John McCain: A 'Natural-Born Citizen'?
Although many believe he was carried down to earth by a choir of angels, the taxalicious Barack Obama was actually born in Hawaii. So he doesn't face the same sticky question about presidential eligibility that John McCain confronts. From the New York Times:
The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.
To address the question, the McCain camp hired the best legal talent money can buy:
But given mounting interest, the campaign recently asked Theodore B. Olson, a former solicitor general now advising Mr. McCain, to prepare a detailed legal analysis. “I don’t have much doubt about it,” said Mr. Olson, who added, though, that he still needed to finish his research.
So, what do you think? Take our reader poll. We realize you probably haven't researched the issue. But not having completed his research -- i.e., "my recent SCOTUS-clerk associate is still surfing Westlaw" -- didn't stop Ted Olson from having an opinion.
One ATL tipster had this quick take: "SCOTUS seems kinda gray, but going by the Insular Cases...it ain't lookin' good. Maybe an open thread for people to comment and discuss?"
McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out [New York Times]
Does John McCain Have a Birthplace Problem? [WSJ Law Blog]
(89) Comments
What? McCain is a terrorist?
The founders didn't think he was natural born, that's why they passed the law they did in 1790. All that did was made those children citizens. It never made them natural-born citizens.
I won't believe he's a terrorist until I see the proof... you know, a picture of him in a robe and turbin.
President McCain's first act in office should be to draft all the commie pinkos from the two Obama threads.
If this story were written directed at anyone with a (D) next to their name it would be labeled a smear.
The NYT was shocked that it's last story was met with such disapproval from its readers. Somehow this is supposed to be better? I think all the candidates are terrible, but if they keep this up I'll be inclined to vote for McCain just to spite the Times.
12:03 - you might want to reread the Constitution.
Anyone that thinks there is a snowball's chance in hell that McCain will be ruled ineligible is a fucking idiot.
Why do I keep thinking people are talking about John McCain's birth canal?
His mama's Panama Birth Canal.
Well, if we read some of the Guantanamo cases and some WWII era decisions, the line for what is the equivalent of US soil is somewhat blurred by the SCOTUS decisions. When you get the rights of a person on US soil and when you do not depends on control of the territory, and a number of other factors - IE foreign temporary military base = not, while semi permanent base in cuba = maybe. I assume a natural born citizen would allow for similar reasoning - but the court tends to make things up in cases like this.
"my recent SCOTUS-clerk associate is still surfing Westlaw."
Get with the times. Gibson Dunn hasn't landed a SCOTUS clerk in a few years. I don't know if there are even any associate-level SCOTUS clerks in the DC office any more (one left a few months ago). Maybe Olson is actually doing his own work...
The picture of Mac at the top of the page is awesome. He should email it to Obama (or Hillary - hopefully) every day during the presidential campaign.
I'm 12:03 - I don't think the court would ever rule against McCain - I think courts would not want to hear the case in any substantive matter. I'm just saying the Constitution referred to Natural Born and then Congress in 1790 - the supposed authorities on the meaning of the Constitution - passed a law to expand the meaning of the term Natural Born. The expansion would be unconstitutional in the same way the Judiciary Act was ruled unconstitutional in Marbury v. Madison.
The argument of protecting the country from having a foreign born commander in chief is a bright line rule, with no regard for the spirit of it. That is why, technically speaking, I believe McCain is not Natural Born as defined by Article II section 1.
It probably won't happen that he's ruled ineligible, just because the ramifications would be ridiculous, but if you look at the Insular cases, there are some interesting issues in play.
1) The US Constitution only applies when territories are formally adopted as an "integral part" of the United States by Congress. Otherwise they are under the direct control of Congress, sans Constitutional rights? PCZ was not formally integrated. See De Lima v. Bidwell and Downes v. Bidwell
2)http://en.wikipedia.org/wiki/Natural-born_citizen
The discrepancy seems to be "citizen BY birth" i.e. natural born citizen, and "citizen AT birth," i.e. children of citizens born abroad. To be a citizen BY birth, you must be born in the United States. Was the PCZ part of the US? Also, although not entirely related because the PCZ wasn't foreign per se, the State Dept says via the 14th amendment, "A child born on the premises of such a facility [overseas] is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."
Also, the 1790 law people keep referring was superseded by later laws that did not define children born overseas as "natural born citizens"
What about test-tube babies and cesarean section deliveries? Natural-born? Homey don't play that in P-town. Taylor pork roll what?
