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41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility

41131059 MoC Memo What to Tell Your Constituents in Answer to Obama Eligibility

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Published by patgund
Supposed Congressional Research Service report (3 April 2009) regarding Obama Eligibility

(Note: This is a copy of an image document taken from Mario Apuzzo's website, where he claimed it as accurate. I have ran it though Optical Character Recognition, which made it available to cut and paste from, and had the side effect of straightening the pages. The content is identical to the original on said website. It is unknown at this time if this document is authentic or Yet Another Birther forgery)
Supposed Congressional Research Service report (3 April 2009) regarding Obama Eligibility

(Note: This is a copy of an image document taken from Mario Apuzzo's website, where he claimed it as accurate. I have ran it though Optical Character Recognition, which made it available to cut and paste from, and had the side effect of straightening the pages. The content is identical to the original on said website. It is unknown at this time if this document is authentic or Yet Another Birther forgery)

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Published by: patgund on Nov 05, 2010
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02/15/2014

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Congressional
-;;;;;;:;~~~
Resei!rch
~
~
Servlce-----------------------------------------
MEMORANDUM
April 3, 2009
Subject
Qualifications for the Office
of
President
of
the United States and Legal Challenges to theEligibility
of
a Candidate
From:
Jack MaskellLegislative AttorneyAmerican Law Division
This
memorandum
was prepared to enable distribution to more
than
one congressional office.
This memorandum addresses inquiries from congressional offices regarding the constitutionalqualifications for the office
of
President
of
the United States, and the issue
of
challenges concerningspecifically the questioning
of
President Obama's "natural born citizenship" status.
l
Many
of
the inquirieshave questioned why then-Senator, and now President, Obama has not had to produce an original, socalled "long" version
of
a "birth certificate" from the State
of
Hawaii, how federal candidates are "vetted"for qualifications generally, and have asked for an assessment
of
the various allegations and claims
of
non-eligibility status.Concerning the production
or
reiease
of
an original birth certificate, it should be noted that there
is
nofederal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his orher original birth certificate, or a certified copy
of
the record
of
live birth, to any official
of
the UnitedStates Government; nor
is
there a requirement for federal candidates to publicly release such personalrecord or documentation? Furthermore, there
is
no specific federal agency or office that "vets" candidatesfor federal office as to qualifications or eligibility prior to election.
3
The mechanics
of
elections
of
federal officials within the several states are administered under state law.
4
The quadrennial presidential election, although required since 1845 to be held
on
the same day in each
I
The standing qualifications
to
be President
of
the United States, at Article II, Section I, clause 5,
of
the Constitution providethat one must be at least
35
years old, a resident "within the United States" for 14 years, and a "natural born Citizen."
2
In addition to the "natural born Citizen" requirement for President, a United States Senator must be a "citizen"
of
the UnitedStates for nine years (Art. I, Sec.
3,
cl. 3), and a United States Representative must be a "citizen" for seven years (Art.
I,
Sec. 2,cl. 2). No general requirement exists for candidates to the United States Senate or House
of
Representatives to produce anoriginal, or a certified copy
of
a birth certificate.
3
The Federal Election Commission
is
authorized by law to administer and seek compliance with the
campaignjinance
provisions
of
federal law for candidates to federal office, and to administer and seek compliance with the provisions for public financing
of
the nomination and election
of
candidates for President, but has no duties or responsibilities with respect to judging or vettingqualifications or eligibility
of
candidates to federal office. 2 U.S.C.
§
437c.4Article II, Section I, cl. 2, delegates authority to the state legislatures to direct the manner
of
appointment
of
electors forPresident; and Article I, Section 4, cl. I, delegates to the state legislatures the initial authority for the "Times, Places and Manner"
of
elections to Congress, with a residual authority in Congress to make such regulations.
Congressional Research Service
7-5700
www.crs.gov
 
