Tuesday, August 26, 2008

More on McCain's Citizenship

Ted J. Chiappari and Angelo A. Paparelli, writing for the New York Law Joural, concludes: 

So is Mr. 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
Mr. McCain's birth (so that the Fourteenth Amendment would make Mr. 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, Mr. Chin concludes from the passage of an
amendment to the U.S. nationality act 11 months after Mr. McCain's birth -
specifically granting U.S. citizenship to those born to U.S. citizen parents
in the Panama Canal Zone on or after Feb. 26, 1904, including Mr. McCain -
that the answer here is also no.20

The statute in effect at the time of Mr. 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 Mr.
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. Mr. Tribe and Mr. Olson's reaction to
Mr. Chin is that the 1937 law merely clarified what Congress intended all
along, and that reading the statute as Mr. Chin does would be "'to attribute
a crazy design to Congress' that 'would create an irrational gap.'"22

Mr. Chin would not disagree with Mr. Tribe and Mr. Olson's assessment of
U.S. nationality statutes: he calls Mr. 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, Mr. 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, Mr. Chin's reading is
perfectly plausible. We can only hope that Mr. McCain's constitutional
question might move Congress to draft a simpler, more coherent statute
regulating citizenship by descent.

Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke. Angelo A.
Paparelli is managing partner of Paparelli & Partners and president of the
Alliance of Business Immigration Lawyers.

For the full article, click here.

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