Let's pretend Obama really was born in Kenya. What would happen then?

Answers to your questions about the news.
Aug. 3 2009 5:54 PM

What If Obama Really Were Born in Kenya?

An Explainer thought experiment.

President Barack Obama. Click image to expand.
President Barack Obama

Despite a congressional resolution affirming President Obama's U.S. birth and a reaffirmation of his birth certificate's authenticity from Hawaiian officials, media outlets continue to air frivolous allegations that the president was born in Kenya, rendering him ineligible for the presidency. Let's pretend, for just a moment, that the birthers had credible evidence that Obama was foreign-born. Then what would happen?

Resignation, impeachment, or nothing. If Obama stood his ground, and Congress stood by him, then the only way to legally remove him from office would be for someone to sue. Problem is, no one would have standing to bring such a lawsuit. To establish standing, a plaintiff must show that he has suffered an injury personal to him, that the defendant caused the injury, and that the court could provide a remedy. That turns out to be an impossible task.

Average citizens could not show a personalized injury because Obama's allegedly illegitimate presidency would impact everyone in roughly the same way. Courts invariably dismiss such claims, like the 1937 case alleging that Justice Hugo Black was ineligible to serve because as a member of Congress he had voted to increase the justices' salaries. Even membership in much smaller aggrieved groups generally doesn't work. The Supreme Court rejected a suit brought by parents of African-American children challenging the IRS's lax enforcement of anti-discrimination laws and another by legislators who claimed their voting rights were diluted by the line-item veto. In both cases, the communal nature of the injury precluded standing. Thus the lawsuit of Army Maj. Stefan Cook, who argued that his pending deployment to Afghanistan by an illegitimate president constituted a particularized injury, was doomed to failure. (The case was mooted when the Pentagon canceled his deployment.)

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Obama's opponents in the 2008 presidential election can show injury, since their personal presidential ambitions were thwarted. Indeed, Alan Keyes has filed a lawsuit making just that claim. In order to get Obama out of the White House, however, Keyes would have to show that his injury could be redressed by the court. But the most a judge could do would be to remove Obama from office, making Joseph Biden the president. Keyes would be in the same boat he's in now.

Even if someone could establish standing for such a case, the courts might refuse to hear it under a prudential limitation called the political question doctrine. This states that courts will not settle questions that the Constitution clearly assigns to other branches. Because Congress can challenge the president's credentials during the vote-counting process and impeach him at any time, presidential eligibility is a classic political question. (Before the Inauguration, some argued that state courts, which operate under different rules from federal courts, might hear cases challenging the candidates' eligibility to appear on state ballots. This is highly unlikely now that Congress has ratified the election results.)

Of course, Congress could always vote to impeach Obama. In the words of then-Rep. Gerald Ford, R-Mich., during his attempt to impeach Justice William Douglas for questionable financial dealings, "an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Just as the political question doctrine would prevent Orly Taitz from removing Obama from office, it would stop him from challenging his impeachment in court. (Impeachment would not invalidate the actions Obama took while in office.)

Obama is not the first to face these allegations. President Chester Arthur endured years of unsubstantiated rumors that he was born on the wrong side of the Vermont-Canada border. Some opponents questioned Herbert Hoover's eligibility as well. Hoover met the Constitutional requirement of having been a resident within the United States for 14 years, but those years were not consecutive, and the Founding Fathers weren't clear on whether the distinction matters. Neither case made it to court.

Got a question about today's news? Ask the Explainer.

Explainer thanks Erwin Chemerinsky of the University of California-Irvine School of Law and Rick Shenkman of George Mason University.

Brian Palmer writes about science, medicine, and the environment for Slate and Earthwire. Email him at explainerbrian@gmail.com. Follow him on Twitter.

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