Natural-Born Citizenship: McCain’s Eligibility to be President is an Issue Again

According to Jack Chin (Arizona) a largely overlooked 1937 statute calls John McCain’s eligibility to be president into question (again) because he is not a natural-born citizen. The law conferred citizenship on children of American parents born in the Canal Zone after 1904 which would have made McCain a citizen just before his first birthday. But the law came too late, Professor Chin argues, to make McCain a natural-born citizen. Check out Chin's argument in Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship (SSRN)(Text of abstract below the fold).

See also: Adam Liptak's New York Times article, A Hint of New Life to a McCain Birth Issue, and Deven Desai's (Thomas Jefferson School of Law) post on Concurring Opinions. [JH]

Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship  by Gabriel J. Chin (University of Arizona James E. Rogers College of Law; University of Arizona Eller College of Management, School of Public Administration and Policy). Here's the abstract:

Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment's grant of citizenship to "all persons born . . . in the United States." However, in the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution.

This essay concludes by exploring how changes in constitutional law implied by the Tribe-Olson Opinion, such as limiting the Insular Cases and expanding judicial review of immigration and nationality laws passed by Congress, could make Senator McCain a citizen at birth and thus a natural born citizen.