Claim: John McCain does not qualify as a natural-born citizen of the U.S. because he was born in Panama.



Status: Undetermined.



Example: [Collected via e-mail, July 2008]







I am hearing talk that Senator John McCain is not eligible to be President of the United States because he is not a natural-born citizen.







Origins: Among the few qualifications specified in Article II, Section I of the U.S. Constitution regarding eligibility for the office of President of the United States is that the office-holder must be a “natural born citizen of the United States.” This qualification has not previously been an issue in U.S. politics since no one so far elected to the office of president (or who otherwise served as president) was born outside of the United States. But it has been a (minor) issue so far in 2008, as the presumptive Republican presidential nominee, Senator John McCain of Arizona, was born not in the U.S. proper but in the Panama Canal Zone. (McCain’s parents were themselves U.S. citizens, and at the time of his birth they lived on a military installation in the Panama Canal Zone, where his father was stationed as a U.S. Navy

officer.) If Senator McCain were deemed not to be a natural-born citizen of the United States, his name could be kept off of ballots in the 2008 presidential election, and he could be ineligible to serve as president even if won the election.

As much we’d like to dismiss this one as just another frivolous election season rumor, it’s impossible to make any definitive statement about Senator McCain’s presidential eligibility because the issue is a matter of law rather than a matter of fact, and the law is ambiguous. There is no disputing that, under the U.S. statutes and laws applicable to the offspring of Americans living abroad and to the Canal Zone, John McCain is a citizen of the United States. However, the difference between “citizen” and “natural-born citizen” is an important one in this case, and some of the legal distinctions between the two are still murky. (The particular sticking points in Senator McCain’s case are whether the Panama Canal Zone was covered by existing citizenship laws at the time of his birth, and whether someone who was born outside the U.S. and holds U.S. citizenship status by virtue of a law passed after his birth and applied retroactively qualifies as a natural-born citizen.)

The framers of the Constitution didn’t elaborate on the term “natural born citizen,” there has never been a court case defining exactly what a “natural-born citizen” is, and neither Congress nor the Supreme Court has definitively resolved the issue. It is therefore not completely inconceivable that someone could mount a legal challenge to Senator McCain’s presidential eligibility, and that the issue would have to be decided in court:





“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.” “There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” saidDuggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.” In a paper written 20 years ago for the Yale Law Journal on the natural-born enigma, Jill Pryor, now a lawyer in Atlanta, said that any legal challenge to a presidential candidate born outside national boundaries would be “unpredictable and unsatisfactory … it is certainly not a frivolous issue.”





The issue is even more complicated because the process of challenging a presidential candidate’s eligibility is itself a murky issue, as the New York Times noted:





Lawyers who have examined the topic say there is not just confusion about the provision [regarding natural-born citizenship status] itself, but uncertainty about who would have the legal standing to challenge a candidate on such grounds, what form a challenge could take and whether it would have to wait until after the election or could be made at any time.





A lawsuit challenging Senator McCain’s eligibility is pending in Federal District Court in Concord, New Hampshire, but whether that lawsuit will be allowed to proceed is questionable:





In the motion to dismiss the New Hampshire suit, Mr. McCain’s lawyers said an individual citizen like the plaintiff, a Nashua man named Fred Hollander, lacks proof of direct injury and cannot sue. In the motion to dismiss the New Hampshire suit,lawyers said an individual citizen like the plaintiff, a Nashua man named Fred Hollander, lacks proof of direct injury and cannot sue. Daniel P. Tokaji, an election law expert at Ohio State University, agreed. “It is awfully unlikely that a federal court would say that an individual voter has standing,” he said. “It is questionable whether anyone would have standing to raise that claim.”





In April 2008 the Senate approved a non-binding resolution declaring John McCain eligible to be president, one which stated that “There is no evidence of the intention of the framers or any Congress to limit the constitutional rights of children born to Americans serving in the military nor to prevent those children from serving as their country’s president.” However, that resolution has no legal effect.

Two constitutional lawyers (Laurence Tribe and Theodore Olson) who have studied the issue at the request of Senator McCain found in his favor, but another law scholar recently declared he had determined just the opposite:





In the most detailed examination yet of Senator John McCain’s eligibility to be president, a law professor at the University of Arizona has concluded that neither Mr. McCain’s birth in 1936 in the Panama Canal Zone nor the fact that his parents were American citizens is enough to satisfy the constitutional requirement that the president must be a “natural-born citizen.” In the most detailed examination yet of Senator John McCain’s eligibility to be president, a law professor at the University of Arizona has concluded that neither Mr. McCain’s birth in 1936 in the Panama Canal Zone nor the fact that his parents were American citizens is enough to satisfy the constitutional requirement that the president must be a “natural-born citizen.” The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen. “It’s preposterous that a technicality like this can make a difference in an advanced democracy,” Professor Chin said. “But this is the constitutional text that we have.”





If a consensus on the matter can be said to exist, it is that if John McCain is not a natural-born citizen under the law, it’s only because of an exceptional and narrow gap in the law that was subsequently corrected and was never intended to exclude someone in his circumstances from natural-born citizenship status, so it would be unfair to declare him ineligible for the presidency on that basis:





“No court will get close to it, and everyone else is on board, so there’s a constitutional consensus, the merits of arguments such as [Professor Chin’s] aside,” said Peter J. Spiro, an authority on the law of citizenship at Temple University. “No court will get close to it, and everyone else is on board, so there’s a constitutional consensus, the merits of arguments such as [Professor Chin’s] aside,” saidSpiro, an authority on the law of citizenship at Temple University. “You’d have to think a federal court would look for every possible way to avoid deciding the issue,” [said election law expert Daniel P. Tokaji]. Senator Lindsey Graham, Republican of South Carolina and one of Mr. McCain’s closest allies, said it would be incomprehensible to him if the son of a military member born in a military station could not run for president. “He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”





Last updated: 23 July 2008









Sources:



Hulse, Carl. “Senate Says McCain Is Qualified.”

The New York Times. 1 May 2008.

Hulse, Carl. “McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out.”

The New York Times. 28 February 2008.

Liptak, Adam. “A Hint of New Life to a McCain Birth Issue.”

The New York Times. 11 July 2008.

Associated Press. “McCain: My Citizenship Not an Issue.”

USA Today. 29 February 2008.

Associated Press. “McCain Says Citizenship Issue Settled 44 Years Ago.”

USA Today. 29 February 2008 (p. A6).

The Denver Post. “McCain Says His Birthplace Isn’t an Issue.”