Tuesday, November 25, 2008
Proofin' the prez: Who's in charge?
Constitutional lawyer says electors have duty to investigate citizenship
By Bob Unruh
 Barack Obama |
A one-time vice presidential candidate who is considered an expert on the U.S Constitution says it is up the electors from the 50 states to make certain President-elect Barack Obama is a natural-born U.S. citizen before they cast votes for him in the Electoral College Dec. 15.
"If they do their duty, they would make sure that if they cast a vote for Mr. Obama, that Mr. Obama is a natural-born citizen," Herb Titus, the Constitution Party's running mate to Howard Phillips in 1996, told WND today.
"I think it should be resolved. The duty is in the Electoral College. Every Obama elector that is committed to casting a vote on the 15th of December, they have a constitutional duty to make certain whether Mr. Obama is a natural-born citizen," he said.
If the electors fail their duty and Obama proves ultimately to fail the eligibility requirement of the U.S. Constitution, there would be only the laborious, contentious and cumbersome process of impeachment available to those who would wish to follow the Constitution, he suggested.
The issue of Obama's citizenship has been in the news for weeks as multiple legal claims have asserted the Democrat is not a natural-born U.S. citizen. There have been claims he was born in Kenya, that he's a British subject because of his father and that he lost his citizenship in Indonesia.
Two of the cases are pending before the U.S. Supreme Court and several others that have fallen by the wayside.
Also, thousands of people are jumping aboard a petition that demands documentation of Obama's eligibility to hold the highest office in the U.S., not just assurances from party officials.
Already, more than 75,000 petitioners have joined the effort coordinated by WND founder and editor Joseph Farah.
To participate, sign the petition here.
A report accompanying Farah's petition explains the many questions raised about Obama's eligibility, from an apparently fabricated "Certification of Live Birth" posted online to questions about what nation's passport he used to travel to Pakistan.
One case is scheduled for a conference among U.S. Supreme Court justices Dec. 5. Conferences are private meetings of the justices at which they review cases and decide which ones to accept for formal review. The Supreme Court's website listed the date for the case brought by Leo C. Donofrio against Nina Wells, the secretary of state in New Jersey, over not only Obama's name on the 2008 election ballot but those of two others, Sen. John McCain and Roger Calero.
The case, unsuccessful at the state level, was submitted to Justice David Souter, who rejected it. The case then was resubmitted to Justice Clarence Thomas for conference Dec. 5.
Titus holds a law degree cum laude from Harvard, is admitted to practice before the U.S. Supreme Court and a long list of federal court districts, and helped found a law school. He told WND the framers of the Constitution specifically wanted the electors, citizen voters from all the states, to determine the presidency to avoid chief executives who are indebted to political parties or court decisions.
In 1788, Titus noted, Alexander Hamilton wrote in the Federalist Papers on the issue of the presidential election that "nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption."
"They have not made the appointment of the president to depend on any pre-existing bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment," Hamilton wrote. "And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.
"Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single state; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States," Hamilton wrote in support of the concept of the Electoral College.
If the electors fail, Titus said, "I think it moots the point."
"I don't think there is anything in the Constitution [that would allow a challenge based on a candidate's constitutional qualifications.]
"It would politically undermine Obama's re-election … and there may be an impeachment if someone concluded he deliberately misled the people, and knew he was not a natural-born citizen," he said.
Titus said the evidence clearly shows there are questions about Obama's birth that should be resolved. But he said he doesn't believe the courts will do anything, nor should they.
"If it's revealed it's only going to be [revealed because of] investigative journalism or by Obama himself," he said.
"It's only the Electoral College that has the duty and authority to determine is a person is qualified to be president," Titus said.
"We should act accordingly, get the names of all the electors, including McCain's electors, and urge them to do their duty," he said.
He said, however, the bottom line is that there are some people who would rather ignore the Constitution than dispense with a candidate who may be unqualified.
"Politically, [being ineligible] would be a very serious problem for [Obama,]" he said. "But there also would be people who would only shrug."
"It's up to the people. Essentially the Constitution is a covenant of the people with their government. If the people don't insist on their government officials abiding by the covenant, I don't know what you can do," he said.
Titus said the basis of a natural-born requirement traces back to the Old Testament, where Moses prophesied about the people of Israel getting a king.
"The whole notion of a natural-born citizen is designed for the purpose of making sure that the chief executive would not have politically divided loyalties," he said.
Supreme Court would decide?
Meanwhile, a veteran law enforcement officer and director of criminal justice courses says he believes the 2008 election results ultimately could come down to a decision by the U.S. Supreme Court, which issued a ruling eight years ago that helped put George W. Bush in the White House.
