.1$(!,!6%5)%6.1$(!,!6%5)%6
.+4,% 224% 13)#+%
%3()-*)-'1%2)$%-3)!++)')")+)38%3()-*)-'1%2)$%-3)!++)')")+)38
4'%-%!9.
%.1'%!2.--)5%12)38
.++.63()2!-$!$$)3).-!+6.1*2!3(33/2)1+!6-%3&.1$(!,%$4:1
!13.&3(%+%#3).-!6.,,.-2!6!-$.#)%38.,,.-21%2)$%-37%#43)5%%/!13,%-3
.,,.-2!-$3(%4"+)#!6!-$%'!+(%.18.,,.-2
%#.,,%-$%$)3!3).-%#.,,%-$%$)3!3).-
4'%-%!9.
%3()-*)-'1%2)$%-3)!++)')")+)38
.1$(!,%5
5!)+!"+%!3(33/2)1+!6-%3&.1$(!,%$4:15.+)22
()2.++.04)4,)2"1.4'(33.8.4&.1&1%%!-$./%-!##%22"8(%.1$(!,!61#()5%.&#(.+!12()/
!-$)23.183(!2"%%-!##%/3%$&.1)-#+42).-)-.1$(!,!6%5)%6"8!-!43(.1)9%$%$)3.1.&(%
.1$(!,!61#()5%.&#(.+!12()/!-$)23.18.1,.1%)-&.1,!3).-/+%!2%#.-3!#3
3,%+-)#*+!6&.1$(!,%$4
1045
RETHINKING PRESIDENTIAL ELIGIBILITY
Eugene D. Mazo*
Many aspiring American Presidents have had their candidacies
challenged for failing to meet the Constitution’s eligibility requirements.
Although none of these challenges have ever been successful, they have
sapped campaigns of valuable resources and posed a threat to several
ambitious men. This Article examines several notable presidential
eligibility challenges and explains why they have often been unsuccessful.
The literature on presidential eligibility traditionally has focused on the
Eligibility Clause, which enumerates the age, residency, and citizenship
requirements that a President must satisfy before taking office. By contrast,
very little of it examines how a challenge to one’s candidacy impacts a
presidential campaign. This Article seeks to fill this gap. It also offers a
modest proposal: Congress should pass legislation defining exactly who is
eligible to be President and also implement procedural rules that would
expedite presidential eligibility cases for review to the Supreme Court.
I
NTRODUCTION ........................................................................................ 1046
I.
THE CONSTITUTIONAL PROVISIONS .................................................... 1047
A. Interpreting the Eligibility Clause .......................................... 1048
B. The Citizenship Rights of Children Born Abroad ................... 1051
II.
NOTABLE AMERICAN ELIGIBILITY CHALLENGES .............................. 1055
A. Historical Challenges from the 1880s to 1970s ...................... 1055
B. Modern Challenges to McCain, Obama, and Cruz ................ 1058
III.
RESOLVING PRESIDENTIAL ELIGIBILITY DISPUTES .......................... 1065
A. The Reluctance of Courts to Be Involved ................................ 1065
B. The Need for Congressional Action ........................................ 1067
C
ONCLUSION ........................................................................................... 1072
* Antonin Scalia Law School, George Mason University. This Article is dedicated to the
memory of my father, Eugene B. Mazo (1938–2016), who inspired my enduring love of
politics. He will always be missed. I owe thanks to Jerry Goldfeder, Ned Foley, Tony
Gaughan, Derek Muller, Michael Morley, Michael Waldman, Sean Wright, and the many
audience members who participated in the forum on Election Law and the Presidency at
Fordham University School of Law for their thoughtful comments on the ideas presented
here. I am grateful to David Noll for pushing me to think harder about the consequences of
my proposed solutions. Finally, I wish to thank Max Bernstein, Jessica Lee, and the editors
of the Fordham Law Review for their help in editing this Article and for showing extreme
patience with me throughout its publication process. All remaining errors are my own.
1046 FORDHAM LAW REVIEW [Vol. 85
I
NTRODUCTION
The U.S. Supreme Court has yet to rule that any candidate for the
presidency of the United States is ineligible for that office. This is so
despite the fact that the eligibility of U.S. presidential candidates has often
been challenged. Several aspiring Presidents have had lawsuits filed
against them alleging that they fail to meet the requirements of the
Constitution’s Eligibility Clause.
1
In most instances, these lawsuits have
been summarily dismissed. In the few circumstances when the courts have
decided these cases on their merits, they have always ruled against the
challengers.
2
Much of the literature on presidential eligibility focuses on the text of the
Constitution and on the provisions of its Eligibility Clause.
3
By contrast,
little of it examines how actual challenges to a candidate’s eligibility play
out in the heat of a presidential campaign. Nor has the literature examined
how our presidential candidates are affected by these challenges or how
their campaigns respond to them. The few scholars who have looked at
these challenges closely conclude that having the courts resolve them has
been “disastrous.”
4
As such, commentators have put forth various
proposals to make resolving eligibility disputes easier. For example, over
the years, scholars have repeatedly called for a constitutional amendment to
abolish the requirement of electing a natural born citizen.
5
This Article calls for a different solution. It posits that Congress should
define who a “natural born citizen” is. Congress has long regulated by
statute the conditions that must be satisfied for children born overseas to
U.S. citizen parents to obtain their citizenship. Now Congress should
provide guidance as to which of these children qualify as natural born
citizens for purposes of presidential eligibility.
6
If Congress does not feel it
can do this, then this Article argues for an original solution: it calls on
Congress to create a statutory provision mandating that presidential
1. U.S. CONST. art. II, § 1, cl. 5.
2. See infra Part II.D.
3. See, e.g., Charles Gordon, Who Can Be President of the United States: The
Unresolved Enigma, 28 M
D. L. REV. 1 (1968); Jordan Steiker et al., Taking Text and
Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential
Eligibility, 74 T
EX. L. REV. 237 (1995).
4. See, e.g., Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 I
ND.
L.J. 559, 561 (2015) (noting how any attempt to determine presidential eligibility questions
through litigation “has been disastrous”); see also J
ACK MASKELL, CONG. RESEARCH SERV.,
R42097, QUALIFICATIONS FOR PRESIDENT AND THE “NATURAL BORN” CITIZENSHIP
ELIGIBILITY REQUIREMENT 34–50 (2011) (examining the cases that challenged the
presidential eligibility of presidential candidates John McCain and Barack Obama).
5. See, e.g., Malinda L. Seymore, The Presidency and the Meaning of Citizenship, 2005
BYU
L. REV. 927, 991–94 (explaining why a constitutional amendment to repeal the Natural
Born Citizen Clause is justified); see also Derek Muller, “Natural Born” Disputes in the
2016 Presidential Election, 85 F
ORDHAM L. REV. 1097, 1111 (2016) (explaining how a
constitutional amendment concerning natural born citizens “is nothing new”).
6. See Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential
Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Y
ALE L.J.
881, 884 (1988) (recognizing “Congress’s role, through legislation, to determine who is a
natural-born citizen”).
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1047
eligibility challenges get a hearing before a three-judge district court, with
mandatory review by the Supreme Court. Such procedures already exist in
other areas of election law.
7
Eligibility contests should not be
distinguishable. This would allow these disputes to be resolved more
expeditiously.
The Article proceeds in three parts. Part I examines the relevant
constitutional provisions and some of the difficulties that scholars have had
in determining what they mean. Part II examines the bases of the various
eligibility challenges that several U.S. presidential candidates have faced. It
focuses both on famous eligibility challenges from the past and on the more
recent challenges that John McCain, Barack Obama, and Ted Cruz faced in
2008, 2012, and 2016. Part III explains why these constitutional challenges
have repeatedly been unsuccessful. It also offers a proposal for what
Congress can do to respond to them should they occur in future elections.
Leaving unresolved the question of who is eligible to serve as President
of the United States poses great dangers and risks for American democracy.
It also forces campaigns to waste valuable time and resources litigating a
question to which most voters expect there to be a clear answer. This result
is not only confusing to citizens, but it also lowers their confidence in the
integrity of the democratic process. Because 2016 is a presidential election
year, this Article is timely and hopes to fill a gap in the growing but
indeterminate literature on presidential eligibility. That literature has
extensively debated who is qualified to serve as the U.S. President. It has,
however, largely failed to come up with a solution for resolving eligibility
disputes with fairness and finality. In examining the eligibility challenges
that several American presidential candidates have faced, this Article
proposes a solution for what Congress can do to move forward.
I.
THE CONSTITUTIONAL PROVISIONS
The Framers wanted to ensure that only a person of good judgment, who
was also loyal to his country, could be elected President of the United
States. To ensure this, they mandated in the Eligibility Clause of the U.S.
Constitution three requirements for the presidency. These focused on a
candidate’s age, residency, and citizenship:
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; neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty five Years, and been fourteen
Years a Resident within the United States.
8
7. See, e.g., Joshua A. Douglas, The Procedure of Election Law in Federal Courts,
2011 U
TAH L. REV. 433, 433 (noting how “in litigation involving the Voting Rights Act,
certain aspects of campaign finance, and redistricting, a three-judge district court comprised
of both appellate and district judges initially hears the dispute, and the Supreme Court is
required to review any appeal”).
8. U.S.
CONST. art. II, § 1, cl. 5.
1048 FORDHAM LAW REVIEW [Vol. 85
Other presidential eligibility restrictions exist elsewhere in the Constitution
as well.
9
For example, the Twenty-Second Amendment prevents any
person from being elected President more than twice
10
or from a person
being elected more than once if he has served more than two years of a term
to which some other person was elected.
11
This ensures that a Vice
President who succeeds to the office of the presidency to fill the shoes of a
sitting President who dies or resigns can only be elected once more.
The Eligibility Clause has led to much controversy. Especially
problematic has been the natural born citizenship requirement, which does
not resolve the question of whether an individual who may be born overseas
to U.S. citizen parents—and is granted citizenship at birth by congressional
statute—qualifies to serve as President of the United States.
A. Interpreting the Eligibility Clause
The constitutional requirement that the President has to be thirty-five
years of age at the time of taking office is clear on its face,
12
and there has
not been a serious court challenge to a candidate on behalf of his age. The
United States has, however, witnessed several young candidates run for
office. In 1896, when William Jennings Bryan became the Democratic
Party’s nominee for the presidency, he was only 36 years old.
13
Bryan
remains the youngest nominee of any major political party for this office.
14
In 2015, Marco Rubio began campaigning for the presidency at age forty-
three.
15
Other candidates have begun their campaigns when they had not
yet reached the age of thirty-five.
16
None of these latter candidates are
9. See Muller, supra note 4, at 567–72 (enumerating a President’s qualifications and, in
addition to those of the Eligibility Clause, finding that a candidate cannot be or have been
term limited, disqualified from office because of impeachment, conviction, insurrection, or
rebellion, and cannot be an inhabitant of the same state as the Vice President).
10. U.S.
CONST. amend. XXII, § 1 (“No person shall be elected to the office of the
President more than twice . . . .”).
