Natural-Born Citizenship - McCain OK for Presidency?

August, 2008

By Ted J. Chiappari and Angelo A. Paparelli*

Some scholars and pundits suggest that presumptive Republican candidate John McCain is no more eligible under the Constitution to be President of the United States than Paris Hilton or Arnold Schwarzenegger.  The California governor, and the faux starlet and recently self-proclaimed candidate, are each ineligible but for different reasons – he is an Austrian-born naturalized U.S. citizen, and she is only 27 rather than 35, the minimum required age. 

Although Senator McCain is clearly a citizen by birth as a result of a post-natal statutory grant, the question arises whether he is a “natural born Citizen” eligible to be President pursuant to Article II of the U.S. Constitution.  Article II provides that “No person except a natural born Citizen … shall be eligible to the office of President. [1] Based on the peculiar facts of McCain’s birth (born in 1936 to U.S. citizen parents in the Panama Canal Zone, a territory leased to the United States “in perpetuity” from 1904 until its return to the Republic of Panama in 1979) and the complexity of U.S. citizenship laws, reasonable minds can and do differ on the answer.

In March, at the behest of McCain’s presidential campaign, Harvard Law Professor Laurence H. Tribe and former Solicitor General Theodore B. Olson issued a short memorandum concluding that the answer is “yes” and convincing the U.S. Senate to pass a non-binding resolution to that effect. [2] University of Arizona Law Professor Gabriel J. Chin published a 52-page analysis in July reaching the opposite conclusion. [3] Chin’s scholarly article provides a detailed analysis of the complexities of U.S. citizenship law developed over the last 200+ years that is lacking in the Tribe-Olson memo, which focuses more narrowly on the interpretation of the “natural born” Constitutional provision.  A primer on U.S. citizenship law may help to understand why Senator McCain’s birth abroad to U.S. citizen parents has prompted such controversy over his putative status as a natural born citizen.

There are two basic paradigms of acquiring citizenship:  by birth, and by naturalization.  The Immigration and Nationality Act currently in effect defines “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” [4] There should therefore be no doubt that a “natural born Citizen” as described in Article II of the Constitution is one who acquired U.S. citizenship at birth, and not through naturalization.  The law of naturalization is therefore not discussed in any detail here.

To determine whether U.S. citizenship is conferred at birth, one must determine where the birth took place and to whom the child was born.  Birthright citizenship has two guiding principles:  jus soli (citizenship determined by place of birth; literally, rule “of the soil”) and jus sanguinis (citizenship by descent; literally, rule “of blood,” i.e., regardless of place of birth). 

In the United States, citizenship by naturalization was the only paradigm explicitly addressed by our Founders in the Constitution, which delegated to Congress the power “To establish an uniform Rule of Naturalization.” [5] Citizenship by birth was of course implicitly acknowledged in clause 5 of Article II, section 1 – the provision at the center of the debate over McCain’s eligibility for the presidency – but the Constitution as originally drafted was silent as to the principles of jus soli and jus sanguinis. 

British common law recognized the principle of jus soli, [6] but only the ratification of the Fourteenth Amendment in 1868 explicitly incorporated the principle into our Constitution:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” [7] Jus sanguinis was not part of British common law – rather , it was a statutory creation in Great Britain – and therefore was not incorporated into U.S. common law. [8] Accordingly, in the United States citizenship by descent has always been and remains solely a function of statutes created and regulated by Congress.  (In fact, such a statute was already enacted by the First Congress, establishing that children born abroad to U.S. citizens would be U.S. citizens themselves, so long as the father had been resident in the United States. [9]) U.S. citizenship law (independent of the Constitutional question of eligibility for the Presidency and despite the suggestion by Tribe and Olson that British common law at the time our Constitution was drafted “confirm[s] that the phrase ‘natural born’ includes … birth abroad to parents who were citizens” [10]) has never recognized common law as a separate or independent basis for claiming U.S. citizenship by reason of birth to U.S. citizens abroad (i.e., jure sanguinis).

Jus soli

The question of birth “in the United States” is an easy one for those born in one of its States.  It is more complicated for those like Senator McCain born in an outlying territory.  The common law and Constitutional principle of jus soli has been codified in the current nationality act, [11] which also defines the “United States” to mean the continental United States, Alaska, Hawaii, Puerto Rico, Guam and the Virgin Islands of the United States. [12]

The geographic scope of jus soli in cases of birth in outlying territories has been far from clear.  There is a line of Supreme Court decisions, called the Insular Cases, [13] that draws the distinction between incorporated territories (like Alaska), to which the reach of the U.S. Constitution was fully extended, and unincorporated ones (like the Philippines) to which it was not.  Although dating back to the early 20th Century, the Insular Cases have never been disavowed or overturned.

