“Rethinking Presidential Eligibility”

Gene Mazo has posted this draft on SSRN (forthcoming, Fordham Law Review).  Here is the abstract:

Throughout American history, several aspiring presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. These challenges began in the 1880s, when Chester A. Arthur’s eligibility was disputed, and they continued into the twentieth century. In recent years, president eligibility challenges have become much more poignant. Moreover, recent eligibility challenges have not only been contested in the court of public opinion, but in the courts of law as well, where they have threatened the campaigns of several ambitious men. Although none of these challenges have ever been successful, they nonetheless have worked to sap presidential campaigns of valuable resources. This Essay examines several presidential eligibility challenges. It looks at the historic eligibility challenges confronted by Chester A. Arthur, Charles Evans Hughes, George Romney, Christian Herter, and Lowell Weicker, and at the more modern challenges confronted by John McCain, Barack Obama, and Ted Cruz. The literature on presidential eligibility traditionally has focused on discerning the meaning of the the Constitution’s Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a U.S. president must satisfy before taking office. By contrast, very little of it examines how a challenge to a candidate’s eligibility impacts a presidential campaign. Nor does this literature offer many solutions for what Congress can do to respond to these disputes. This Essay partly seeks to fill this gap, and it offers a modest proposal. It calls on Congress to pass legislation defining exactly who qualifies to be a natural born citizen or, in the alternative, to implement procedural rules that would expedite presidential eligibility challenges for review to the U.S. Supreme Court.

 

Share this: