The Supreme Redux: Is John McCain Ineligible to Be President?

Imagine this. The country is fresh from a close presidential election when the Supreme Court is asked to decide who will be president. If you are thinking about the 2000 election, think again. The expected nomination of John McCain for president could trigger a fight over a relatively obscure provision in the Constitution: the requirement that president and vice president be “natural born” citizens. McCain is certainly a citizen, but there is a legitimate question of whether he is a “natural born citizen” given his birth in the Panama Canal.

To complete this Supreme redux, former Bush counsel Ted Olson has been enlisted to develop arguments for McCain. Sen. Barack Obama and others would prefer to avoid such a sequel to Bush v. Gore. They have been quick to support a legislative fix introduced by Sen. Claire McCaskill (D., Mo.). However, such legislation unlikely to resolve the constitutional question, which will be answered on the basis of the language and purpose of Article II of the Constitution.

Section 1 of Article II of the Constitution states in part:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Under the 12th amendment, vice presidents must also be natural born.
The requirement of being “natural born” appears to have been initially suggested by John Jay — who wrote a letter to George Washington on the requirement. In his July 25, 1787 letter, Jay wrote:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

Some Framers were probably concerned with a desire among some to have a King, including some foreign princes who might rule the nation. (The theory that it was written to block Alexander Hamilton who was born in the West Indies seems apocryphal since he would have been grandfathered into eligibility at the time of the Constitution’s ratification.)

The requirement that an American be “natural born” has long been controversial, but few associated John McCain with the problem as opposed to popular “naturalized” politicians like Arnold Schwarzenegger. McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. As objectionable as it may be, it is not clear whether a Panamanian-born citizen is a natural born citizen. The issue has simply never presented itself for judicial review because all prior presidents were born in the United States.

The only president who seemed to have a possible Article II problem was Chester A. Arthur, the 21st president. Arthur was rumored to have been born in Canada, but claimed that he was born in Vermont.

Some past contenders for the presidency would have forced the question if elected – but weren’t. The last time that we faced this question in a serious candidate was Barry Goldwater, who was technically born while Arizona was a territory in 1909. Other such questions were raised by Mitt Romney’s father George Romney, who ran in 1968 despite his birth in Mexico, and former Sen. Lowell P. Weicker Jr., who was born in Paris.

The problem is that such an issue is only “ripe” for review after a general election and before the swearing in ceremony. While it is conceivable that a ballot challenge (contesting the eligibility to be on a ballot) is possible, a court could deny any pre-election lawsuit as an impermissible request for an “advisory opinion.”

Any review would turn on a difficult interpretive question. Two obvious meanings are possible. The Court could view the term as referencing a purely territorial qualification: people born within our borders. The Court could also view the meaning as encompassing a parentage meaning: covering people born to citizens regardless of the place of their birth. The latter interpretation would make natural born status as synonymous with citizenship and the colloquial term “native son.”

Interestingly, McCain and Olson each articulated different theories of why he is eligible. When confronted last week. McCain cited Goldwater and articulated a territorial argument – suggesting that a territory is U.S. soil and Panama was a territory. McCain insists that Goldwater had resolved the question, yet that is not accurate. It was never resolved because Goldwater was never elected president.
When pressed, Olson offered the parentage or native son theory. However, while there is some logical sense for such a theory, the historical sources and text do not establish such a meaning conclusively. Indeed, it does not appear to be the common law understanding of natural born at the time.

In answering this question, the court would likely look to English common law. Notably, the Parliament in the eighteenth century had to make special provisions for English citizens born in the colonies to guarantee things like inheritance rights and office holding under English law. It could be argued that these laws were necessary because it was not assumed that English parents alone or birth in a colony would qualify for the status of natural born citizens.

In 1790, Congress passed An Act to establish a uniform Rule of Naturalization, providing:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been residents in the United States … .

“Considered as natural-born citizens” can be subject to debate as to its meaning. Moreover, some would claim that this bill was an effort to change the pre-existing territorial understanding of that term.

The 1904 law governing births in the Canal Zone is equally unhelpful, merely saying that children of U.S. citizens shall also be citizens. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.

Absent a constitutional amendment, the issue will remain one of constitutional construction, not legislative correction. The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.