11. Id. (“[N]o person who has held the office of President, or acted as President, for
more than two years of a term of which some other person was elected President shall be
elected to the office of the President more than once.”).
12. See Anthony D’Amato, Aspects of Deconstruction: The “Easy Case” of the Under-
Aged President, 84 N
W. U. L. REV. 250, 250 (1989) (arguing that there is nothing in the
Constitution that is more “crystal-clear” than the age cut off for a President); Muller, supra
note 4, at 567 (calling this requirement “fairly straightforward”).
13. See M
ICHAEL KAZIN, A GODLY HERO: THE LIFE OF WILLIAM JENNINGS BRYAN 46
(2007). See generally R
OBERT W. CHERNY, A RIGHTEOUS CAUSE: THE LIFE OF WILLIAM
JENNINGS BRYAN (1994); GERALD N. MAGLIOCCA, THE TRAGEDY OF WILLIAM JENNINGS
BRYAN: CONSTITUTIONAL LAW AND THE POLITICS OF BACKLASH (2011).
14. Several U.S. Presidents have begun their terms when they were in their forties. On
Inauguration Day, Theodore Roosevelt was forty-two; John F. Kennedy, forty-three; Bill
Clinton and Ulysses S. Grant, forty-six; and Grover Cleveland and Barack Obama, forty-
seven. See Ronald Feinman, Are We Entering an Age of Older Presidents?, P
ROGRESSIVE
PROFESSOR (Nov. 26, 2014), http://www.theprogressiveprofessor.com/?tag=presidents-in-
their-40s [https://perma.cc/5HSQ-B5Y7].
15. See M
ANUEL ROIG-FRANZIA, THE RISE OF MARCO RUBIO 51 (2012) (chronicling
Rubio’s political ascent in Florida).
16. See, e.g., Gil Kaufman, Meet the Youngest Candidate for President, Ever: Brian
Russell May Not Even Be 35 yet, but He Wants to Be Your President, MTV
(Apr. 13, 2015),
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1049
nationally known, though most of them have filed to run for the presidency
successfully. Such filings have sometimes tasked courts and administrative
agencies, such as the Federal Election Commission, with issuing rulings
concerning the right of these candidates to receive campaign contributions,
qualify for matching funds, purchase advertising, and so forth—issues that
are crucial to a successful campaign and on which we now have established
some precedent.
17
The Eligibility Clause also requires the President to have been “fourteen
Years a Resident within the United States.”
18
Some commentators, such as
Ted Cruz’s counsel James C. Ho, suggest that the Framers did not believe
the fourteen-year residency requirement needed to be satisfied
consecutively but rather only cumulatively.
19
An earlier version of the
Eligibility Clause, argues Ho, excluded individuals who have “not been in
the whole, at least fourteen years a resident within the U.S.,”
20
although the
phrase “in the whole” was apparently deleted during the debates at the
Constitutional Convention.
21
It was for this reason that Herbert Hoover,
who ran for the presidency in 1928, less than fourteen years after returning
to the United States in 1917 from London and Belgium, where he worked
organizing food relief programs during World War I, could be elected.
22
The third qualification to be President is the one that has received the
most attention from commentators and has also been most often challenged
in the courts.
23
It requires the President to be a “natural born Citizen.”
24
As mentioned, the Framers wished to ensure loyalty to their new country
and did not want a foreigner to occupy the office of the President. In a
famous letter, John Jay related to George Washington how the Natural Born
Citizen Clause “cuts off all chances for ambitious foreigners, who might
otherwise be intriguing for the office; and interposes a barrier against those
corrupt interferences of foreign governments in executive elections.”
25
http://www.mtv.com/news/2125732/youngest-candidate-president-brian-russell/ (explaining
how a thirty-four-year-old “self-employed investment banker from Ponte Vedra Beach,
Florida, filed to run for president”) [https://perma.cc/5HA5-QSZG].
17. See, e.g., FEC Advisory Opinion 2011-15 (Hassan), at 1 (Sept. 2, 2011),
http://saos.fec.gov/saos/searchao;jsessionid=B396EAB8E3F4153478F5FB5363326B1E?SU
BMIT=continue&PAGE_NO=0 (ruling that Mr. Hassan, a naturalized U.S. citizen, is not
prevented from becoming a “candidate” for President and is allowed both to solicit and
receive campaign contributions under the Federal Election Campaign Act of 1971, though he
is not eligible to receive federal matching funds) [https://perma.cc/J2XH-FBWG].
18. U.S.
CONST. art. II, § 1, cl. 5.
19. See James C. Ho, Presidential Eligibility, in T
HE HERITAGE GUIDE TO THE
CONSTITUTION 189, 190 (Edwin Meese III et al. eds., 2005).
20. Id.
21. Id.
22. Id.; see also C
HARLES RAPPLEYE, HERBERT HOOVER IN THE WHITE HOUSE: THE
ORDEAL OF THE PRESIDENCY 31–42 (2016) (chronicling Hoover’s run for the White House
against Alfred Smith of New York).
23. See M
ASKELL, supra note 4, at 34–50.
24. U.S.
CONST. art. II, § 1, cl. 5.
25. 3
JOSEPH L. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 1473 (1833).
1050 FORDHAM LAW REVIEW [Vol. 85
Of course, few people mention that several nonnatural born citizens have
served as President before. Eight out of our forty-four Presidents—18
percent of the total—were not born as citizens of United States. These men
were born before the American Revolution, and they each became United
States citizens only after independence. To ensure that members of the
founding generation were not precluded from the presidency, the Framers
inserted language into the Eligibility Clause that allowed “a Citizen of the
United States, at the time of the Adoption of this Constitution” to serve.
26
Martin van Buren, who became the country’s eighth President in 1837, was
the first natural born citizen elected to this office.
27
But what is a “natural born citizen”? The meaning of these words has
been debated for decades, but neither courts nor scholars have come to a
clear resolution about what they actually mean. The originalist scholar
Lawrence Solum believes that the original meaning of the Natural Born
Citizen Clause is subject to an “irreducible ambiguity.”
28
Other originalist
scholars, such as Michael Ramsey, have written about how the drafting and
ratifying history of the clause “are not helpful to finding [its] conclusive
meaning.”
29
Often, commentators have looked to English law to interpret
the term. English common law embraced two concepts that bestowed
citizenship to the crown’s subjects. The first, jus soli, conferred citizenship
on those born on British soil.
30
The second, jus sanguinis, conferred
citizenship on the child of a British subject, even if she was born overseas.
31
In the United States, however, how the offspring of a U.S. citizen qualified
for citizenship would be determined by statute.
26. U.S. CONST. art. II, § 1, cl. 5.
27. See Donald A. Zinman, Martin Van Buren: 8th President of the United States, in 1
C
HRONOLOGY OF THE U.S. PRESIDENCY 261, 262 (Matthew Manweller ed., 2012); Steve
Frank, Martin Van Buren, Immigration and the Presidency, CONST. DAILY (Dec. 6, 2010),
http://blog.constitutioncenter.org/2010/12/martin-van-buren-immigration-and-the-
presidency/ [https://perma.cc/TSW4-6WMH].
28. Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, 107 M
ICH. L.
REV. FIRST IMPRESSIONS 22, 30 (2008).
29. Michael D. Ramsey, The Original Meaning of “Natural Born” 6 (Jan. 7, 2016)
(unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485
[https://perma.cc/6AP8-VGPA]; see also Robert Post, What Is the Constitution’s Worst
Provision?, 12 C
ONST. COMMENT. 191, 192 (1995) (explaining how the Eligibility Clause is
“remarkably innocent” of legislative history); Pryor, supra note 6, at 887–88 (“[A]t the time
of the framing of the Constitution, there was no common understanding of what ‘natural
born citizen’ meant”); cf. Saul Cornell, The 1790 Naturalization Act and the Original
Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the
Limits of Originalism, 2016 W
IS. L. REV. FORWARD 92 (criticizing originalist scholarship
regarding the clause).
30. T
HOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS
AND
POLICY 38, 50 (7th ed. 2012); KEVIN R. JOHNSON ET AL., UNDERSTANDING IMMIGRATION
LAW 605–06 (2015).
31. A
LEINIKOFF ET AL., supra note 30, at 38–41; JOHNSON ET AL., supra note 30, at 616,
618.
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1051
B. The Citizenship Rights of Children Born Abroad
The phrase “natural born citizen” has often been studied in conjunction
with the Naturalization Act of 1790, the first such statute. This law
constituted Congress’s first pronouncement of how foreign-born children of
U.S. citizens could gain citizenship. The relevant language declared that
“the 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,” provided that “the right of citizenship” would not “descend to
persons whose fathers have never been resident in the United States.”
32
It
is clear that members of the founding generation believed that the child of
U.S. citizen parents born abroad could be considered a natural born citizen,
but to qualify for this designation there were also requirements that had to
be satisfied by the child’s parents. Natural born citizenship was not only
based on the circumstances of one’s birth, in other words, but also on the
decisions made by one’s begetter. Since the Naturalization Act of 1790,
Congress has on many occasions amended the conditions under which the
child of U.S. citizens born overseas is granted U.S. citizenship at birth.
The requirements of the Naturalization Act of 1790 were retained when
that statute was amended in 1795 and 1802,
33
but they were later altered by
Congress in 1855. This time, Congress declared that children born “out of
the limits and jurisdiction of the United States,” specifically to fathers who
were U.S. citizens at the time of the child’s birth, would be U.S. citizens,
although, again, not if the child’s father had never resided in the United
States.
34
No provision at all was made for the children of U.S. citizen
mothers. There can be little doubt that Ted Cruz, had he been born in 1855,
would not have qualified to be a U.S. citizen.
35
Cruz was born in Canada to
a U.S. citizen mother and a Cuban father.
36
In the early years of the republic, the citizenship of those born in the
United States was also dictated by statute. Notably, Congress did not
bestow citizenship on all people born within the country’s borders. Native
32. Act of Mar. 26, 1790, ch. 3, 1 Stat. 103, 104 (repealed 1795).
33. Act of Jan. 29, 1795, ch. 20, § 3, 1 Stat. 414, 415 (“[T]he children of citizens of the
United States, born out of the limits and jurisdiction of the United States, shall be considered
as natural born citizens of the United States: Provided, That the right of citizenship shall not
descend to persons, whose fathers have never been resident in the United States”); see also
Act of Apr. 14, 1802, ch. 28, § 4, 2 Stat. 153, 155 (same general provisions as above).
34. Act of Feb. 10, 1855, ch. 71, § 1, 10 Stat. 604, 604 (“That persons heretofore born,
or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers
were or may be at the time of their birth citizens of the United States, shall be deemed and
considered to be and are hereby declared to be citizens of the United States: Provided,
however, That the rights of citizenship shall not descend to persons whose fathers never
resided in the United States.”).
35. See Montana v. Kennedy, 366 U.S. 308, 311–12 (1961) (holding that a child who
was born overseas to a U.S. mother prior to May 24, 1934, did not acquire citizenship at
birth, because at that time citizenship at birth was transmitted only by a U.S. father).
