The Volokh Conspiracy

Is this ripe?

Is this ripe?

Yes, though perhaps not in the sense you asked the question.

And then there are the Hawaiian native nationalists who insist that Hawaii is a sovereign kingdom and not part of the United States either, because it was illegally annexed. For their argument on why the Honolulu born Barack Obama is not a a natural born citizen see:
http://www.hawaiiankingdom.info

Sorry--you need a final "/" to get that url to work.

Never mind. He is an attorney with a degree from "S.F. Law School" and works for the state. In that case the complaint isn't that good at all.

non justiciable; political question or perhaps the ripeness doctrine if that doesn't work

oh yeah-standing.

wow 3 different justiciability doctrines to overcome.

I really think the only way to ensure that someone has standing is if a secretary of state or some county official refused to put McCain on the ballot on the ground that he does not meet the constitutional requirement to be president. That would give McCain standing to sue, and it would eliminate the "political question doctrine" which this suit really doesn't address. If I was a judge, I'd punt and say "House of Reps certifies the winner of the Electoral College. Inherently political. Next."

Aside from standing, political question, and ripeness being obstacles, his complaint basically calls for an advisory opinion. If you read the complaint, he basically asserts there is a case or controversy because the law is unsettled, so the courts need to do something.

I think it's definitely ripe; the real question is whether it's a nonjusticiable political question. Likely yes under the current cases (which, unfortunately, are not that coherent). However, I would hope that the courts just rule on the issue, as it is pretty clear-cut (for several reasons, including but not limited to Jim's earlier post), and it will put an end to the crap we have to hear about it, and shut up people who really don't know what they are talking about. As I've said before and will say again, I wish McCain were not eligible to be President, but he is, and the way to make sure that he does not become President is to vote against him.

Aside from standing, political question, and ripeness being obstacles, his complaint basically calls for an advisory opinion.

The whole point of the standing &ripeness doctrines is to avoid advisory opinions so . . . of course, there's that problem. There also might not be a "case or controversy" under Article III. There also might not be subject matter jurisdiction. It might be unconstitutional for a federal court to issue an opinion in this matter. See what I am doing: I am just saying the same thing at a higher level of generality each time.

CrazyTrain,

Pardon my imprecise use of language, but when I said advisory opinion I was actually trying to say that, if you actually read his complaint, he does not even take a position on the issue. He literally just wants the courts to rule one way or another. You might be able to infer that he thinks McCain is not a natural-born citizen, but explicitly it is just begging for an answer.

And while standing and ripeness are both designed to avoid advisory opinions they are distinct ways of doing so, distinct ways of testing whether something is a "case or controversy" and, as with any such derivative test, the different tests actually leads to different results than if you simply tried to determine whether an advisory opinion was called for. Personally, for example, I think it quite laughable to call modern standing doctrine an attempt to make sure that only real cases or controversies are heard. Anyway, standing and ripeness, along with the more general advisory opinion issues, really are analytically distinct issues. And, of course, as you imply, political question doctrine does not really have much to do with the C&C Clause at all.

So are preemies

Preemie by what length of time? Weeks? Days? Minutes? Seconds? What about "posties?" How exactly is the "normal" gestation period for a human known with any certainty (it's definitely NOT 9 months)? Lay on, MacDuff!

Could a 34 year old run for president who will turn 35 on January 19, the day before he is sworn in as president?

I trust that whichever judge in the Central District ends up hearing this case gives it all the attention that it deserves--and dismisses it sua sponte for lack of subject matter jurisdiction (for all the reasons previous posters have mentioned--political question doctrine, nonjusticiability, standing, etc.).

However, perhaps that judge will give us a lucid opinion that will spell the timely and well-deserved demise of the stupid bill sponsored by Sen. Claire McCaskill (D-Missouri), purporting to "fix" Senator McCain's "problem." As Ann Althouse notes, the fix is almost certainly unconstitutional: Congress cannot alter the Constitution with a statute! A senator should know that! (So should the former Con Law prof Obama.)

BTW: did anyone notice that Aames captioned his complaint for the "United States Federal Court for the Central District of California"? It's a minor point, but shouldn't that be "United States District Court for the Central District of California"?

