What would it mean if Obama's birth certificate is a fake?

May 29, 2009 2:01 AM

What would it mean if Obama's birth certificate is a fake?

Some loonies are still trying to accuse President Obama as being an illegitimate President because they don't accept his Hawaiian birth certificate as being valid. I don't believe this for a second, but, just hypothetically, what would it mean if it were a fake, and he had actually been born in Kenya or somewhere else outside of the USA.

I don't think he could be impeached, because you can only impeach an official for a major crime committed while in office. Is there anything else according to the Constitution that could be done to remove him?

posted by edavidoff to Law & Government (36 answers total)

I'm a lawyer but not a practicing one, and not a USIAN lawyer.

There's probably all sorts of ways to contend that the "crime" is actually still being committed (one of the more interesting aspects of lawyering is deciding when a crime starts, ends and whether it actually does end). I think immigration crimes - being in the country illegally - could be regarded as a "continuing crime" (don't know the English legalese for this, but you catch the drift), a crime that doesn't end until you leave the country.

Also, there's probably all sorts of crimes that you can tack on to the later one. You could say that Obama is obstructing justice by lying about his birth certificate. This is why Republicans wanted to impeach Clinton by the way, iirc: not because he had sex with an intern, but because he had obstructed justice by lying about it.
posted by NekulturnY at 2:08 AM on May 29, 2009

That is, crimes you can tack on to the earlier one, of course.
posted by NekulturnY at 2:10 AM on May 29, 2009

Article 2 of the Constitution requires our presidents to be born in the USA.
posted by Houstonian at 2:11 AM on May 29, 2009

I don't think he could be impeached, because you can only impeach an official for a major crime committed while in office.

The Constitution doesn't say that. This Slate article says that it's never happened before, but people are proposing that we start with Jay Bybee.
posted by grouse at 2:12 AM on May 29, 2009 [1 favorite]

Article 2 of the Constitution requires our presidents to be born in the USA.

Actually, it specifies the president must be a natural-born citizen. Since Obama's mother was a citizen who was born and grew up in the US, he is a citizen too. So it doesn't really matter where he was born.
posted by ryanrs at 2:20 AM on May 29, 2009 [12 favorites]

People who talk about Obama's birth certificate would not accept that he's a "natural-born citizen" because of his mother's citizenship. Here's a look at the argument; essentially, that phrase has not been defined by the courts with regards to the president.

I'm not arguing the point, but that's what the argument is.
posted by Houstonian at 3:15 AM on May 29, 2009

To directly respond to the original question: if it were shown that Obama was a citizen but not native-born, then he would not be qualified to serve as president. The office would be declared to be vacant, and the VP (Biden) would be sworn in as President. He would then nominate a new VP, who would have to be confirmed by the Senate.
posted by Chocolate Pickle at 4:49 AM on May 29, 2009

and the VP (Biden) would be sworn in as President

I don't believe it's this simple. If (if!) a case were made, the courts ruled, etc...and Obama were found not qualified, wouldn't that require a new election? As Americans do not vote separately for President and Vice President, a (now) constitutionally-invalid vote for Obama would necessarily be equally invalid for Biden. In other words, a court ruling that the President was never rightfully elected under the rules of the Constitution would necessarily invalidate the concurrent election of his Vice President.

Or am I missing something?
posted by namewithoutwords at 5:13 AM on May 29, 2009

Wasn't John McCain born in Panama? So it would have been the same issue as him.

Regardless, if it were proven Obama was born outside of the US to an American mother, then I suspect we'd have a mighty quick constitutional amendment passed.
posted by bluedaisy at 5:15 AM on May 29, 2009

Wasn't John McCain born in Panama? So it would have been the same issue as him.
He was born in the Canal Zone, which at the time was considered US territory—I believe much like an embassy would be. (And it wouldn't "have been the same issue" because he's not a Democrat, of course.)
posted by likedoomsday at 5:33 AM on May 29, 2009

Asks namewithoutwords, "[if President were thrown out,] wouldn't that require a new election?"

I don't think so. We have in the Constitution only two ways to change Presidents. One is based on time -- every four years. The other is based on succession of roles -- VP, Speaker of the House, .... A President leaving office because we discover he's ineligible isn't a lot different than a President leaving office because he dies.

There is certainly no codified way of saying, "everybody, let's try again. Do over! We screwed up."