36. Wendy Mead, Ted Cruz Biography, B
IOGRAPHY, http://www.biography.com/
people/ted-cruz (last updated Sept. 23, 2016) [https://perma.cc/82MF-4YPH].
1052 FORDHAM LAW REVIEW [Vol. 85
Americans, even if born in the United States, were not citizens,
37
and
neither were African Americans.
38
In 1868, the Fourteenth Amendment
finally placed into the text of Constitution the definition of a citizen. The
Fourteenth Amendment’s first sentence declared, “All persons born . . . in
the United States and subject to the jurisdiction thereof, are citizens of the
United States.”
39
Since the passage of the Fourteenth Amendment, birth in
the United States clearly makes one a natural born citizen eligible for the
presidency. The Supreme Court has confirmed that even the children of
aliens born in the United States are eligible to be President,
40
although we
have had few presidential candidates come from that background. Instead,
we have often witnessed the reverse: children born on foreign soil to two
U.S. citizen parents—or to one U.S. citizen parent and an alien parent—
who decide to become candidates for the presidency of the United States.
But the Court has never determined the eligibility of these people.
Nonetheless, the Court has explained that there are only two ways to
become a citizen. Those born in the United States automatically become
citizens according to the first sentence of the Fourteenth Amendment.
41
The other way to gain U.S. citizenship is by statute.
42
This “second
category” of citizenship, as the scholar Gabriel Chin explains, “includes
naturalization of individual adults or children already born, collective
naturalization of groups, such as natives of territory acquired by the United
States, and naturalization at birth of certain classes of children born abroad
to citizens.”
43
The problem is that that Congress’s scheme for awarding
birthright citizenship to the persons who fall into the last of these categories
has not been governed by one consistent policy. Rather, the law has
fluctuated over the years, with Congress at times making some of the
children born overseas to U.S. parents into U.S. citizens and some not.
By 1934, Congress had decided that if U.S. citizenship was to descend to
children born overseas to U.S. citizen parents, either the child’s mother or
father had to reside in the United States prior to the birth of the child.
44
Moreover, if one parent happened to be an alien, the child could not obtain
U.S. citizenship unless she also resided in the United States for at least five
37. Elk v. Wilkins, 112 U.S. 94, 102 (1884) (confirming that Native Americans do not
acquire U.S. citizenship at birth even if they happened to be born in the United States).
38. Dred Scott v. Sandford, 60 U.S. 393, 404 (1856) (holding that blacks, even though
born in the United States, could not be American citizens).
39. U.S.
CONST. amend. XIV (“All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein
they reside.”).
40. See, e.g., Perkins v. Elg, 307 U.S. 325, 330 (1939) (holding that a person born in
America and raised in another country was a natural born citizen, and finding that he could
“become President of the United States”); United States v. Wong Kim Ark, 169 U.S. 649,
705 (1898) (holding that the child of foreign parents born in the United States is a natural
born citizen who could become President).
41. U.S.
CONST. amend. XIV, § 1.
42. 8 U.S.C. § 1401 (2012).
43. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months
and a Hundred Yards Short of Citizenship, 107 M
ICH. L. REV. FIRST IMPRESSIONS 1, 2
(2008).
44. Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797.
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1053
years immediately before her eighteenth birthday—and unless, within six
months after her twenty-first birthday, she took an oath of allegiance to the
United States.
45
This ensured that a child who happened to be born in the
United States to alien parents, but had never lived in the country, could not
give birth to children who then automatically acquired U.S. citizenship.
In 1940, Congress once again changed the statutory scheme. This time, it
defined a child as being a “citizen of the United States at birth” if at least
one of her parents was a U.S. citizen when the child was born, and the
parent had resided in the United States (or in one of its outlying territories)
for at least ten years, five of which had to come after attaining the age of
sixteen.
46
This meant that a child born overseas to a U.S. citizen who had
not yet reached the age of twenty-one would not be considered a U.S.
citizen. Furthermore, the statute declared that if the child did not reside in
the United States by the time she reached the age of sixteen and for the five
years immediately before she reached the age of twenty-one, her American
citizenship would “cease.”
47
Congress not only provided requirements for
birthright citizenship here but also a means for it to be taken away.
By 1952, Congress had changed the necessary residency period for a
child born abroad to a U.S. citizen parent once again. The Immigration and
Nationality Act of 1952 declared that a child born outside the limits of the
country would only be granted U.S. citizenship if her U.S. citizen parent
was “physically present” in the United States—“residence” was no longer
the term used—for ten years, five of which had to come after that parent
was older than fourteen years of age.
48
This provision would later become
salient in the challenges to Barack Obama’s eligibility, some of which
falsely claimed that Obama was born in Kenya; the place of his birth was
important because Obama’s mother, although she was a U.S. citizen, could
not satisfy the statute because she gave birth at age eighteen.
49
In 1952, Congress provided that birthright U.S. citizenship could be
taken away from any person who did not come to the United States before
the age of twenty-three and was not “continuously physically present” in
the country for a five-year period sometime between the ages of fourteen
45. Id. (“Any child hereafter born out of the limits and jurisdiction of the United States,
whose father or mother or both at the time of birth of such child is a citizen of the United
States, is declared to be a citizen of the United States: but the rights of citizenship shall not
descend to any such child unless the citizen father or citizen mother, as the case may be, has
resided in the United States previous to the birth of such child. In cases where one of the
parents is an alien, the right of citizenship shall not descend unless the child comes to the
United States and resides therein for at least five years continuously immediately previous to
his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday,
he or she shall take an oath of allegiance to the United States of America as prescribed by the
Bureau of Naturalization.”).
46. The Nationality Act of 1940, ch. 876, § 201(g), 54 Stat. 1137, 1139.
47. Id.
48. The Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163, 236 (codified as
amended at 8 U.S.C. § 1401 (2012)).
49. See infra Part II.D.2.
1054 FORDHAM LAW REVIEW [Vol. 85
and twenty-eight.
50
The requirement of maintaining continuous physical
presence in the country proved to be too onerous for some and in 1957,
Congress relaxed this requirement slightly by allowing an absence for the
child of twelve months, in the aggregate, during the five-year period.
51
By 1972, Congress lowered the duration of physical presence required
between the ages of fourteen and twenty-eight to two years, with an
allowable absence of sixty days during this period.
52
It also allowed a
child’s birthright citizenship to be retained if the child came to the United
States before the age of eighteen and her alien parent became naturalized
during that time.
53
By 1994, however, the law would change once again.
This time it granted citizenship to a child born abroad if either her U.S.
citizen parent or her U.S. citizen grandparent had been physically present in
the United States for at least five years, two of which had to come after the
age of fourteen, prior to the child’s birth abroad.
54
The purpose here is not to explain all of the myriad ways in which
Congress has legislated to determine when a child born abroad to American
parents qualifies for U.S. citizenship. Rather, it is to remind us that the
question of whether such children are “natural born citizens” who are
eligible for the presidency is not answered by the Constitution. Nor has it
ever been resolved by the Supreme Court. This is an issue that, instead, has
been left to up to the wisdom of our legislative branch of government.
The Constitution does not say how the children of U.S. citizens born
outside the United States acquire their citizenship.
55
Because the Supreme
Court has also not spoken on the matter, the only way they can acquire it,
despite whatever the academic literature says to the contrary,
56
is
legislatively. Today, people born outside the United States to at least one
U.S. citizen parent are made citizens at birth by statute.
57
But in its
50. The Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163, 236; see also
Rogers v. Bellei, 401 U.S. 815, 831 (1971) (upholding the power of Congress to impose a
subsequent residence condition on a U.S. citizen born abroad and to strip citizenship from
any such person if he does not reside in the United States for a five-year period between the
ages of fourteen and twenty-eight).
51. Act of Sept. 11, 1957, Pub. L. 85-316, 71 Stat. 639, 644 (“In the administration of
section 301 (b) of the Immigration and Nationality Act, absences from the United States of
less than twelve months in the aggregate, during the period for which continuous physical
presence in the United States is required, shall not be considered to break the continuity of
such physical presence.”).
52. Act of Oct. 27, 1972, Pub. L. No. 92-584, 86 Stat. 1289.
53. Id.
54. The Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No.
103-416, 108 Stat. 4305, 4307.
55. We should think of two groups of people as acquiring citizenship by statute. The
first acquire their citizenship by meeting Congress’s requirements for naturalization. The
second acquire it by being a descendant of another U.S. citizen. See Peter H. Schuck, The
Re-Evaluation of American Citizenship, 12 G
EO. IMMIGR. L.J. 1, 10–11 (1997) (explaining
this distinction).
56. See, e.g., Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,”
128 H
ARV. L. REV. F. 161, 161 (2015) (arguing that “the framing-era sources . . . indicate
that a ‘natural born Citizen’ means a citizen from birth with no need to go through
naturalization proceedings”).
57. See 8 U.S.C. § 1401(g) (2012).
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1055
statutory scheme, Congress has not gone far enough. Whether a
presidential candidate born overseas to U.S. citizens is a “natural born
citizen” under the Eligibility Clause is a question that Congress has yet to
answer explicitly. It is a question Congress could easily resolve simply by
defining the term “natural born citizen.” So far, Congress has refused to do
this. As a result, we have had presidential candidates whose eligibility for
office has been challenged, both by their rivals and by ordinary voters.
II.
NOTABLE AMERICAN ELIGIBILITY CHALLENGES
Throughout American history, many aspiring Presidents have had their
candidacies challenged. These challenges began in the 1880s and have
since gained increasing public attention. In recent years, presidential
eligibility challenges have been thrust into the courts of law as well as
contested in the court of public opinion, posing an additional threat to the
campaigns of several ambitious men. A presidential candidate’s eligibility
has been challenged in each national presidential election since 2008. With
each cycle, these challenges have become more prominent and poignant.
A. Historical Challenges from the 1880s to 1970s
The twenty-first President of the United States, Chester A. Arthur, was
born to an Irish father who immigrated to Canada and met his wife in
Quebec.
58
Arthur’s mother was born in Vermont and was a U.S. citizen,
although her family had immigrated to Quebec when she was a child.
59
Arthur’s biography asserts that he was born in North Fairfield, Vermont,
south of the Canadian border.
60
By the time of his birth, Arthur’s parents
had moved back to Vermont, and he always claimed Vermont as his home
state.
61
However, it was not until 1843, fifteen years after his birth, that his
father also became a naturalized U.S. citizen.
62
When Arthur received the Republican Party’s nomination for the vice
presidency in 1880, the Democrats hired a New York attorney named
Arthur P. Hinman to investigate whether Arthur may have been born
abroad.
63
Hinman initially claimed publicly that Arthur was born in Ireland
and brought to the United States as a teenager, thus making him ineligible
for the vice presidency.
