Below The Beltway

I believe in the free speech that liberals used to believe in, the economic freedom that conservatives used to believe in, and the personal freedom that America used to believe in.

The Arizona “Birther Bill” Is Unconstitutional

Arizona Secretary of State Ken Bennett is suggesting that the “birther bill” pending in the state legislature may be unconstitutional as it applies to candidates for Federal office:

Arizona Secretary of State Ken Bennett said creating state-level requirements for a federal office could violate the U.S. Constitution.

“While everyone has an interest in ensuring that only eligible citizens run for president, there are obvious issues with states implementing what could become a patchwork of different tests for a presidential candidate to prove his/her citizenship,” Bennett’s spokesman, Matthew Benson, wrote in an e-mail

This is most certainly true with respect to candidates for the Senate and House of Representatives, because of this provision in Article I, Section 5 of the Constitution:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

In other words, only the House and the Senate have the authority to determine if a Member meets the qualifications set forth in Article I, Section 2 (for the House) and Article I, Section 3 (for the Senate).

As for the President, it is fairly clear that the 12th and 20th Amendments pre-empt any state law.

First, the 12th Amendment provides in part:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following [changed to January 20th by 20th Amendment], then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The 20th Amendment says in part:

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.

The clear implications of these Amendments and Article II, then, is that the issue of Presidential qualification is one that solely belongs to the Electoral College and Congress. The states play no role at all.

The best news about this is that Bennett would be the one charged with enforcing the bill should it become law. I’m glad to see he’s not a wingnut.

Update: Brendan Loy raises this question in the comments:

[W]hy wouldn’t the states, who after all aren’t holding elections for president but for presidential (and vice presidential) elector, and who generally have substantial autonomy over the conduct of those elections, have the right to impose their own rules regarding the qualifications of the candidates to whom a slate of electors is “pledged,” in order for that slate to appear on the state’s ballot?

One answer to that question, I think, can be found in U.S. Term Limits v. Thornton.

In that case, Arkansas attempted to put a term limit on Members of Congress and Senators via it’s state Constitution by stating that a candidate’s name could not appear on the ballot if they had served three terms as Congressman, or two terms in the Senate. The Supreme Court struck down the state-imposed term limits, focusing primarily on the issue of whether states have the right to impose requirements beyond those strictly set forth in the Constitution:

[W]e believe that state imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification’s restrictive impact.

Finally, state imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. From the start, the Framers recognized that the “great and radical vice” of the Articles of Confederation was “the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE orCOLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.” The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e. g., supra, at 22-23. The Framers implemented this ideal most clearly in the provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be “chosen every second Year by the People of the several States.” Art. I, §2, cl. 1. Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: “The government of the union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” McCulloch v. Maryland, 4 Wheat., at 404-405. [n.31] Ours is a “government of the people, by the people, for the people.” A. Lincoln, Gettysburg Address (1863).

The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that inthe House, “the people at large, not the States, are represented.” 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers “were forming a Nati[ona]l Gov[ernmen]t and such a regulation would correspond little with the idea that we were one people.” Ibid. (Emphasis in original.) James Wilson “enforced the same consideration.” Ibid.

Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people.

Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428-429 (1819) (“Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States. They are given by all, for the benefit of all–and upon theory should be subjected to that government only which belongs to all”). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States. [n.32]

The holding in this case, then argues strongly in favor of the proposition that the states cannot impose requirements for federal office holders beyond those set forth in the Constitution. This would include the requirement that a candidate provide proof of his eligibility beyond the affidavit which every state requires a candidate or his representative to sign.

Moreover, it’s worth noting that there’s another angle to this argument on the Presidential side. Technically speaking, when we vote in a Presidential election every four years, we aren’t voting for the Presidential candidate, but for that candidates slate of electors to the the Electoral College. Given that, there’s a strong case to be made that the states have no authority over the issue of the eligibility of individual candidates because those candidates aren’t really on the ballot. [Yea I know that one is a stretch, but lawyers go out on a limb sometimes]

Between the Constitutional arguments discussed above, and the holding in Thornton it would seem to me that the Constitutional case for a state law like this is weak indeed.

9 Responses to “The Arizona “Birther Bill” Is Unconstitutional”

  1. Brendan Loy says:

    Hmmm… but why wouldn’t the states, who after all aren’t holding elections for president but for presidential (and vice presidential) elector, and who generally have substantial autonomy over the conduct of those elections, have the right to impose their own rules regarding the qualifications of the candidates to whom a slate of electors is “pledged,” in order for that slate to appear on the state’s ballot? Sort of like how each state has different standards for petitioning candidates and whatnot? The constitutional provisions you point to govern the qualifications of a president-elect once elected by the Electoral College, but I don’t see why they would forbid the states from passing laws, including stupid laws, regarding ballot qualification in the quadrennial Presidential Elector elections. If anything, the principal objection would be that it’s illogical to have such requirements regarding the presidential candidate, as opposed to the individual Presidential Elector candidates, but while illogical I’m not sure it’s unconstitutional.

  2. Let's Be Free says:

    Beware of lawyers proclaiming clear implications. This “legal analysis” is miles off point.

    The states have a right to choose their own electors. The cited consititutional provisions don’t go to how the states choose electors. These provisions dictate where the baton gets passed and what happens after it gets passed. The states have a fundamental, unambiguous right to determine which baton they want to put forward.

  3. Let's Be Free says:

    And Thornton is off point as well — it was a case about adding qualifications that were not in the Constitution (term limits for members of the House and Senate), not a case about enforcing qualifications that are in the Constitution. Interestingly, the Thornton opinion itself distinguished state practices enforcing qualifications that are only implicit in the Constitution (like that Representatives must be residents of their district) from its ruling. Bottom line, there is nothing approaching a clear implication that the Arizona law is unconstitutional.

  4. Requiring a candidate to produce a birth certificate is adding a qualification not in the Constitution.

    It doesn’t matter anyway, of course, because this bill if obviously aimed at Obama and, if it passes, he already complied with it.

  5. cargosquid says:

    Actually, he did not provide a birth certificate, whether he was elected or not. While the Constitution provides the requirements for office, shouldn’t the states be allowed to set the requirements to get on the ballot?

  6. cargosquid says:

    Sorry, mis_wrote. Meant to say “he did not provide a birth certificate. Whether he is elected or not, in 2012, or even in the race, ALL candidates will have to meet the requirement, in order to comply with Constitutional requirements.

  7. Let's Be Free says:

    Art. II, § 1, of the Constitution, provides that:

    “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. . . .”

    Under this authority, states decide state-by-state who does and does not appears on their ballots, all the time.

    There of course can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors.

  8. It’s the electors who appear on the ballot, not the Presidential candidates

[Below The Beltway is proudly powered by WordPress.]