Military installations like Panama were sitting on leased land. Panama was never U.S. soil. It is different in that sense from embassies or even territories. If such military installations are U.S. soil, it raises a host of even more difficult questions. For example, when illegal immigrants have a child in the United States, the child is a U.S. citizen. Does that mean that foreign citizens who give birth at United States military hospitals or installations are entitled to U.S. citizenship for the child? How about U.S. ships or aircraft?
The new legislation will not likely resolve this question. If a court takes a territorial view of the requirement of being natural born, Congress cannot change that meaning through legislation –any more than it could redefine other words. Thus, it could not legislatively define the age 35 requirement to mean 25 by saying that it is the view of Congress that 25 is the new 35.

It is, of course, a good thing that members are seeking a resolution, but they will have to be cautious not to take one course that could fail in the brief window between a general election and the swearing in ceremony.

In the long run, the McCain candidacy can indeed serve to unite the nation – at least on one question. We need to amend our Constitution and allow all of our citizens to be eligible regardless of the place or status of their birth. As for McCain’s Panamanian problem, Congress is unlikely to be able to settle the question, which will remain not just one of constitutional interpretation but a close one at that.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Roll Call: March 6, 2008

24 thoughts on “The Supreme Redux: Is John McCain Ineligible to Be President?”

  1. PS The Clinton tag team are douchebags. If I was Bill I would do a hamster before Hillary or Monica. I wonder who Hillary was doing to get a kid that looks like that maybe a cousin in the trailpark.

  2. Get over it!!! You are all a bunch of retards. If the government wants a guy they will get him. If Arnie lives long enough he will be President.

  3. True patriots should want to preserve, protect and defend the Constitution of the USA.
    Article 2 Section 1 of the United States Constitution: “No person except a natural born Citizen, … shall be eligible to the Office of President”. The Constitution’s Presidential eligibility requirements are echoed in the 12th Amendment of the U.S. Constitution, and, more recently, in the Presidential Succession Act of 1947 and nothing short of a Constitutional Amendment can change that requirement, for Congressional Acts, vested in Article 1 Section 8 Clause 4 only grants Congress the power to “establish a uniform rule of naturalization”, not to re-define what “natural born” meant.

    The Constitution’s 14th Amendment sets forth the two principle modes of acquiring citizenship, birth in the U.S. and naturalization, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Those who crafted the 14th Amendment were very aware of Article 2 Section 1 Clause 5 eligibility standard for the Presidency of “natural born” and defined it as, “All persons born.. in the United States and subject to the jurisdiction thereof”.
    The United States’ Department of State’s Foreign Affairs Manual(7FAM1116.1-4(c)) says, “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth”. Clearly this statute means that fact of the McCain’s birth at the birth at the military hospital in Coco Solo Air Base in Panama’s Canal Zone, did not grant him any natural born citizenship status.
    In Rogers v. Bellei 401 U.S. 815, 828 (1971). The Supreme Court held that “children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment.”… “To this day, the Constitution makes no provision for jus sanguinis, or citizenship by descent… Thus, acknowledging petitioner’s claim that he is a Fourteenth Amendment citizen, Pet. 9, does not mean that his children born abroad have any right under the Constitution to United States citizenship at birth.”… “Our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Id. at 828. Such a statute would be a Congressional act, which can only naturalize, per Article 1 Section 8 Clause 4, “To establish a uniform Rule of Naturalization”, not make someone “natural born”.

    Although McCain may claim citizenship from 8 USC 1403(a): “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States”…someone who is “declared” a citizen by Congressional law is being naturalized and is NOT a “natural born” citizen. McCain’s citizenship status is “naturalized”, and not “natural born”. The act cited above “naturalizes” the citizenship of those born to US citizens in a foreign country through declaration of law, making a citizen through naturalization of those who would, except through the said act of Congress(8 USC 1403(a) would not be a citizen. The Constitution, Article 1 Section 8 Clause 4, gave Congress the power “To establish a uniform Rule of Naturalization” to make U.S. citizens out of those who would not otherwise be U.S. citizens..NOT to re-define what “natural born” meant, or make “natural born” those who, were born under another nation’s sovereignty and not in these United States, as was McCain. Nothing short of a Constitutional Amendment could do that.
    McCain has claimed that the Naturalization Act of 1790 covers his status as a natural born citizen. That is not true. A close look at the Act indicates that it only covers “admission as a citizen” (meaning naturalization), and that Act was repealed and replaced in part in January 1795 and again in total dpril 1802. So that argument does not work because it was repealed and replaced and because it creates naturalization instead of natural born citizenship for such a Congressional act can only naturalize, per Article 1 Section 8 Clause 4, “To establish a uniform Rule of Naturalization.