In McCain’s case, the Panama Canal Zone is an anomaly among outlying U.S. territories.  Leased in perpetuity, not purchased (like Alaska or the Virgin Islands) or ceded (like Hawaii or the former Spanish territories of Puerto Rico, Guam and the Philippine Islands), the Panama Canal Zone was never explicitly recognized as part of the United States, even though it was under complete U.S. jurisdiction.  Indeed, the United States returned the Canal Zone to the Republic of Panama in 1979.  Professor Chin concludes that the Panama Canal Zone was an unincorporated territory – like the Philippines – to which the Constitution’s Fourteenth Amendment did not extend, while Tribe and Olson base their opposite conclusion on the virtually exclusive jurisdiction the United States exercised in the Canal Zone at the time, in essence ignoring the Insular Cases and probably overstating the reach of the Fourteenth Amendment.

Jus sanguinis

Statutes implementing jus sanguinis have caused great complexity in U.S. citizenship law.  This is because the statutes impose very specific requirements, which Congress has changed many times over the years, and because citizenship is determined by the statute in effect at the time of the child’s birth. [14]

It may come as a surprise to some that a child born to a U.S. citizen abroad may not be a U.S. citizen at birth – an illustration of the statute’s complexity.  Under current law, in order to transmit U.S. citizenship to his or her child born outside of the United States, a U.S. citizen married to a foreign national, before the birth of the child, must have resided in the United States for a minimum of five years, at least two of which were after turning age 14. [15] An example:  a woman is born in Connecticut, moves with her parents to France at age 15 and ends up studying in France (at which point her parents move back to Connecticut).  She falls in love, marries a Frenchman and has their first child there before realizing that she wants to move back to Connecticut to be closer to her parents.  Although the mother is clearly a U.S. citizen at birth, she hasn’t resided for the requisite amount of time in the United States before the birth of her child to transmit U.S. citizenship to her child at birth.  Her child must first immigrate as a lawful permanent resident (green card holder) before she can naturalize to U.S. citizenship.

Where both parents are U.S. citizens, all that is required – again, under the current statute – is that one of the parents have resided in the United States (or one of its possessions) before the child’s birth. [16] A child born out of wedlock may or may not acquire U.S. citizenship at birth, depending on whether the mother or the father is a U.S. citizen, and whether certain other conditions (such as the establishment of the father’s paternity) are met, depending on who the U.S. citizen parent is. [17]

These factors – a parent’s period of residence in the United States before the birth of the child; the parents’ marital status; whether one or both parents are U.S. citizens – and other factors, such as the requirement at one time that a person born abroad must reside in the United States for a certain period of time in order to retain U.S. citizenship acquired at birth, have changed over the years.  For example, until 1934, only U.S. citizen fathers could transmit U.S. citizenship to children born abroad, but there was no amount of time specified for the residence in the United States that was required of the father before the birth of the child.  Children born abroad between 1934 and 1978 to one U.S. citizen parent must still prove that they retained their U.S. citizenship by residing (or, later, by being physically present) for some period of time in the United States.  Those born after 1978 are not subject to any such retention requirement.

As can be seen from these examples, at various times, there have been conditions precedent and conditions subsequent to the birth of the child that must have been met to effect transmission of U.S. citizenship.  In the leading treatise on immigration and citizenship law, a summary of conditions applicable to persons born abroad is broken down into six periods, reflecting the various changes in the law over the years:  birth before May 24, 1934; 1934-1941; 1941-1952; 1952-1978; 1978-1986; and on or after November 14, 1986. [18] The U.S. Department of State, which is charged with determining U.S. citizenship at birth for purposes of issuing passports and registrations of birth abroad, in its Foreign Affairs Manual, dedicates 103 pages to the topic of acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent. 

Conclusion

So is Senator McCain a “natural born citizen”?  Perhaps not since the plot twist about the caesarian birth of Macbeth’s murderer has so much drama ensued over the form of a person’s nativity. [19] It is unlikely that this question will have any practical impact in the election in November, that we’ll ever get a definitive answer, or, given the specific facts of his birth, that any such determination would have any precedential value.  Nonetheless, it highlights the complexities of U.S. nationality law.  Unless we attribute a meaning to that Constitutional term divorced from general U.S. citizenship jurisprudence, the answer depends on two issues:  whether the Panama Canal Zone was part of the United States at the time of McCain’s birth (so that the Fourteenth Amendment would make McCain a citizen at birth); and, if not, whether there was a statute in effect at the time that granted U.S. citizenship by reason of his parents’ U.S. citizenship.  As to first question, discussed in the section on jus soli above, it is at best unclear whether the Fourteenth Amendment reached the Panama Canal Zone.