The assessment comes from James H. Hafeman, a veteran of decades in law enforcement who supervised an armed security force, taught criminal justice and directed criminal justice programs in Michigan. He submitted a commentary to WND, outlining his evidence.
Hafeman said his argument is based mostly on the U.S. Constitution, which outlines the requirements for eligibility for president, including that the candidate be a "natural-born" citizen.
While replacing a president is outlined in the Constitution, he warned the replacement of a president-elect who is found to be ineligible isn't simple.
"While many have speculated that an official declaration of Obama's ineligibility may lead to the appointment of Joe Biden as president, the speculation is inaccurate. Since it was up to the respective political party to properly vet their candidate before a primary election, they may not qualify to be rewarded for their lack of integrity. Additionally there is no separate balloting for president and vice-president; they share the same slot. Obama's ineligibility would effectively void the entire Obama-Biden ticket," he said.
Therefore, he said, other provisions likely would come into play
"We already know that if two candidates have an equal number of Electoral College votes, the members of the House of Representatives will collectively choose the president. Many citizens have been led to believe that it is the responsibility of the House is to decide the winner by majority vote, but that is incorrect. Members of the House of Representatives from each state would meet in a state-caucus type of meeting and vote with all congressional members from their respective state. The majority of the state's delegation would only have only one vote. Out of the 50 votes allotted among the House of Representative members, 25 plus a minimum of one vote would be required to elect the president," he wrote.
William Ball, a political science professor at Northern Michigan University, has said, "The results of the Electoral College are sent to the president of the Senate, but if there is no winner, then the House of Representatives, not the whole Congress, decides who will be president. But, in this process the State of Vermont or Wyoming with their one vote each would have as much power as California or New York."
Hafeman said the Constitution demands the same process for a situation in which a seated president becomes ineligible, but Obama won't be inaugurated until Jan. 20.
"This may be the first known case where a presidential candidate intentionally attempted to side step the specific requirements of the Constitution in order to run for the office of president," Hafeman said. "The 12th Amendment is quite clear. If the president is found ineligible, the vice-president shall become the president. However, the key is the 'president,' not the president-elect. In other words, if Mr. Obama is found ineligible to hold the office prior to his January 20, 2009, inauguration, the 12th Amendment would not necessarily be the guiding instrument for the Supreme Court.
"The Justices would be free to make their own determination regarding the specifics of the general election," Hafeman wrote.
So, Hafeman concluded, the high court may have to make some decisions.
If the worse fears about Obama's birthplace prove true, Hafeman said, the court will have to decide the consequences for providing inaccurate assurances of eligibility.
"Second, what process will be used to designate someone who will assume the office?" he wrote.
"Since all the secretaries of state will be forced to nullify the Obama-Biden ticket, the Electoral College votes would go to the next highest contender. The principle would award McCain-Palin with the total possible Electoral College votes – all 538 electors," he suggested.
"In the national-interest scenario, the question that might be asked by the Democrats may focus on the question as to whether or not they could hold an emergency national convention in order for the party to re-nominate a president and/or another vice-president candidate. If the Supreme Court declares the entire election invalid, then that may be a possibility, but it is highly unlikely since every other presidential team on the ticket were legitimate," he wrote.
"The Supreme Court may decide a new election is in order and would have to waive the two-term limitations of George W. Bush so that he can remain in office until the conclusion of the election. The continuation of his term is a viable course of action, but it may not be an action favored by the Supreme Court. Instead, the justices may simply view the anomaly as a political race with an illegitimate and disqualified opponent, which would result in a win for the McCain-Palin ticket."
On WND's new forum page, the level of frustration was rising. Dozens contributed their thoughts immediately after the forum was posted:
"What makes Obama non-respon[sive] to the simplest of requests?" asked one reader "Does he think that it is politically incorrect to ask for authentication of the myriad of facts about himself … Is he testing the grounds to see how far he can play with this charade?"
Other comments included:
- "Obama won his first election ever by getting three Democratic opponents thrown off the ballot? He's all for using the law to help himself win. Wouldn't it be ironic if he is not allowed to serve as president due to the law? … Turn around is fair play!
- "Even the left-wing liberal news media is beginning to ask the question: 'Who is this man we have elected? We really do not know much about him.'"
- "Obama's refusal to produce the ORIGINAL given birth certificate gives us all pause. His silence on these allegations is deafening. The anointed one believes that if he can hold us all back until he's in the Oval Office he's hit a home run and he's 'safe.' Ah, not so! Check your law, Obama, and you will see that even if were to make it to the White House you will no longer be able to hide behind those red velvet ropes."
- "There must be something that would have caused him great harm prior to the election, and would have stopped him from becoming elected. What could that little piece of information be?"
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