"Although many believe he was carried down to earth by a choir of angels, the taxalicious Barack Obama was actually born in Hawaii."
Lat, this anti-Obama thing has gone too far. No one contests that you, just like the NY Times, has the right to endorse a candidate. The difference is, however, once the NY Times endorses a candidate it doesn't mock the other candidates in every political piece it does.
Doesn't "natural born citizen" just mean born a citizen, as opposed to naturalized?
12:11: You're an American hero. To vote in order to spite the print media is to carry out the vision of the Founders.
12:03, you're probably right, but it will be interesting to see how the strict constructionist crowd reconciles their beliefs with the "plain language" of the Constitution that requires a "natural born citizen"
12:27 hit the nail on the head. This is getting annoying, are you going to do this for the rest of the race or just until Hil-dog drops out?
Bottom line - There is no good reason McCain should be excluded from being President, and a reasonable argument can easily be constructed that he is a natural-born citizen (U.S. citizen from birth born to U.S. citizens stationed abroad in the service of the U.S.). So, no Court is going to rule McCain ineligible to be President. Therefore, 12:13's assessment, while crude, is accurate.
Well, if I'm not eligible for the Presidency, I'll just have to conquer the US and make it a vassal state in my evil empire.
Maybe we'll have to annex Panama and have it become the 51st state. That will solve the problem.
12:31: I always liked the Supreme Court's "no good reason" holding... which case was that in again?
its gonna be pretty funny when the same people who think theres a "right to privacy" argue that what the constitution says actually holds. dumb liberals (dumb being restrictive to mean only referring to the dumb liberals, not the other ones - who are genius enough to come up with decent arguments justifying their perverted faith)
Finally, my evil plan is coming to fruition as one of our own will soon control the stagflation-bound, Iraq-tethered, housing-busted, unemployment-rising empire.
Mooooohaaaaaahaaaahaaaaahaaaa!
Hey Lat this is a law blog. Stay out of politics!
*AUDACIOUSLY HOPES CIVIL WAR WILL NOT ERUPT IN IRAQ AFTER OBAMA PULLS OUT TROOPS*
It's not going to matter when the old guy loses to Obama...
The guy was born on a U.S. military installation from two citizen parents who were there on orders. I *gulp* agree with Lindsay Graham that it would be pretty stupid to even challenge that. "We support the troops but not the natural born status of their children . . . " Good luck with that.
12:37: You're an idiot. I'm sorry, but you're an idiot. If you don't think that both "conservative" and "liberal" justices both make stuff up, you're completely out of touch. I mean, Scalia himself found a right to exclude gay scout masters from the Boy Scouts where none exists under an originalist interpretation of the Constitution. Get a clue.
Hawaii = Paradise = Land of Angels
Local Boy to the White House!
Fact is that he was born outside of the U.S. and therefore not a natural born citizen. Doesn't this raise standing issues though? Who could bring this before the court - Obama?
Interestingly, the far left 9th Circuit may be the best place for law on this. In an effort to expand the rights of putative citizens, almost all citizenships by birth have been made automatically retroactive to birth under Ninth Circuit law. This is what is known as "acquisition" as opposed to "derivative" citizenship. Since McCain is the child of two US citizens who was born abroad, under 9th Circuit law, he was a US citizen from the moment of his birth.
12:29:
I also don't think our Founders envisioned such a group of NTACs as our potential leaders.
12:45, I could have sworn that opinion was based heavily on the plain text of one of those pesky Amendments. hint: you shouldn't have to read the Bill of Rights for too long before you come across it.
12:28's view is what I had thought-- I would take "natural-born citizen" to mean anyone who can claim American citizenship at birth, as opposed to being naturalized, regardless of where they were actually born.
Hawai'i dude, you're up early!
what about test tube babies?
LOL at Obama being "taxalicious."
McCain's parents are citizens, so he's a citizens.
Besides, McCain HAS to be eligible, otherwise who will I vote for if that tax whore Obama gets the nom?
Heh. Does the liberal left really want to try this? Let's look at the problems with this one:
1) Essentially, you guys are writing off the military vote entirely (how many have served overseas--their kids aren't citizens anymore?)
2) The levels of hypocrisy are astounding with respect to illegal immigrants (they deserve all the rights of citizens!!! but a republican born abroad doesn't!!!)
3)Obama himself has potential problems with dual citizenship. Do you want to open up that can of worms?
