Senator McCain's citizenship problem

David Traver

This article has is an interesting analysis of the continuing litigation problem faced by the presumptive nominee of the Republican Party, who may not be eligible to be President because he was born in the wrong place at the wrong time.

Before the usual "wizards" reply that McCain is a citizen, please note that is not the issue. The issue is whether he is within exactly the specific narrow classification of citizen who is qualified to take the oath of President. I think he is not, which is a surprising result.

Olan Barnes · Joined: 17 May 2004 Posts: 1083 Location: Michigan

It is an interesting question that may be settled in the courts but many have run for office born by US parents or in US territory - Barry Goldwater was born in the territory of Arizona - not the state of Arizona. McCain was born on a Naval Base by US parents by a father who became an Admiral in the Navy and on the US territory of the Panama Canal Zone.

I am an old Political Science Major and this was what we were taught in a liberal state institution:

"Natural Born Citizen Act Summary

PURPOSE: To define the term “natural born Citizen” as used in the Constitution to include three categories:

(1) Any person born in the United States and subject to the jurisdiction thereof,

(2) Any person born outside the United States to a U.S. citizen parent or parents who are eligible to transmit citizenship, and

(3) Any person adopted by the age of 18 by a U.S. citizen parent or parents who are otherwise eligible to transmit citizenship to a biological child.

This bill is intended to clarify the term and end uncertainty about the eligibility requirements to run for the Office of the Presidency. The definition of this term is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. Congress should be the institution that defines this term, not the courts.

Congressional Authority:

In the absence of a judicial interpretation of Constitutional language, Congress can express a legislative interpretation of Constitutional terms. A federal court would likely give great deference to Congress’ interpretation. The Congress also has broad authority regarding issues of citizenship. Article 1 Section 8 of the Constitution grants authority to Congress to “establish a uniform rule of naturalization.” Several federal judicial decisions recognize Congress’ plenary powers regarding issues pertaining to citizenship that do not specifically fit under the Fourteenth Amendment. Notably Rogers v. Bellei (401 US 815) and US v. Wong Kim Ark (169 US 649) say that Congress has the power to regulate matters pertaining to citizenship not specifically defined by the Fourteenth Amendment.

In addition, Congress has previously used their naturalization power to define the term “natural born” as used in a statute. In the Naturalization Act of 1790 Congress defined “natural born” to include children born abroad to citizen parents. Although the language was not kept in later naturalization laws, that specific language was not challenged.

Persons Born Outside the United States to Citizen Parents:

This bill clarifies that the term “natural born Citizen” includes children born outside the United States to citizen parents. This provision provides comfort and certainty to members of the American military and foreign services, as well as expatriate families, that their children, too, are eligible to run for president. These children are no less qualified than children born on American soil, and they should not be treated differently. Of course, children born to American citizens abroad would only be eligible to run for president if they satisfied the fourteen year residency requirement in addition to the “natural born” requirement.

Support for the position that the term “natural born Citizen” should include children born outside the United States to citizen parents is particularly well articulated in a law review article by Jill A. Pryor entitled The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty. This article argues that “any person with a right to American citizenship under the Constitution, laws or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.”

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http://www.jcics.org/natural%20born%20summary%20(word).doc.

David Traver · Posted: Wed May 07, 2008 06:06 pm Post subject:

That is from the language of an Bill, summarized here http://www.govtrack.us/congress/bill.xpd?bill=s108-2128 (you had a bad link).

Congress cannot modify or clarify the Constitution with an Act. That can only be done by an Amendment or the Supreme Court.

Sorry. It's nice posturing by the Democratic Congress, but believe me, they know that it has no power whatsoever. It's a wink and nod in the direction of being "nice."

This is going to hit the Republican Party like a wet diaper in the face. D'oh!