  4. THIS is not good enough for this election or any other
    AND you know it, VT!

    … “Whether a case is filed or not, and whether the courts take it or not, my prediction stands that the current Supreme Court will insure the seating of McCain. Look this up on January 20, 2009.’

  5. JT: The problem is that such an issue is only “ripe” for review after a general election and before the swearing in ceremony.

    In reality, it may only become ripe in December after Vice President Cheney, sitting as President of the Senate, presides over the counting of the votes of the Electoral College in the presence of the House and the Senate. The issue may have to be initially raised in that proceeding, and ruled on before any further legal challenge.

    After that, how would anyone other than the losing candidate have standing, and wouldn’t that be a political non-starter? Even if standing obstacles were overcome, would not the question of justiciability arise? The courts may say something to the effect that this is a political question not suitable to judicial scrutiny. They may say that it is textually committed by the Constitution to other parts of the government. They may not desire to interfere in the operations of the College and the vote count in Congress in the absence of a clear violation of the age, residence, and prior presidential service of the candidate.

    I am not sure there is much if any difference between McCain and Olson here. Assuming Goldwater’s parents were US citizens, then he was qualified to President under both theories, by birth on US soil and by birth to US citizens. McCain would qualify just as Goldwater did if he relies on his US citizen parents.

    If there were a real issue here, why wouldn’t a ballot challenge work? If a 25-year-old ran, or if Henry Kissinger or Arnold were put on a presidential ballot, I doubt if it would get past the Secretary of State, and proponents would have to sue to get the names listed. No one seems inclined to challenge McCain, but Goldwater was challenged in court. I recall that lawyers called him a foreign-born extremist in their filings. Cases were filed in California and New Jersey, and they lost, because Barry was on the ballot in all 50 states.

    Overall, this is a fine column that benefited from its out of town tryout on the blog, especially from xrlq who first flagged the fact that Alexander Hamilton probably did not have a McCain problem.

    Whether a case is filed or not, and whether the courts take it or not, my prediction stands that the current Supreme Court will insure the seating of McCain. Look this up on January 20, 2009.

  6. I wrote ‘bullet-proof’ meaning even if McCain has to stand aside. It can’t be let open to interpretation.

    Voters meed to be secure that the nominees, duly elected, will actually be the same ones to complete their swearing-in ceremonies.

  7. Yeah, I feel MUCH better knowing that it could be Cheney next in line, even temporarily, was my point. To me, they are interchangeably frightening and I want them both out.

  8. “THANKS for qualifying THAT little factoid”
    Riddle me this: Can a person disqualified from running for President claim to have a ‘majority of votes?’

    12th Amendment:

    ….and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

    >>!!And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

    You still don’t quite understand why I said what I did about Bush v. Gore and the 12th, 20th, 22nd and 25th amendments in that previous post; do you?

    First in time = first in right



  9. Bush would lack the capacity to remain in office after January 20, 2009 at 12:00 pm per the 22nd Amendent.

    Cheney on the other hand…

  10. “How about U.S. ships or aircraft?”

    I don’t know much Maritime Law, but wouldn’t the same rules making naval vessels sovereign entities at sea be applicable?

    Far as McCain goes; the greater tragedy will always be that Alexander Hamilton was ineligible to become president.

  11. The VP would become President and another VP would be chosen to replace him/her {{{shudder }}}

    Bush would remain in office while it is being tossed around
    – for at least the 2 plus months.

    That’s why it mustn’t happen. It has to be be ‘bullet-proof’ ahead of time, in my view.

  12. Very insightful. Your right it is ironic that the president who endorsed McCain yesterday is the one that may keep him from being sworn in. Although, I would not put it past this Supreme Court to just ignore precedent and make up a ruling that fits their political views.
    If this did get go to the supreme court and they found McCain couldn’t be sworn in, how would another president be chosen? Vice President? How would it effect the cases involving Guantanamo?

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