Ted Olson is my dude.
Has anyone else noticed that the Times' political reporters are beginning to resemble a cabal of zealots who'll stop at nothing to install Barack Hussein Obama in the White House? And this despite the fact that their editorial board endorsed Clinton and McCain.
Local Boy to the White House!
Go Buff-n-Blue!
Love,
Hawai'i
12:52: Hint: You're an idiot.
"Who could bring this before the court - Obama?"
Not sure if there would be a "case or controversy" until he was actually elected. In which case, it would be his back-stabbing running mate who would want to be President that would seek to have him removed based on ineligibility. President Huckabee it is!
I have a completely off-topic question for which I would appreciate an honest answer. What are the hours like at V10 firms in NY for summer associates? I understand that hours are terrible for actual associates, but I wonder if the firms bait you with a fun summer before they begin hammering you. Also, what kind of work do summers generally get assigned? Thanks in advance.
There is no way McCain will be ultimately ruled ineligible. SCOTUS has punted from a *much* easier/blatant case (I forget the name) of Constitutional ineligibility. Specifically, it dealt with members of Congress holding military reserve commissions (thus violating Article I, Section 6, the prohibition on being an Officer of the United States and also serving in Congress). I'm pretty sure the Court punted on the basis of a lack of Standing.
12:45 - no, no, no, silly liberal. scalia simply didn't allow the liberals to argue (i.e., make up out of whole cloth) that the constitution doesn't allow citizens from sending their young boys camping with homos. get some perspective, man. taking it up the rear is fine and all, but why should this lifestyle be forced upon young boys that want to learn how to tie knots and go camping?
1:13: I'm not a liberal. I'm a faithful originalist.
why are we wasting time with McCain and a real discussion of a real issue...
The brother of Jesus is out there to be discussed.
O-BAM-A O-BAM-A
YES WE CAN HOPE CHANGE UNITE
I like these presidential posts, Lat, please keep them coming.
You drooling, mindless, Obama-drones weren't complaining when Lat was posting positive things about Obama. Now someone dares to say something about Obama, THAT IS TRUE, and you're up in arms.
Seriously, someone needs to send you Obama-drones to deprogramming.
Right---because homo scoutmasters molest children much more than hetero scoutmasters...
And how many former boyscouts like to rape male pages, go in the backdoors in men's rooms or sodomize their wives?
§ 1401. Nationals and citizens of United States at birth
How Current is This? The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
(A) honorably serving with the Armed Forces of the United States, or
(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
You guys are way off base. The point is that Scalia made it up and it's not the only time he has done it. Believing that anyone on the court is merely an "originalist" and doesn't "make stuff up" is incredibly naive.
An interesting issue would be a potential constitutional amendment to correct this "problem." Would Arnold Schwarzenegger attempt to piggy-back on the amendment movement to allow foreign-born US citizens to run for president?
This reminds me of the VP residency (non)issue that was raised in the 2000 election. In that case, the NYT argued that Dick Cheney couldn't be Vice President because he shared Texas residency with George Bush (Art II, section 1 of the constitution says the President and Vice President can't both be residents of the same state). This argument died the quick death it deserved just as this argument, too, will die the quick death it deserves.
It would be nice, for a change, if the NYT and its ilk could get political consensus for their positions instead of having to resort to lame arguments in the courts. In some respects, their knee-jerk resort to the legal, as opposed to the political, process is recognition that they can't win in the court of public opinion.
Citizenship Jus Sanguinis, by "Right of Blood"
Special rules apply when determining citizenship for those born outside the country to U.S. citizen parents. In general, in these situations whether the child acquires U.S. citizenship at birth depends on the citizenship of each parent at the time of the birth, the length of time the parents each resided in the U.S. prior to the child's birth and the state of the law at the time of the child's birth. For example, persons born outside the U.S. before May 24, 1934, are citizens if both parents were citizens at the time and the father resided in the U.S. prior to the birth of the child. Children born outside the U.S. between May 24, 1934, and January 12, 1941, are U.S. citizens if the child's father or mother was a U.S. citizen and either parent lived in the U.S. prior to the child's birth.
These often complex rules have changed fairly regularly over the last one hundred years. They have included "retention" restrictions during some periods, whereby the child born overseas was obliged to actually come to the U.S. to "retain" citizenship acquired at birth, special rules for children born out of wedlock outside the U.S. and certain provisions for children born in U.S. territories.