BruceM: the 35-year-old requirement, I would think, refers to eligibility to hold the office; as long as the candidate is 35 on the day he or she takes the oath, I think it's constitutionally kosher. It's never been tested with the executive offices: the youngest President, Teddy Roosevelt, was 42 when he succeeded McKinley; the youngest Vice President, John C. Breckinridge, was 35 when elected in 1856 and 36 by the time of the 1857 inauguration. However, I seem to recall some congressman who was only 24 when elected but had turned 25 (minimum Constitutional age for H. of Reps.) by the time he took the oath.

The youngest Senator in history was John Henry Eaton, who was elected at 28 and served for 3 years.

From the Wikipedia article: "His apparent age of 28 at the time of his inauguration is notable; it contradicted the US Constitution's requirement that all Senators be over the age of 30. At the time, many people did not know their actual birth records; although it is not certain what occurred in this case. In any event, if challenged, he could have referred to previous under-aged Senators Armistead Mason or Henry Clay."

Of course, according to the Constitution ("Each House shall be the judge of the elections, returns and qualifications of its own members"), only his fellow Senators would have had standing to challenge him, and the only remedy would be for two-thirds of them to vote him out.

I trust that whichever judge in the Central District ends up hearing this case gives it all the attention that it deserves--and dismisses it sua sponte for lack of subject matter jurisdiction (for all the reasons previous posters have mentioned--political question doctrine, nonjusticiability, standing, etc.).

Subject matter jurisdiction is a separate issue from political questions, standing or ripeness. In fact a federal court probably has to have subject matter jurisdiction in the first place before it can dismiss something as a political question.

John McCain was an alien at his birth in
1936. He was born at the old Coco Solo Naval Hospital in the Canal Zone.

Because the Canal Zone at the time of John S. McCain's birth was not outside the jurisdiction of the United States, but was outside the limits of the United States, the Acts
of May 24, 1934 [Public No. 250] [H.R. 3673] [Chapter 344] 73rd Congress, Session II, did
not apply because section 1933 of the Revised Statutes as amended required the child to
be "born out of the limits and jurisdiction of the United States" so he was not in the class of
children "declared to be a citizen of the United States." It was not until "the effective date "
of AN ACT Relating to the citizenship of certain classes of persons born in the Canal Zone or the Republic of Panama, that Senator John S. McCain III, born an alien, was declared to
be a citizen of the United States by naturalization through a Special Act of Congress of August 4, 1937, viz., [Public No. 242] [S. 2416][Chapter 563] 75th Congress, Session I.

By the current 8 USCS Section 1403, it states the effective date of Section 303 to the
Act of June 27, 1952 was at 12:01 ante meridian United States Eastern Standard Time on the 180th day immediately following enactment of June 27, 1952, viz., December 24, 1952.

Section 1403(a) of USCS Title 8 reads: "Any person born in the Canal Zone on or after February 26, 1904, and whether before the effective date of this Act, whose father or mother
or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States." Note: Section 303 of the Act of July 27, 1952
is the same as 8 USCS Section 1403 in its current form.

It should be noted that the Act of August 4, 1937 {Section 1} reads: "That any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective
date of this Act, whose father or mother or both at the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States." No where in
the Act does Congress state "the effective date". [Public No. 242] [S. 2416] [Chap. 563]
75th Congress, Session I.

In the House of Representives Report # 1303, 75th Congress, Session I, entitled "CITIZENSHIP OF CERTAIN CLASSES OF PERSONS BORN IN THE CANAL ZONE OR REPUBLIC OF PANAMA" [To accompany S. 24126] it states that children "born in Panama
do not come within the statutes on citizenship as they only provide for children born outside
the limits and jurisdiction of the United States".
"The fourteenth amendment to the Constitution provides that children born of parents residing within the United States and subject to its jurisdiction are citizens".
"Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, neither are they within the limits of the United States".
..."In form the bill closely follows section 6, title 8, United States Code, which has been in
effect since 1855 as to children born on the Isthmus, with only such modifications as are
necessitated by the special conditions on the Isthmus." ..."Section 6 applies to persons born out of the limits of and jurisdiction of the United States."

