Is Arizona’s ‘Birther’ Bill Unconstitutional?

Arizona's so-called "Birther Bill" seems to violate several provisions of the Federal Constitution.

Doug Mataconis · · 149 comments

Following on the lead of the State Senate, last night the Arizona House passed a bill that would require every Presidential candidate to provide a so-called “long form” birth certificate, or some other form of proof of birth from a hospital, in order to appear on the Presidential ballot. As David Weigel noted, the law is written in such a way that it seems to be specifically designed to keep Barack Obama off the ballot. The bill now sits on Governor Jan Brewer’s desk where she can choose to sign it into law, veto it, or do nothing at all at which point it would automatically become law after five days. The question, though, is whether or not the bill is Constitutional.

The issues of Presidential qualification are dealt with, quite clearly it seems, in the 12th and 20th Amendments, which would seemingly pre-empt any state law on the subject.

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 Constitution does allow states to determine rules for ballot access, however, in U.S. Term Limits v. Thornton, the Supreme Court put important limits on what the states can make a ballot qualification when it comes to Federal offices.

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.

Arizona’s bill, if it becomes law, would also seem to be vulnerable to a challenge under the Full Faith And Credit Clause. Section 1 of Article IV of the Constitution requires states to give full faith and credit to the public Acts, Records, and judicial Proceedings of every other State. This includes accepting as genuine records from a sister state that have been officially certified under seal from the appropriate record keeper. Under Arizona’s law, the Hawaii Certification Of Live Birth, which is an official document from the State of Hawaii, and the only birth record that the state releases. By failing to accept this document, even for the limited purpose that this law is written for, Arizona would be failing to give full faith and credit to the records of not just Hawaii, but every other state that only issues COLB’s as birth records.

Assuming this bill becomes law, I would imagine we’ll see legal challenges fairly quickly. Hopefully, though, we won’t have to deal with that and Governor Brewer will do the right thing and veto this stupid bill.