The Post & Email by Joseph DeMaio 3/20/2023
Recently there appeared here at The P&E – one of the few remaining viable and non-censored Internet “natural born Citizen” information sources – a particularly relevant and insightful post. The P&E post reprised the article and substance of a proposal advanced here by one Roger Ogden. Mr. Ogden, in turn, properly acknowledged the origins of the argument by eligibility guru Mario Apuzzo, Esq. – lamentably, passing away at age 65 on October 10, 2021 – and first advanced by him back in March 2011. That post by Mr. Apuzzo from 2011, by the way, should first be perused by anyone interested in the proposal now being advanced in 2023 by Mr. Ogden.
The essence of the current proposal is quite simple: the states have the power under the Constitution’s “Elections Clause,” Art. 1, § 4, Cl., 1 to enact laws of their own setting forth the requirements of a presidential candidate to qualify for inclusion on a primary or general election ballot. Under that power, states would be able to adopt, in their own jurisdictions if they so chose, the definition of a “natural born Citizen” (“nbC”) articulated in § 212 of Emmerich de Vattel’s 1758 treatise “Le Droit des Gens,” or “The Law of Nations.” This provision, of course, is believed by many to be the source for John Jay’s noted July 25, 1787 letter to George Washington “hinting” at the wisdom of restricting the presidency exclusively to a “natural born Citizen.” (Emphasis Jay’s)
Thus, a “red” state could then prescribe that a presidential candidate must adduce competent evidence that the candidate is a nbC as posited by de Vattel – born on U.S. soil to two parents who are already U.S. citizens – as discussed among many other places here, here and here.
On the other hand, a different “blue” (or even purple) state might enact a statute adopting the “Wong Kim Ark” (“WKA”) theory mandating a definition stating that mere birth alone here – and under some variations on the theme, birth, for example say, in Canada or Panama – and regardless of parental citizenship, would be enough to render the person a nbC.
Clearly, this dichotomy would (or at minimum, should) present a wealth of opportunities for opposing litigants in either the red state, the blue state or the purple state to file suit challenging the constitutionality of the respective statutes. For ease of reference here, let us give these species of statutes an acronym: “POPE” or “Proof of Presidential Eligibility” statutes.
In addition to providing an avenue to challenge a POPE law before the Supreme Court by a private party in a state that had enacted a statute requiring, in order to appear on the ballot, documentation of a candidate’s presidential eligibility articulated under either a de Vattel § 212 definition of a nbC or, alternatively, a “Wong Kim Ark” or “WKA” definition, another potential option exists.
Specifically, in order to avoid “standing” issues which could otherwise complicate challenges to either of such species of POPE statutes by private litigants, original jurisdiction in the Supreme Court – obviating questions of private litigant standing – may be found in Art. 3, § 2, Cl. 5: “The judicial Power [of the Supreme Court] shall extend… to Controversies between two or more States….”
More:
https://www.thepostemail.com/2023/03/20/the-role-of-states-and-popes-in-presidential-eligibility-determinations/