John Sidney McCain III (born August 29, 1936)
*I want change*
85...90...95...a dollar. Thank you sir!
Indeed when, in 1934, Congress finally granted citizenship rights to the foreign-born children of citizen mothers, 48 Stat. 797, it not only specifically made the provision prospective, but further made clear its view that this was a reversal of prior law. See H. R. Rep. No. 131, 73d Cong., 1st Sess., p. 2, and S. Rep. No. 865, 73d Cong., 2d Sess., p. 1.
1:36 - what the hell are you talking about? The constitution doesn't say anything about residency of the vice president, so far as I can tell
12:28/12:53, I would look at 12:24's post. Apparently there's a difference between citizen at birth and citizen by birth? I don't know enough about this, but it does sound flimsy.
Huckabee to $400,000!
self-correction: the 12th amendment does, apparently. Citations, people!
What's Olson going to say? No? Of course he'll tell the Campaign what they want to hear.
You'll all be sorry when McCain pardons Noriega.
Remember, people, the issue is not whether McCain is a citizen, which is what most of you seem to be addressing, but whether he is a natural born citizen. And there's really not much law out there to supply an answer.
And, 1:36, Cheney's Texas residency was a non-issue because he changed his official (if not his actual) residency to Wyoming before the election.
I for one look forward to a 100-year occupation of Iraq, and am curious to see which of my favorite lobbyists get appointed to cabinet positions, so I certainly hope McCain is eligible for prez!
Panama Canal was not "outside" the U.S. anymore than Hawaii was -- both were territories of the U.S. (until Carter inexplicably decided to gave Panama Canal away). Obama himself would've been in the same situation if he was born just 2 years earlier.
Really? 17% think no? There's that many retarded people reading this site, huh? Democrats are really grasping at straws. These are good signs for McCain.
2:38,
I'm a Dem and I would be deeply ashamed if my party brought this claim. I won't be voting for him, but the son of two service members and a soldier himself is certainly eligible to run for President.
I'm guessing the 17% are strict constructionists applying the literal letter of the rule.
I'm no McCain supporter...I'm pretty much as left as it gets without actually being Castro. (hyperbole)
But making this argument against McCain would be stupid, and a distraction, and even if successful in the short term, it would undermine the dems in the long run.
They can beat McCain by the book...they don't need to do this.
12 45:
this is just like liberals. I make a claim about dumb liberals and instead of defending the claim at hand you pick and misread one of Scalia's decision. why dont you try "yeah well your moms fat" next time.
Id rather have Scalia interpret the words of the Constitution rather than Brennan interpret what the words of the constitution might have meant to other people then consider what they would have said and then interpret the "would be" words himself.
mccain is the next president. forget about obama. its too bad his name is hussein obama anyway, hed probbaly win if it was George Shaw.
Eligible to serve as president, sure, probably. But "entitled" to do so? Not unless/until he's elected. (Yeah, I'm nitpicking.)
Has anyone actually argued that McCain shouldn't be allowed to run? Has anyone gone farther than simply pointing out a quirky and technical legal issue that will obviously not have any practical implications?
Reading all this bs is hurting my head. Here's the answer:
1. No one with standing would ever go to court over this.
2. Even ignoring standing the Supreme Court would never decide the issue. If the political question doctrine didn't exist, this is the case in which the Court would invent it.
12:27 - waaaaaaaaaaahhhhaaaaaa, Lat speaks ill of our holy savior Obama
How is this for an interesting outcome:
As the result of litigation, McCain is disqualified. The disenfranchised Michigan and Florida delegates are seated.
Hillary is nominated and wins be default.
Ah, what might have been……
The Constitution does not provide that only those poeple born within the United States are eligible to be President. It provides that someone who is not a "natural born citizen" is not eligible to be President.
McCain is a "natural born citizen" because he was born a citizen. In other words, he was a citizen at the time of his birth.
Further, even if the test required being born "in" the United States, a US-occupied territory like the Canal Zone should qualify. Were any of the 19th Century presidents born in territories that had not yet been admitted to the Union as states?
As a fallback, McCain might argue that, given his age, he qualifies under the little-known second prong of the test -- he was "a citizen of the United States, at the time of the adoption of this Constitution." ;-)
Since the US had control of the Panama Canal Zone at the time of McCain's birth, I think the foreign born thing is a non-issue for him.
I think the 'natural born' language should be removed though.
