John McCain, Undocumented Alien?

The NY Times is reaching underneath the bottom of their comedy barrel with their latest McCain story - since he was born on a US military base in Panama, it may be that he is not constitutionally eligible to become President:

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.

McCain's parents were both American, and due to the operation of other laws McCain has always been considered to be an American citizen, so he has never been naturalized.  However, the gist of the controversy would seem to be, do the other laws which made McCain a citizen trump the somewhat murky language of the Constitution?

The Times also sidles up to the process question - just who might have standing to sue, or how might this be resolved?  Ann Althouse, who surely knows more about the law than I do, offers this:

And this is the point: No one should be seen as having standing to sue. No one who might conceivably file a lawsuit has a concrete and particularized injury that would be redressed through the disqualification of McCain. So there will not be a Supreme Court case interpreting the clause. If the Electoral College ever selects someone who presents this problem, it will be theoretically possible for Congress to reject the choice on constitutional grounds, but, politically, that too is inconceivable.

OK, I can see that Congress would be offered a bite at this apple, and no, I can't see them rejecting a properly-elected McCain (heaven help us if we have a Florida 2000 scenario which results in his, uhh, selection, followed by a Dem majority tossing him back.)

However - why doesn't Mike Huckabee have standing right now to sue the entities that have allowed McCain on the ballot in upcoming primaries?  Isn't it fair to guess that the laws under which these primaries are organized include an eligibility requirement, and isn't Huckabee disadvantaged by having to compete against a guy who may not be eligible?

And why couldn't a similar lawsuit be launched by the DNC to disqualify McCain from the 50 state ballots prior to the election?  Again, these state laws ought to have an eligibility requirement.

Of course,  I would love to see the DNC try this, but I am not counting on them to be that stupid.  But how about some other party that has a candidate on the ballot and is arguably disadvantaged by McCain's presence?  Maybe Ralph Nader's crowd could argue that they have standing try a lawsuit in a couple of important states, like Ohio or Texas.

Comments

[Jane]

This was discussed over at Don Surber's a while ago. Here is a reprint of a comment from "Bob":

The 14th Amendment defines citizenship this way: “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.” But even this does not get specific enough. As usual, the Constitution provides the framework for the law, but it is the law that fills in the gaps.

Currently, Title 8 of the U.S. Code fills in those gaps. Section 1401 defines the following as people who are “citizens of the United States at birth:”

Anyone born inside the United States
Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person’s status as a citizen of the tribe
Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.
Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.

Separate sections handle territories that the United States has acquired over time, such as Puerto Rico (8 USC 1402), Alaska (8 USC 1404), Hawaii (8 USC 1405), the U.S. Virgin Islands (8 USC 1406), and Guam (8 USC 1407). Each of these sections confer citizenship on persons living in these territories as of a certain date, and usually confer natural-born status on persons born in those territories after that date. For example, for Puerto Rico, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President (June 27, 1952). Additionally, all persons born in Puerto Rico on or after January 13, 1941, are natural-born citizens of the United States. Note that because of when the law was passed, for some, the natural-born status was retroactive.

The law contains one other section of historical note, concerning the Panama Canal Zone and the nation of Panama. In 8 USC 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother and/or father who is a United States citizen, was “declared” to be a United States citizen. Note that the terms “natural-born” or “citizen at birth” are missing from this section.

In 2008, when Arizona Senator John McCain ran for president on the Republican ticket, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it should be noted that section 1403 was written to apply to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(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.”

[Sue]

Ahh...the irony. An American citizen who isn't and an illegal alien who is.

This is the stupidest thing the Times has come up with yet. I saw this on a blog one day, but never thought it would be given "serious" consideration.

The NYTs deserves all the scorn thrown at them.

[ER]

Ah, I don't know, even if the Panama thing amounted to something, technically, McCain had no control over his birth location and the whole issue goes against the spirit of the intent of the law, HOWEVER, McCain did have control over http://campaignfreedom.org/blog/id.514/blog_detail.asp>whether he complied with Ohio law regarding qualifying to be on the Ohio ballot...now that's something I'd like to see looked into (and before the Tues primary!), as it seems to be pushing the legal envelope, as do McCain's other FEC and loan issues.

