Trump’s Birther Bill

So Donald Trump’s got a new trophy wife, the Arizona Birther Bill. I’m not much interested in Trump (although I do like his tower in Chicago–it looks fantastic when you’re on Wabash St. in the Loop looking north), but I do find the bill, which would require presidential candidates to prove they are natural born citizens before being listed on the ballot, somewhat interesting.

Let’s start with the most important point–this bill is perfectly constitutional. Each state determines the qualifications for getting on its ballot, and since a president is required to be a natural born citizen, requiring a demonstration of that is just as legitimate as would be a demonstration that they are 35 years of age.

In fact since there currently is no actual process for pre-emptively enforcing the natural born citizen requirement, and post-election enforcement would necessarily be very messy, it may in fact be a good thing to jumpstart the creation of such a process. It would probably work better if there were a sort of national clearinghouse for this sort of thing, perhaps in the Federal Elections Commission, but still, it’s a legitimate state act.

What the supporters of the law seem to forget, however, is that the Full Faith and Credit clause would require them to accept at face value any other state’s documentation of a person’s birth. Arizona would be constitutionally barred from not accepting Hawaii’s documentation unless they could demonstrate compelling reason to not take it at face value. They couldn’t just set up their own “higher standard” of evidence. Nor could they substitute their own interpretation of the requirements for natural born status, because they are applying a federal constitutional principle–natural born will be whatever the Supreme Court or any future constitutional amendments say it will be.

The danger of this, of course, is the potential to hold up a candidate’s listing on the ballot for purely partisan reasons, perhaps keeping them off the ballot entirely or at least causing enough uncertainty among the public until late enough in the election cycle that it suppresses the candidate’s vote-total. I suspect that would not be likely to happen, though. First, candidates first register for the ballot during the primaries–any legal questions will get resolved there, and certainly every candidate will simply automatically supply documentation from their home state that, as noted, will have to be taken at face value.

Second, the only place where there is likely to be a serious attempt to keep someone “suspect” off the ballot is in a very highly partisan state that said candidate is unlikely to win, else there will be enough opposition to such a tactic that state legislators will have to be responsive to the public.

Finally, any legal challenge (which most likely could begin immediately in the federal courts, not just the relevant state’s court, because a constitutional question is involved) would be fast-tracked, judges would willingly slap injunctions on the states because of the risk of irreversible harm to the candidate if the state action is allowed to proceed, and judges would take other state’s documentation of birth at face value, as prima facie evidence of natural born citizenship.

So while this type of law could be abused, and while there are innumerable folk who would want to abuse it, I think our political and legal structures would make effective abuse difficult.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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11 Responses to Trump’s Birther Bill

  1. Pinky says:

    You are far too smart to let yourself get so caught up in such a vanity.

    Who was it said laws are made for those who cannot be trusted? Thomas Moore? I’m not sure; but, probably a lot of people have made that observation.

    All such a law would do would be to create another obfuscatingt issue for confusing the electorate. The law is already in the Constitution and needs no further “how many angels can dance on the head of a pin” declaration.

    That kind of thinking is not part of the solution–it is part of the problem.

    I’m surprised at some of the things you run up the flag pole, you being a Michigan man.

  2. James Hanley says:

    You are far too smart to let yourself get so caught up in such a vanity.

    Are you sure you’re responding to the right post?

    The law is already in the Constitution and needs no further “how many angels can dance on the head of a pin” declaration.

    The law has precisely zero provisions for enforcement, which means it is not in fact a law at all, but merely a suggestion.

    And my point was not to advocate for such a law, but to note that it won’t be as meaningful as its supporters hope, nor as nefarious as its detractors fear.

  3. ppnl says:

    Given the complexities in passing and enforcing such a law a better tactic is to do away with the natural born citizen requirement as irrelevant and unnecessary. The whole birther thing is just catering to the nativist (racist?) elements of the republican party anyway. The republican party continues to mainstream the stupidest things.

  4. James Hanley says:

    ppnl,

    I agree that it would be better to do away with the requirement. But if your concern is the complexities of passing something, well, what could possibly be more difficult than trying to pass an amendment to do away with that clause?