In any case, this is straining at (imaginary, invented) gnats in the case of the current President. I do admire the optimism of those conspiracy kooks.
posted by cmiller at 6:11 AM on May 29, 2009

He was born in the Canal Zone, which at the time was considered US territory—I believe much like an embassy would be. (And it wouldn't "have been the same issue" because he's not a Democrat, of course.

I agree, but wanted to add that it wouldn't be the same issue because John McCain's white and doesn't have a "funny" name.

These idiots who keep insisting that Obama was not US-born don't believe in the copy of his birth certificate provided by the state of Hawaii because Hawaii doesn't release original birth certificates. Of course, even if they did, those wingnuts would still find something wrong with it.
posted by ishotjr at 6:29 AM on May 29, 2009 [3 favorites]

I don't think there's any formal procedure for removing a president because he's ineligible. He would have to be impeached. Which means that the majority of democrats would have to be convinced that his mother being a citizen doesn't mean that he's a citizen ---a dicey argument even without partisan sympathies. So, I think that literally nothing would happen. He'd have more trouble getting reelected in 2012. If he ran again, there would undoubtedly be law suits, and the Supreme Court would get involved.
posted by Humanzee at 6:38 AM on May 29, 2009

It would mean that a lot of people, including myself, would have to rethink our opinions of right-wing loonies.

I mean that seriously; if they can be right about one obviously bullshit idea, what about others?
posted by TedW at 6:52 AM on May 29, 2009

The answer is - no one currently knows. The Supreme Court would probably decide the remedy.
posted by shivohum at 6:56 AM on May 29, 2009 [2 favorites]

Re: the Panama Zone sidetrack, see the Wikipedia entry on "natural born citizen," particularly the section on Presidential candidates whose eligibility was questioned due to the circumstances of their birth. Because the question of whether children of US Citizens born on foreign soil are, in fact, "natural born" citizens has never really been answered (in a legal sense), the Senate passed a resolution declaring that John McCain is, in fact, a natural born citizen.
posted by Banky_Edwards at 6:59 AM on May 29, 2009

(1) It would mean precisely nothing, because Obama is a natural-born citizen through his mother. This is part of why this particular wingnuttery is such weak sauce.

(2) An impeachable offense is anything the US House votes to impeach on. A convictable offense is anything the US Senate convicts for. In theory, a sitting President could be impeached and convicted for smelling bad, or for fucking up lots of shit, and there is precisely nothing that anyone on Earth can do about it because there is no appeal from federal impeachment and conviction.

(3) The Zone wasn't part of the US for citizenship. If it were, anyone born there would be a US citizen automatically, through the 14th Amendment. Citizenshipwise, it's no different than any other spot of foreign dirt.
posted by ROU_Xenophobe at 7:03 AM on May 29, 2009

If there was a forgery committed, and a cover-up, it would create massive upheaval. But this is a case of the hardcore conservative movement doing absolutely everything they can do create fear, uncertainty and doubt. Please don't feed the trolls.
posted by theora55 at 7:11 AM on May 29, 2009 [2 favorites]

the Senate passed a resolution declaring that John McCain is, in fact, a natural born citizen.

A Senate Resolution is not a law. If McCain's "natural-born" citizenship were otherwise in question, I don't think a Senate Resolution would resolve the issue.
posted by DevilsAdvocate at 7:26 AM on May 29, 2009

As Americans do not vote separately for President and Vice President, a (now) constitutionally-invalid vote for Obama would necessarily be equally invalid for Biden.

This is not quite the case. Americans do not directly vote for President or Vice President at all, but rather for a slate of electors who then cast direct (and separate) ballots for President and Vice President. Although some states require their electors to vote in accordance with the popular vote in that state, others have no such requirement, and there is certainly no such federal requirement. Additionally, there is no rule that says an elector must cast his or her votes for members of the same ticket. If an elector wished, he or she could have cast a presidential ballot for McCain and a vice presidential ballot for Biden.

So, all of this is a long-winded way of saying that even if Obama were determined to be invalid to hold the office of President, that would almost certainly have no bearing on Biden's status as Vice President.
posted by Nothlit at 7:53 AM on May 29, 2009

It would mean that his magical cloak of reverence and delight would fall away from his shoulders and he would tumble to the ground, a common man.

