Issues Re: Eligibility of George Romney and John McCain to Run for U.S. President Appears to Answer Birther Issue Against President Obama

August 27, 2012

The birther faction attacks the right of President Obama to be President due to his alleged birth in Kenya. Obama was born to an American citizen, and therefore even if he had not been born in the U.S., under the issues raised in l967, President Obama would be eligible to serve as President no matter where he was born according to substantive law.

But of course President Obama has proven he was born in Hawaii, and the issue is double-moot.

Nevertheless we find it interesting that two Candidates for the U.S. Presidency (George Romney and John McCain) were not born in the U.S. and no serious challenge to their eligibility to be declared “natural born” citizens was applied to them. Senator McCain never revealed his birth certificate to the public.

Wikipedia:

George Romney born in Mexico:

Questions were occasionally asked about Romney’s eligibility to run for President due to his birth in Mexico, given the ambiguity in the United States Constitution over the phrase “natural-born citizen”.[2][3] His Mormon paternal grandfather and his three wives had fled to Mexico in 1886, but none of them ever relinquished U.S. citizenship. Romney’s parents chose U.S. citizenship for their children, including George.[4] The family fled Mexico and came to the United States in 1912 during the Mexican Revolution.

By February 1967, some newspapers were questioning Romney’s eligibility given his Mexican birth.[5] In May 1967, the Democratic chair of the House Judiciary Committee, Emanuel Celler, said he had “serious doubts” about whether Romney was eligible, but had no plans to formally challenge the matter.[2] Another member of Congress made a case against Romney the following month.[5] In response, the New York Law Journal published an article by a senior attorney at Sullivan & Cromwell arguing that Romney was, in fact, eligible.[5] The Congressional Research Service also came down on Romney’s side,[5] as did most other constitutional experts at the time.[2]

During the campaign, Romney was generally considered a viable and legal candidate for United States president. He departed the race before the matter could be more definitively resolved,[3] although the preponderance of opinion since then has been that he was eligible.[6]

Status as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for election to the office of President or Vice President. This requirement was intended to protect the nation from foreign influence.

The Constitution does not define the phrase natural-born citizen, and various opinions have been offered over time regarding its precise meaning. A 2011 Congressional Research Service report stated.

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth”, either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth”. Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.[1]

According to an April 2000 report by the CRS, most constitutional scholars interpret the natural born citizen clause as to include citizens born outside the United States to parents who are U.S. citizens. This same CRS report also asserts that citizens born in the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands are legally defined as “natural born” citizens and are, therefore, also eligible to be elected President.

Senator John McCain ran against Barack Obama in 2008. He was born in Panama.

John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born at Coco Solo Naval Air Station[59][77][78][79][80][81][82] in the Panama Canal Zone.

McCain never released his birth certificate to the press or independent fact-checking organizations, but did show it to Washington Post reporter Michael Dobbs, who wrote “a senior official of the McCain campaign showed me a copy of [McCain's] birth certificate issued by the ‘family hospital’ in the Coco Solo submarine base”.[79] A lawsuit filed by Fred Hollander in 2008 alleged that McCain was actually born in a civilian hospital in Colon City, Panama.[83][84] Dobbs wrote that in his autobiography, Faith of My Fathers, McCain wrote that he was born “in the Canal Zone” at the U.S. Naval Air Station in Coco Solo, which was under the command of his grandfather, John S. McCain Sr. “The senator’s father, John S. McCain Jr., was an executive officer on a submarine, also based in Coco Solo. His mother, Roberta McCain, has said that she has vivid memories of lying in bed listening to raucous celebrations of her son’s birth from the nearby officers’ club. The birth was announced days later in the English-language Panamanian American newspaper.”[85][86][87][88]

The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[89] but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company; 8 U.S.C. § 1403 was cited in Judge William Alsup’s 2008 ruling, described below.

A March 2008 paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe opined that McCain was eligible for the Presidency.[90] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain’s status as a natural-born citizen.[91] In September 2008, U.S. District Judge William Alsup stated obiter in his ruling that it is “highly probable” that McCain is a natural-born citizen from birth by virtue of 8 U.S.C. § 1401, although he acknowledged the alternative possibility that McCain became a natural-born citizen retroactively, by way of 8 U.S.C. § 1403.[92]

These views have been criticized by Professor Chin, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court’s Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[93] The U.S. State Department’s Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.[94]

Reuters News Service:

In a paper in November(1967) aimed at clarifying presidential eligibility, the Congressional Research Service declared that the practical, legal meaning of “natural born citizen” would “most likely include” not only anyone born on U.S. soil but anyone born overseas of at least one parent who was a U.S. citizen.

Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009)

Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167, 22 L.Ed. 627 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts

Wong Kim Ark, 169 U.S. at 662, 18 S.Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).

The Court in Wong Kim Ark also cited authority which notes that:

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

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