  5. ppnl says:

    Yes I agree that repealing the natural citizenship requirement is about as likely as actually accidentally electing an illegal alien. From Mars. But the impossible isn’t complex. It is very very simple. It will not empower any politician to say stupid things nor activate the stupidest most reactionary element of any political party. It will simply fail without anyone noticing the attempt.

    The birther bill encompasses all that is wrong with the political process. It is another irrelevant issue being used to cater to the republican base. Even if the bill were entirely harmless in itself it is a sign of the continued decay of the intellectual authority of the republican party. It will simply continue the Balkinization of the united states.

  6. AMW says:

    James H and ppnl,

    I am 90% behind your suggestion that the natural-born citizen requirement be amended. As a friend of mine put it, we should be actively seeking the most talented statesmen across the globe. Why limit ourselves to the 20% of the world population that was born in our borders?

    The other 10% of me is a bit hesitant because the President is commander in chief. And I can imagine scenarios in which a foreign-born president is less likely to aggressively pursue American security and interests due to more complex relationships with the international community.

    Then again, I’m highly skeptical of American military intervention in all but the most extreme circumstances (I’m not even positive engagement was a good idea in WWII). So that 10% should probably be revised downward to 0.1%. Repeal the damn thing already.

  7. ppnl says:

    AMW,

    There really is zero chance of electing a non citizen president on purpose. Therefore there no reason to worry about divided loyalties. That’s why the rule about natural born citizens is irrelevant and pointless.

    It is remotely possible that we could accidentally elect a person who was not technically eligible. That possibility is very remote and there is no issue of divided loyalty with these people anyway. The only reason I see to change the requirement for natural citizenship is to avoid the ugly political fallout from this basically technical violation. But it is so unlikely that there is no point.

    The only problem is with people who believe in a Manchurian style candidate trained from childhood to infiltrate into the country to destroy us. The toxic burning stupid of this is far more of a danger to America than an army of secret Muslim communist Manchurian candidates ever could be.

    I laughed at the story of the Iranians suspicious that their squirrels were spying for the CIA. It is disheartening to see paranoia and xenophobia create an equal mass of burning stupid here.

  8. James Hanley says:

    The birther bill encompasses all that is wrong with the political process.

    And all that is deliciously right. Because while you’re correct that the motivation is terrible, the result–if it passes–will be that Arizona has to officially recognize Barack Obama as a natural born citizen. It’s going to backfire on these morons, and that will be a delightful moment.

  9. ppnl says:

    And all that is deliciously right. Because while you’re correct that the motivation is terrible, the result–if it passes–will be that Arizona has to officially recognize Barack Obama as a natural born citizen. It’s going to backfire on these morons, and that will be a delightful moment.

    You are assuming some level of critical self examination and that is exactly what the republican party lacks and is in desperate need of. The birther issue is just a mechanism to control that stumbling Frankenstein monster called the party base. What happens in the legislature or the courts is irrelevant as long as they manage to mainstream another stupid pointless issue in order to control the beast.

    Birtherism is just the latest in a long line of such issues like abortion, stem cell research, creationism, school prayer, gay rights… issues that would make government larger and more intrusive than otherwise. So republicans continue to mainstream the stupid in order to feed the beast. What the legislature does and what the courts decide is irrelevant as long as the beast gets its dose of stupid.

    I have seen republicans state flat out that if they ran for office they would have to lie about being a creationist. If they don’t then the beast that they created will crush them. That is why most intelligent republicans really did not want the birther issue to come up. Now they face the choice of helping to mainstream the idiocy or being crushed by the beast. Thank you Donald Trump. To be fair the issue was going to come up anyway. The beast is learning to create its own stupid.

  10. ppnl says:

    It seems that the Arizona birther bill has a provision that allows you to use a certificate of circumcision to prove citizenship. Just when I thought the load of burning stupid was as big as it was going to get.

  11. James Hanley says:

    Oh, lord, that is good. Thanks for sharing that.

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