Friday, July 11, 2008

Chin on Senator McCain's U.S. Citizenship

Gabriel J. Chin, University of Arizona, has a new paper raising questions about whether presidential candidate John McCain was a "natural born" U.S. citizen at birth and therefore elegible for the presidency. Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship is on SSRN and is discussed in today's New York Times.

Chin's analysis is based on a 1937 statute, described in the abstract below. According to the Times, "several legal experts said that Professor Chin’s analysis was careful and plausible. But they added that nothing was very likely to follow from it." Laurence H. Tribe and Theodore B. Olson disagree with Chin's analysis. Tribe, a Barack Obama advisor,

prepared a memorandum on these questions with Theodore B. Olson, a former solicitor general in the Bush administration. The memorandum concluded that Mr. McCain is a natural-born citizen based on the place of his birth, the citizenship of his parents and their service to the country.

In an interview on Thursday, Mr. Olson, whose firm represents Mr. McCain in the New Hampshire lawsuit, said Congress could not have intended to leave the gap described by Professor Chin. The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along.

Professor Tribe agreed. Reading the “limits and jurisdiction” clause as Professor Chin does, Professor Tribe said, “is to attribute a crazy design to Congress” that “would create an irrational gap.”

Here's Chin's 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.

More commentary is here.

Update: a different view is offered in a new article by Stephen E. Sachs, John McCain's Citizenship: A Tentative Defense.

Image: John McCain in the arms of his grandfather, John Sidney McCain, right, with Senator McCain's father, in the Panama Canal Zone, 1936.