It seems that there is no cut-and-dried definition of "natural born citizen" as the courts haven't had to split the hairs this cleanly yet. He was born to an American woman who was young (18) at the time of his birth and there's some wheedling about her age and whether that disqualifies *her* as a natural-born citizen. But, I think ultimately, it is up to the state of Hawaii to decide and up to our courts if it goes that far. I have a hard time imagining him getting impeached by our current congress but crazier things have happened in the last 10 years.
posted by amanda at 7:59 AM on May 29, 2009

He was born to an American woman who was young (18) at the time of his birth and there's some wheedling about her age and whether that disqualifies *her* as a natural-born citizen.

Amanda, I'm sorry -- can you clarify that please? Are you saying that there is some wheedling about how old his mother was when he was born? Because I can't imagine anyone saying that she wasn't a citizen at the time of her son's birth (she was born in Kansas). If you are a natural born citizen, you are one regardless of your age.
posted by anastasiav at 8:20 AM on May 29, 2009 [2 favorites]

To the Birthers, nothing is too crazy:



The issue originally was raised by Jim Geraghty, reporting on the Campaign Spot, a National Review blog. He cited the "unlikely" possibility that Obama's 1961 birth was not within the U.S.

At the time, he wrote, "If Obama were born outside the United States, one could argue that he would not meet the legal definition of natural-born citizen … because U.S. law at the time of his birth required his natural-born parent (his mother) to have resided in the United States for 10 years, at least [f]ive of which had to be after the age of 16.'"

He then pointed out Ann Dunham, Obama's mother, was 18 when Obama was born, "so she wouldn't have met the requirement of five years after the age of 16."
posted by CunningLinguist at 8:35 AM on May 29, 2009

Shit, I don't know. I guess Obama's presidential oath would be disvalidated, and then any law or executive order that was signed by him since January would also be disvalidated. He would not be president, and could never be considered president.

Article II, Section 1 of the United States Constitution says:

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President … until the disability be removed, or a President elected.

The courts would decide whether following the laws governing succession means that Biden (or Pelosi) would automatically be president, or whether this requires some new emergency election. McCain could not automatically be president, as he never garnered the correct number of electoral votes. My guess is that Biden would take the reigns while the courts figured it out.

Eventually, all legislation that has passed will have to be reconsidered. They might have the New President go back and re-sign everything that has already passed Congress, and enact additional laws back-dating their effective date to their original signing date.

If the courts decided that we needed a special election, [Hilary Clinton or Joe Biden] would run against [Sarah Palin / Dick Cheney / John Boehner] in something like a 30-day time frame.

Otherwise, it's possible that a consensus of governors and Congress would enact a Constitutional amendment allowing Obama to be president, and pass special laws to validate all of the U.S. government's actions that went on in the past. There has been a fairly well-sustained push to relax the "natural born citizen" requirement to allow for naturalized citizens who have resided in the U.S. for, say, 20 years. Schwarzeneggar would be all for it.

By the way, it sounds ridiculous to say that you aren't a natural born citizen until you're 21.
posted by jabberjaw at 11:00 AM on May 29, 2009

The 25th Amendment supersedes Article II, Section 1, and says, "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." Since there aren't any qualifiers, I assume this would apply regardless of the reason for his resignation or removal. Ridiculous manufactured controversy aside, he was sworn in as president and he is the president.

If Obama were to resign or be removed from office, Biden would automatically become president. Then Biden would nominate a new vice president who would need to be confirmed by a majority vote of both Houses of Congress. For example, when President Nixon resigned, Vice President Ford became president, and Ford named Nelson Rockefeller as vice president.

I think this course of events is much more likely than rescinding anything that Obama has done in office (although the Republicans would try something), or a do-over. Basically Biden would (I believe Consitutionally) say he was president, and people would go along. If it went to the Supreme Court I believe they'd have to say Biden was president because I don't think the Constitution says anything about invalidating the results of an election or removing the president from office because he's not qualified. (It defines the qualifications, but doesn't say what happens if someone who's not qualified gets elected.)