64
When that theory was disproven, Hinman
58. J. Gordon Hylton, President Chester A. Arthur and the Birthers, 1880’s Style,
M
ARQ. U. L. SCH. FAC. BLOG (Oct. 14, 2009), http://law.marquette.edu/facultyblog/2009/
10/14/president-chester-a-arthur-and-the-birthers-1880%E2%80%99s-style/comment-page-
1/ [https://perma.cc/3SBG-98WW].
59. Id.
60. Chester A. Arthur Biography,
BIOGRAPHY, http://www.biography.com/people/
chester-a-arthur-9190059#final-years (last updated Apr. 19, 2014) [https://perma.cc/WZ8M-
KPXU].
61. Hylton, supra note 58.
62. Id.
63. See Z
ACHARY KARABELL, CHESTER ALAN ARTHUR 53–54 (2004); THOMAS C.
REEVES, GENTLEMAN BOSS: THE LIFE OF CHESTER A. ARTHUR 202–03 (1975).
64. See R
EEVES, supra note 63.
1056 FORDHAM LAW REVIEW [Vol. 85
claimed that Arthur was born in Canada.
65
Legal historian J. Gordon
Hylton explains the relevant history as follows:
The controversy over Arthur’s citizenship status centers around the
place of Arthur’s actual birth. By one account he was born in his family’s
home in Franklin County, Vermont. If this was true, then he was clearly a
natural born citizen. On the other hand, the competing account has it that
he was born during his pregnant mother’s visit to her family’s home in
Canada.
If the latter story is true, then Arthur was technically foreign-born, and
in 1829, citizenship in such cases passed to the child only if the father was
a United States citizen, and, of course, at this point Arthur’s father was
still a citizen of the British Empire.
66
When James A. Garfield, the twentieth President, was assassinated in
1881, Arthur became President of the United States.
67
He served in the
office until 1884.
68
Hinman’s allegations of Arthur’s foreign birth were
never proven. Nonetheless, in 1884, the last year of Arthur’s presidency,
Hinman published a book about Arthur’s birth in which he detailed his
views about Arthur’s ineligibility to serve as President.
69
Allegations that a candidate is ineligible to be President of the United
States have been targeted against other candidates in American history as
well. When Charles Evans Hughes ran for the presidency against Woodrow
Wilson in 1916, his eligibility was publicly challenged by Breckinridge
Long, an attorney who would go on to serve in the Wilson administration.
70
Hughes was born in the United States. Nonetheless, as Long explained in
some detail, Hughes was also born to an American mother and a British
father before the adoption of the Fourteenth Amendment.
71
This meant that
his citizenship would have to have been determined by the congressional
statues operating at the time of his birth. The relevant statutes in existence
at the time of Hughes’s birth, however, made a person a citizen only if both
of his parents were U.S. citizens or if they were naturalized before the
child’s twenty-first birthday.
72
But Hughes’s father remained a British
subject and never became a U.S. citizen.
73
65. See id.; see also KARABELL, supra note 63, at 53–54.
66. Hylton, supra note 58.
67. See Chester A. Arthur Biography, supra note 60.
68. Id.
69. See A.P.
HINMAN, HOW A BRITISH SUBJECT BECAME PRESIDENT OF THE UNITED
STATES 4–10 (1884) (claiming that Arthur was born in Canada, but when campaigning for
the vice presidency, chose to say he was born in Vermont, the state where a deceased brother
of his was born, to make it appear that he was a natural born citizen).
70. See, e.g., Breckinridge Long, Is Mr. Charles Evans Hughes a “Natural Born
Citizen” Within the Meaning of the Constitution?, C
HI. LEGAL NEWS, Dec. 7, 1916, at 220
(questioning Hughes’s eligibility to be President in 1916); see also Sharon Rondeau, Obama
Not the First to Have Presidential Eligibility Questioned: Charles Evans Hughes’s Father
Was a British Subject, Just as Obama’s Was; The Only Difference Was, He Lost, P
OST &
MAIL (Apr. 5, 2010), http://www.thepostemail.com/2010/04/05/obama-not-the-first-to-have-
presidential-eligibility-questioned/ [https://perma.cc/C36Y-5JXW].
71. Long, supra note 70, at 220.
72. Id. at 221.
73. Id.
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1057
Chester A. Arthur and Charles Evans Hughes were born in the United
States, but they each had a foreign parent. These circumstances differ from
the presidential candidates whose eligibility has been contested for having
been born in a U.S. territory or on foreign soil.
74
For example, Barry
Goldwater, the conservative Senator from Arizona, was born in Phoenix in
1909, in what was then the incorporated Arizona Territory.
75
During
Goldwater’s 1964 presidential campaign, a minor controversy arose over
his presidential eligibility.
76
While Goldwater was born in Arizona, it was
three years before that territory had become a U.S. state.
77
Presidential candidate George Romney, the former Governor of
Michigan and the father of presidential candidate Mitt Romney, was born in
Mexico in 1907.
78
In 1886, after the U.S. government began prosecuting
polygamy, George Romney’s father, Gaskell Romney, immigrated to
Mexico with his wife and children.
79
Once in Mexico, he had two more
children, including George Romney. Gaskell Romney retained his U.S.
citizenship while in Mexico, where he raised his family in a Mormon
colony. After twenty-five years there, he returned to the United States in
1912.
80
However, when George Romney sought the Republican Party’s
nomination for the presidency in 1968, his presidential eligibility was
contested by his opponents,
81
and Richard Nixon wound up winning the
Republican nomination.
Christian Herter, the former Massachusetts governor and Secretary of
State, was also born abroad to American parents. Herter was born in Paris,
where his parents were artists and expatriates.
82
When Herter considered
running for the presidency, questions were raised about his eligibility.
83
Questions were also raised about former Connecticut governor Lowell
74. See infra Part II.B.
75. Barry Goldwater Biography, BIOGRAPHY, http://www.biography.com/people/barry-
goldwater-9314846#later-life (last updated Apr. 2, 2014) [https://perma.cc/A4LE-TJNY].
76. See Gordon, supra note 3, at 28 n.219 (noting the dismissal of a lawsuit filed against
Goldwater during his campaign which claimed that he was not a natural born citizen).
77. See T
HEODORE H. WHITE, THE MAKING OF THE AMERICAN PRESIDENT 1964, at 211–
12 (1965) (discussing Goldwater’s birth in the Arizona Territory in 1909); John R. Hein,
Comment, Born in the U.S.A., but Not Natural Born: How Congressional Territorial Policy
Bars Native-Born Puerto Ricans from the Presidency, 11 U.
PA. J. CONST. L. 423, 425 (2009)
(noting how Goldwater was born in Arizona three years before statehood). See generally
J. W
ILLIAM MIDDENDORF II, A GLORIOUS DISASTER: BARRY GOLDWATER’S PRESIDENTIAL
CAMPAIGN AND THE ORIGINS OF THE CONSERVATIVE MOVEMENT (2008).
78. C
LARK R. MOLLENHOFF, GEORGE ROMNEY: MORMON IN POLITICS 24 (1968).
79. See id. at 23–24; see also T.
GEORGE HARRIS, ROMNEY’S WAY: A MAN AND AN IDEA
35–43 (1967) (examining George Romney’s birth and childhood in Mexico).
80. M
OLLENHOFF, supra note 78, at 25.
81. See Isidor Blum, Is Gov. George Romney Eligible to Be President? (pt. 1), N.Y.
L.J.,
Oct. 16, 1967, at 1 (“The answer would seem to be that he is not a natural born citizen, but is
a naturalized citizen.”); see also V
INCENT A. DOYLE, CONG. RESEARCH SERV., 425/225, THE
NATURAL BORN CITIZEN QUALIFICATION FOR THE OFFICE OF THE PRESIDENT: IS GEORGE W.
ROMNEY ELIGIBLE?, at i (1968) (explaining how “questions are being raised about the
eligibility of Governor George W. Romney, who was born in Mexico”).
82. See generally G.
BERNARD NOBLE, CHRISTIAN A. HERTER (1970).
83. See D
OYLE, supra note 81; see also Gordon, supra note 3, at 1.
1058 FORDHAM LAW REVIEW [Vol. 85
Weicker, who, like Herter, was born in Paris to U.S. parents.
84
When
Weicker sought the Republican Party’s nomination for the presidency in
1980, his presidential eligibility was challenged.
85
Weicker ordered a legal
opinion to be issued on the subject to assure himself and the American
people that he could run.
86
B. Modern Challenges to McCain, Obama, and Cruz
Recently, John McCain, Barack Obama, and Ted Cruz have each had
their presidential eligibility contested. McCain was born in the Panama
Canal Zone, at the time an unincorporated territory, to two U.S. citizen
parents.
87
Obama was born on U.S. soil, but to a U.S. citizen mother and a
Kenyan father.
88
Cruz was born in Canada to a U.S. citizen mother and a
Cuban father.
89
The eligibility challenges to these three candidates were
featured prominently in the media when each ran for office and had the
potential to derail each of their campaigns.
90
And, unlike an earlier
generation of eligibility challenges, these were contested in the courts.
1. John McCain
John McCain’s father had been serving in the U.S. military and was
stationed in the Panama Canal Zone at the time of John McCain’s birth on
August 29, 1936.
91
Both of McCain’s parents were U.S. citizens, and
McCain lived in the Canal Zone only until he was three months old.
92
Nonetheless, because he was not born in the United States, McCain could
only be granted citizenship by congressional authority. However, as some
scholars have pointed out, in 1936, the year of McCain’s birth, no statute
84. ALEXANDER HEARD & MICHAEL NELSON, PRESIDENTIAL SELECTION 127 (1987).
85. Id.
86. See Carl Hulse, McCain’s Canal Zone Birth Prompts Queries About Whether That
Rules Him Out, N.Y.
TIMES (Feb. 28, 2008), http://www.nytimes.com/2008/02/28/
us/politics/28mccain.html (noting Weicker’s situation) [https://perma.cc/FHU4-CF3D].
87. Id.
88. See infra note 123 and accompanying text.
89. See infra note 143 and accompanying text.
90. See, e.g., Hulse, supra note 86; Adam Liptak, A Hint of New Life to a McCain Birth
Issue, N.Y.
TIMES (July 11, 2008), http://www.nytimes.com/2008/07/11/us/politics/
11mccain.html?_r= [https://perma.cc/PYG6-529L]; Mary Brigid McManamon, Ted Cruz Is
Not Eligible to Be President, W
ASH. POST (Jan. 12, 2016), https://www.washingtonpost.com/
opinions/ted-cruz-is-not-eligible-to-be-president/2016/01/12/1484a7d0-b7af-11e5-99f3-
184bc379b12d_story.html?utm_term=.4a0da3e7c0a7 [https://perma.cc/RX4L-B6N8];
Ashley Parker & Steve Eder, Inside the Six Weeks Donald Trump Was a Nonstop ‘Birther,’
N.Y.
TIMES (July 2, 2016), http://www.nytimes.com/2016/07/03/us/politics/donald-trump-
birther-obama.html [https://perma.cc/8YML-JBMG]; Michael D. Shear, With Document,
Obama Seeks to End ‘Birther’ Issue, N.Y.
