Yesterday, President-Elect Barack Obama promised an administration that will set a "new higher standard of accountability, transparency and oversight."

Tomorrow, members of Congress will have an opportunity to ask the President-Elect to demonstrate some of that promised  transparency to the American people as it relates to details of his own personal history that are of Constitutional significance.

Public Law 110-430 changed the date of the electoral vote in Congress in 2009 from January 6 to tomorrow, January 8. The Code of Federal Regulations outlines specifically what will happen then:

The Congress meets in joint session to count the electoral votes (Congress may pass a law to change the date). The President of the Senate is the presiding officer. If a Senator and a House member jointly submit an objection, each House would retire to its chamber to consider it.

The President and Vice President must achieve a majority of electoral votes (270) to be elected. In the absence of a majority, the House selects the President, and the Senate selects the Vice President. If a State submits conflicting sets of electoral votes to Congress, the two Houses acting concurrently may accept or reject the votes. If they do not concur, the votes of the electors certified by the Governor of the State would be counted in Congress

 

Rarely does this electoral college vote counting exercise turn into anything more than a ceremonial event. And, given the recent disinterest in the once red-hot issue of President-Elect Obama's "natural born" status, and consequently his eligibility to hold the Office of President, tomorrow may be no more than a rubber stamping of the results recorded in the fifty state capitols on December 15, 2008.

Certainly the dismissal of virtually all the lawsuits filed questioning President-Elect Obama's natural born status does little to suggest tomorrow will be anything but ceremonial. The reticence to date of even one Republican member of either the House or the Senate to promise to raise the issue tomorrow would further suggest that Obama's obstructionist failure to reveal his original birth certificate has succeeded so spectacularly that even his harshest critics have been intimidated into silence.

And yet, there's this small matter of the facts, which can be summarized as follows:

(1) There is no credible evidence that Barack Obama was not born in the United States.

(2) The evidence offered by the State of Hawaii Department of Health on October 31, 2008 does not definitively prove that Barack Obama was born in Hawaii.

Some of us interpret the "natural born" clause of the Constitution as one that places the burden of proof on the candidate. By that standard, President-Elect Obama is not eligible to serve as President because he has not met the burden of proof.

He could meet that standard easily by answering the following question:

Can you tell us the name of the hospital in which you were born, and will you publicly authorize that hospital and the State of Hawaii Department of Health to release all the documentation related to your original certificate of birth dated August 4, 1961 ?

Answering this question, and authorizing the release of all documents would meet the standard of transparency he himself has set for his own administration.

Some argue that even posing this question is simply sour grapes on the part of those of us whose party lost the election. To the contrary, I think it is a very legitimate question to ask, and one which should be raised by at least one member of the House and one member of the Senate before the electoral college votes are counted tomorrow. And, lacking a satisfactory answer to that question, all members of Congress will be justified in rejecting any electoral college votes presented on behalf of Barack Obama.

Failure to properly answer this question tomorrow, even if Congress chooses to accept the electoral college votes presented on behalf of Barack Obama, will provide just the right legal arguments for those of us in the opposition who choose to file legal challenges to any and all laws signed by President Obama after he is inaugurated on January 20, 2009.

If the President is not eligible to serve in the office, then any law he signs will arguably be voided. This same argument applies to any executive order he signs, or any order he gives a member of the executive branch. Is it a lawful order, for instance, if it is given by a President who has not met the burden of proof to demonstrate he is eligible to serve in the office ?

Most Democrats, and many Republicans may argue this is not a sound theory. 

Everyone knows that the State of Hawaii has affirmatively declared that Senator Obama was born in Hawaii, and that the appropriate state officials have visibly inspected the long form birth certificate signed by the attending physician who delivered him at 7:42 PM on August 4, 1961 in a Honolulu, Hawaii hospital.

 Everyone--or almost everyone--knows wrong.

The positive evidence that Barack Obama is "natural born" is limited to this finely parsed three paragraph statement released by Dr. Chiyome Fukino, Director of the Department of Health for the State of Hawaii, on October 31, 2008:

"There have been numerous requests for Sen. Barack Hussein Obama's official birth certificate. State law (Hawai'i Revised Statutes §338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record.