The US territory issue will decide it. 1:52's posting cleared the air. I think all of the overheated internet addicts out there can rest easy that there is no "natural born" issue now. Hi, Ned.
Thunder. Second Apparition, a bloody Child
Second Apparition: Macbeth! Macbeth! Macbeth!
Macb. Had I three ears, I’d hear thee. 84
2. App. Be bloody, bold, and resolute; laugh to scorn
The power of man; for none of woman born
Shall harm Macbeth. Descends.
. . . . . . . . . . . . . . . . . . . . . . . . . .
Macbeth I bear a charmèd life which must not yield
To one of woman born.
Macduff Despair thy charm,
And let the angel whom thou still hast served
Tell thee Macduff was from his mother’s womb
Untimely ripped.
Macbeth Accursèd be the tongue that tells me so;
For it hath cowed my better part of man. (5.6.51-57)
4:12 - you beat me to it.
Shakespeare ("no man of woman born shall harm Macbeth") shows us that this is really fairly simple, if a little invasive of privacy.
The question is, was McCain delivered by a caesarean section? If not, then he was "natural born."
Supid, perhaps, but no more so than the other nonsense being written about this non-issue.
Hey remember when Gore tried to have all the absentee votes cast in Florida by deployed members of the military thrown out because they were not properly "postmarked" - because the military mailing system does it differently than USPS?
This is more of the same.
Please please please try to run with this. Attacks on the military go over sooo well with normal voters. :-P
McCain has citizenship through a statute, not as a constitutional right (unlike those who are born in the US-- 14th amd.) Although he had citizenship from the moment of birth, it was due to congressional action. There's an argument there that therefore he was not "natural-born"
http://www.volokh.com/posts/1204265246.shtml
If you read this post, it goes into what natural born citizen meant at the time. It was a legal term of art, McCain qualifies, and so this entire discussion is stupid.
Who cares? The Dems will win and this will not be an issue.
Pushing this claim will cause some sort of backlash unwarranted sympathy for McCain. Thank you, again, NYT.
And, what's with some of the HillBill supporters who are so anti-Obama they threaten to vote for McCain. The Dems are close on the issues, come on now.
There's 3 schools of thought represented in the comments:
1) What the answer SHOULD be based on the facts in question.
2) What the answer IS based on the law.
3) The fact that the legal answer is irrelevant because it won't get to court.
I can't believe this is even an issue. He is a "naturally born" citizen having been born to US citizen parents no matter where in the world. To further the matter, he was born in a foreign country where his father(a Navy officer) was stationed. To deny him eligibility is to deny every person born overseas, due to their parents military service, a chance at running for the presidency. This is ridiculous and again, should not even be an issue. The constitution was a great foundation for this country but needs to adapt to the times especially since we have a military spread out across the globe.
But Obama is not legally a U.S. Natural-born citizen according to the law on the books at the time of his birth, which falls between “December 24, 1952 to November 13, 1986? . Presidential office requires a natural-born citizen if the child was not born to two U.S. Citizen parents, which of course is what exempts John McCain though he was born in the Panama Canal. US Law very clearly stipulates: “…If only one parent was a U.S. Citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16.” Barack Obama’s father was not a U.S. Citizen and Obama’s mother was only 18 when Obama was born, which means though she had been a U.S. Citizen for 10 years, (or citizen perhaps because of Hawai’i being a territory) the mother fails the test for being so for at least 5 years **prior to** Barack Obama’s birth, but *after* age 16. It doesn’t matter *after* . In essence, she was not old enough to qualify her son for automatic U.S. Citizenship. At most, there were only 2 years elapsed since his mother turned 16 at the time of Barack Obama’s birth when she was 18 in Hawai’i. His mother would have needed to have been 16+5= 21 years old, at the time of Barack Obama’s birth for him to have been a natural-born citizen. As aformentioned, she was a young college student at the time and was not. Barack Obama was already 3 years old at that time his mother would have needed to have waited to have him as the only U.S. Cizen parent. Obama instead should have been naturalized, but even then, that would still disqualify him from holding the office.
*** Naturalized citizens are ineligible to hold the office of President. *** Though Barack Obama was sent back to Hawaii at age 10, all the other info does not matter because his mother is the one who needed to have been a U.S. Citzen for 10 years prior to his birth on August 4, 1961, with 5 of those years being after age 16. Further, Obama may have had to have remained in the country for some time to protect any citizenship he would have had, rather than living in Indonesia.