Congressional Research Service
2
state
5
is, in an administrative and operational sense, fifty-one separate elections in the states and theDistrict
of
Columbia for presidential electors. States generally control, within the applicable constitutionalparameters, the administrative issues, questions, and mechanisms
of
ballot placement and ballot access.
6
State election officials under some state ballot laws might thus require candidate "statements"
or
"declarations"
of
candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; inother states, representatives
of
the established political parties may certify names to the Secretary
of
State,
or
the designated elections official
may
place viable or "recognized" candidates on the presidentialpreference ballots.
7
In such cases, opposing political candidates
or
political parties may have "standing"to legally challenge the placement
of
a name
of
an opponent on the ballot,
8
or
state law may specificallyprovide for a procedure for timely protests to be filed concerning the qualifications
of
candidates.
9
Additionally, the relevant election official in the state, such as the Secretary
of
State, may have authorityto exercise
discretion
to challenge a self-certification
or
a certification by a political party
of
a candidate
whom
the election official believes is not eligible for the office.
It
would appear
to
be a matter
of
state lawand interpretation as to whether election officials in a particular state have discretionary authority toquestion the certification
of
a party's nominated candidate, or even a self-certification
of
a candidate,
if
such election officials were presented with actual probative, documentary evidence to rebut any presumed
or
self-certified eligibility. In
Keyes
v.
Bowen,
the California Supreme Court dismissed a suit against theSecretary
of
State which challenged President Obama's eligibility and the California electoral votes forhim, finding that: "Petitioners have not identified any authority
requiring
the Secretary
of
State to makean inquiry into
or
demand detailed
proof
of
citizenship from Presidential candidates," and thus mandamus
(a
writ
of
mandate) was not granted.
10
However, although no "ministerial duty"
or
mandatoryrequirement exists to support a mandamus action, there may still exist
discretionary
authority in suchelections official.
II
Several citizen law suits filed in 2008 challenging the eligibility
of
one
or
both
of
he major partycandidates for President were dismissed because
of
the lack
of
legal "standing"
of
he plaintiff. Article III,Section 2,
of
the Constitution provides that jurisdiction
of
the federal courts extends only to "cases" and"controversies," and this jurisdictional limitation
is
interpreted to mean that the litigant bringing a casemust have an actual
injury
which is real
or
concrete, as opposed to theoretical
or
hypothetical, and whichis also discrete
or
particularized to that individual or group, rather than overly generalized.
12
The
55
Stat. 721, Ch.
1,
January 23, 1845; see now 3
U.S.c.
§
1.
6
Storer
v.
Brown,
415 U.S. 724 (1974);
Jenness
v.
Fortson,
403 U.S. 431 (1971);
Bullock
v.
Carter,
405 U.S. 134, 145 (1972);
Lubin
v.
Panish,
415 U.S. 709, 719 (1974);
Anderson
v.
Celebrezze,
460 U.S. 780 (1983);
Williams
v.
Tucker,
382 F. Supp. 381,387-388 (M.D.Pa. 1974).
1
See, e.g.,
Senate Rules and Administration Committee,
Nomination
and
Election
o/the
President
and
Vice President
o/the
United Slates, 2000,
S.
Doc. 106-16 (January 2000).
8
Texas Democratic Party
v.
Benkiser,
459 F.3d 582, 585-588
(5
th
Cir. 2006),
Application/or Stay to Supreme Court, denied,
No.06-A-139 (2006), regarding ballot placement
ofa
"substitute"
opposition
candidate under state law, and the constitutional"eligibility"
of
the original candidate; see also
Fulani
v.
Hogsett,
917 F.2d 1028, 1030
(7ili
Cir. 1990), finding standing
of
opposition party to challenge ballot placement
of
opposing candidates;
Schulz
v.
Williams,
44 F.3d 48, 52-53 (2d Cir. 1994)(discussion
of
"competitors' standing" in a political context).
9
Note,
e.g.,
Ohio
Revised Code, § 3513.05 (formerly Ohio Gen. Code § 4785-70), and
McGowan
v.
Boardo/Elections, 105
N.E.2d
639
(Ohio 1952), appeal
of
voter protest
of
citizenship qualification in statement
of
candidacy
ofa
federal candidate.
10
Keyes
v.
Bowen,
Case No. 34-200B-80000096-CU-WM-GDS, Slip op. at 2 (Sup. Ct. Cal. March 13,2009). Emphasis added.
II
See, for example, unreported case
of
Cleaver v Jordan,
Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968),
cert.denied,
393 U.S. 810 (1968), where California court reportedly upheld discretionary authority
of
Secretary
of
State not to listineligible candidate for President on the ballot; and
Jenness v Brown,
also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27,1972), concerning ballot placement
of
an ineligible candidate in Ohio.
12
Baker
v.
Carr,
369
U.S. 186 (1962);
Flast
v.
Cohen,
392 U.S. 83 (1968);
Valley Forge Christian College
v.
Americans United
(continued .. )
 