"Therefore, I as Director of Health for the State of Hawai'i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai'i State Department of Health has Sen. Obama's original birth certificate on record in accordance with state policies and procedures.

"No state official, including Governor Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawai'i."

The Associated Press took this three paragraph statement and wrote the following headlines and lead story on October 31:

State declares Obama birth certificate genuine
Oct 31, 2008
HONOLULU (AP) -- State officials say there's no doubt Barack Obama was born in Hawaii.
Health Department Director Dr. Chiyome Fukino said Friday she and the registrar of vital statistics, Alvin Onaka, have personally verified that the health department holds Obama's original birth certificate.

 

Most people seem to accept the AP interpretation of the statement as the statement itself, and falsely considered the case closed. But closed it is not.

Doctor Fukino's October 31, 2008 statement that the "the Hawaii State Department of Health has Barack Obama's original birth certificate on record in accordance with state policies and procedures" is consistent with any one of the following three evidential circumstances:

(1) A long form original birth certicate signed by the attending physician stating that the birth occurred at a specific Honolulu, Hawaii hospital dated 7:42 pm August 4, 1961 exists and was physically viewed, inspected, and verified by Dr. Fukino and Vital Records Chief Dr. Alvin Onaka.

(2) An alternate document dated subsequent to August 4, 1961 by as much as one or several years,  verified by one witness consistent who may or may not have been an attending physician which may or may not name the hospital of birth in Honolulu, Hawaii or elsewhere  was physically viewed, inspected, and verified by Dr. Fukino and Vital Records Chief Dr. Alvin Onaka.

Such an alternate document was legally submitted under the Hawaii Birth Certificate Program, which was a law on the books in that state from 1911 to 1972.

 (3) No physical document was viewed or inspect.  Instead, the information technology records and procedures  related to the manner in which the data base record for Barack Obama that is enterred into the State of Hawaii Birth Certificate data base was physically viewed, inspected, and verified by Dr. Fukino and Vital Records Chief Dr. Alvin Onaka.

The AP headline is accurate only if the first of these three possibilities--that the long form original birth certificate signed by the attending physician was verified by Dr. Fukino--is the case.

 But if the second possibility--that an alternate document was verified--or the third possibility--that the verification was only of the information technology procedures related to the inclusion of the electronic record of Barack Obama's birth information in the State of Hawaii Birth Certificate database--are the evidential basis of facts upon which Dr. Chiyome's October 31, 2008 statement was based, then Senator Obama has not met the burden of proof to establish that he was natural born, and is therefore ineligible to serve as President of the United States.

My own personal view is that nothing can explain President-Elect Obama's continued year and a half pattern of clearly non-transparent active resistance to making his original birth certificate publicly available for viewing except that there is some sort of problem with this document.

If I had to "bet the house" and pick one of the three possibilities suggested by Dr. Fukino's October 31, 2008 statement, I would place my bet on option 2--that no original birth certificate exists, and that an alternate document--as provided by Hawaii Law at the time--is the documentary evidence to which Dr. Fukino referred in her statement.

While such evidence may be satisfactory to meet the State of Hawaii standards for issuance of a certification of live birth document, I will leave it to legal scholars to determine if it meets the burden of proof requisite to meet the "natural born" Constitutional requirement for eligibility to serve as President. I suspect that it is this area of uncertainty which has fueled President-Elect Obama's non-transparent obstructionism on this topic.

I am quite willing to give Mr. Obama the benefit of the doubt on this matter at the moment, and believe that it is entirely possible that he himself may not know where he was born.

In any event, my message to the President-Elect is simply this:

Mr. President-Elect, it's time to back up your words with actions. If you state you want to be the most transparent President in history, why not actually start out by being transparent on such an important matter as your own birth certificate ?

And my message to Republican members of Congress and the Senate is equally simple:

Will you have the courage tomorrow to object to the counting of electoral college votes for President-Elect Barack Obama until he produces all the documentation related to his original birth certificate and establishes, once and for all, that he is, in fact, eligible to serve as President of the United States?