Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
based on the more narrow language of the Fourteenth Amendment, but argue that the Fourteenth Amendment was adopted to rectify the wrongly reasoned and decided Supreme Court decision in the Dred Scott case,[1] and was not intended to amend or necessarily even to address the issue of “natural born” citizenship under Article II, Section 1, cl. 5, relating to the eligibility for President.[2] The term “natural born citizen” in Article II, it is argued, should be interpreted not only in light of the later Fourteenth Amendment, and the reasons for adopting the Fourteenth Amendment, but also in light of the common law and common understanding and usage of the term at the time of the adoption of the Constitution.[3]
It has been pointed out that more recent cases have held that the seemingly exclusive language of the Fourteenth Amendment of citizenship being limited only to those who are “born or naturalized in the United States,” is applicable only with regard to Fourteenth Amendment first-sentence-citizenship, and is not necessarily the exclusive means of acquiring citizenship “at birth,” since the category of “at birth” citizenship can clearly be expanded by law adopted by Congress. Such cases indicate that the Fourteenth Amendment establishes a “floor” for citizenship at birth, or for naturalization, which can be expanded by federal law.[4] The Supreme Court in Rogers v. Bellei explained that under the Fourteenth Amendment’s citizenship clause the requirement that one would have to be either born in the United States or naturalized in the United States were designations for “Fourteenth-Amendment-first-sentence” citizenship only.[5] The category or designation of citizen “at birth” or “by birth” could, however, as expressly noted by the Court, be expanded and “modified by statute” (as it had been in England with respect to natural born subjects for more than 600 years): “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”[6]
It is significant to note that in a more recent case, in 2001, the Supreme Court indicated that under current law and jurisprudence a child born to U.S. citizens while living or traveling abroad, and a child born in the geographic United States, had the same legal status. In Tuan Anh Nguyen v. INS,[7] the Court explained that a woman who is a U.S. citizen living abroad and expecting a child could re-enter the United States and have the child born “in” the United States, or could stay
- ↑ Afroyim v. Rusk, 387 U.S. 253, 263 (1967).
- ↑ The Supreme Court has warned against interpreting later enacted provisions of the Constitution as amending, merely by implication, separate, earlier provisions of Constitution. Freytag v. Commissioner, 501 U.S. 868, 886–887 (1991).
- ↑ See, e.g., Corwin, The President, Office and Powers, 1787–1984, at 38–39; Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. at 12, 18; Michael Nelson, Constitutional Qualifications for President, Presidential Studies Quarterly, Vol. XVII, No. 2, at 396; Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure, Vol. 7, §92.03[1][b] (rev. ed. 2000).
- ↑ Robinson v. Bowen, 567 F.Supp.2d 1144, 1145–1146 (N.D. Cal. 2008), finding Senator McCain, born in the Panama Canal Zone to citizen-parents, eligible for President as a “natural born citizen.”
- ↑ Rogers v. Bellei, 401 U.S. 815, 827 (1971).
- ↑ 401 U.S. at 828. It does not appear to be a significant argument against such interpretation that Congress could indirectly change by statute (by changing “at birth” citizenship requirements) who is eligible to be President, even though qualifications are “fixed” by the Constitution. The Supreme Court has expressly found that Congress could not change the qualifications for congressional office which were fixed in the Constitution (Powell v. McCormack, 395 U.S. 486 (1969)), but since citizenship for seven years (House) or nine years (Senate) is a constitutional qualification, and Congress may certainly change the various statutory requirements for naturalized citizenship, Congress could thus clearly, in effect, change how such qualification is attached in such circumstances. See also Corwin, The President, Office and Powers, 1787–1984, at 38–39, as to the inherent authority and apparent right of the country’s national legislature to determine who its natural born citizens should be.
- ↑ 533 U.S. 53 (2001).
