Schwarzenegger 2020: Equal Opportunity to Govern

[Icelander]

Assume an alternate history with only the most miniscule changes; i.e. Arnold Schwarzenegger manages to get the Equal Opportunity to Govern Amendment (or a later equivalent) passed and/or wins a legal challenge on the grounds that Section 1 of Article Two of the United States Constitution (i.e. the 'Natural-born-citizen clause') is exclusionary, discriminatory and unconstitutional, in time to campaign for the current elections.

I'm not saying that this is in any way plausible, but I'm looking for the most realistic course of action that might ensue if some mysterious force* was enabling Schwarzenegger to win legal cases everyone expected him to lose and/or successfully lobby politicians of both parties at a much higher rate than would be reasonable.

First of all, which would seem less implausible?

Functional change in law through judicial activism, probably going all the way to the Supreme Court?

Or legal change through Constitutional Amendment?

If someone could give me some guidelines on plausible timelines, here, for whichever option they favor, that would be great.

This is a mere background detail in a game set in 2018--2019, where Schwarzenegger has been much more politically active since leaving the Governor's office and the PCs are aware of some very serious efforts to change the law. If possible, I want to be able to feature in-setting news, analysis and arguments about the ongoing process, just as background colour.

So, where and how would the first law suit be filed? How would Schwarzenegger have standing, considering that he'd have to file in the lowest court many years before the election, too soon to declare as a candidate in that election. In real life, he started in 2003 and there was a short second wind of effort in 2013, which petered out almost immediately in real reality. I'm thinking that this second wind might have been the visible changepoint.

Any comments and suggestions welcome.

*Extremelly well-concealed Alien Space Bats with oddly modest goals and a preference for enacting their nefarious schemes through the path of absolute least resistance. They will change as little as possible.

[Turhan's Bey Company]

Since this touches on politics, I'm mostly going to stay out of this, except to say that an amendment to the Constitution, a process which has historically taken anywhere from 100 days to just shy of 203 years, is the only remotely plausible way for this to happen. Oh, and if you want GURPS stats for alien space bats...

[Varyon]

Getting a portion of the constitution rendered unconstitutional strikes me as a complete non-starter, so it would need to be a constitutional amendment. By 2015, Arnie may have sufficient supernatural pull to be able to get the renewed attention at that time to go through and cause an amendment. It needs to have occurred too late for him to run in 2016, however, so it would need to be passed during the Trump administration. Spun correctly, it might be possible to convince Republicans that support for it will reduce some of the perception of them being anti-immigrant, yet without seeming to compromise on their position against illegal immigration. The Democratic Party strikes me as one that would generally be in favor of such an amendment, although there would be the risk of a Schwarzenegger campaign if they managed to oust Trump. There's also the issue that the Congress of the time is extremely partisan, and them working together on anything is rather unlikely. Still, enough supernatural and mundane greasing may be sufficient to get it through, priming Arnie for a 2020 run. I presume he wouldn't try to jump ship and join the Democrats, so there will be the oddity of someone going for a nomination in lieu of the sitting President, which will certainly be an uphill battle, but may be doable for the supernaturally-enhanced Governator. Failing that, he might be able to try for a third-party nomination of some flavor.

[RyanW]

Originally Posted by Varyon

Getting a portion of the constitution rendered unconstitutional strikes me as a complete non-starter, so it would need to be a constitutional amendment.

The only conceivable way is an interpretation of some amendment to have already repealed the requirement. The most reasonable way is via a reading of the 14th amendment as eliminating any idea of different tiers of citizenship. "Natural born citizen" can't be a privileged class given rights beyond those of other citizens (by the same logic, age and residence requirements are probably in jeopardy).

That would almost certainly require the intervention of alien space bats and probably a few voodoo sharks, but it's about the only legal sounding argument I can think of.

[Not]

He becomes a wildly successful Republican governor of California, teams up with governors Jesse Ventura of Minnesota and Carl Weathers of Louisiana to usher in a second "Era of Good Feelings," and is personally popular enough to lead a 38 state campaign to amend the Constitution while simultaneously running for president. He is so charming even his opponent votes for him (in an non-swing state).

