I have had a few people ask me what would happen in Berg v. Obama if Obama was declared ineligible to run for the office because he is not a natural born citizen.
I have to confess, it was a good question, and I had to go back and look at the Constitution and puzzle through it for a while. My conclusions? It is a matter of timing.
I started with Article 2, Section 1, specifically:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
(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, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.) (This clause in parentheses has been modified by the 20th and 25th Amendments.)
Not being a natural born citizen is not a Disability that can be removed.
On to the 20th Amendment:
Amendment 20 - Presidential, Congressional Terms. Ratified 1/23/1933. History
1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
3. 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.
4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
Yeah, Section 3 jumped out at me, too. This phrase lead me to a real "Devil in the Details" way of thinking:
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;
My first impression? If Obama is declared ineligible prior to being sworn in but after the election, then Biden presides over a caretaker government. But is there an election? I would think that there would have to be in order to find a qualified candidate. Does the Democratic party appoint a candidate, or do they reset? When is the election then held? And who decides? I foresee a nightmare.
And if he is declared ineligible after being sworn in? The 25 Amendment comes into play, and we have been there before:
Amendment 25 - Presidential Disability and Succession. Ratified 2/10/1967. Note History
1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Section 1 is very clear.
Other nagging questions? If Biden heads a caretaker government under the 20th Amendment, does he get to appoint a Vice President pursuant to the 25th Amendment? I can think of reasons to say yes and reasons to say no. Still, kind of a mess either way around.
Why am I discussing this, I mean despite having been asked a few times? Because as an attorney and a political science major, it really bugs me that Obama and the DNC have chosen to fight Berg with Motions to Dismiss, rather than rendering the case moot by simply delivering the necessary documents. I know they have buckets of money, much of it from foreign nationals and governments, but nobody likes to pay members of my tribe when they don't have to. Additionally, if Mr. Hope and Change is all about "Changing politics and inspiring confidence" then why not play the trump card, show everyone who is watching that he IS qualified, and render the case moot, thus ending it, and effectively discrediting yet another naysayer. Really, Barry. If you are reading, what's the game? You aren't inspiring me, and frankly, if you could win me over, it would be a significant achievement for you. Instead, you are giving the appearance of a man who has something to hide. Why?