TIMES (Apr. 27, 2011), http://www.nytimes.com/
2011/04/28/us/politics/28obama.html [https://perma.cc/EW7D-4NF8].
91. J
OHN MCCAIN & MARK SALTER, FAITH OF MY FATHERS: A FAMILY MEMOIR 47
(1999) (“In 1936, while commanding the naval air station in Panama, my grandfather was
introduced to me, his first grandson and namesake. My father was stationed in
Panama . . . serving aboard a submarine as executive officer. He had brought his young,
pregnant wife with him. I was born in the Canal Zone at the Coco Solo air base hospital
shortly after my grandfather arrived there.”).
92. Chin, supra note 43, at 2, 7.
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1059
conferred citizenship to the children of U.S. parents who were born in
“unincorporated territories.”
93
According to immigration scholar Gabriel
Chin, the Canal Zone was a “no man’s land.”
94
It was not part of the
United States, meaning that the protections of the Constitution did not apply
in full there; and nor was it foreign territory.
95
As Chin explains, the only statute in existence at the time that could have
made the children of U.S. citizens born outside of the United States citizens
at birth did not apply to births that occurred in the Canal Zone.
96
The Canal
Zone was clearly an unincorporated territory under U.S. law,
97
and the
Supreme Court had held that unincorporated territories were not within the
“limits” of the United States for constitutional purposes.
98
Fourteenth
Amendment citizenship, and the protections of the Constitution, thus did
not apply there.
99
At the time of McCain’s birth, this issue was well
understood by Congress, which passed a statute in 1937 granting citizenship
to “[a]ny person born in the Canal Zone on or after February 26, 1904” who
had one U.S. citizen parent.
100
Thus, McCain was made a U.S. citizen at
birth, statutorily, when he was already eleven months old.
101
But if John McCain was not a citizen at birth because he was born
outside of the limits of the United States and the Constitution did not extend
to “unincorporated territories”—which also included places like the
Philippines, where birth likewise did not bestow automatic U.S.
citizenship
102
—why could McCain not claim to be a U.S. citizen at birth as
the child of two U.S. citizen parents? The reason, according to Chin, is
because in 1936, the governing statute specifically did not grant citizenship
to the children of U.S. citizens who were born in the Canal Zone.
103
It
granted citizenship to “[a]ny child hereafter born out of the limits and
jurisdiction of the United States, whose father or mother or both at the time
of the birth of such child is a citizen of the United States.”
104
The Canal
Zone satisfied the first criterion, according to Chin, as it was outside the
93. Id. at 4.
94. Id.
95. Id.
96. Id. at 5–6.
97. Id. at 5.
98. A series of Supreme Court decisions, known as the Insular Cases, explicitly held
that the U.S. Constitution did not extend to places like the Canal Zone. See, e.g., Downes v.
Bidwell, 182 U.S. 244, 287 (1901) (holding that unincorporated territory was “not a part of
the United States” for constitutional purposes). See generally B
ARTHOLOMEW H. SPARROW,
THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE (2006).
99. See generally Downes, 182 U.S. at 287;
SPARROW, supra, note 98.
100. Act of Aug. 4, 1937, ch. 563, § 1, 50 Stat. 558 (codified as amended at 8 U.S.C.
§ 1403(a) (2012)).
101. Chin, supra note 43, at 2.
102. See, e.g., Barber v. Gonzales, 347 U.S. 637, 639 n.1 (1954) (inhabitants of the
Philippines were “nationals” of the United States when the country was a U.S. territory but
were not “United States citizens”); Rabang v. INS, 35 F.3d 1449, 1452 (9th Cir. 1994)
(holding that persons born in the Philippines are not citizens); see also Chin, supra note 43,
at 15 (citing the Insular Cases).
103. Chin, supra note 43, at 16, 20.
104. Id. at 6 (quoting Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797).
1060 FORDHAM LAW REVIEW [Vol. 85
“limits” of the United States; yet Congress still considered the Canal Zone
to be within the “jurisdiction” of the United States.
105
In other words, the Canal Zone, by a quirk of U.S. law, fell into a gray
area, and McCain was unlucky enough to be born there a few months before
Congress recognized and remedied the problem. This, according to Chin,
meant McCain was ineligible to be President.
106
However, Chin’s
argument has found detractors. Stephen Sachs believes that Chin’s thesis is
based on a misreading of the statute.
107
When the key statutory language
on which Chin relies—“outside the limits and jurisdiction of the United
States”—was adopted in 1795, the terms “limits and jurisdiction” were
synonymous, argues Sachs, and the phrase was understood to mean “being
born outside of the United States proper.”
108
The “limits and jurisdiction”
of the United States was a set phrase that was simply used to refer to the
nation’s borders.
109
Like Sachs, other scholars have also come to McCain’s
defense, although they have often done so on other grounds.
110
In 2000, McCain sought the Republican nomination for the presidency
against George W. Bush. At that time, the issue of his eligibility was
raised, but it was not seriously challenged. During his 2008 presidential
campaign, however, a number of challenges against McCain brought to
light new questions about who has legal standing to challenge the eligibility
of a presidential candidate. Most of the legal challenges filed against
McCain were dismissed for lack of standing, with federal courts finding
that they do not have subject matter jurisdiction to hear these lawsuits.
111
In many of these challenges, McCain argued that the courts could not
decide eligibility contests against him because his challengers lacked
standing to sue.
112
McCain also argued that their claims suffered from
mootness and ripeness defects, and that they were barred by the political
question doctrine.
113
Virtually none of the cases that were filed against
McCain were decided on the merits.
114
105. 18 U.S.C. § 173 (1926) (“The term ‘United States’ shall be construed to mean the
United States, and any waters, territory, or other place subject to the jurisdiction thereof,
except the Isthmian Canal Zone.”); see Chin, supra note 43, at 21 (“Therefore, based on the
original meaning of the Constitution, [and] the Framers’ intentions . . . Senator McCain’s
birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal
Zone in 1936, makes him a ‘natural born Citizen’ within the meaning of the Constitution.”).
106. Chin, supra note 43, at 18.
107. Stephen E. Sachs, Why John McCain Was a Citizen at Birth, 107 M
ICH. L. REV.
FIRST IMPRESSIONS 49, 49–50 (2008).
108. Id. at 50.
109. Id. at 51–52.
110. See, e.g., Ramsey, supra note 29.
111. See, e.g., Hollander v. McCain, 566 F. Supp. 2d 63, 71 (D.N.H. 2008) (dismissing
case filed pro se by Fred Hollander, a New Hampshire resident, against both McCain and the
Republican National Committee, challenging McCain’s presidential eligibility).
112. Memorandum of Law in Support of Defendants’ Motion to Dismiss First Amended
Complaint, Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) (No. 08-cv-99-JL).
113. Id. at 1, 10.
114. But see Robinson v. Bowen, 567 F. Supp. 2d 1144, 1145–46 (N.D. Cal. 2008)
(ruling for McCain’s eligibility on the merits and finding that a citizen “by birth” and “at
birth” are both categories that satisfy the Natural Born Citizen Clause).
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1061
2. Barack Obama
Barack Obama was born in Hawaii on August 4, 1961,
115
two years after
Hawaii was granted statehood on August 21, 1959.
116
During Obama’s
campaign for the presidency in 2008, and in the years following his
election, a number of people asserted that Obama was not a natural born
citizen and that he was ineligible to serve as President.
117
In 2012, these
claims arose anew. Although most of the accusations circulated against
Obama were false conspiracy theories that were disproven, they dogged the
Obama campaign and the subsequent Obama presidency for many years.
Eight years into the Obama presidency, in 2016, the Republican Party’s
presidential nominee, Donald J. Trump, still refused to disavow them.
118
The so-called “Birther Movement” has been a pathetic saga in American
politics.
119
According to some sources, the rumors against Obama began to
spread during the 2008 Democratic primaries and were originally advanced
by Democrats, not Republicans.
120
The initial stories about candidate
Obama advanced by his opponents insinuated that Obama was not born in
the United States and that his birthplace was Kenya, rather than Hawaii.
121
Other theories alleged that Obama became a citizen of Indonesia during his
childhood, thereby somehow losing his U.S. citizenship.
122
Yet other
theories claimed that Obama was not a natural born citizen because he was
allegedly born a dual citizen, given that his father was from Kenya and not
a U.S. citizen at the time of Obama’s birth.
123
A great many commentators
have characterized these various claims against Obama as being racist.
124
115. Certificate of Live Birth for Barack Hussein Obama, II, File No. 151, Hawaii
Department of Health (August 4, 1961), https://www.whitehouse.gov/sites/default/files/
rss_viewer/birth-certificate-long-form.pdf [https://perma.cc/PKM5-V4S9].
116. Hawaii Statehood, August 21, 1959, N
AT’L ARCHIVES, https://www.archives.gov/
legislative/features/hawaii (last visited Nov. 19, 2016) [https://perma.cc/9B44-BRHR].
117. Ben Smith & Byron Tau, Birtherism: Where It All Began, P
OLITICO (Apr. 22, 2011,
4:22 AM), http://www.politico.com/story/2011/04/birtherism-where-it-all-began-053563#ix
zz4KcOa4H8h [https://perma.cc/QR5F-67KC].
118. See Michael Barbaro, Donald Trump Clung to ‘Birther’ Lie for Years, and Still Isn’t
Apologetic, N.Y.
TIMES (Sept. 16, 2016), http://www.nytimes.com/2016/09/17/
us/politics/donald-trump-obama-birther.html?_r=0 [https://perma.cc/2S2G-SQZH].
119. See generally A
RCHIE P. JONES & DAVID L. GOETSCH, BORN TO LIE: FROM THE BIRTH
CERTIFICATE TO HEALTHCARE (2009); CHRIS SMITH, INSIDE THE MIND OF THE BIRTHERS
(2011).
120. See Smith & Tau, supra note 117. But see Gregory Krieg, No, Hillary Clinton Did
Not Start the ‘Birther’ Movement, CNN (Sept. 17, 2016, 8:20 PM), http://www.cnn.com/
2016/09/17/politics/hillary-clinton-birther-conspiracy [https://perma.cc/2UXW-KDJF].
121. See, e.g., Aaron Sharockman, Full Flop: Donald Trump Abandons Barack Obama
Birther Conspiracy, P
OLITIFACT (Sept. 16, 2016, 11:33 AM), http://www.politifact.com/
truth-o-meter/statements/2016/sep/16/donald-trump/full-flop-donald-trump-abandons-
barack-obama-birth/ [https://perma.cc/4TYV-WH9A].
122. See, e.g., Jerome R. Corsi, Claim: ‘Absolute Proof’ Obama Was Indonesian Citizen,
WND (Aug. 7, 2012, 10:07 PM), http://www.wnd.com/2012/08/claim-absolute-proof-
obama-was-indonesian-citizen/ [https://perma.cc/54N9-24CC].
123. B
ARACK OBAMA, DREAMS FROM MY FATHER: A STORY OF RACE AND INHERITANCE 9
(2004).
