The Birthers' Attacks and the Judiciary's Article III 'Defense' of the Obama Presidency
Southern University Law Review, Vol. 38, p. 179, 2010-2011
55 Pages Posted: 24 Oct 2014
Date Written: 2010
This paper argues that the federal court’s decision, refusing to hear attacks on presidential eligibility, could extend further in its analysis of the presidential eligibility clause and the doctrine of non-justiciability. While the Court’s analysis applied solely to protecting the office and election of a sitting President, this paper argues that facets of the non-justiciability doctrine, specifically the doctrines of political question and ripeness, can also be applied to the time frame between Election Day and Inauguration Day and could possibly be applied throughout a presidential campaign. Therefore, the federal courts could actually protect any presidential candidate, President-elect, or sitting President from a qualifications attack by using the case and controversy doctrine of Article III. Part I will, therefore, provide a concise history of the birther movement and its efforts at litigating President Obama’s eligibility. Part II will examine and define the justiciability doctrine which federal courts have adopted and defined over the years with special emphasis on the doctrines of political question and ripeness. Part III will examine Judge Carter’s decision in greater detail as it applied the political question doctrine to the issue of Barack Obama’s eligibility in his position as a sitting President. Lastly, Part IV will analyze and deem non-justiciable the question of a President-elect’s qualifications for office as well as a presidential candidate’s qualifications for office by virtue of the political question and ripeness doctrines. Finally, the conclusion will question whether this use of court power, as in Bush v. Gore, is an acceptable support of protection of the Constitution.
Keywords: political question, justiciability, presidential eligibility
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