[kim]

I know someone born on a German liner, in Irish waters, of American parents. I believe she had the choice, at age 21, of what citizenship to assume.
============================

[Elliott]

...only a “natural-born citizen” can hold the nation’s highest office.

If McCain was a c-section, I think the NYT can have another go.

[Sue]

“natural-born citizen”

Natural birth means no meds too. Anyone whose mother received any kind of pain meds wouldn't qualify either.

We are running out of options here...

[kim]

Wasn't Obama born of a virgin? What's natural about that?
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[JM Hanes]

I thought the geographic location of birth was only a factor if your parents were not citizens, and irrelevant if they were. This was only problematic back in the days when Americans were not allowed to hold dual citizenship, I believe, in cases where the country of birth also accorded such status. Upon reaching majority, you were required, by the U.S., to choose one or the other.

[MikeS]

When I think of journalists, I often picture Clark Kent and Lois Lane chasing down the facts so they can meet their deadlines.

It seems that at the NYTs journalists skip the "chasing down the facts" step altogether and just sort of vomit words into a word processor. Apparently that product goes straight to the presses.

[PMII]

The BS is never going to stop....

But on the bright side of things, our next President will have been a member of the worst Congress ever - and did nothing to change it being the worst Congress ever.

My expectations are really low with no ever to go but up. Right.....

[T J Sawyer]

The answer to your question

"...to disqualify McCain from the 50 state ballots prior to the election? Again, these state laws ought to have an eligibility requirement."

is that we don't vote for president in this country, we vote for presidential electors.

[T J Sawyer]

The answer to your question

"...to disqualify McCain from the 50 state ballots prior to the election? Again, these state laws ought to have an eligibility requirement."

is that we don't vote for president in this country, we vote for presidential electors.

[Charlie (Colorado)]

The mildly horrific scenario that occurs to me is that Hillary manages to bribe, cajole, threaten, and blackmail enough superdelgates to get the nomination, then loses to McCain, then sues to have McCain disqualified, then loses in the SC, then we get to listen to another eight years of "selected not elected."

[GMax]

Both his parents are American. The canal zone was a US protectorate at the time. But because the words natural born does not appear in the law passed after the Constitution was adopted, we need to treat him differently than anyone else born to two American parents in a foreign country?

Surely not even David Bois and Lawrence Tribe would not sully themselves with such a specious argument.

[John Henry]

I have lived in Puerto Rico since 1971. I was a presidential candidate in 1988.

I wrote to the FEC asking for the definition of "Natural Born Citizen" and got a letter back from their chief cousel. They did not have a definition of "Natural Born" and had to get a ruling from the Immigration and Naturalization Service. According to the letter, they said that a natural born citizen is one who was born in the 50 states, DC, Puerto Rico, US Virgin Islands and Guam. In other words, US Territory.

I will be happy to send you a copy of the letter if you drop me an e-mail.

It should also be noted that the reading f the law making people born in PR et al citizens is different from the law for Panama. The USC says for purposes of citizenship, Puerto Rico et al are defined as "states".

Panama is not. Panama is a specific statutory exception to normal citizenship laws. It is based on treaty not on statehood (actual or statuatory)

There is absolutely no question that McCain is a citizen and is so by right of birth.

I do not think he is a natural born citizen in the meaning of the COnstitution. He was not born in the United States and that is, I think, the key distinction.

John Henry
john at changeover dot com

[GMax]

John Henry

With all due respect, it matters not a whit what the FEC or the INS says about this. They have no say whatsoever. It would be a question of law which would ultimately find its way to appellate and then perhaps the Supreme Court.

If Natural Born is used but not defined in the Constitution, how could any definition that would put certain extraterritorial possessions in but leasve out others based on a Statue modify the Constitution?

In other words Congress can not modify the Constitution except thru a Constitutional Amendment. There are none on the subject.

You want to say the letter interprets the phrase to mean PRs are natural born but Panana Canal zone residents are not? Due to a statue and its wording.

It does not work like that. If Natural Born means only in the 50 States, then no territory qualifies. If it means the States and other lands the US claims then it means all such lands.

I frankly dont beleive the founding fathers meant anything other than folks born to an American parent. It seems ludicrous to me that they would want to exclude a person from National office all because his mother happened to be in Canada for lunch when the contractions became powerful enough to force a visit to the nearest hospital.