124. See, e.g., M
ATTHEW W. HUGHEY & GREGORY S. PARKS, THE WRONGS OF THE RIGHT:
LANGUAGE, RACE, AND THE REPUBLICAN PARTY IN THE AGE OF OBAMA (2014).
1062 FORDHAM LAW REVIEW [Vol. 85
Irrespective of the merits of these claims, challengers to Obama’s
candidacy eventually began seeking court rulings that would declare Obama
ineligible to take office or grant them access to various documents which
they believed would prove Obama’s ineligibility.
125
Most prominently
among these documents, they sought to obtain an original copy of Obama’s
birth certificate.
126
Even after Obama released his birth certificate, and
even after its authenticity was confirmed by the Department of Health in
Hawaii, claims that Obama was not born in the United States persisted.
127
Birth announcements published at the time of Obama’s birth in Hawaii’s
newspapers were produced, but these did little to placate those who
believed in the narrative about Obama’s presidential eligibility.
128
The cases against Obama, as Jack Maskell explains, fell into several
categories.
129
Some alleged that Obama was not born in the United States.
In 1961, the year of Obama’s birth, the federal statute granting citizenship
to a person born outside of the United States to one U.S. citizen parent
conferred that citizenship only if the parent resided in the United States for
at least ten years, five of which had to be satisfied after the parent reached
the age of fourteen.
130
Obama’s mother, however, would not have met this
requirement, given that she gave birth to Obama at age 18. Other cases
filed against Obama claimed that even if he was born in Hawaii, his
childhood years spent in Indonesia revoked his natural born status.
131
For
example, a lawsuit challenging Obama’s eligibility and advancing this line
of argument was filed by Philip J. Berg, an attorney in Pennsylvania.
132
Berg alleged that Obama was born in Kenya, and that the birth certificate on
Obama’s website was a forgery.
133
As such, his lawsuit claimed Obama did
not have the right to be President.
134
The district court, relying on a similar
case against McCain, found that Berg did not have standing to sue.
135
125. See infra notes 129–135 and accompanying text.
126. See, e.g., JEROME R. CORSI, WHERE’S THE BIRTH CERTIFICATE?: THE CASE THAT
BARACK OBAMA IS NOT ELIGIBLE TO BE PRESIDENT (2011).
127. Robert Farley, Obama’s Birth Certificate: Final Chapter. This Time We Mean It!,
P
OLITIFACT (July 1, 2009, 7:12 PM), http://www.politifact.com/truth-o-meter/article/
2009/jul/01/obamas-birth-certificate-final-chapter-time-we-mea/ [https://perma.cc/Y368-W
WV7].
128. Drew Zahn, Hawaiian Newspapers Don’t Prove Birthplace, WND (July 22, 2009,
9:21 PM), http://www.wnd.com/2009/07/104678/ [https://perma.cc/HY48-4PCQ].
129. See M
ASKELL, supra note 4, at 39.
130. See 8 U.S.C. § 1401 (1958).
131. M
ASKELL, supra note 4, at 42–43 (listing these cases).
132. Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008), aff’d 586 F.3d 234 (3d Cir.
2009).
133. Id. at 513.
134. Id.
135. See Memorandum and Order Dismissing Plaintiff’s First Amended Complaint at 1,
12, Berg v. Obama, 574 F. Supp. 2d 509 (3d Cir. 2009) (No. 08-4083) (“The alleged harm to
voters stemming from a presidential candidate’s failure to satisfy the eligibility requirements
of the Natural Born Citizen Clause is not concrete or particularized enough to constitute an
injury in fact sufficient to satisfy Article III standing.”).
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1063
By some counts, at least 225 lawsuits were filed to contest Barack
Obama’s presidential eligibility.
136
Each one of these was eventually
dismissed. Courts have alternatively found that Obama’s challengers did
not have standing to bring their claims, could not state a cognizable claim
for relief, or were seeking a stay or an injunction against a future event
when they were unlikely to succeed on the merits.
137
Although these
lawsuits were mostly dismissed before getting to the merits, they did attract
a great deal of attention. Equally important, the Obama campaign had to
spend valuable resources answering these lawsuits during both of the
candidate’s 2008 and 2012 presidential campaigns.
The controversy sparked by Obama’s eligibility also invited some
conservative states to get into the game of regulating who can run for
President by legislating that candidates needed to meet additional
qualifications to appear on their state ballots. For instance, a number of
Republican-led state legislatures proposed new legislation aimed at
requiring presidential candidates to release copies of their birth
certificates.
138
In April 2011, the Arizona legislature became the first to
pass a bill requiring presidential candidates to prove that they are natural
born citizens before their names could appear on the state’s ballot, including
by attaching “a certified copy of the presidential candidate’s long form birth
certificate that includes at least the date and place of birth, the name of the
hospital and the attending physician . . . and the signatures of any witnesses
in attendance.”
139
Although the bill was vetoed by Arizona’s Republican
governor,
140
Jan Brewer, it foreshadowed similar movements in other
states.
141
Meanwhile, various websites devoted to chronicling the
eligibility challenges to Barack Obama’s presidential candidacy continued
to proliferate on the Internet.
142
136. See MASKELL, supra note 4, at 49 n.231 (“It has been averred in listings of cases that
there have been nearly 225 cases concerning the eligibility of President Obama which have
been brought and dismissed.”).
137. See, e.g., Kerchner v. Obama, 669 F. Supp. 2d 477 (D.N.J. 2009), aff’d, 612 F.3d
204 (3rd Cir. 2010); Stamper v. United States, No. 1:08 CV 2593, 2008 WL 4838073 (N.D.
Ohio 2008); Wrotnowski v. Bysiewicz, 958 A.2d 709, 712 (Conn. 2008).
138. See, e.g., Bills Demanding Eligibility Evidence Hit 13th State, WND (Mar. 8, 2011,
8:09 PM), http://www.wnd.com/2011/03/272697/ [https://perma.cc/4ZNB-86VN].
139. H.B. 2177, 150th Leg., 1st Sess. (Ariz. 2011).
140. See Osha Gray Davidson, Arizona Governor’s Veto of ‘Birther’ Bill Draws Tea
Party Ire, F
ORBES (Apr. 19, 2011), http://www.forbes.com/sites/oshadavidson/
2011/04/19/arizona-governors-veto-of-birther-bill-draws-tea-party-ire/#1b11b3c67f73
[https://perma.cc/FN5X-5V8X].
141. See Julianne Hing, Arizona Senate Passes Birther Bill: But It’s Not the First State to
Try to Turn the Hysteria Around President Obama’s Black Roots into Legislation,
C
OLORLINES (Apr. 11, 2011), http://www.colorlines.com/articles/arizona-senate-passes-
birther-bill [https://perma.cc/6PTC-A3KG].
142. See O
BAMA UNCONSTITUTIONAL PRESIDENT, http://www.obamaunconstitutional
president.com (last visited Nov. 19, 2016) [https://perma.cc/GD2W-FS5M].
1064 FORDHAM LAW REVIEW [Vol. 85
3. Ted Cruz
Rafael Edward Cruz was born on December 22, 1970, in Calgary,
Canada, to a U.S. citizen mother and a Cuban immigrant father.
143
He was
granted dual Canadian-American citizenship at birth.
144
After law school,
Cruz clerked for Chief Justice William Rehnquist on the U.S. Supreme
Court and then went into private practice.
145
In 2003, he became the
Solicitor General of Texas.
146
In 2012, he was elected U.S. Senator from
Texas.
147
Cruz then announced his candidacy for the presidency in 2015.
148
Given his Canadian birth, however, Cruz’s eligibility was quickly
challenged,
149
including by Donald Trump, his opponent in the Republican
state primaries. In response, Cruz applied to renounce his Canadian
citizenship.
150
Yet the controversy over whether he was eligible to be
President played out prominently during the primaries in the media and in
the courts of law.
Like McCain and Obama before him, Cruz was sued in federal court and
in a number of state courts as well.
151
One of the prominent lawsuits
challenging Cruz’s eligibility was filed by Walter Wagner, a retired Utah
lawyer.
152
When Wagner asked a federal court in January 2016 to
determine that Cruz was ineligible to run for the presidency, Cruz filed a
motion to dismiss, arguing that his challenger did not have standing to sue,
that the case was not yet ripe, and that a U.S. federal district court was not
the proper forum to hear this challenge.
153
The court found that Wagner
lacked standing, as he was not able to show why a Cruz candidacy would
cause him any particular harm.
154
The other lawsuits filed against Cruz in
federal court were each dismissed for the challenger’s lack of standing.
155
To get around the standing issue, a challenge to the eligibility of a
presidential candidate may need to come from another presidential
candidate. Donald Trump perhaps recognized this when he declared, in a
message sent from his Twitter account on February 12, 2016, “If
@TedCruz doesn’t clean up his act, stop cheating, & doing negative ads, I
have standing to sue him for not being a natural born citizen.”
156
143. Mead, supra note 36.
144. Id.
145. Id.
146. Id.
147. Id.
148. Id.
149. See, e.g., McManamon, supra note 90.
150. See Mead, supra note 36.
151. See Muller, supra note 5, at 1 n.2 (listing the lawsuits filed against Cruz).
152. Wagner v. Cruz, No. 2:16-cv-55-JNP, 2016 WL 1089245 (D. Utah Mar. 18, 2016).
153. Id. at *2.
154. Id. at *4.
155. See, e.g., Fischer v. Cruz, No. 16-CV-1224, 2016 WL 1383493 (E.D.N.Y. Apr. 7,
2016) (dismissing action filed against Senator Cruz sua sponte for lack of standing).
156. Christina Wilkie, Trump Backers File ‘Birther’ Lawsuit Against Ted Cruz,
H
UFFINGTON POST (Feb. 12, 2016, 3:39 PM), http://www.huffingtonpost.com/entry/trump-
backers-birther-lawsuit-against-ted-cruz_us_56be3a29e4b08ffac1253a49 [https://perma.cc/
CM2Y-UTJX].
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1065
Meanwhile, Victor Williams, a law professor at the Catholic University of
America in Washington, D.C., registered to run for President to contest
Cruz’s eligibility. Williams registered as a write-in candidate in nine states
for the sole purpose of filing an eligibility challenge to Cruz.
157
Williams’s
challenge was dismissed by an administrative body in New Jersey, and
Cruz soon quit his campaign, rendering Williams’s other challenges
moot.
158
Some of Cruz’s challengers have tried to appeal to the Supreme Court.
But, so far, the Supreme Court has refused to hear these cases.
159
In May
2016, the Court refused to grant a writ of certiorari in Wagner v. Cruz,
160
the last in a series of cases to be dismissed challenging a presidential
candidate’s eligibility.
III.
RESOLVING PRESIDENTIAL ELIGIBILITY DISPUTES
Without a mechanism to resolve presidential eligibility disputes,
American democracy is imperiled. The text of the Eligibility Clause is not
controversial regarding two of its three requirements, yet does that mean
that every citizen who is not naturalized, is over thirty-five years old, and
has lived in the United States for fourteen years qualifies to be President?