As to the second question, Chin concludes from the passage of an amendment to the U.S. nationality act 11 months after McCain’s birth – specifically granting U.S. citizenship to those born to U.S. citizen parents in the Panama Canal Zone on or after February 26, 1904, including McCain – that the answer here is also no. [20] The statute in effect at the time of McCain’s birth did grant citizenship at birth to “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States.” [21] Chin argues, however, in light of the statutory change in 1937 and the legislative history of that statute, as well as the logic of the Insular Cases, that the Panama Canal Zone was “out of the limits” of the United States but not out of its jurisdiction, and therefore neither part of the United States nor foreign territory.  Tribe and Olson’s reaction to Chin is that the 1937 law merely clarified what Congress intended all along, and that reading the statute as Chin does would be “‘to attribute a crazy design to Congress’ that ‘would create an irrational gap.’” [22]

Chin would not disagree with Tribe and Olson’s assessment of U.S. nationality statutes:  he calls McCain’s dilemma a “technicality ne plus ultra” – the most extreme of technicalities – and concludes that, “as a policy matter, Senator McCain should be eligible to the Office of President.” [23] In a subsequent newspaper interview, he conceded that “It’s preposterous that a technicality like this can make a difference in an advanced democracy.” [24] Were it not for our convoluted statutory framework for citizenship jure sanguinis, Chin’s reading of the statute would indeed appear strained.  For immigration practitioners accustomed to that framework, however, where the difference of a day in birth can result in a different set of rules and make or break a claim to birthright citizenship, Chin’s reading is perfectly plausible.  We can only hope that McCain’s Constitutional question might move Congress to draft a simpler, more coherent statute regulating citizenship by descent.

[1] U.S. Const. art. II, § 1, cl. 5.

[2] Letter by Laurence H. Tribe and Theodore B. Olson, dated March 19, 2008, reprinted in 154 Cong. Rec. S3645-46 (Apr. 30, 2008) in support of a nonbinding bipartisan resolution “recognizing that John Sidney McCain, III, is a natural born citizen.” See also Michael Dobbs, McCain’s Birth Abroad Stirs Legal Debate, Washington Post, May 2, 2008, at A06 (http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103224_pf.html).

[3] Gabriel J. Chin, “Why Senator John McCain Cannot Be President:  Eleven Months and a Hundred Yards Short of Citizenship” (July 9, 2008), Arizona Legal Studies Discussion Paper No. 08-14, available at Social Science Research Network (SSRN):  http://ssrn.com/abstract=1157621.

[4] Immigration and Nationality Act [INA] § 101(a)(23), 8 U.S.C. § 1101(a)(23).

[5] U.S. Const. art. I, § 8, cl. 4.

[6] Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 92.03[1][a], citing to Weedin v. Chin Bow, 274 U.S. 657, 660 (1927); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898); and Calvin’s Case, 7 Coke 8 (1608). 

[7] U.S. Const. amend. XIV, § 1.

[8] Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 93.01[2].  See also U.S. v. Wong Kim Ark, 169 U.S. 649, 669-670.

[9] Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104. 

[10] Tribe-Olson Letter, supra note 2.

[11] INA § 301(a), 8 U.S.C. § 1401(a).

[12] INA § 101(a)(38), 8 U.S.C. § 1101(a)(38).

[13] See Downes v. Bidwell, 182 U.S. 244 (1901), the first of the Insular Cases, discussed in Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 92.04[1][a].

[14] 7 U.S. Department of State Foreign Affairs Manual [FAM] 1131.1-2 (“The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens.”); see also Montana v. Kennedy, 366 US 308, 312 (1961).

[15] INA § 301(g), 8 U.S.C. § 1401(g).

[16] INA § 301(c), 8 U.S.C. § 1401(c).

[17] INA § 309, 8 U.S.C. § 1409.

[18] Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 93.03.

[19] William Shakespeare, The Tragedy of Macbeth, Act IV. scene i: “Be bloody, bold, and resolute; laugh to scorn The power of man; for none of woman born Shall harm Macbeth.” It was Macduff who “was from his mother’s womb Untimely ripp’d.” Act V, scene viii.

[20] This provision is still in effect in the current statute; see INA § 303(a), 8 U.S.C. § 1403(a).

[21] Act of May 24, 1934, § 1, 48 Stat. 797.  Neither

[22] Adam Liptak, A Hint of New Life to a McCain Birth Issue, New York Times, July 11, 2008 (http://nytimes.com/2008/07/11/us/politics/11mccain.html).

[23] Chin, “Why Senator John McCain Cannot Be President:  Eleven Months and a Hundred Yards Short of Citizenship”, supra note 3 at 7. 

[24] Adam Liptak, A Hint of New Life to a McCain Birth Issue, New York Times, July 11, 2008 (http://nytimes.com/2008/07/11/us/politics/11mccain.html).

* Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City.  Angelo Paparelli is Managing Partner of Paparelli & Partners LLP (http://www.entertheusa.com), in New York, NY and Irvine, CA, and President of the Alliance of Business Immigration Lawyers (http://www.abil.com).  He writes a blog on America’s dysfunctional immigration system:  http://www.nationofimmigrators.com. 

Reprinted with permission from the August 22, 2008, edition of the New York Law Journal. © 2008 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.  The authors thank the Journal for permission to reprint this article.