[GMax]

Here is a pretty good analysis of the PCZ:

The status of the PCZ is determined by looking to the instrument that created it. The United States acquired the Canal Zone by virtue of the 1904 Hay-Bunau Varilla Treaty. In Article III thereof, Panama ceded to the U.S. “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign of the territory within which said lands and waters are located....” By way of comparison, consider a contemporary treaty, the 1903 Cuban-American Treaty. By terms of that treaty, “Cuba hereby leases to the United States, for the time required for the purposes of ... naval stations" (emphasis added), the territory we now call Guantanamo Bay. Although it’s true that this is “no ordinary lease,” Rasul v. Bush, 542 U.S. 466, 487 (Kennedy, J., concurring), conferring as it does “complete jurisdiction and control in perpetuity, and the United States has subsequently exercised all the incidents of sovereignty over Guantanamo [Bay],” Boumediene v. Bush, No. 06-1195, Pet. Brief, 17 n.16 (internal quotation marks omitted), the contracting parties nevertheless “recognize[d] the continuance of the ultimate sovereignty of the Republic of Cuba” over Guantanamo, subject to the limitation that “the United States shall exercise complete jurisdiction and control over and within said areas” for the duration of the lease.

The Hay-Bunau Varilla Treaty is more explicit: it gave us “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign of the territory within which said lands and waters are located....” Still, that could probably be read two ways. You could say that the terms of the treaty seem to very strongly suggest that the United States would be either sovereign over the territory, or functionally so. That's the view that the Supreme Court has taken, see, e.g., O'Connor v. United States, 479 U.S. 27, 28 (1986) ("[f]rom 1904 to 1979, the United States exercised sovereignty over the Panama Canal"). But it wouldn't be irrational to say that the assignment of “all the rights, power and authority within the [canal] zone ... which the United States would possess and exercise[ ] if it were the sovereign” (emphasis added) implicitly denies that the treaty conveys actual sovereignty over the PCZ to the United States, rather than power equivalent to it.

And here I must end, because “dominion” almost certainly implies “sovereignty over,” so to really probe this question we’d have to get into an exegesis of concepts of sovereignty (and more particularly still, what the prevailing conception was in 1788), a question about which volumes and volumes have been written, and that we are not going to resolve in this place on this day. So with those thoughts, I leave it to the reader's contemplation to determine whether they think the PCZ was more like Guantanamo Bay or the Indiana Territory.

[Syl]

I hope this is not premature, but OT, I'm setting aside the politics of the last 24 hours to celebrate the fact that we're most likely going into a period of global cooling.

Though, warming is actually better for humanity.

[Dave]

Whether you like the Times or not, the McCain issue is news and it's their job to report it...but relax, I'm sure Fox News will jump right in there for the Right.

[Syl]

I'm sure Fox News will jump right in there for the Right.

Well, Chris Matthews and crew are laughing at it from the Left.

[Davd]

There's one big difference....Chris & crew are hired to give their opinions and cable rant...they are not calling themselves news anchors or reporters.

[hit and run]

Right, like John McCain has never run for president before or anything.

Geraghty had some fun with this...turning the tables on Obama and here, too

I mean -- it's news, right...it's the NYT's job to report it, right?

[JoJo Dog]

This is a non-issue. Even if the Panama Free Zone was not American soil, McCain would be a natural born citizen via "jus sanguinis". Jus sanguinis is the legal term for blood by birth or citizen by birth. Both his parents were American citizens, therefore he is an American citizen no matter where he was born. This would only be a problem is only one of his parents were an American citizen, since the situation starts getting trick whether "jus sanguinis" trumps "jus soli" (blood by soil).

I do find the double standard by the New York Times to be funny though. The NYT supports illegal aliens to have the status of citizens so they can vote in elections, but they are against an American citizen from having his constitutional right of running for the office of President.

[PeterUK]

"Whether you like the Times or not, the McCain issue is news and it's their job to report it."

Wrong,it wasn't news or an issue until the NYT reported it.

[PeterUK]

"The NYT supports illegal aliens to have the status of citizens so they can vote in elections, but they are against an American citizen from having his constitutional right of running for the office of President."

The NYT is in favour of terrorists having the rights of US citizens.

