Would a “Birther” bill be Unconstitutional under U.S. Term Limits v. Thorton?

April 24th, 2011

There are a number of proposed pieces of legislation that would require any Presidential candidate to submit proof that he or she is a “natural born Citizen” by submitting birth certificates or something to that effect. Quick question. Would such a bill be unconstitutional under U.S. Term Limits v. Thornton? As you may recall, in this case, Arkansas passed a law denying ballot access to any Congressional candidate who already served three terms in the House or two terms in the Senate. In a 5-4 opinion, the Court found that this additional requirement was unconstitutional. In other words, states could not add to the Constitution’s requirements.

Justice Stevens, writing for the Court noted:

Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. … Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people

Justice Kennedy concurred, noting that the law would interfere with the “relationship between the people of the Nation and their National Government.”

A birhter bill would seem to similarly interfere with the election of President by adding additional requirements. The Constitution does not require a birth certificate to establish that someone is a natural born citizen (what it requires,  I don’t know, but it seems these birther laws add requirements above and beyond what has historically been required).

I think that the argument for the constitutionality Arkansas’ law is even stronger, as a Senator or Representative only represents one state–Arkansas. From Justice Thomas’ dissent:

It is ironic that the Court bases today’s decision on the right of the people to “choose whom they please to govern them.” Under our Constitution, there is only one State whose people have the right to “choose whom they please” to represent Arkansas in Congress… Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

The President, by contrast, represents all 50 (or is it 57?) states. If Arizona or Oklahoma would impose such a law, it would impact far more than the people of that state.

So if such a bill is passed, expect some group to challenge this (ACLU probably), seek a preliminary injunction, and this law would be struck down.