However on October 14, 1940, Congress approved AN ACT To revise and codify the nationality laws of the United States into a comprehensive nationality code. Section
203(a) stated: "Any person born in the Canal Zone on or after the effective date of this
Act, whose father or mother or both at the time of the birth of such person was or is a
citizen of the United States, is declared to be a citizen of the United States."

I was informed today by the Historian of the USCIS that the effective date of Section 203(a) of the Act of October 14, 1940 was on the 90th day immediately following the enactment, viz., January 13, 1941. She informed me that how the INS handled applications for "Certificates of Citizenship" between August 4, 1937 and January 12, 1941 of the class of Canal Zone born children was unknown to her, but suggest a FOIA (5 USC 552) to see if
Senator John S. McCain III (or his parents) applied for such a certificate, since he was an alien at birth.

I don't see how the electoral college can be considered a branch of government, or part of a specific branch of government (particularly when dealing with electing the head of the executive branch).

Notice Aames didn't state in his Complaint how the Court has jurisdiction (which it doesn't).

I'd actually really like to know whether a 34 year old run for president who will turn 35 on January 19, the day before he is sworn in as president? Do you have to be 35 to be on the ballot, to win the nomination, to be declared the winner of the election (whenever that may be), or to be sworn in on the following January 20th? I think the best, bright-line answer and the one most consistant with the language of the constitution is that you have to be 35 by January 20th, the time you're sworn in. Now if the swearing in ceremony is at noon and you were born at 4:34pm on January 20th, I don't know how to handle that. We seem to celebrate birthdays by days, that is, you're the next age at midnight the night of your birthday, and your birthday lasts until 11:59pm that day. People don't really care what time of the day you were born, and nobody would deny you your bithday presents in the morning because you were not born until the evening.

If memory serves, someone sued in 2000 to throw Cheney off the ticket because he was from the same state as Bush, but the Fifth Circuit, ruling from the bench, told the plaintiffs to stuff it.

Note that, regardless of standing or merit, that wouldn't be the right remedy. Nothing in the Constitution forbids the president and vice president from being from the same state.

"Could a 34 year old run for president who will turn 35 on January 19, the day before he is sworn in as president?"

Even puting aside the case of a 28 y.o. who serves in the Senate, I'd say "yes." Biden was elected to the Senate at age 29, but was 30 when he took the oath of office. I have no reason to think that the presidency wouldn't work the same way.

Bruce, I looked it up; I got the case name (and the essentials of the description) right, and the cite is 81 N.E. 2d 509 (1907) if anyone wants to take a look.

Hoosier - why would contemporaneous toleration of unconstitutional actions in the past bootstrap an unconstitutional action into validity today? Isn't that a prescription for giving the Constitution the death of a thousand cuts? Tradition and past practices are useful, yes - consuetudo pro lege servatur. But they have limits (that's the point of the famous footnote in Scalia's Rutan dissent).

My question about which branch the electoral college fits in was more or less rhetorical in light of the statement:

"People act as if the courts are the only ones who can determine constitutionality. Which leads to this attitude in legislatures (especially state legs) of "throw it against the wall and see what sticks." In reality, it is the duty of all three branches to uphold the constitution."

While I agree with the statement that all three branches should uphold the Constitution, it appears from the above discussion that none would have standing in this particular issue of eligibility and that only the electoral college would be able to resolve it when they vote.

While the electors are often bound by state law to vote for the ones they stood for in the election, I believe that they can vote any way they want and the vote would be legal. They may have to leave their home states, however.

Unlike the tripartite government, the Electoral College is very unsophisticated. They don't even meet, instead they vote in their own state and send the certified results on to the president of the senate whose only job is to count the vote. The Twelfth Amendment does mention that: " But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States" but this only seems to apply in the event of the House voting for president and implies that a VP can be someone ineligible to be elected president otherwise. No other mention is made about presidential eligibility.

So can the electors make the decision that someone is ineligible? It appears that they are the only ones with the power to do so as they have the total power in electing the president and vice-president.