February 28, 2008

McCain May be Constitutionally Disqualified to be President

By Jack Kemp (not the politician):

The question of John McCain's vice presidential choice gained a new level of importance as the International Herald Tribune (owned by the New York Times) pointed out in an article that Sen. McCain was born in The Panama Canal Zone while his father was on duty in the US Navy.
http://www.iht.com/articles/2008/02/28/america/28mccain.php
 
This situation could easily lead to an historical Supreme Court challenge as to whether he is a "natural born citizen" as the Constitution requires. And the assumption that a Republican-appointed majority on the Court would rule in his favor may - or may not - be enough to qualify him to be President. Such a court challenge by Democrats may start in the lower courts either before or after the November election. And that challenge may quickly pass over all lower courts and go directly to the US Supreme Court. If such a court challenge occured during the post election/pre-innauguration period or during the early part of a McCain presidency, it could have an effect similar - and worse - that the post 2000 Election Day controversies. It would be essentially be an impeachment trial by other means.
 
While The International Herald Tribune has some degree of arms-length independence from the NY Times organization, I would doubt that they will received any reprimand from anyone at Times headquarters for running this story.
 
Jack
 
Full story:
 
McCain's birthplace prompts queries about whether that rules him out

By Carl Hulse

 
Published: February 28, 2008
 
WASHINGTON: The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.
McCain's likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a "natural-born citizen" can hold the nation's highest office.

Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

"There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent," said Sarah Duggin, an associate professor of law at Catholic University who has studied the issue extensively. "It is not a slam-dunk situation."

McCain was born on a military installation in the Canal Zone, where his mother and father, a navy officer, were stationed. His campaign advisers say they are comfortable that McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around.

But given mounting interest, the campaign recently asked Theodore Olson, a former solicitor general now advising McCain, to prepare a detailed legal analysis. "I don't have much doubt about it," said Olson, who added, though, that he still needed to finish his research.
Senator Lindsey Graham, Republican of South Carolina and one of 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," Graham said of 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."

The phrase "natural born" was in early drafts of the Constitution. Scholars say notes of the Constitutional Convention give away little of the intent of the framers. Its origin may be traced to a letter from John Jay to George Washington, with Jay suggesting that to prevent foreigners from becoming commander in chief, the Constitution needed to "declare expressly" that only a natural-born citizen could be president.

Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court.

Duggin favors a constitutional amendment to settle the matter. Others have called on Congress to guarantee that Americans born outside the national boundaries can legitimately see themselves as potential contenders for the Oval Office.

"They ought to have the same rights," said Don Nickles, a former Republican senator from Oklahoma who in 2004 introduced legislation that would have established that children born abroad to American citizens could harbor presidential ambitions without a legal cloud over their hopes. "There is some ambiguity because there has never been a court case on what 'natural-born citizen' means."

McCain's situation is different from those of the current governors of California and Michigan, Arnold Schwarzenegger and Jennifer Granholm, who were born in other countries and were first citizens of those nations, rendering them naturalized Americans ineligible under current interpretations. The conflict that could conceivably ensnare McCain goes more to the interpretation of "natural born" when weighed against intent and decades of immigration law.

McCain is not the first person to find himself in these circumstances. The last Arizona Republican to be a presidential nominee, Barry Goldwater, faced the issue. He was born in the Arizona territory in 1909, three years before it became a state. But Goldwater did not win, and the view at the time was that since he was born in a continental territory that later became a state, he probably met the standard.

It also surfaced in the 1968 candidacy of George Romney, who was born in Mexico, but again was not tested. The former Connecticut politician Lowell Weicker Jr., born in Paris, sought a legal analysis when considering the presidency, an aide said, and was assured he was eligible. Franklin D. Roosevelt Jr. was once viewed as a potential successor to his father, but was seen by some as ineligible since he had been born on Campobello Island in Canada. The 21st president, Chester Arthur, whose birthplace is Vermont, was rumored to have actually been born in Canada, prompting some to question his eligibility.

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens "born beyond the sea, or out of the limits of the United States to be natural born." But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the "natural-born" phrase.

McCain's citizenship was established by statutes covering the offspring of Americans abroad and laws specific to the Canal Zone as Congress realized that Americans would be living and working in the area for extended periods. But whether he qualifies as natural-born has been a topic of Internet buzz for months, with some declaring him ineligible while others assert that he meets all the basic constitutional qualifications  a natural-born citizen at least 35 years of age with 14 years of residence.

"I don't think he has any problem whatsoever," said Nickles, a McCain supporter. "But I wouldn't be a bit surprised if somebody is going to try to make an issue out of it. If it goes to court, I think he will win."

Lawyers who have examined the topic say there is not just confusion about the provision 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.

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."

"If I were on the Supreme Court, I would decide for John McCain," Pryor said in a recent interview. "But it is certainly not a frivolous issue."

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