Congressional Research Service
3
constitutional principles underlying this "standing" requirement -a component
of
the doctrine
of
separation
of
powers -reflect the limited role
of
the judiciary expressed in the Constitution and recognizethe deference to the democratically elected "political" or "representative" branches
of
the federalgovernment with regard to addressing generalized interests and questions
of
public policy andconstitutional precepts (as opposed to addressing particularized injuries resulting from constitutionalviolations).13 The general, societal interests claimed by certain individuals, where there are no cognizableparticularized injuries, are deemed intended to be addressed by the political process and by the "political"departments
of
government, rather than in the context
of
the more limited role assigned to federal courts.Thus, in both a practical and constitutional sense, the general, overall "vetting"
of
political candidates inthe United States is considered a consequence and product
of
the political process, and within thebailiwick
of
the political institutions and political branches
of
government. As noted by the SupremeCourt with respect to another provision in the Constitution, which was found not to be the proper subject
of
general citizen suits:
In
a very real
sense,
the absence of a particular individual
or
class
to
litigate these claims
gives
support
to
the
argument that the subject matter
is
committed
to
the
surveillance of Congress,
and
ultimately
to
the political process.
14
With respect to presidential candidates, this political process includes running the gauntlet
of
numerouspolitical party primaries, caucuses,
or
conventions in the states; being the subject
of
intense "oppositionresearch"
by
political opponents in one's own party in the nomination process, and by the oppositionparty in the general election campaign; scrutiny in the primaries and the general election by anindependent press; and the necessity
of
convincing the majority
of
voters in enough states
of
one'sabilities as well as qualifications.
S
For candidates
of
major political parties, there is an inherent selfinterest
of
the party to thoroughly "vet" a candidate to whom it is considering giving its nomination sothat the party will not waste opportunity and time, and deplete its resources,
on
a candidate who is noteligible for the office.Finally, concerning official oversight
of
"eligibility," it may be noted that the issue
of
qualifications
of
elected federal officials might be considered to have been delegated, at least in part, to one
of
the politicalbranches
of
government, that is, the United States Congress. With respect
to
the qualifications forCongress, for example, each house
of
Congress is expressly granted within the Constitution the specificauthority to "be the Judge
ofthe
Elections, Returns and Qualifications
of
its own Members.,,16 Thisauthority has been described by the Supreme Court as
"an
unconditional and final judgment" over theseating
of
its own Members,17 which
is
not reviewable by the courts because
it
is
"a
non-justiciable
( .. continued)
for
Separation
of
Church and State,
454 U.S. 464 (1982);
Allen
v.
Wright,
468 U.S. 737 (1984).
13
See,
e.g.,
discussions in Devins and Whittington (editors),
Congress and the Constitution,
(Duke University Press 2005).
14
United States
v.
Richardson,
418 U.S. 166, 179 (1974) (denying standing to citizens under the Constitution's "AccountsClause" (Art. I,
§
9, cl.
,
quoted in
Berg
v.
Obama,
574 F.Supp.2d 509, 520, n.13 (E.D. Pa. 2008),
stay app. denied, petition
for
review denied,
555 U.S.
__
Supreme Court docket
no.
08-570, December 9 and
17,
2008), denying "standing" to a voter orcitizen who has no particularized, differentiated claim, nor any concrete or actual "injury," concerning the qualifications clause.
15
As noted by a federal judge in summarily dismissing a citizen suit concerning President Obama's "natural born" citizenship(and ordering the attorney who was a member
of
that bar to show cause why he should not be disciplined for filing a frivolousand harassing lawsuit); "The issue
of
the president's citizenship was raised, vetted, blogged, texted, twittered, and otherwisemassaged by America's vigilant citizenry during Mr. Obama's two-year-campaign for the presidency, but this plaintiff wants itresolved by a court,"
Hollister
v.
Soetoro,
Civil Action No. 08-2254, Slip. Op. at
1-
2 (D.D.C. March 5, 2009).
16
Article I, Section 5, clause
I.
17
Roudebush
v.
Hartke,
405
U.
S.
15, 19
(1972). See also
Barry
v.
United States ex
reI.
Cunningham,
279 U.S. 597 (1929).

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