Wednesday, June 15, 2016

International Adoptees and the Presidency

People Magazine ran this story of an 11-year-old adopted from China who wants to become U.S. President:

Alena Mulhern, 11, dreams of running for president in 2040, the first year she could legally vie for the role of Commander in Chief. But she can't.

The Constitution prevents foreign adoptees from reaching the Oval Office, so the fifth grader from Kingston, Massachusetts, and her lawmaker uncle are working to change that.

Born in China and adopted at 10 months old, Alena is a U.S. citizen but not a natural born citizen, which the constitution requires for those seeking the presidency.

"I feel unhappy about it because it prevents kids from achieving their dreams," she tells PEOPLE. "And it's not fair for any adopted kid."

 The Natural Born Citizen clause affects international adoptees as it does all naturalized citizens.  I wrote about this issue in 2005 in an article in the BYU Law Review, The Presidency and the Meaning of Citizenship:

Every American child has heard the stories: Abraham Lincoln was raised in a log cabin without the benefit of electricity and became the sixteenth President of the United States. Harry S. Truman was a failed shopkeeper and became President of the United States. William Jefferson Clinton was born fatherless in Hope, Arkansas and became President of the United States. We are told, as an expression of the openness of opportunity before us, the myth that every American child can grow up to be President. Not every child can grow up to be President of the United States because Article II, Section 1, Clause 4 of the Constitution reads, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

Thousands of children born abroad and subsequently adopted by American citizens are barred from the presidency, despite their "automatic" citizenship by virtue of the Child Citizenship Act of 2000. Nor can naturalized citizens-like Henry Kissinger, Madeleine Albright, Arnold Schwarzenegger, and Jennifer Granholm -become President. There is even some question about whether the biological children of American citizens, born abroad, like Ted Cruz, can become President and whether American Indians, born on U.S. soil, qualify as natural-born citizens. On its face, the Constitution preserves the presidency for those born within the boundaries of the United States and, in this way, enshrines John Rawls's vision of a society that is truly "entered only by birth."

Although citizenship is not limited to those born into American society, that society exhibits deep-seated suspicions of the foreign born. Although naturalized citizens take an oath of allegiance to the United States and are required to renounce citizenship in other countries, strong notions persist that the foreign-born are not completely loyal to their new country. Immigration is viewed with suspicion, and many draw no distinction between legal and illegal immigrants. Similarly, society often draws no distinction between naturalized citizens and resident aliens, seeing only that both were born outside the United States.

Contrary to these societal notions, the United States Supreme Court has stated, "Citizenship obtained through naturalization is not a second-class citizenship." Yet there are countless ways in which our concept of "true" citizenship resides in blood and birth, not in legal acts like naturalization. The constitutional restriction on the Office of the President is just one, albeit a powerful one. As one commentator notes, "The natural-born citizen requirement embodies the presumption that some citizens of the United States are a bit more authentic, a bit more trustworthy, a bit more American than other citizens of the United States, namely those who are naturalized."

This Article uses the issue of presidential qualification as a vehicle to examine the meaning of citizenship today, arguing that the Natural-Born Citizen Clause perpetuates a second-class citizenship that is inappropriate and inapposite in modern American society.

Further, I argue in the article that the Natural Born Citizen clause has already been amended out of the Constitution by passage of the Fourteenth Amendment because of the irreconcilable conflict between the two provisions.  When two constitutional provisions are in irreconcilable conflict, I argue, the later in time prevails.  Good news, Alena -- you can be president!

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This is an interesting law, since America is a young country with so many people who were born in other countries. Team Alena!

Posted by: Lisa Lewis, MD | Jun 20, 2016 6:37:36 PM

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