[TGLS]

A semi-plausible series of events:

2008: Trolls attack McCain and Obama over the Natural-Born Citizen Clause. This makes some noise in the media. (Comment: McCain was born in the Panama Canal Zone, and Obama needs no further comment)

2015: Continued nonsense of similar magnitude targets Ted Cruz (born in Calgary, Alberta), Marco Rubio and Bobby Jindal (just nonsense on those two). A bipartisan movement promoting the reform of the Natural-Born Citizen Clause emerges.

After failing to resolve the issue through the courts (see the efforts of Abdul Karim Hassan), a constitutional scholar suggests resolving the issue by applying the Enforcement Clause of the 14th Amendment (Laurence Tribe noted this in Sept 2016). The movement passes a radical version of this law that effectively eliminates the Natural-Born Citizen Clause.

Late 2010s: The law is upheld by the courts.

2019: Arnold Schwarzenegger Announces his Candidacy.

[Icelander]

Originally Posted by Varyon

Getting a portion of the constitution rendered unconstitutional strikes me as a complete non-starter, so it would need to be a constitutional amendment.

Well, actual legal scholars have advanced the interpretation below and there have been court cases of this nature. In real life, I believe that you would lose such a court case like this, but as an attorney, I know better than to trust 100% in any prediction of how a court will rule.

And it seems that convincing a series of judges, up to the Supreme Court, to make a controversial, but not actually wrong* decision, would fulfil the requirements of my ASBs, i.e. requiring minimal change to the world. Changing the mind of a few people, no matter how important or invested with formal power, is less of a change than changing the mind of everyone who'd need to be convinced to pass a Constitutional Amendment.

*There are crucial pillars of modern US case law with much more contrived arguments behind them, generally because the Supreme Court disagreed with the text of the Constitution, felt a given right ought to be protected and twisted and pulled until they could argue it was.

Originally Posted by RyanW

The only conceivable way is an interpretation of some amendment to have already repealed the requirement. The most reasonable way is via a reading of the 14th amendment as eliminating any idea of different tiers of citizenship. "Natural born citizen" can't be a privileged class given rights beyond those of other citizens (by the same logic, age and residence requirements are probably in jeopardy).

That would almost certainly require the intervention of alien space bats and probably a few voodoo sharks, but it's about the only legal sounding argument I can think of.

From a jurisprudential point of view, it's about as plausible as the arguments behind most other decisions where the Supreme Court legislated from the bench.

Note that age and residence requirements are different in kind from privileging place of birth. Those are objective factors that would still pass legal muster as impacting the ability of someone to do the job and from a political standpoint, limiting fundamental civil rights such as voting or running for office on the basis of age and residence has a long, fairly uncontroversial history, with opposition to such arguments being fairly fringe point of views.

On the other hand, any philosophical and political defense of 'natural-born citizens' having more rights than other, inferior types of citizens is going to contradict some deeply held principles of equality under law and be really tough to pull off, politically, for any public figure unwilling to be painted as the newest nativist candidate for the Know Nothing Party.

As an outsider looking in, I can say that I support the legal rights that derive from several controversial Supreme Court rulings, but cannot honestly say that they are sound legal judgements. On several vital occasions, it was very much a case of 'X should be a right and so we will say that Y in the Constuitution actually means X, even if that isn't supported by the text'.

The reality is, however, that when the Supreme Court rules, it doesn't matter if it's a convoluted argument and not the most reasonable interpretation of the text. Their ruling still becomes the law of the land, in some ways, even more unassilable than actual legislation.

However, this can only work for alt-Schwarzenegger if the public would be supportive or at least indifferent enough of the functional change in law resulting from the court challenge so that there is no mass movement against him.

I don't have a handle on public opinion here. It seems fairly innocuous to interpret the 5th Amendment, as per the 14th Amendment, to strictly forbid any class of 'second-class citizens' by US law. I mean, there would be those who hated it, sure, but I'm guessing most of those would already be prone to hate an immigrant candidate anyway.

Originally Posted by TGLS

A semi-plausible series of events:

2008: Trolls attack McCain and Obama over the Natural-Born Citizen Clause. This makes some noise in the media. (Comment: McCain was born in the Panama Canal Zone, and Obama needs no further comment)

2015: Continued nonsense of similar magnitude targets Ted Cruz (born in Calgary, Alberta), Marco Rubio and Bobby Jindal (just nonsense on those two). A bipartisan movement promoting the reform of the Natural-Born Citizen Clause emerges.

