Setting the record straight on Americans born overseas and the presidency?

Hopefully this doesn’t get politicized but can someone help clear up the situation whereby Americans can run for president while being born overseas?

Now from my understanding of the Obama Birth Certificate controversy according to those who believed in such, had Obama been born in kenya as they assert, he would have been ineligible to be president of the US. Despite the fact his mother was a US citizen. Donald Trump made that issue practically the corner-stone of his potential campaign and other’s have likewise used that to discredit his ability to be president.

Now I’m hearing about Ted Cruz who was born in canada to 1 US citizen parent and one non-citizen, however it’s being argued that he would indeed be eligible for president, when this appears to be the exact same situation many have argued would exempt Obama from legitimately becoming president had he in fact not been born in the US.

Can this debate be cleared up?

See this previous thread.

The issue if Obama had not been born in the US was that his mother was not old enough to transmit US citizenship to him under the law that was in effect at the time of his birth.

Since Obama’s mother was only 18 when he was born she could not have resided in the US for five years after the age of 14.

The question is moot due to Obama’s birth in Hawaii.

Assuming his mother satisfied the residency requirements, he would be a US citizen.

Interestingly, John McCain did not qualify for US citizenship at the time of his birth in the US Canal Zone even though both his parents were US citizens due to a peculiarity in the law then in effect. This loophole was closed the following year and he then became a citizen.

Interesting, so it was that 14 years of age technicality that would have hypothetically made him exempt. Although I wonder how many “birthers” did bring up that specific technicality as the issue? but I suppose that’s another matter.

Colibri gets it in one, the U.S. has modified its rules on birthright citizenship several times and because of the quirks Cruz would have been born a citizen while hypothetical Kenyan-born Barack Obama would not be a citizen born.

The natural born citizen clause for eligibility to be President has always been interpreted (and never formally challenged AFAIK) to mean anyone entitled to citizenship at birth. While McCain wasn’t actually entitled to citizenship at his actual birth the retroactive nature of the law change meant that legally he was “retroactively” a citizen from birth even though as a matter of reality he wasn’t a natural born citizen until the law changed.

With citizenship most countries come down to two concepts: jus soli and jus sanguinus, the first basically ties citizenship to where you were born and the second ties citizenship basically to your bloodline.

The United States has historically had very strong birthright citizenship, basically anyone rolling through here who drops a kid has created a U.S. citizen even if they’re just on temporary vacation. Basically anyone subject to U.S. jurisdiction is supposed to be a citizen at birth. That means that children of foreign diplomats aren’t supposed to be birthright citizens, because they actually aren’t subject to U.S. jurisdiction. But research reports I’ve read by the CIS actually indicate because of screwed up directives on that sort of thing as a matter of course children actually born to foreign diplomats in the United States have actually been receiving social security cards, birth certificates and etc and thus are legally U.S. citizens.

When it comes to citizenship due to your bloodline, the U.S. has always been a little variable. Nowadays in most scenarios if you’re born to an American citizen parent you will be a citizen at birth. But historically it’s varied a lot.

Other countries take very different views. Germany for example considers you German based on your parentage, if Americans living in Germany give birth then by and large there historically would be no immediate path to citizenship for their children (I think this was liberalized in recent years.) Likewise, a person born to German parents can be entitled to German citizenship even if born outside of Germany to parents who have formally immigrated to say, Canada or whatever.

As with virtually every hypothetical question asked about the Presidency, essentially no court cases have addressed them specifically. What the others have said are the best theoretical answers, based on whatever court cases on somewhat related subjects have ruled along with reasonable interpretations of legislative intent and historical precedent.

But we don’t know what a future court might rule given the specifics of an individual situation. Or what a past court might have said if they were given the case. (They might have ruled that Congress had no intention of depriving an 18-year-old of the citizenship of her child despite the wording of the law.)

Cruz is an easier case, because there are many people like him and so there is some case history regarding citizenship. Most of the time, however, nobody really Knows.

He would be a US citizen. The question is whether he would be a “natural born citizen”. And that depends on what the definition of “natural born citizen” is.

I thought McCain was born in a hospital on what was formally US territory.

State Dept. Manual, page 7, at the bottom

http://www.state.gov/documents/organization/86757.pdf

It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.

The Canal Zone was never officially US territory. The Hay-Bunau-Varilla Treaty gave the US sovereign rights over the Canal Zone, but did not actually transfer the territory to the US. Panama still recognized it as Panamanian territory, although under US control. Being born in the Zone by itself did not confer US citizenship; Panamanians and other non-US nationals born in the Zone were either Panamanian citizens or retained the citizenship of their parents.

