The constitutional requirement that a president be “natural born” does not likely affect McCain
Today, the New York Times ran an article addressing the possibility that a McCain presidency would be unconstitutional because he is not “natural born.” (He was born in the Panama Canal Zone.) It’s not the first such story–the same issue came up during McCain’s 2004 and 2000 candidacies. And, as the NY Times points out, candidates (like George Romney in 1968) have faced this before, but because they never won the election, the issue was never tested before a court.
Although the New York Times covers the legal controversy, they fail to point out that this is all entirely academic. No court will ever rule on it. I’ll explain why below, but first a refresher on why a McCain presidency might be illegal or why it might not be.
Refresher: Presidents must be natural born, but nobody knows what that means.
The Constitution provides that only a “natural born citizen” may become president:
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. (U.S. Const. Art. II, Sec. 1, Par. 5)
John McCain was born in the Panama Canal Zone, the son of United States citizens. Is he natural born? If not, does that mean he can’t be President?
Who knows. Some point to the first naturalization law, passed in 1790, as evidence that such a presidency would be constitutional. Indeed, the first naturalization law stated that “the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens.” Unfortunately, this doesn’t settle the issue, because although Congress has the authority to define citizenship (e.g., Vance v. Terrazas), Congress does not have the power to define “natural born citizen” as a constitutional requirement for presidency (absent the amendment process).
There’s really no Supreme Court decision directly on point. Arguments exist on both sides, and reasonable minds may differ. Can’t the Supreme Court make a ruling on it, you ask? Might they conclude McCain can’t be president? (Lets suspend disbelief for a moment about the political leanings of the current Court.)
No. Here’s why.
As a matter of law, no court can rule on this, because no one has standing to sue.
I have no idea whether McCain will win the presidency. (Personally, I’m voting Obama.) But lets suppose he does. And lets say someone wants to get an opinion from the Supreme Court on whether that’s legal. The court will throw the suit out and say you don’t have “standing.” In the interest’s of simplicity, here’s the Wikipedia definition of legal standing:
“a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law”
For those not familiar with standing, the basic idea is, if you run to a court and say, “I think the President is not legally the President. He’s violating the Constitution. I want to sue.” The Court will ask, in essence, “okay, maybe that’s true, but before we decide that, who the heck are you?” You have to be personally harmed by the violation or otherwise demonstrate that you’re the right one to sue. You might argue you’re a citizen and therefore you’re harmed, but that doesn’t fly. It also doesn’t work to argue that you’re a taxpayer, so your money would be going to fund an illegal president. Could the Democratic candidate for president assert standing? I doubt it. For starters, there would be a real causation issue. They’d have to show that absent McCain’s violation of the law, the Democratic candidate would have been elected (probably impossible to prove).
So if in fact the “natural born citizen” clause made a McCain presidency illegal, but no court could address the issue, in what sense is it illegal? That’s an esoteric question and not one unique to this clause (e.g., the Guarantee Clause). If McCain believed it to be unconstitutional, that might make swearing to uphold the Constitution difficult, but I doubt he’ll take the view the Constitution prevents his presidency. So this whole issue is purely academic. Worse, it’s going to be fodder for conservatives to continue the critique of the New York Times that they are on a crusade against John McCain.
Update: In answer to one of the questions below, I’ve posted:
5 Responses to “The constitutional requirement that a president be “natural born” does not likely affect McCain”
If, after (hypothetically) becoming president, McCain took some action to injure any other party (say by enforcing pretty much any law), could that injured party then assert that McCain doesn’t have any power since he wasn’t eligible to be president in the first place?
It’s highly doubtful. You’d still have to show that the injury would not have occurred but for the violation. If your injury is caused by enforcement of law by the executive, how could you show that another executive (a natural-born one) would not have similarly enforced the law? There are other reasons why this wouldn’t be resolved by a court. In an effort to keep it simple, I stuck to standing and didn’t discuss other reasons it’ll never get resolved by a court, but there are several. (Maybe I’ll edit it.) For one, there’s the political-question doctrine, a way for the court to argue essentially that it should not adjudicate this because it’s better left to the political branches of government (i.e., legislative and executive).
Sam Brainsample’s hypothetical plaintiff would have an injury in fact, but would still fail standing for want of the two other elements of standing. To have “standing”, one most not only have an injury in fact, but also show, to a hostile court that ephemerally alters the burdens of persuasion, that the injury and the illegality have some causal nexus, and that it be susceptible to redressa by relief against the parties named. This is required to even “get in the door” - meaning a theoretical lack of standing can scotch a case before any facts are proven. Moreover, the defendant has several other opportunities to scotch a case for lack of standing - by characterizing it successfully as a “general citizen suit” or any number of other knockout characterizations (e.g. Allen v. Wright: you have no standing to sue the government for an injury inflicted by forces of the free market, because there’s no causal nexus). In other words, the knockout characterizations are enormous. Constitutional “standing” requires little less than 13 armed men breaking into your home without a warrant and without cause, beating you senseless, and force-feeding you pine sol until you confess.
So, given the *real* definition of standing, it’s pretty hard to imagine who would ever have standing to challenge the election of an unqualified president except the unqualified president himself, were he barred from office.
Certainly the President who loses to him would have an injury, but causation would be a bit of a problem. “Didn’t you lose anyway? Barring the unqualified president from office wouldn’t mitigate your injury, so you have no more standing than general citizen or taxpayer.”
In fact, as you point out, even the opposite party rival of the unqualified president wouldn’t have standing - his injury came from the electorate, not the president’s lack of qualificaiton. If he loses the general election, there’s evidence that he would have won but for the president being unqualified.
However, there is one possibility we may have overlooked. Perhaps a qualified by unnominated candidate from the prevailing party would have a better case for standing than the candidate of the losing party. But even Huckabee’s case is a weak one. “Do you mean to tell the court that if there were no McCain, you would have automatically become the republican presidential nominee? And because you are a republican, you would have won? Unless you can answer yes to both questions…”
As singularly dominant a force in American politics as the Republican party is, that is a bit of a reach.
Nevertheless, I like this Huckabee v. McCain idea - I’m running out of plausible alternatives for why he’s still campaigning.
So essentially, I agree with your conclusion, but I would radicalize it. Because of the way “standing” is defined, clauses such as these, like the “republican form of government” clause, and most of the 4th Amendment, are boy scout rules. The Government is Constitutionally bound to follow them - scout’s honor. Got a problem with it? Too bad.
-Matt
http://overbreadth.com
Thanks to Matthew for the insightful comments. I agree, a plaintiff would likely lack standing on all three elements (Injury, Causation, Redressability). And do I detect that Matthew is weighing the merits of a lawsuit against my x-girlfriend for my pine-sol incident?
http://lots-o-thoughts.blogspot.com/
Thanks, guys. I’ve got another one, though. Political-question doctrine aside, if there were a clear constitutional violation (which doesn’t seem so clear here) do you think that the court might ease up on the standing restrictions (like they have for establishment clause violations)? Maybe just being a taxpayer, essentially paying the salary of an unqualified president would be enough?
Also, is the “causal nexus” stuff just for statutes (like ADAPSO), or does it also apply to Constitutional questions?
Or is this standing stuff all just made up by nine guys who do whatever they want?
Discussion