Friday, February 13, 2009
Yesterday's Wall Street Journal ran two pieces - here and here - about the difficulty of citizens challenging Hillary Clinton's salary through the Emoulients Clause or Barack Obama's eligibility through the Natural Born Citizen Clause. The argument can be summarized as follows - according to the courts, a citizen will never be found to have standing in any such cases, so taken to the extreme, California Governor Arnold Schwartzenegger could become President despite the Constitutional violation, because no one would be able to object.
I belive that both pieces greatly overstate the potentional danger for several reasons. First, the piece ignores the political reality. Because everyone in the nation knows that our President must be a citizen, would there really be a groundswell of support for a person that would ultimately be unable to serve? It seems highly unlikely.
Second, the Court suggested in Richardson that the CIA's compliance with the Constitution could be best monitored through the political process. Assume for the moment that a person pretended to be a citizen, was elected, and was later discovered to be a non-citizen. What would prevent Congress from impeaching that person immediately? Since impeachable offenses can be broadly defined, this certainly seems possible.
Third, there is a legal reason why the plaintiffs in cases such as Berg v. Obama lost - they could not prove that they had suffered an injury. In cases such as this, it may appear that a person could never demonstrate an injury. I don't beleive this is so. In the cases that have been litigated on the eligibility of John McCain and Barack Obama, it appears that the courts declined to find an injury because it was at least plausible - and indeed, fairly certain - that both Obama and McCain were United States citizens. However, in the case of someone like Schwartzenegger, a Court would not be able to rest on such arguments as comfortably, and would have to work harder to prove that the person was not truly injured. Indeed, this scenario would be different than the generalized taxpayer grievance. It's not about the payment of taxes but about something that goes to the fundation of our democracy.
Finally, the articles overlook a very important point. It's an open secret that judges freqently use justiciability doctrines to avoid hearing knotty cases on the merits. Any federal court could have resolved the "Obama's not a citizen issue" by looking at the evidence and ruling on the issue. However, politically, a court might not have wanted to get involved in the political fray, as a ruling either way might have stoked the fringe elements. It is not farfetched to think that a court looked at the evidence, saw that the case had very little chance to prevail, and simply dismissed it before ruling on the merits.
In short, the standing issue could be far more complicated than we anticipate. With the right plaintiff, on the right facts, courts could be more open to a challenge.