The President of the United States has to be a natural-born citizen. This either means being born in the United States or alternatively being born abroad to parents who are American citizens.
Let’s consider this case: A mother whose identity isn’t known secretly gives birth to a child on a large US military base somewhere outside of the United States. She abandons her child, the (American) military police finds the infant and immediately takes it to an (American) military hospital. The mother is never found, the investigation concerning the child’s identity is inconclusive. It is deemed likely that the unknown mother is an American service member who had concealed her pregnancy, however, there is also a possibility that the mother is a locally employed woman (i. e. a civilian and not a US citizen).
Eventually, the child is adopted by American parents, moves to the US, is raised there, always being considered an American citizen. He/she then becomes a prominent and successful politician and decides to run for President.
Would this person be considered a natural-born citizen and thus be eligible?
It would depend on the law in the country he’s born in. I think most declare anyone born on their soil as their citizens (the military hospital is not sovereign American soil; it’s leased to the US, but still belongs to the country that leased it). If the local law makes him a citizen, then he’s not a natural born US citizen.
It he were born in an embassy it could be argued the child is a US citizen.
How do you figure? That could just make him a dual citizen. McCain, for instance, held dual citizenship with Panama.
Legally, the OP’s case would be a foundling, and foundlings can be considered natural-born citizens, but I don’t know enough details of the law here to be sure of whether that would apply.
This page on “citizenship through parents” states that if a child is adopted by US citizens before age 16 (and a few other conditions), the child is automatically a US citizen. I think that would make the child a natural-born citizen?
This is incorrect. Most countries are not jus soli jurisdictions. Most of the Americas are (at least to some extent.) It is largely unheard of in the rest of the world.
That’s also not true. It is perfectly possible to be a natural-born citizen of the US and a citizen of another country by birth. A person born in Canada to American parents is a natural-born American citizen and is entitled to Canadian citizenship as well.
Contrary to popular belief, embassies are not sovereign territory of their countries. If a person is born in an embassy then it is perfectly possible that he may be a natural-born citizen (by virtue of having American parents, say.) But that is unrelated to the territory where he was born.
While it is commonly assumed that this is so, “natural born citizen,” as used as a qualification for the presidency, has never been technically defined. It would take a Supreme Court decision or a Constitutional Amendment to define this precisely.
Birth on a US military base overseas by itself gives zero qualifications for US citizenship. Subsequent adoption by US citizens would not affect the citizenship status at birth. So there would be no way to confirm the citizenship at birth. The answer would probably be no, but it might take a court decision to decide.
Not true. As has been said, John McCain is considered a citizen of Panama by that country. And birth in the Canal Zone by itself did not confer US citizenship, since the Canal Zone was not officially US soil.
Even though McCain was born to US citizen parents, through a technicality he did not qualify for US citizenship at the time of his birth. Shortly after his birth, the law was changed retroactively so that he did qualify. So there would be a question as to whether he was actually a natural born citizen.
That would apply only to the children of accredited diplomats, not to children of unidentified parentage.
No, at least according to the most commonly held interpretation of “natural born citizen,” which requires the person to have been a citizen from birth.
Colibri, could you expand on this technicality about McCain? I never heard of that! I also didn’t hear about a law that was passed to retroactively make him a citizen from birth. Isn’t there something in the US Constitution that says laws can’t be passed to act retroactively? For example, if mopery is legal today and you are moping around all over the place and have been your entire life, if they pass a law against mopery tomorrow they can’t prosecute you for what you did prior to tomorrow, right? So how did the citizenship thing work if we don’t allow the passage of retroactive laws?
If parentage cannot be established - presumably does not qualify as natural-born.
Born on an American overseas base - not American territory (Canal zone exception…?)
Foreign national adopted by American parents - makes you a citizen, but likely does not qualify (barring further definition) for “natural born”.
I would assume the only thing in the scenario that would qualify the foundling was if parentage could be established. What if only one parent turned out to be American?
I assume the rule is not related to “innocent until found guilty”. Unless a child outside the USA can firmly establish parentage as American, why would they be given USA citizenship based on a possibility? Inside base or left at the gate, the child would likely be treated the same - a foundling in the host country.
Of course today with DNA technology it would be easy to establish if any of the military personnel are related. (I hear they keep a DNA sample on file). I wonder if that also applies to non-military staff from the USA, or is there no such thing on overseas bases?
There appears to be a distinction in US law between “incorporated” territory and “unincorporated” territory. Incorporated territory is land that is part of a US state or a federal territory that is considered “incorporated”. DC and Palmyra Atoll are incorporated. A person born in DC (which is not a state) was as much born in the US as someone born in Pennsylvania. Unincorporated territories are not part of the US per se but are subject to the jurisdiction thereof and people born there are automatically US citizens at birth if Congress says so. Congress has said that people born in Puerto Rico, The USVI, Guam, and the CNMI are US citizens at birth.
Here’s a good article on it published in the NY Times in 2008. The link in the second paragraph goes to the original legal analysis.
The key points:
In April 2008 Congress passed a non-binding resolution declaring McCain to be eligible for the Presidency. But because of the ex post facto nature of his citizenship, there would certainly seem to be grounds for a Supreme Court case challenging it. Rather ironically considering all the questioning of Obama’s citizenship, McCain actually had a more tenuous claim to be a natural born citizen.
One of the things we learned* from the whole birther thing is that the natural-born citizen requirement is one which there is no inherent enforcement mechanism for. If Le People don’t care- or at least are satisfied that the candidate is qualified- there’s really not much anyone can do.
McCain was born in 1936. This law (8 USC § 1403), granting citizenship to certain persons born in Panama after 1904 was passed in 1937. A special law needed to be passed for Panama because the phrasing of the previous law unintentionally excluded persons born in Panama from US citizenship. Congress over-corrected and in fact made it easier for people born in Panama to become US citizens than for people born anywhere else to become US citizens.
It should be noted that the McCain campaign hired a couple of law professors of their own to rebut Chin’s paper.
The Supreme Court has held that the ex post facto clause of the Constitution applies to criminal law. If it applied to all law, the fiscal cliff law that was passed a couple of weeks ago would be unconstitutional since it made changes to the AMT for 2012 and changed other tax rates retroactive to January 1.
In addition to being an unincorporated territory, the Canal Zone always technically remained part of Panama. The Hay-Bunau Varilla Treaty that created the Canal Zone gave the US the right to act as if it were sovereign in the Zone, but not actual sovereignty. Panama always considered it to be part of its national territory, and recognizes anyone born there as a Panamanian citizen. McCain is technically eligible to run for President of Panama in next year’s election.
In particular, the children of US citizens born in Panama could gain US citizenship without ever having lived in the US. For other children of US parents born outside the US, residency in the US for a certain amount of time is required to gain citizenship.
Personally I think that legal citizenship is all that should be required, anyway. If a person can be elected to any other public office in the US, I cannot see why the Presidency should be any different.