When President William Henry Harrison died in 1841, it was unclear whether Vice President John Tyler would actually become president, or whether he would remain vice president but take on the powers and duties of the president, or be an acting president. Tyler basically said, screw it, I'm the president, and he was. That didn't stop people from calling him "His Accidency," though.
posted by kirkaracha at 11:51 AM on May 29, 2009

Why was it unclear in that case, but not, say, for LBJ?
posted by CunningLinguist at 12:02 PM on May 29, 2009

Biden's election was legal, and Biden has been sworn in as VP. That has nothing whatever to do with Obama, and if it were shown that Obama was not legally qualified to be President, that wouldn't disqualify Biden as VP.

The real issue here is just how much and what kind of evidence would be needed in order to disqualify Obama, and who would make the decision that it was enough. Congress could do it, of course, via impeachment but that's not going to happen. (As mentioned, in practice an "impeachable offense" is whatever Congress says it is.)

I think the Supreme Court could do it, too. But the Supreme Court has already refused to grant certiorari for a couple of pleas regarding this issue, and I doubt the vote was close. (Takes 4 justices to grant cert; I bet there weren't any in favor.)

But if SC did grant cert, and found the evidence convincing, then presumably they would issue an order declaring Obama to not be qualified to hold the office. In that case the office would become vacant, and constitutional provisions regarding Presidential succession would kick in. Which is to say, Biden would then be sworn in as President.

The question of bills Obama has signed is an interesting one. Legally speaking, I think it would be the same as if they'd all faced pocket veto. Article 1 section 7 says "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."

Since there hasn't been any adjournment, then it means all of them would be considered law even though there was no legal Presidential signature. However, in order to avoid ambiguity or controversy, I'm sure that the Congress would hurry up and pass them all again, and send them to Biden for his signature.
posted by Chocolate Pickle at 12:31 PM on May 29, 2009

Did this issue come up in '64 with Barry Goldwater (born 1909) in Arizona (became state in 1912)?
posted by TWinbrook8 at 12:38 PM on May 29, 2009

Why was it unclear in that case, but not, say, for LBJ?

Wasn't Tyler the first VP whose president died in office? By the time of LBJ it had happened many times and there was ample precedent.

It would mean precisely nothing, because Obama is a natural-born citizen through his mother.

Not clear. He is unquestionably a citizen because of his mother. Whether he would be considered "natural born" if it turned out that he was born in Indonesia is a different issue.

Regarding the possibility of an electoral do-over, we don't do that here. There is no constitutional provision for such a thing. I'm sure that this would be treated instead as an unusual case of the office becoming vacant, which would then be filled through the normal process of succession as established by the 25th Amendment and applicable federal laws passed thereto.
posted by Chocolate Pickle at 12:40 PM on May 29, 2009

I don't think "natural born" can be reasonably read to exclude the children of citizens traveling overseas or in another country from being eligible to be president, any more than the "right to keep and bear arms" means you can walk around town with a bazooka.

Even if he were found to be ineligible, it's not for the Court to deal with, it becomes something for the House to impeach him for if he doesn't resign first.

I doubt anything would be subject to a do over unless it was something particularly egregious, in which case congress would likely just take care of it instead of trying to get the courts to "make policy."
posted by BrandonAbell at 3:15 PM on May 29, 2009

Wasn't Tyler the first VP whose president died in office?

Yes, and if I'd thought to mention that in my earlier comment it would've been clearer. I regret the error.
posted by kirkaracha at 4:41 PM on May 29, 2009

(2) An impeachable offense is anything the US House votes to impeach on. A convictable offense is anything the US Senate convicts for. In theory, a sitting President could be impeached and convicted for smelling bad, or for fucking up lots of shit, and there is precisely nothing that anyone on Earth can do about it because there is no appeal from federal impeachment and conviction.

Incorrect, ROU_Xenophobe. Article II, Section 4 states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If there is no high crime nor misdemeanor, impeachment is clearly not allowed.

Your general idea stands - Congress can decide that damn near anything criminal is a high crime, if it so chooses, subject to dickering from SCOTUS - but there does have to be a crime to initiate the process.

This link describes the Framers originally discussing empowering Congress to impeach the President at their pleasure; this was then debated and reduced to its current "limitations". Vague as they are.
posted by IAmBroom at 8:36 PM on May 29, 2009

Additionally, ROU_Xenophobe, I'm not sure there's no appeal. SCOTUS could still second-guess the legislature. At first this seems unlikely, until you consider that SCOTUS got involved in Andrew Johnson's impeachment proceedings.
posted by IAmBroom at 8:38 PM on May 29, 2009

Response by poster: A lot of people have brought up the word "impeachment" here, but I'm sure that this would not be applicable here - which would be a pity, because impeachment proceedings in this situation would be a great deal of fun for young and old.