This peculiar status of the Canal Zone was the reason McCain was not a citizen at birth. From the previous thread I cited above:

Oddly enough, McCain would have qualified for citizenship at birth had he been born a few miles away within Panama but outside the Zone, since he then would have been outside US jurisdiction.

I agree with Martin Hyde (and disagree with Chin) that the retroactive nature of the law made McCain a “natural born” citizen, because his citizenship derived from the circumstances of his birth. I assume that he or his parents never had to go through any formal application process to obtain citizenship for him. But as Exapno says, in the absence of actual case law it is impossible to know for certain what a court might decide on the matter.

Incidentally, McCain is technically qualified to be a Panamanian citizen and could theoretically run for President in next year’s election.

And with that uncertainty there is then the question of who would have standing to challenge the eligibility of a presidential candidate.

Though I’ve heard (I forget where) that there are birthers who don’t consider people born in Hawaii natural-born citizens.

I had a birther tell me both parents had to be US citizens in order for someone to be a natural born citizen. They really don’t have any idea of what the real argument is.

Actually no. Cruz (or anyone in such a situation) would not be a US citizen at all.

US citizens giving birth overseas can only transmit citizenship to their offspring in accordance with law. Just having one US citizen parent is not sufficient.

I am a US citizen residing overseas. Mrs Iggy is not a US citizen. I lived in the US for the requisite period of time (period of five years physical presence, two after the age of fourteen,) so I can pass US citizenship to any hypothetical biological children.

Our child might have US citizenship but if he/she does not live in the US for at least five years (two of those after the age of 14) then he/she cannot pass US citizenship onward.

This basically was the birther argument about Obama. A hypothetically Kenyan-born Obama would not have been a US citizen at all. It was not merely an argument about "natural born"status.

Yes. And the post to which you were responding clearly said: “Assuming his mother satisfied the residency requirements”. So yes, Cruz would be a US citizen.

I agree that there hasn’t been an actual decision on this issue. But I think Chin makes a good argument. If you accept the idea that natural born citizenship can be retroactively conferred to somebody by a law enacted after their birth, where do you draw the line? Presumably, Congress could enact a law next week declaring that Arnold Schwarzenegger is retroactively an natural-born American citizen. That would seem to fly in the face of what most people would consider the term to mean.

I think a more reasonable standard is the one Chin appears to hold - that you’re a natural-born citizen if you qualify as a citizen at the time of your birth according to the laws that exist at that time.

I think if the Obama case had come to court (presuming he had been in this hypothetical born overseas), then the Court would have simply ruled that he was natural born, I do not think it was the legislature’s intention to deprive a by birth American citizen who had lived her entire life in the US and was the descendant of many generations, the ability to pass on her citizenship.

Then what else could they have possibly meant by the requirement (at that time) that the parent had to live in the United States for five years after reaching age 14? What other interpretation of this clause is possible?

And if young Barack had been born in Kenya, wouldn’t that mean that his mother hadn’t spent all of her time in the United States?

Given that neither of us nor Chin are Supreme Court justices, all any of this is opinion. I agree that Chin does have an argument. However, I think the place where you draw the line is that natural born citizens must be citizens by the circumstances of their birth rather than by any naturalization process. I don’t know of any circumstances that would reasonably qualify Schwarzneggar for citizenship even retroactively.

Large categories of people have been given citizenship by reason of birth previously, including former slaves in 1868, American Indians living on reservations in 1924, and Puerto Ricans in 1917. All automatically became citizens without having to go through a naturalization process. All could theoretically have qualified as “natural born” citizens, especially slaves and Indians who were born in US territory itself, even though they were not citizens at the time of their birth. Of course, no one in any of these groups ever ran for President, so the idea has never been tested.

That generations of foreigners with no ties to the US should not be able to claim citizenship just because they happened to have a great granny who had been a US citizen. Remember in the early part of the last century, it was not uncommon for immigrants to live in the US a while and then move back.

Couldn’t that be considered a bill of attainder, though? Granted, those are usually thought of as being to punish an individual, not to reward them, but it’s still singling out an individual.

Congress has passed private bills (which become Private Laws as opposed to Public Laws) throughout its history. They often grant permanent resident or citizen status to specifically named individuals. I don’t know of any that have claimed to grant “natural born citizen” status. I don’t think the authority to pass private bills has been questioned.