus three-way race in the Electoral College. McCain got (I think) 173 electors. Obama got 365. If Obama supporters split between two candidates, the winner between them will get at least half plus one (183) which is still more votes than McCain has. The only way for McCain to sneak in would be for the Obama vote to be split three ways, which could result in Democrat winner only having 122 votes. A three-way race would have to be decisive for the Democrat (at least 174, or almost half) in order to outvote McCain (assuming that the consensus of the electors would be for McCain. Or someone, but it has to be one).

Hope that clears it up.

[Update a couple minutes later]

I see now that the interim issue (and Constitutional loophole) of the President-Elect was dealt with (sort of) by the Twentieth Amendment:

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Second emphasis mine. I’m assuming that in this case, “qualify” would include “not having been found to be foreign born,” so Biden does become President-Elect in the event of a problem with the President-Elect.

39 thoughts on “What If He Can’t Be President?

  1. Pingback: » Transterrestrial Musings » Blog Archive » What If? Joe Biden On Best Political Blogs: News And Info On Joe Biden

  2. John Gillman

    More threats of race riots for following the law.

    Let them riot. The law must be upheld or there is nothing.

    So some people burn down their neighborhoods, again. Why should I care?

    But if the Constitution is subverted through fraud and cowardice, then there is no Republic, no rule of law and no future for anyone.

    Let Obama prove his qualifications, like anyone else who gets his lost driver’s license renewed.

    Anyone who’d spend a million dollars to avoid proving his qualifications does no belong in the office, period.

    Show the B.C., B.O!

  3. tess

    They talk of riots if we “..do follow our great
    U.S. Constitution..” ha ha!
    Riots will be nothing compared to the uncontrolable population that “.WILL NEVER FOLLOW
    THE WILL OF A MAN THAT HATES THE UNITED STATES
    CONSTITUTION AS MUCH AS OBAMA..”
    Your banks, stock markets, and anyone
    doing business will be non-compliant
    and with good reason.
    Your military does not have to take
    orders from a man that hates them and
    their way of protecting lawful citizens.
    ALL THOSE FOREIGN MONIES will prove to
    be a fine cataylst for starting the
    real probe of OBAMA
    Utter chaos will reign and OBAMA’s
    stolen presidency will be worth nil.

  4. Bob

    I wonder if this has more to do with suppressing identity theft? If I can request, say, Rand Simberg’s birth cirtificate, aren’t I one step closer to stealling his ID? Hawaii won’t give out anyone’s birth certificate – not just Obama’s. Better that trusted authorities attest to the properness of Obama’s birth certificate, as has been done. (See last paragraph of this site: http://www.snopes.com/politics/obama/birthcertificate.asp

    But lets assume Obama was born outside the USA. If Obama’s mother was an American citizen, would this qualify Obama for the Presidency regardless of where he was born? I am under the weather and fuzzy headed today, but George Romney faced this issue in 1968 – he was born in Mexico, but his parents were U.S. Citizens. Romney’s situation is even more clear-cut than McCain’s origin in the Canal Zone. See http://en.wikipedia.org/wiki/Natural-born_citizen What was Romney’s plan?

    Finally, above you said “ineligible parents’, which is launches an interesting discussion, but in reality, is there any reason to think Obama’s mother was ineligible?

  5. Chris Gerrib

    Ignoring whether or not Obama is eligible, as far as the Constitution is concerned, we have not elected a President yet. That happens on December 15. So, from the viewpoint of the Founding Fathers, Obama being found not eligible now would be as if he was found ineligible on, for instance, November 1.

    In short, if Obama is ineligible before December 15, the Electors pick who they want.

  6. Bob

    Although I don’t see why there would be a need for a consensus candidate, if there was such a need, Al Gore could fill the role. It would seem like poetic justice to those who thought he really won in 2000 anyway. But in the event that somehow the electors were split between Clinton and Biden, I think Hillary Clinton would defer to Biden, and ask her electors to do the same, perhaps with the understanding that Biden would be a one term president who would step out of the way for her to take the top job in 2012.

  7. Bob

    Rand, what did you mean when you referred to Clinton electors (from your post above) ” A two-way split wouldn’t be a problem, since there are over twice as many Obama electors as Clinton electors, but if there were some other candidate in the mix, it could allow the minority McCain electors to prevail.”

