Monday, August 3, 2020

Guest Post: Senator Duckworth is a Natural-Born Citizen by Minyao Wang

Senator Duckworth is a Natural-Born Citizen by Minyao Wang

According to multiple media reports, Joseph Biden Jr., the presumptive Democratic nominee for President, is seriously considering Sen. Tammy Duckworth of Illinois as his running mate.  Whatever the outcome of this selection process, her potential candidacy is a huge political milestone in the history of Asian Americans.  Some reports suggest that there are concerns within the Biden campaign about a legal challenge to Sen. Duckworth’s eligibility because she was born in Thailand of a U.S. citizen father and a Thai mother of Chinese descent.  It may be therefore useful to review the Constitution’s clause governing qualifications for the Presidency.  It appears that the best reading of the law is on Sen. Duckworth’s side.    

Article II, Section 1, clause 5 of the U.S. Constitution provides in relevant part:  “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.” (emphasis added).  The Twelfth Amendment, ratified in 1804, expressly provides that the Vice President must meet the same constitutional qualifications as the President.  Application of this Natural-born Clause is generally straightforward.  While the Constitution itself does not define “natural-born,” it is settled law that a person born in the United States is a “natural-born” citizen, even if his or her parents are foreign nationals.  United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898) (holding that children born of Chinese parents in the U.S. were “natural -born citizens notwithstanding the enactment of the Chinese Exclusion Act).  On the other hand, anyone who was born as a foreign national and became an American through naturalization is not a “natural-born” citizen.  As the Supreme Court noted in United States v. Schwimmer, 279 U.S. 644, 649 (1929), “[e]xcept for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.”  Therefore, barring a constitutional amendment, neither Transportation Secretary Elaine Lan Chao, who immigrated from Taiwan when she was eight years old, nor Representative Stephanie Murphy of Florida, a rising star in the Democratic Party who escaped from Communist Vietnam as a baby girl with her parents, will be elected to the nation’s two highest political offices.

The Constitution is silent on presidential eligibility for children, such as Sen. Duckworth, born abroad of U.S. citizens.  These foreign-born children are not American citizens by virtue of any constitutional provision or constitutional principle.  But Congress has declared by statute that generally children born of American parents abroad are American citizens from birth.  The precise requirements for the intergenerational transmission of citizenship have fluctuated throughout our nation’s history.  Conferral of citizenship depends on such factors as whether both parents are American citizens, whether the parents are married to each other, whether the parents have resided in the United States prior to the birth of the child and so forth.  See 8 U.S.C. §§ 1410 and 1409; Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (holding portions of these provisions unconstitutional due to gender discrimination).  These requirements are designed to preclude endless transmission of citizenship across many generations if the family does not maintain sufficient ties with the United States.  There were also historical periods where Congress did not permit transmittal of citizenship at all, underscoring the fact that the benefit is not an entitlement, but of Congressional discretion. 

When Sen. Duckworth was born in 1968, the applicable law provided that she was a U.S. citizen from birth as long as her citizen father had spent 10 years in the U.S, at least five of which were after his 14th birthday.[1]  Her father met this simple requirement without any issue.  Franklin Duckworth grew up in the state of Maryland, fought in World War II, Korea and Vietnam, retiring from the U.S. armed forces with the rank of Captain.  If the constitutional “natural born” phrase means “native-born,” then Sen. Duckworth cannot become Vice President.  But if “natural-born” only means citizenship from the time of birth, then she could make history and join the Democratic national ticket with Mr. Biden.   

This “twilight zone” scenario has arisen with surprising frequency in modern presidential elections.  In 1968, when George Romney (father of Mitt Romney) ran for the Republican nomination, dueling commentaries appeared in the legal and popular press about his eligibility.  Gov. Romney was born in Mexico of two American citizen parents.  This issue surfaced both in 2000 and 2008 when John McCain ran for President.  He was born in the Panama Canal Zone where his father was on assignment as an officer of the United States Navy.  A federal court ruled that Sen. McCain was likely eligible to serve as President.  Robinson v. Bowen, 567 F.Supp.2d 1144, 1146 (N.D. Cal. 2008) (“This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.”).  In 2016, when Ted Cruz was briefly a candidate, his qualification was questioned because he was born in Canada of an American mother and a Cuban father.  A state judge in Philadelphia ruled in his favor, agreeing “that a ‘natural born citizen’ includes any person who is a United States citizen from birth.”  Elliott v. Cruz, 137 A.3d 646, 658 (Pa. Commw. Ct. 2016), affd, 134 A.3d 51 (Pa. 2016), cert. denied, 137 S. Ct. 169 (2016).

