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Presidential MQs*

* = minimum qualifications

April 2011

The row about President Obama's birthplace brings us to the question of who checks the required qualifications of candidates for federal office. The answer is not reassuring, and Congress needs to take action.

The recent noise by a few conservatives about where President Obama was born is, of course, nothing but political hay-making. We've elected the man, he's the president. Get over it.

But this silly row does serve a useful purpose: it reminds us of how poorly we're vetting candidates for public office. I don't mean here that we're not selecting the best candidates for national leadership posts. That's a fact, of course, and I've written about that before, but that seems to be an inevitable feature of popular democracy: for better or for worse we elect people we like. People with good hair who smile. You know – politicians. Naturally, once we elect them, we don't like them any more. That's OK, that's life, that's democracy.

The serious issue, though, that the recent rantings of the right-side lunatic fringe has brought to the fore is: who ensures that the candidates who qualify for positions on ballots actually meet the legal requirements, if any, for the job they're running for? On the national level the surprising answer is: no one! As we know, most elections in the U.S. are for local and state level positions. In some cases there are actually minimum qualifications requirements for such positions. At the state level, the secretaries of state or the state boards of elections are responsible for clearing qualifications, and at local levels the county boards of elections are responsible.

But at the national level . . . no one is responsible, though constitutional minimum qualifications of age, citizenship, and residency exist for U.S. representatives, for senators, and for the president/vice president. Since the question of presidential minimum qualifications has been in the air, let's look at that. The Constitution sets three simple minimum requirements to qualify for the presidency. From Article II, Section 1:

No person except a natural born Citizen . . . 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.

Now that rule sounds clear enough. To be eligible to be U.S. President you must, at the time of inauguration, be at least 35, have been born a U.S. citizen (not necessarily born in the U.S.), and have been a resident of (been domiciled in) the U.S. at least 14 years. (There is no restriction on when the domicile requirement shall have occurred.) So whose job is it to enforce provisions of the Constitution? That's very simple: it's the responsibility of Congress to create and fund the vehicles for enforcement of the Constitution, and to provide policy guidance and relevant law. But here we have a critical constitutional requirement that Congress hasn't touched. No federal entity has been given the task of ensuring that MQs have been met. I assure you that if you apply for the lowest civil service job, your fulfillment of the MQs will be checked and rechecked. If you don't meet the requirements you will not get the job.

It doesn't appear that any U.S. presidents to date have failed to meet the presidential MQs, but how bizarre is it that the job some would consider the most important in the country (I would say it's just the most prominent) could, thoretically, be handed over to anyone, whether they meet the constitutional requirements or not! Clearly, Congress has not done its job in this area, and it's high time that they do.

The clear and simple duty of Congress at this time is to ensure that those who run for federal office meet the requirements for that office. And the organization to do that already exists: the Federal Election Commission. It only needs to have this task added to its plate. Well, it'll need some additional staff and funding, no doubt, though vetting the couple of thousand federal candidates every other year is not a massive undertaking. The task will consist largely of receiving from candidates required official documentation of their age, citizenship, and residence history, and in the case of the President, evidence of birth as a U.S. citizen, and of certifying the same.

The FEC was created in 1975 to administer and enforce the Federal Election Campaign Act. Their duties have been limited to the area of campaign financing, and they've been going through trying times since the Supreme Court's disastrous "Citizens United" ruling last year. But they are the one federal agency with oversight responsibility for elections, and the task of ensuring the qualifications of candidates for federal office is a natural adjunct to their assignments. Congress must close this glaring loophole in the election process, so that we will not see a repetition of the current unnecessary flap, which has been embarrassing both nationally and internationally. In the future, anyone who has questions about the legal qualifications of an elected federal official should merely have to check the public records at the FEC, available on the web. Congress needs to ensure this, posthaste.

© 2011 H. Paul Lillebo

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