    As an aside: I wonder, if the events described in your original post came to pass, whether there would be renewed interest in scrapping the natural-born American requirement. The supporters of Schwarzenegger might unite with Obama supporters on that one. I would be in favor of dropping the requirement — I don’t know that that Schwarzenegger would be a good president, but I strongly doubt that he would have split loyalties. More importantly, any split loyalties could be discovered during the presidential campaign at least as well as any other shortcomings of a presidential candidate might be uncovered. There might be a child born in Iraq today who will grow up to be fervently pro-American, and, if he or she is lucky enough to immigrate to the USA at a young age, might make a fine president someday. Back to the present: The constitution could be amended by 2012, which could lead to the spectacle of a fight between Obama and Schwarzenegger (with Hillary Clinton providing the warm-up act).

  8. Chris Gerrib

    Rand – apparently I did not. (It’s a Monday.)

    Now that I’m caffienated, the critical factor here is that the Democratic electors are (presumably) personally loyal to Obama. Therefore, I would suspect that most of them would vote for whomever he told them to.

    Since he needs 271 and has 365 (per your update), a lot of his electors would have to defect to result in a President not blessed by Obama.

  9. Rand Simberg Post author

    Now that I’m caffienated, the critical factor here is that the Democratic electors are (presumably) personally loyal to Obama.

    Whence derives their loyalty? OD on koolaid?

    An ineligible President-Elect and junior Senator from Illinois doesn’t have much political clout. Why wouldn’t Biden or Clinton enter into a bidding war for them in exchange for plum administration assignments or other fruits of power? The only real motivation that I can see for an Obama elector not voting for Obama to pay attention to his wishes is to avoid a race war over the situation. Which is, of course, a non-trivial consideration.

  10. Paul Breed

    Clearly since he was born to an American mother he is a US citizen, but that is not sufficient.
    He must also be “naturally born” IE born in/on U.S. territory.

  11. Jardinero1

    I have researched and posted on this topic previously. The issue of an original birth certificate is a canard. All should read the relevant section of the US Code. Father’s don’t count for much when determining who is natural born. The rules regarding who is natural born are biased towards matrilineality.

    If Obama was born out of Wedlock then US Code: Title 8, Chapter 12, Sub-chapter III, Part 1, Section 1409, Paragraph c would apply:

    “(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.”

    If his parents were married then section 1401 applies. Whichever section applies, he is a natural born citizen, no matter where he was born. It’s all about who the mother is. Nobody disputes who his mother is.

    Furthermore, not everybody has their birth legally recorded. I can’t speak for other states but, in Texas, birth certificates can be altered and even created out of thin air through a legal process.

    I have a cousin whose birth was never recorded. His mom never got around to it. His sibling’s births are recorded. He is applying for a passport now and has to have a birth certificate legally created. It involves collecting affidavits from relatives who are older than you and then submitting them in the county where you were born.

  12. Bob

    The only real motivation that I can see for an Obama elector not voting for Obama to pay attention to his wishes is to avoid a race war over the situation.

    I find it sad that you view this question through such a racially polarized lens. I, an Obama voter, would be furious with electors who didn’t try to honor Obama’s wishes. It would have nothing to do with race.

    So, should the electors care if Obama voters were furious? Yes. The electors are people who want to do well in poltical life (as appointees if not as elected officials), and they’ll pay attention to the wishes of the voters so as to secure their own occupational futures. If I found out in the future that an unfaithful(ish) elector was in the employ of someone running for office, I’d penalize them at the ballot booth. In addition, of course, some and hopefully most of the electors would feel honor-bound to follow Obama’s wishes.

  13. Chris Gerrib

    Re loyalty – there are several possible reasons for Obama’s electors to stay loyal to him. One is good-old-fashioned honor, admittedly sometimes scarce in politics. Another possible reason is that Obama has a large grassroots political operation, which appears to be ongoing. Being known as a guy who tossed Obama under a bus might have political costs. Especially so if it appears that this disqualification may be reversed, say pending a court case.

    Lastly, getting to be an elector is a position of trust. The candidate who puts your name on the ballot has to trust that you’ll do what you say you do. Going against your candidate could preclude further shots at being an elector.