Instead, I reckon that the Supreme Court would simply declare him ineligible to be President under Article 2 Section 1 of the Constitution and declare the office vacant. Then the normal order of succession would apply.

It is interesting the think about what would happen to any legislation he has signed while he was a "false President." It might be too great a problem now, but suppose he wins a second term, and six years from now we find out that he is ineligible. Would every bill that he signed, every treaty that he made, every judicial appointment that he made, over those six or seven years be invalid?
posted by edavidoff at 8:54 PM on May 29, 2009

These idiots who keep insisting that Obama was not US-born don't believe in the copy of his birth certificate provided by the state of Hawaii because Hawaii doesn't release original birth certificates. Of course, even if they did, those wingnuts would still find something wrong with it.

That's not the issue.

The issue is that the state of Hawaii, until 1972, used to issue COLB's to the children of Hawaii state residents (with >1 year residency) who happened to give birth elsewhere, if the family moved back to Hawaii within a year of the child's birth. So the theory goes that President Obama's Hawaiian birth certificate certificate of live birth is perfectly real and legal, but factually incorrect.

Sound far-fetched? Well, supposedly, there's precedence for it in the president's own family: a few years later, his own half-sister Maya Soetoro (now Soetoro-Ng) was given a Hawaiian COLB under similar circumstances, despite having been born in Jakarta, Indonesia. I say supposedly, because I have Googled high and low for proof that Maya has a Hawaiian COLB, but have not seen any hard proof. Perhaps the Birthers are conflating that fact with the Indonesia-born Maya being named as a US citizen in the Soetoro/Obama divorce papers in 1980, which were leaked to the web a while back.

Now, genealogy is an awfully weird and arcane thing for a partisan attack-group to focus on, right? Well, it wasn't their idea: the whole mess started because Obama's own grandmother Sarah Obama was the one making the claims to the Kenyan press that Obama's mom Stanley Ann Dunham Obama gave birth to her son in Kenya while she was there visiting her husband* Barack Obama Senior's family. Again, supposedly.

So, that covers the wacky Kenyan-born meme. The other meme floating around is that since Obama was legally adopted by his step-father Lolo Soetoro, he did have Indonesian citizenship at one point. Obama's mom and step-dad divorced after he turned 18, so he was a legal adult for a few years with Indonesian dual citizenship, and there's no evidence he formally renounced it. Does that affect his eligibility for the presidency? Probably not. It's a neat historical footnote, though.

Obama is a smart guy and a former constitutional law professor. So if by some teeny tiny chance any this story ever turns out to be true, he would had to have known of his potential ineligibility for the presidency under the constitution, and would also had to have known that if the truth came out it could cause utter chaos in the courts and in DC. And that lie-by-omission would tarnish his halo something awful.

Look, if he wants to put this whole stupid issue to rest, all he needs to do is authorize a release of his long-form birth certificate. Not the short form, which in Hawaii is the same thing as the COLB, which he has already released. The long-form. He doesn't even have to release it publicly, just show it to the judge who's hearing this case. (Releasing his Occidental College admission papers would help clarify if he claimed Indonesian dual citizenship for their financial aid, too, but that's less pressing.) And then he can say "suck it" to the Birther crew and laugh gleefully, as will we.

* who was, very likely, never her husband under US law -- another legalistic oddity that the press likes to ignore, an attitude which IMHO feeds these kinds of wacky rumors in the first place
posted by Asparagirl at 10:55 PM on May 29, 2009

The Zone wasn't part of the US for citizenship. If it were, anyone born there would be a US citizen automatically, through the 14th Amendment. Citizenshipwise, it's no different than any other spot of foreign dirt.

Ah, but John McCain was born at a US military base hospital in the Canal Zone, at Coco Solo Naval Air Station. So he was literally born on US soil. (Embassies count, too.)

It would have been a bit more ambiguous (and fun!) if he had been born at some local Canal Zone non-military hospital. In that case, he would only have had US citizenship by virtue of being born to American parents -- and therefore have the same "natural-born" issues that Obama supposedly has.
posted by Asparagirl at 11:07 PM on May 29, 2009