There are a few types of political questions. What makes McCain’s issue a political question is that there are inadequate legal standards for a judge to apply–it’s too much of a gray area and the political process provides a pretty good check on the Constitutionality anyway. If Arnold ran for prez the case is much clearer; he doesn’t have any plausible claim to meet the wording of present statutes or any interpretation of Article II. In that case, instead of more or less arbitrarily choosing an interpretation of jus soli, the court would just be applying the legal norm that everyone agrees on: no naturalized aliens as President.
The problem with political question doctrine is that there is no clear line on what constitutes a sufficiently gray area of law. The phrase “republican form of government” has been held as too vague for judicial ruling, but “due process” is not. It’s largely a matter of what the courts want to rule on and what they don’t want to. Most observers thought Bush v. Gore was a political question, but the Supreme Court disagreed. They wanted to rule on it. They’re not gonna do that in this case given their political predilections (if it ever came up), but what they ought to do legally is a tougher call.
A facially unconstitutional bill or executive order doesn’t delete a constitutional norm that has been constant for 200+ years.
The difference between McCain and Arnold is that for one there is no legal norm to apply (we have absolutely no interpretation of how broadly jus soli is supposed to apply and whether “natural-born” includes jus sanguinis) and for the other there is a crystal clear legal norm.
ETA: In other words, while the term “natural-born” is unclear and probably not subject to judicial definition, the one thing we do know is that it excludes naturalized aliens.
Again, the fact that McCain was born in the Canal Zone, an area under US jurisdiction but not actually part of the US, has nothing to do with his citizenship, even though people incorrectly seem to think it does. McCain’s citizenship is based on his parentage, not the location of his birth.
One could argue that the Panama Zone is given special consideration and it was only US Occupied Territory, right?
I am not trying to say that Arnie gets in or that McCain is out, but dudes seems to be saying that there’s not even a ghost of a chance of a legal argument for either. :dubious:
No it’s not. Once again, McCain’s birth in the Canal Zone is a complete red herring with regard to his citizenship. It has nothing at all to do with it in a legal sense.
The Canal Zone was not an “Occupied Territory.” The Hay-Bunau-Varilla Treaty of 1903 granted the US the right to act as if it were sovereign in the Canal Zone. It did not actually transfer the Zone to the US; it always remained technically part of Panama. Panama regards those born in the Zone as Panamanian citizens by birth.
Of course, it’s not like Obama is a disinterested observer here. He had a non-American father (and stepfather) and grew up in Indonesia, so his family’s “American-ness” is arguably on much shakier ground than McCain’s. I’ll bet money right now that Obama (assuming he gets the Democratic nomination) won’t say a word against McCain on the issue on eligibility.
The way I see the situation, McCain was a US citizen from the moment of of his birth, by virtue of his having American parents. Common sense argues that this makes him “natural-born,” so if McCain’s opponents think that he isn’t “natural-born,” then the burden of proof is on them, not McCain.
I think if someone really wanted to make an issue of it, the appropriate place would be the Republican National Convention. Some disgruntled delegate makes a motion , the McCain Delegates are unconstitutional and should not be seated. Odds of this happening low and odds of it succeeding , even less. But fun to watch.
Obama was born in the US, in Honolulu, Hawaii. I believe he was in Indonesia for only four or five years, from ages 6-10.
I don’t question McCain’s OR Obama’s eligibility. McCain was born to Americans. Obama was born IN America to an American. I see no problem with either one.
I believe it would be necessary for him to apply for it. However, should he do so this article indicates there would be no problem granting it:
Translation:
Candidate for the White House is as much US as Panamanian
Panama 8 Feb. (EFE) The most likely Republican candidate for US President, John McCain, is Panamanian, and, if he wishes to, could reclaim his nationality at any time, official sources assured today.
Although the debate in the US indicates the impossibility that he can apply for the position because he was not born in its territory, in Panama it is pointed out that he could be president “without any problem.”
The Electoral Tribunal of Panama indicated to EFE [News Agency] that the country does not distinguish the national territory and that McCain, who was born in the former Canal Zone, an area governed by the US until 1979 in order to administrate the international waterway, is Panamanian in all respects.
Sorry, I should have been more clear. Obama’s potential problems are entirely political, not legal, but they’re real nonetheless. If Democrats start claiming that McCain is not American enough to be president, then Republicans are sure to counter by pointing out that Obama himself spent his formative years outside the US, being raised in a Muslim household no less. Yes, I know that Obama belongs to a Christian church now, but given the current political climate, Obama’s family history is undoubtedly not something that he wants people to think about. Thus, it is in his interest to make the issue of McCain’s eligibility go away quickly.
All that having been said, I’m sure that both he and McCain are fully qualified to be president. I’ll probably vote for McCain, but I’d much rather see Obama win than Hillary.
Incidentally, the article also indicates that McCain’s sons also would qualify as Panamanian citizens, given the birthplace of their father.
While I haven’t tried looking up Kenyan citizenship law, I would guess that Obama might also qualify for Kenyan citizenship on the basis of his father’s birth. So we could have the interesting situation that both major presidential candidates might be qualified for dual citizenship.
This is so cool. I’ll vote for McCain if he promises to also run for President of Panama. It’d be like James VI of Scotland running for King of England.* Think of it: instead of invading other countries, we could just have our charismatic dual nationals run for president and, once in both offices, merge the two countries. Or better yet, how about if McCain loses, and then runs for President of Panama and wins?
*Yes, I know that’s a completely specious parallel, and no, I’m not really serious.