  14. Sam Dinkin

    http://www.usconstitution.net/const.html#Am12

    If there’s no majority for President in the vote from the Electoral College, the House gets to pick with one vote per State delegation, 26 states to win, but quorum requires two-thirds of states to have at least one person present (do I feel some 100% Republican state house delegations becoming unavailable? probably not since there are only 6; magic number is 17). If no one wins in the House by March 3, the vice president becomes president. If there is a similar deadlock over who should be vice president, then we may end up with President Cheney.

  15. John

    Actually, Rand, the way I read your emphasised statement, if Obama has not yet proven his eligibility after he is elected but before he is inaugurated, then Biden gets to be ACTING president, not President-Elect, until a Obama proves his eiligibility. And if Biden can’t prove his eligibility, then he can’t serve until he proves his eligibility as well.

    Which has nothing to do with what happens if he’s found ineligible, so I’m not sure why that particular section is emphasised.

    It does seem, however, that if he’s found ineligible after he’s elected, that Biden is our de facto president-elect. Which means that I hope this is all cleared up before Dec. 15.

  16. Paul Breed

    People keep missing the distinction.
    There is ZERO doubt he is a U.S. citizen, or of
    U.S. nationality. That DOES not mean he is naturally born, to be naturally born he must have been born on U.S. territory.

  17. Bob

    Paul, the definition of natual born citizen is more complicated than you seem to think. See this article: http://en.wikipedia.org/wiki/Natural-born_citizen which describees some the complexity. I’m sure there are even more complete discussions on the web, but in any case, recognize that the issue is in dispute. I expect that you will be able to find sources which support your point, but I also expect that there will dissenting but highly respectable views available as well.

  18. Bob

    Jardinero, although you disagree with him, you are just as wrong as Paul Breed. :-) The legal code you cited does not discuss “natural born” citizens (unless I’m mistaken, in which case, please help me out). At the risk of mindlessly repeating myself, the wikipedia article cited above discusses why this is a complex issue.

  19. Carl Pham

    A better question is, what if Obama’s CPU suffers a glitch and it’s discovered he’s actually a cyborg?

    The Constitution is silent on the precise definition of “human” — is passing the Turing test by (say) giving an emotional speech about your grandmother’s racism good enough? There’s also no precise definition of “born” in this case. Do we take the incept date? The date at which programming was complete, regardless of when he was first booted up?

  20. Bob

    I believe there wouldn’t be any constitutional restriction on a non-human becoming president of the united states. I for one will welcome our alien immigrants, and will invite their children (or forks) to join our democratic system. But would commonplace relativistic travel change the interpretation of the “35 years of age” clause?

    Oh, and you think this is just a flight of fancy?
    Look at the classic Obama campaign poster:
    (http://farm3.static.flickr.com/2317/2228158870_2f09f32711.jpg)
    Look at Obama’s face. As Obama frequently says, there is not a Red America and a Blue America, but neither is there a red shadow and a blue shadow. On Earth, that is. McCain, a fan of planetariums, can tell you that you only see those kind of shadows on a world that circles a red supergiant and its blue white dwarf companion. Obama’s home might look like this: http://www.boulder.swri.edu/~durda/red_giant_sunset.jpg
    Given the current layout of the local galactic neighborhood, Obama is no doubt older than 35, but in what frame of reference?

  21. Hellfish

    There is an issue regarding the number of years Zero’s mother was in the US around the age of 16 and I believe she fails that test. I do not have the time to google it but the mother’s test is dependent on circumstances related to her position around her 16th year.

  22. Jardinero1

    The Constitution refers to “natural born Citizen” without defining it. There are references to the 14th amendment but all the the 14th does is guarantee citizenship to those born on US soil. That is not the same as defining “natural born citizen”. The Congress through the US Code defines a “natural born Citizen” as a citizen at birth and then further defines who is and isn’t a citizen at birth.

    With regard to the electoral college the following provides a great overview of the college and how it has worked over the centuries.

    http://www.usconstitution.net/consttop_elec.html

  23. Carl Pham

    But would commonplace relativistic travel change the interpretation of the “35 years of age” clause?