Is there any citizen who meets these criteria who does not qualify for the
office? For those who seek to be faithful to the Constitution, not knowing
the answer to these questions is troubling. American citizens deserve to
know who is eligible to be their President.
A. The Reluctance of Courts to Be Involved
These days, the Eligibility Clause has been turned into a tool of
campaigns, and contesting a rival’s eligibility has become a worthwhile
campaign tactic. It is used by challengers to ensure that opponents waste
valuable time and resources. Even if a rival may not be the party to file a
challenger lawsuit, he often encourages his supporters to do so. The tactic
can be used to draw the attention of voters to an issue that is certain to
receive media attention yet unlikely to be resolved during the course of the
campaign.
161
Like contesting a candidate’s failure to meet a residency
157. See Pete Williams, Law Professor Challenges Cruz on Citizenship, Candidacy, NBC
(Apr. 11, 2016), http://www.nbcnews.com/news/us-news/law-professor-candidate-
challenges-cruz-citizenship-n554046 [https://perma.cc/BNY9-D55D].
158. See Matt Flegenheimer, Ted Cruz Suspends His Campaign for President, N.Y.
TIMES
(May 3, 2016), http://www.nytimes.com/2016/05/04/us/politics/ted-cruz.html?_r=0 [https://
perma.cc/9VUB-5X3Q].
159. See Christian Fanas, The Supreme Court Won’t Touch This Legal Challenge to Ted
Cruz’s ‘Natural Born’ Status, H
UFFINGTON POST (May 31, 2016), http://
www.huffingtonpost.com/entry/supreme-court-ted-cruz_us_574de545e4b0757eaeb0def0
[https://perma.cc/69M9-QB2C].
160. 136 S. Ct. 2395 (2016).
161. The claim that a rival is ineligible for the office he seeks is used in many situations
in politics at the state and municipal levels. State law often provides eligibility hurdles for
state office holders, such as the requirement that a governor or mayor must reside in a
jurisdiction for a certain period of time before he can run for office. Candidates who come
close to the line often see their eligibility contested by their opponents or their opponents’
1066 FORDHAM LAW REVIEW [Vol. 85
requirement
162
or any other electoral qualification, an Eligibility Clause
challenge is mainly used to bring an issue before the public, to insinuate
that the candidate did something wrong, and ultimately to gain an upper
hand with voters.
There are, of course, good reasons why courts have refused to adjudicate
these disputes on their merits. These challenges present the courts with the
kind of “heightened political question” that the judiciary wishes to avoid.
163
The reluctance of the courts to weigh in, however, can also lead to a
perverse result. For example, during a presidential campaign today, the
most controversial aspects of a candidate’s background, such as his foreign
birth, will not normally pose a serious impediment to his electoral success.
This is especially true because most of our presidential candidates happen
to be well-known politicians and because the challenges to their candidacies
are based on arcane constitutional provisions that few members of the
public understand. Since eligibility challenges are not taken seriously in the
court of public opinion, it comes as no surprise that the courts of law are
reluctant to wade into these waters. Instead, these challenges are mostly of
interest only to newspaper editorial-page editors and academic
commentators.
The real effect of an eligibility challenge is that it saps a campaign of
valuable resources. Given that eligibility challenges are brought in many
different jurisdictions, formulating a legal response can pose a significant
drain on the finances of a presidential campaign. The candidates must
spend time and money responding to any legal challenges filed, or they risk
being thrown off the ballot in various state contests. The other effect of a
challenge to a candidate’s eligibility is that it creates democratic
uncertainty. Is Ted Cruz, who was born in Canada to a U.S. citizen mother
and a Canadian father, both of whom also happened to be Canadian
citizens, eligible to be President of the United States? The answer is that
we do not know. In order to know, we need Congress to act.
An example of the perils of the status quo may bring to light why it is
imperative that we find a way to resolve presidential eligibility disputes. A
total of 1,900 candidates filed a Statement of Candidacy with the Federal
Election Commission, stating their intent to run for President, as of
September 2016.
164
Americans have never heard of most of these
candidates, the vast majority of whom receive no media attention. Even
those who lead a ticket for a third party are not well known beyond the
small base of their ardent supporters. Libertarian Party candidate Gary
supporters. See Eugene D. Mazo, Residency and Democracy: Durational Residency
Requirements from the Framers to the Present, 43
FLA. ST. U. L. REV. 611, 652–63 (2016)
(chronicling the challenges on eligibility grounds against Rahm Emanuel when he ran for
mayor of Chicago and Zephyr Teachout when she ran for governor of New York).
162. Id. at 654.
163. Our courts, especially since the 1960s, have sometimes found the need to resolve
disputes that were before thought to be best resolved by the political branches. See, e.g.,
Baker v. Carr, 369 U.S. 186 (1962).
164. See 2016 Presidential Form 2 Filers, FEC, http://www.fec.gov/press/resources/2016
presidential_form2nm.shtml (last visited Nov. 19, 2016) [https://perma.cc/L989-DCBW].
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1067
Johnson’s or Green Party candidate Jill Stein’s chances of becoming the
next President are very slim. On the other hand, Bill Clinton, for whom a
Statement of Candidacy was filed in 2016 by the Democratic-Farm-Labor
Party,
165
is a well-known politician. But Bill Clinton is ineligible to be the
next President of the United States because he has already served two terms
in office and is explicitly precluded from being elected again under the
Twenty-Second Amendment.
166
Right now, it is too difficult to contest the presidential eligibility of a
registered candidate for the presidency, even if that person, like Bill
Clinton, is ineligible for the office. Courts have held that ordinary citizens
do not have standing to bring eligibility challenges under the Natural Born
Citizen Clause.
167
In granting President Obama’s motion to dismiss an
eligibility challenge, a district court in Pennsylvania quoted what Chief
Justice Warren Burger said in United States v. Richardson,
168
the 1974
cases concerning the standing of a taxpayer:
It can be argued that if respondent is not permitted to litigate this issue, no
one can do so. In a very real sense, the absence of a particular individual
or class to litigate these claims gives support to the argument that the
subject matter is committed to the surveillance of Congress, and
ultimately to the political process.
169
After quoting Burger, the court went on to explain that if “Congress
determines that citizens, voters, or party members should police the
Constitution’s eligibility requirements for the Presidency, then it is free to
pass laws conferring standing on [such] individuals.”
170
But until Congress
does so, voters have no standing to bring these sorts of challenges. Thus,
congressional action is the only way forward.
B. The Need for Congressional Action
Congress clearly believes that it has the power to define who a natural
born citizen is. And it has acted in this realm before, especially when it has
tried to broaden the orbit of the Natural Born Citizen Clause. After the
Civil War, Congress introduced four separate resolutions that were aimed at
allowing naturalized citizens to serve as President.
171
In the 1960s and
1970s, similar proposals were introduced in Congress, except these sought
165. Details for Candidate ID: P60012333, FEC, http://www.fec.gov/fecviewer/
CandidateCommitteeDetail.do?candidateCommitteeId=P60012333&tabIndex=3 (last visited
Nov. 19, 2016) [https://perma.cc/6VRM-53HY].
166. See U.S.
CONST. amend. XXII.
167. See, e.g., Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008) (dismissing a citizen
challenge to President Obama’s presidential eligibility for lack of standing).
168. 418 U.S. 166 (1974).
169. Berg, 574 F. Supp. 2d at 520 n.13 (quoting Richardson, 418 U.S. at 179).
170. Id.
171. One of these resolutions was introduced in 1868, two in 1871, and the last one in
1872. See H.R. Res. 166-169, 42d Cong. (1872); H.R. Res. 52, 42d Cong. (1871); S. Res.
284, 41st Cong. (1871); H.R. Res. 269, 40th Cong. (1868); see also Seymore, supra note 5,
at 947 n.109–110 (citing these resolutions).
1068 FORDHAM LAW REVIEW [Vol. 85
to repeal the Natural Born Citizen Clause altogether.
172
These proposals,
according to Malinda Seymore, were inspired by the many presidential
candidates of the era who were born outside of the United States, including
Barry Goldwater, Christian Herter, George Romney, and others.
173
However, as the candidacies of these men faded, so did interest in amending
the Constitution.
174
In 1974, Representative Jonathan Brewster Bingham of New York
introduced several new amendments in Congress, with the intent of
allowing Henry Kissinger, then serving as Secretary of State, to become
eligible for the presidency. Kissinger, who was born in Germany, had
become a naturalized American citizen at the age of twenty.
175
Brewster
introduced four bills in 1974, and a fifth bill in 1977, seeking to amend the
Constitution so that it no longer contained a requirement for the President to
be a natural born citizen.
176
In 2003, when the United States had two prominent state governors who
happened to be naturalized citizens, Jennifer Granholm of Michigan and
Arnold Schwarzenegger of California, new proposals emerged to amend the
Eligibility Clause.
177
Senator Orrin Hatch of Utah and Representative Dana
Rohrabacher of California proposed an amendment that would allow those
“who had been for 20 years a citizen of the United States” to serve as
President.
178
In light of these efforts, it is perhaps unsurprising that the
constitutionality of the Eligibility Clause has repeatedly been questioned by
scholars. Law professors on both sides of the political spectrum have
argued over what Ilya Somin calls “the absurdity of excluding naturalized
citizens from the presidency in the first place.”
179
And indeed, the clause
172. See H.R.J. Res. 1255, 92d Cong. (1972); H.R.J. Res. 1245, 92d Cong. (1972); S.J.
Res. 161, 92d Cong. (1971); H.R.J. Res. 795, 90th Cong. (1967); H.R.J. Res. 511, 90th
Cong. (1967); H.R.J. Res. 16, 89th Cong. (1965); H.R.J. Res. 397, 88th Cong. (1963); H.R.J.
Res. 127, 87th Cong. (1961); H.R.J. Res. 547, 86th Cong. (1960); see also Seymore, supra
note 5, at 947 n.113 (citing these resolutions).
173. See id. at 948.
174. See id.
175. See W
ALTER ISAACSON, KISSINGER: A BIOGRAPHY 39 (1993).
176. See H.R.J. Res. 38, 95th Cong. (1977); H.R.J. Res. 993, 93d Cong. (1974); H.R.J.
Res. 896, 93d Cong. (1974); H.R.J. Res. 890, 93d Cong. (1974); H.R.J. Res. 880, 93d Cong.
(1974); see also Seymore, supra note 5, at 949 n.129 (citing these resolutions).
177. See Martin Kasindorf, Should the Constitution Be Amended for Arnold?, USA
TODAY (Dec. 3, 2004) http://usatoday30.usatoday.com/news/politicselections/2004-12-02-
schwarzenegger-amendment_x.htm [https://perma.cc/CGH8-5ALM].
178. The text of the proposed amendment read:
A person who is a citizen of the United States, who had been for 20 years a citizen
of the United States, and who is otherwise eligible for the Office of President, is
not ineligible to the Office by reason of not being a native born citizen of the
United States.
H.R.J. Res. 104, 108th Cong. (2004); S.J. Res. 15, 108th Cong. (2003); see also Seymore,
supra note 5, at 950.