After failing to resolve the issue through the courts (see the efforts of Abdul Karim Hassan), a constitutional scholar suggests resolving the issue by applying the Enforcement Clause of the 14th Amendment (Laurence Tribe noted this in Sept 2016). The movement passes a radical version of this law that effectively eliminates the Natural-Born Citizen Clause.

Late 2010s: The law is upheld by the courts.

2019: Arnold Schwarzenegger Announces his Candidacy.

That's pretty much what I was thinking, but wasn't sure if it would pass the plausibility muster. Passing a law based on a controversial Constitutional interpretation seems like the path of less resistance than needing to convince the almost absolutely everyone who needs to sign off on a Constitutional Amendment.

I was thinking that somehow, in my campaign, Ted Cruz could have pushed harder on this issue, not because he felt any more able to win, but because the ASBs wanted to use him as the plaintiff in their legal test case.

[Fred Brackin]

Originally Posted by Icelander

That's pretty much what I was thinking, but wasn't sure if it would pass the plausibility muster.

It doesn't pass any plausibility test and even if bad court decisions handwaived it past popular reaction would curse any candidacy based on it.

A Consititional Amendment might give people a sense of invovlement in the process. Courts running amuck and changing the Constitution unilaterally wouldn't.

[malloyd]

Originally Posted by Fred Brackin

It doesn't pass any plausibility test and even if bad court decisions handwaived it past popular reaction would curse any candidacy based on it.

A Consititional Amendment might give people a sense of invovlement in the process. Courts running amuck and changing the Constitution unilaterally wouldn't.

Rather than no requirement, consider changing the qualification from being 35 and a natural born citizen to be a citizen of the US for at least 35 years. That would qualify Schwarzenegger in 2018, explaining why he didn't run earlier even if you place passage of the amendment at a more plausible historical moment.

[Varyon]

Originally Posted by Fred Brackin

It doesn't pass any plausibility test and even if bad court decisions handwaived it past popular reaction would curse any candidacy based on it.

A Consititional Amendment might give people a sense of invovlement in the process. Courts running amuck and changing the Constitution unilaterally wouldn't.

This was kind of my thoughts as well. Directly contradicting the Constitution in the process of "interpreting" it strikes me as too extreme of judicial overreach for people to accept, even if they aren't strongly opposed to the content of the decision itself. It lends itself to a very dangerous precedent. I honestly think you'd need more support for repealing the natural-born citizen clause to allow the Supreme Court to functionally create a Constitutional Amendment from the bench than you would for getting it passed as an actual Amendment. It may be possible to spin things so that the general public will believe that this is supported by the 14th Amendment, but I feel you'd essentially need a general media blackout of the opposing opinion for this to really stick, as there's nothing in the 14th Amendment to support this - indeed, the very existence of the 15th and 19th Amendments make it clear the 14th didn't prevent the existence of "tiers" of citizenship.

Honestly, an Amendment is probably the path of least resistance here. Yes, for the Supreme Court to pass it, the ASB's have to at most influence five minds to favor it, while for an Amendment to pass they would have to influence enough members of the House, Senate, and the various State Legislatures. The former is clearly easier. However, in either case for such a ruling to stand, they'd have to influence enough of the general public (probably indirectly, by influencing how the media presents things) that it would have popular support, and I think this is going to be the most difficult part, to the extent that it dwarfs the difficulty difference between influencing the Supreme Court and influencing the Legislatures. If we accept that influencing the public is the most difficult part for the ASBs, we need to minimize opposition. The opposition to an Amendment is going to be in the form of those that are opposed to the content of the Amendment itself. The opposition to a "Judicial Amendment" is going to include all of those who would be opposed to the Amendment itself, as well as those who would be in favor of or indifferent to the Amendment but be opposed to such a gross case of judicial overreach. The latter set will always be larger than the first, and thus the Judicial Amendment would be more difficult for the ASBs to successfully pull off (particularly considering the possible backlash, like impeaching Supreme Court Justices and the like).