    Of course not. The Founders obviously meant years of proper time. Otherwise, the Constitution would not be Lorentz covariant, a possibility I refuse to countenance.

    While no doubt many tidewater Framers enjoyed only the narrow mental horizons of the flatlander — hence that ugly “three-fifths” business — Madison hailed from the piedmont and was surely a scalar himself.

  24. DaveP.

    If Hoepychangey is as legal as all of that, why- at this late date- does his campaign and he himself still refuse to cough up the birth certificate and end the controversy? After all, it IS public record….

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  27. Bob

    Whoosh!

    Carl, I think something very funny just went over my head! I was just thinking that the Constitution couldn’t deal with the twins paradox. Unfortunately, I have only a “Night At the Opera” level of understanding of Special Relativity. What do we do with an American who was born in the year of ’39,
    takes a relativistic round trip
    for many a lonely day
    sailed across the milky seas
    never looked back never feared never cried
    and runs for president in 2012 with a biological age of 30? The Constituttion says nothing about the land that our grandchildren knew, if you see what I’m saying. So what’s this about “proper time”?
    If you can explain it via 1970s rock band lyrics, I would be especially appreciative.

  28. jack lee

    it seems a real pity to waste bandwidth discussing
    bizarre schemas of “Natural Borne” citizenry, and implying
    strange conspiracies involving the Hawaii Governor, when
    there are large real issues coming to fruition.

    1) GM, Ford et al are headed to DC with a tin cup looking for
    30 Billion

    2) AIG just conned paulson into giving them another 50 billion

    3) Citicorp just got 800 billion without even a blink.

    Funny how Mr Simberg doesn’t like to discuss Citicorp

  29. Carl Pham

    Easy, Bob. Proper time is time measured in your own frame of reference, the one in which you’re not moving. So if you’re 35 years old in “proper time” you look 35 years old and your body acts like it’s 35 years old, regardless of whatever “calendar” age clocks stationary on Earth (but perhaps not stationary with respect to your history) might say.

    Proper time is the time that passes in a science fiction movie when you’re traveling in a time machine. You go backwards to the Cenozoic, and the trip takes “half an hour.” Half an hour is the proper time — the time you experience. Minus forty million years is the “coordinate” time that elapses, as measured by some outside clocks. Of course, time travel in this sense is impossible, but it gets the idea across.

    So that part of what I said actually makes sense. It’s what the Founders really would have meant by the 35-year-old business, if relativity really was an issue. You want someone 35 years old by the “body” and “mind” clock — not the calendar clock. The bit about Lorentz invariance means the Constitution is supposed to mean the same thing in all frames of reference, so that’s a bit of textualist originalism mixed with the humor.

    The bit about Madison being a scalar is that, first, a scalar (meaning a one-dimensional object, not a vector) like electric charge or rest mass is something that does not change no matter what the frame of reference, moving or not. A vector like velocity or tensor like energy-momentum looks different in different reference frames. So I’m saying Madison built his Constitution to be robust, unchanging to variations in frames of reference.

    And, of course, he lived in the foothills of the Blue Ridge Mountains of Virginia, so he was a “scalar” in the sense of being someone who climbed hills a lot, ha ha.

  30. Rand Simberg Post author

    Funny how Mr Simberg doesn’t like to discuss Citicorp

    What form of dementia would cause a person to think that I “don’t like to discuss Citicorp”?

  31. jack lee

    “What form of dementia would cause a person to think that I “don’t like to discuss Citicorp”?”

    If you use the embedded search engine, on the homepage,
    for citicorp or citibank, no hits return.

    One would think hundreds of billion in unauthorized spending
    would be worth a few lines.

  32. Rand Simberg Post author

    I didn’t ask you whether or not I had written about it. I asked what illogic would lead one to conclude that I hadn’t written about it because I don’t “like” to. There are many topics that I haven’t written about, not because I don’t “like” to write about them, but because I don’t necessarily have anything useful or interesting to say about them, and I have finite time.

    As long as you’re going to dictate what topics I should discuss on my own blog, perhaps you could suggest what I should write about them as well? It would make my apparent job of pleasing “jack lee” so much easier.

    Or, then again, maybe you could just get a blog of your own, where you can write about what you think is important, instead of stupidly trying to dictate what others should be writing about.

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