179. Ilya Somin, The Case for Getting Rid of the Requirement That the President Must Be
a “Natural Born Citizen,” W
ASH. POST. (Jan. 14, 2016), https://www.washingtonpost.com/
news/volokh-conspiracy/wp/2016/01/14/the-case-for-getting-rid-of-the-requirement-that-the-
president-must-be-a-natural-born-citizen/?utm_term=.56578929e537 [https://perma.cc/7ZJP-
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1069
itself has been challenged in the courts, quite apart from the challenges that
have been brought against the presidential candidates themselves. In 2012,
for example, Abdul Karim Hassan filed several lawsuits claiming that the
Natural Born Citizen Clause contravened the Equal Protection Clause of the
Fourteenth Amendment and that it was essentially a form of discrimination
based on national origin. Hassan’s lawsuits were not successful and have
each been dismissed.
180
On a deeper level, the lawsuits brought by Hassan and others, and the
many proposals to change the Constitution, raise the question of why
Congress cannot allow the foreign born children of U.S. citizens to be
“natural born citizens” by statute. Certainly, it is within Congress’s power
to offer a statutory definition of natural born citizenship, and it seems that
Congress not only has the power to legislate like this but that it has actively
tried to do so in the past. In 2004, a bill was introduced in the Senate that
sought to offer a statutory definition of natural born citizenship that would
include the children of American citizens born overseas.
181
The language
of the proposed legislation would have extended presidential eligibility to
“any person born outside the United States . . . who derives citizenship at
birth from a United States citizen parent or parents pursuant to an Act of
Congress.”
182
And in 2008, the Senate famously passed a unanimous
resolution declaring that John McCain was a natural born citizen.
183
Rather than let issues of who is eligible linger, Congress might consider
doing something additional to clear them up. First, Congress should grant
standing to ordinary citizens to be able to challenge a presidential
candidate’s eligibility in the federal courts.
184
Second, it should enact
9N64]; see, e.g., James C. Ho, Unnatural Born Citizens and Acting Presidents, 17 CONST.
COMMENT. 575, 576–77 (2000); Randall Kennedy, A Natural Aristocracy?, 12 CONST.
COMMENT. 175, 176 (1995) (explaining that, despite the many reasons “Henry Kissinger
should not have become President . . . his having been born in Germany is certainly not one
of [the reasons why]”); Randall Kennedy, The Right of All Citizens: Why Naturalized
Americans Should Be Allowed to Run for President, N
EW REPUBLIC (May 12, 2011),
https://newrepublic.com/article/88161/obama-birther-constitution-natural-citizens-president
[https://perma.cc/HJ9A-ETSM].
180. See, e.g., Hassan v. Colorado, 870 F. Supp. 2d 1192, 1201 (D. Colo. 2012), aff’d,
495 F. App’x 947 (10th Cir. 2012).
181. See Natural Born Citizen Act, S. 2128, 108th Cong. (2004); see also Seymore, supra
note 5, at 950 n.131 (discussing this legislation).
182. See Seymore, supra note 5, at 950 n.131.
183. See Resolution Recognizing that John Sidney McCain, III, Is a Natural Born Citizen,
S. Res. 511, 110th Cong. (2008) (finding that Senator McCain is a natural born citizen).
184. The scope of congressional power to influence standing has been a source of some
controversy. In recent years, the Supreme Court has granted certiorari in two cases to
consider whether the conferral of standing by statute is constitutional, especially in
circumstances where a plaintiff’s injury in fact is not concrete and particularized; however,
the Court did not rule on the merits in either case. See Edwards v. First Am. Corp., 610 F.3d
514 (9th Cir. 2010), cert. granted, 564 U.S. 1018 (2011), cert. dismissed as improvidently
granted, 132 S. Ct. 2536 (2012) (per curiam); Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir.
2014), cert. granted, 135 S. Ct. 1892 (2015), vacated and remanded, 136 S. Ct. 1540 (2016).
But see Mark Seidenfeld & Allie Akre, Standing in the Wake of Statutes, 57 A
RIZ. L. REV.
745 (2015) (arguing that Congress is “institutionally superior” to courts in evaluating the
gravity of likely harms to a plaintiff and therefore has the ability to confer standing by
statute).
1070 FORDHAM LAW REVIEW [Vol. 85
legislation to speed up the resolution of eligibility disputes. Most scholars
do not pay close attention to the specific procedure by which federal courts
decide eligibility disputes. However, because election disputes require a
certain degree of certainty and finality in the result, Congress has enacted
special procedures to resolve many kinds of election-related cases.
185
Most
federal court cases go through a three-tiered decision-making process
before reaching finality.
186
A federal case is initially filed in district court,
where a district judge first hears the dispute. It is then appealed to the court
of appeals, where a panel of three judges hears it. The losing party at the
court of appeals may then ask the court of appeals to rehear the case sitting
en banc
187
or can seek a writ of certiorari for the case to be heard by the
Supreme Court.
188
Of course, the Supreme Court has discretion over
whether to hear the case.
189
One of the benefits of this three-tiered system
is that it allows multiple judges to consider complicated legal issues
carefully. One of the system’s downsides, however, is that it is slow.
Disputes take a long time to resolve.
190
To expedite the resolution of some kinds of election-related disputes,
Congress has created a different kind of procedure. These types of cases
are initially heard by a three-judge district court, and the district court’s
ruling is then reviewed directly by the Supreme Court.
191
When these cases
are filed, the chief judge of the court of appeals is tasked with appointing
the three-judge panel. This panel includes two district court judges and one
judge from the court of appeals.
192
The panel makes factual findings and
resolves any questions of law that may come before it.
193
Once the panel
renders its decision, it is appealed directly to the Supreme Court, which
does not exercise discretion over whether to hear the case.
194
As Joshua
Douglas, a scholar of procedure in election law, explains, “The Court can
‘note probable jurisdiction,’ which means that it will conduct a full merits
hearing on the case, or it can summarily affirm or summarily reverse, but
either way the Supreme Court must decide the dispute.”
195
There are three election related situations for which Congress has
authorized the use of three-judge courts. Challenges brought under the
Voting Rights Act (VRA), constitutional challenges brought under the
Bipartisan Campaign Reform Act (BCRA), and constitutional challenges to
185. See Douglas, supra note 7, at 435 (noting how “Congress has enacted special
mechanisms for election law cases and obviously believes that certain types of election law
disputes are different from other court cases”).
186. See 28 U.S.C. §§ 46(c), 132(c), 1291, 1294, 1331, 1332 (2012).
187. See id. § 46(c).
188. See id. §§ 1254(1), 1291, 1294.
189. Id. § 1254(1).
190. See, e.g., Joe Palazzolo, In Federal Courts, the Civil Cases Pile Up, W
ALL ST. J.
(Apr. 6, 2015, 2:09 PM), http://www.wsj.com/articles/in-federal-courts-civil-cases-pile-up-
1428343746 [https://perma.cc/4SSY-HL7R].
191. See Douglas, supra note 7, at 455.
192. Id.; see 28 U.S.C. § 2284(b).
193. See 28 U.S.C. § 2284(b).
194. See id. § 1253.
195. Douglas, supra note 7, at 456.
2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1071
the apportionment of federal congressional districts or the apportionment of
any statewide legislative body
196
are all required to use this procedure,
according to Douglas.
197
For challenges to campaign finance practices
brought under BCRA, Congress has further designated the proper venue in
these cases as the U.S. District Court for the District of Columbia.
198
There are several benefits to three-judge courts. Among the key benefits
is that they allow important matters to be resolved in a timely fashion.
“Three judge district courts, with direct review to the Supreme Court,”
explains Douglas, “ultimately have some virtues that are important in
election law cases: quick resolution, an air of accuracy and legitimacy, and
the symbolism of increased scrutiny for particularly important cases, to
name a few.”
199
In the United States, where no election is more important
than that which results in the selection of the country’s President, Congress
should use a similar expedited procedure for candidate qualification
disputes that may arise under the Eligibility Clause.
Given that these cases would be challenges brought under the
Constitution, the federal courts already would have jurisdiction to hear
them.
200
Such cases could be certified to be heard by a three-judge district
court, with mandatory review by the Supreme Court thereafter. The benefit
of this system is that it would force the Supreme Court to render an opinion
fairly quickly on who qualifies to be a natural born citizen, thus providing a
resolution to this issue that would then apply in subsequent cases. To
expedite the three-judge panel’s finding, Congress could require the panel
to move any eligibility cases filed before it to the top of its docket.
201
Discovery in these cases should not take long, as there would be few
disputes of fact regarding a candidate’s background. Questions of law, and
who qualifies, could therefore be resolved fairly quickly.
When it comes to our presidential elections, the American people want to
know that the person they are electing is eligible for the office she seeks to
fill. A candidate must be legitimately qualified to hold the office, and a
decision on her eligibility must be made before voters can cast a meaningful
ballot in favor of the person’s candidacy. The constitutional challenges
brought to our presidential candidates so far have been resolved on
technical and procedural grounds, but whether these candidates are eligible
for the office has never been resolved one way or another either by
Congress or by our nation’s highest court. Congress has the ability to
196. 28 U.S.C. § 2284(a); see also Shapiro v. McManus, 136 S. Ct. 250 (2015) (holding
that a federal district court is required to refer cases to a three-judge panel when plaintiffs
challenge the constitutionality of the apportionment of congressional districts).
197. See Douglas, supra note 7, at 455. Notably, Congress has designated a separate
procedural path for constitutional challenges that are brought under the Federal Election
Campaign Act of 1971. These cases allow a district judge to directly certify a constitutional
challenge brought under the act to a federal court of appeals that sits en banc. See 52 U.S.C.
§ 30110.
198. 52 U.S.C. § 30109(a)(8)(A).
199. Douglas, supra note 7, at 467.
200. See U.S.
CONST. art. III, § 2.
201. Douglas, supra note 7, at 479.
1072 FORDHAM LAW REVIEW [Vol. 85
change this. It is within its power to define statutorily who qualifies as a
natural born citizen or to force the Supreme Court to render a decision
interpreting the Eligibility Clause. The voters are owed a pronouncement
from Congress or a resolution from the courts on this issue.
C
ONCLUSION
Throughout American history, a number of aspiring Presidents have had
their candidacies challenged for allegedly failing to meet the Constitution’s
eligibility requirements. Most of these challenges have been targeted at
candidates who were either born abroad or who had a parent or parents who
were not U.S. citizens at the time of the candidate’s birth. John McCain,
Barack Obama, and Ted Cruz each have had their candidacies challenged
on these grounds. Even as scholars have begun to examine these
challenges, there is little research on how the campaigns have responded
and what the costs of these eligibility challenges have been to them, and
few scholars have written about what Congress might do to resolve these
challenges more expeditiously. Viewed through the lens of history,
presidential eligibility challenges are not unique. Yet, as this Article
explains, there is no reason for them to persist. This Article takes a small
step toward offering a solution for how Congress can address these cases.
