Thankfully, Andrew Sullivan Is Not A Lawyer
Here, by the way, courtesy of [Ta-Nahesi Coates], are the legal rules for publicly producing such a detailed document:
“The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record.”
As TNC notes, “direct and tangible interest” means the registrant, an agent of the registrant, their parents, spouse and some others. So Obama had every reason and capacity as both the person whose birth certificate is on record, let alone as president of the US, to have done this months ago. But he decided to play rope-a-dope instead.
Ugh. This utterly misses the point, as Andrew refers only to the second of two subsections of the relevant Hawaii law cited by Ta-Nahesi Coates. That second subsection only directs that the responsible Hawaiian agency permit Obama and certain other specified persons access to the original records; it says nothing about whether such persons may make copies of those records, much less distribute them to the entire nation.
Instead, it is the first subsection cited by Coates, and which Sullivan appears to ignore, that contains the restrictions on circulating these records. That subsection (338-18(a[/efn_note] states:
To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.
This is far broader than the subsection cited by Sullivan, and restricts the circumstances under which not only the Hawaiian agency, but literally any person, without exception, may permit others to inspect, disclose, copy or issue a copy of that record. Obviously, a prerequisite for doing any of those activities is having access to the record in the first place, but no one has ever suggested that Obama did not himself have access to his original birth certificate. The issue was that without a properly handled waiver executed in accordance with the Hawaiian agency’s rules, it is actually illegal for one having access to those records to do anything in the way of permitting others to have access to those records. Placing those records in the public domain is of course the most extreme form of permitting others access imaginable, yet that is precisely what Obama had to get a waiver to do.
Quite literally, in order to release this document, the President had to ask to be treated as being above the law, even if it is a relatively trivial law in the grand scheme of things. Quite understandably, the State of Hawaii decided that this was a wise idea. That so many are prepared to insist that the President had an obligation to ask that he be treated as above the law from a very early date is far more troubling.