[PatHMV]

As I explain at Stubborn Facts, the status of the Panama Canal Zone is immaterial. The phrase "natural born citizen" had an accepted definition in 1789. Like most if not all terms of legal art used in the Constitution, the phrase "natural born citizen" did not stem from nowhere... it was an accepted term of art in the common law of England at that time. The Supreme Court has recognized for a very, very long time that when a particular term used in the Constitution had an accepted definition in the English common law of the time, then that was the meaning intended by the framers when they chose to use that word.

It was well accepted in the common law of England that children of ambassadors and other agents of the crown were "natural subjects" (in context, natural born), even when born abroad.

Really and truly, that's the full extent of the inquiry necessary.

[PatHMV]

To commenter GMax, thanks for your kind words about my co-blogger Simon's post on the controversy, but we would both have appreciated it if you had included a link and an acknowledgment of his authorship.

[Bill in AZ]

Bush has solved this problem of citizenship for John McCain. Bush Orders 'Amnesty' for Foreign-Born McCain

“My compassion moves me to create a legal path to the presidency for my amigo, John McCain,” said Mr. Bush. “Of course, he’ll need to pay a $2,000 fine, but he already speaks English better than some recent presidents.”

[clarice]

Volokh on "natural born"--stick a fork in it, McCain certainly is within the histoic definition : http://volokh.com/archives/archive_2008_02_24-2008_03_01.shtml#1204265246>Natual born

[PatHMV]

Clarice, the point Jim Lindgren made at Volokh is the same thing I said in my post at Stubborn Facts, linked to in my 11:08pm comment (which I had e-mailed to Tom and many other prominent bloggers) yesterday, and posted in many, many comment sections.

Not Lindgren's fault, of course. I'm just a bit frustrated that I spent all day yesterday trying to publicize an argument I first made 2 weeks ago, and then he comes around late last night or early this morning and everbody starts saying "that settles it."

Argghh.... what's a lesser-known blogger to do?

Sorry, don't mind me. Just a bit peeved. I'll get over it.

[electriclady281]

US Government schools took great pains to inform American students from an early age that those who were born in the Panama Canal Zone that we could not be president of the United States because we were not natural born citizens. To prove our US citizenship, we were required to obtain a certificate of citizenship, but it still didn't make us "natural born citizens" because we were not born in the USA. How then, is Article 2, section 1, clause 5, of the US Constitution interpreted in relation to John McCain's eligibility as a candidate for the presidency? And why would the US Government go to all that trouble if it weren't true?

This is not about his fitness or his citizenship. It is the matter of a constitutional requirement. Our constitution has suffered many blows under the present government to the detriment of all Americans. Will this be yet another?

A Canal Zone birth certificate proves only that a cild was born. To prove citizenship, whether or not the birth was recorded at an embassy, many legal documents are required, which are summed up by a certificate of citizenship. Naturalization is not an issue here. Place of birth is. In McCain's case, and mine, and thousands of other US citizens born in the Canal Zonea, according to the constitution and US Government practice, though we are citizens, we are not natural born citizens because we just were not born in the US and there's no document that can change that.

[PatHMV]

Except, ElectricLady281, the Constitution does NOT, in fact, require one to be "born in" the U.S. in order to be a "natural born citizen." If it did, then the answer would hinge on obscure issues like the legal status of the canal zone. However, for the reasons I (and later Jim Lindgren at Volokh) posted, the Constitution has ALWAYS recognized that foreign born children of parents who are both American citizens are "natural born" citizens. It is YOU who wish to rewrite the Constitution, through your unfamiliarity with the historic definition of "natural born."

[Jamie]

ElectricLady821, having dealt with some portions of the DoDDS system earlier in my life and in other portions of government services at later times, I can't reasonably speculate as to why you would have been so misinformed. I can speculate as to the "how": they were wrong, but they didn't know (possibly) or care (almost certainly). It could be kind of a power trip to tell a kid s/he can't be president, I suppose... I know some of my high school friends at a DoDDS school in the U.K. were entirely misinformed that they (dependents of officers) could not - that is, were not permitted to - date dependents of enlisted people. Snobbery, in that case. (I myself married one. Lightning did not strike. He was not arrested, nor would his dad have been "sent back to the States," which was like being banished to Coventry, if they'd still lived in the U.K. when we were married.)

And then there's a whole bunch of conflation going on when you use the term "U.S. Government schools," which you might want to examine.

[sophy]

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