Consistent with these two opinions, most of the legal scholars who have studied the issue take the position that a person who is a citizen from birth by virtue of a Congressional enactment is eligible for the Presidency, but there are non-frivolous academic views to the contrary. 

There are at least three bases of support for the prevailing view.  First, let us try to reconstruct what happened during Framing.  There is unfortunately no surviving record of any relevant debate at the Constitutional Convention.  The “natural-born” requirement appears to have originated from a letter from John Jay (who was not part of the Convention) to George Washington recommending a “strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”  But the Constitutional Convention discussed, and ultimately rejected, limiting service in both Houses of Congress to native born citizens.  This provides reasonable support for the argument that had the Framers wanted to limit the Presidency to only citizens born in the United States, they knew how to articulate that intent.  Accordingly, “natural born” has to mean something different than “native born.”  And the only other reasonably plausible definition for that term would include acquisition of citizenship from birth by operation of law.   

Second, the Naturalization Act of 1790, passed only one year after the ratification of the Constitution, declared that “children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”  (emphasis added).  Given that so many Framers went on to serve in the First Congress, this law should be taken as strong contemporaneous evidence of the intent of the Framers when they wrote the Natural-born Clause.

Third, British common-law at the time of Framing provides additional support for Sen. Duckworth’s eligibility for the Vice Presidency.  While under earliest unwritten laws of England, natural born citizens included only those born within England, with the possible exception of those born of citizen parents who were abroad on the diplomatic or military service of the King (which would have made Sen. McCain a natural born citizen), a series of statutes passed by the Parliament provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever” of the King.  The better view is that the common law imported to the Colonies included those Parliamentary enactments.  Blackstone’s Commentaries, a leading legal treatise which was widely available in the Colonies and is routinely used to interpret the common law, states that children born outside England of English subjects were considered under the law of England as “natural born” subjects of the King.  It is inconceivable that the Framers would have used the term “natural born” and departed from its accepted meaning without leaving behind any explanation.

While it is impossible to divine with certainty what the Framers meant when they enacted the Natural-born Clause, the weight of the evidence strongly suggests that a child born abroad of at least one citizen parent and becomes a citizen from the time of her birth is a “natural born” citizen.  The Clause was crafted to protect the young nation facing a precarious future from the imperial designs of foreign powers, a circumstance that does not apply today when the United States is by far the world’s most powerful nation.  If Sen. Duckworth, who has been in Congress for 8 years and was almost fatally wounded serving her country in the Iraq War, is nominated for the Vice Presidency, the American people should be entitled to decide whether she is the best candidate based on the totality of her record.  They should not be prevented from judging her by an excessively broad reading of the Clause.  

Endnote

[1] This presupposes that her parents were married at the time of her birth.

KJ

https://lawprofessors.typepad.com/immigration/2020/08/guest-post-senator-duckworth-is-a-natural-born-citizen-by-minyao-wang.html

Current Affairs | Permalink

Comments

If you want to become a British citizen then you have to pass the British citizenship test. But many people do not feel comfortable facing this test. But they do not know they can pass this test easily by studying the British citizenship practice test from the Practice Test Geeks Website.

Posted by: Jon Korim | May 16, 2021 2:21:16 AM

Tammy Duckworth acquired citizenship at birth abroad via statute, just like most military kids born abroad to US citizen parents do. Although the majority of legal scholars believe her to be natural born, SCOTUS has never officially ruled on that, so that is still a gray area that needs further legislation. One needs only to read the Rogers v Bellei case of 1971 to see how unequal and unsecure statutory citizenship is compared to that of 14th Amendment, 1st clause citizenship. That case clearly states that citizens who are naturalized abroad at birth by statute are not 14th Amendment citizens, as they were not born IN or naturalized IN the US, and their citizenship can be conditioned by Congress in ways that 14th Amendment citizenships cannot. That is very scary considering our current political climate. Senator Duckworth and others need to step up and get Congress to pass legislation that states that all such statutory citizens become Constitutionally entrenched citizens upon their first Constitutionally recognized legal presence in the US. This is an issue that will not go away just by ignoring it. Isn't it time for all US citizens to have citizenship that is Constitutionally entrenched and equal in all respects? The answer is clearly, "YES!"

Posted by: Susan | Nov 7, 2022 11:08:34 AM

Post a comment