US President & Citizenship

Factual Questions
1

A discussion cropped up this morning at breakfast having the do with US citizenship. What with the issue of immigration policy and Mr. Obama’s right to hold the office of President, it seems a particularly relevant issue at this time. On the other hand, the idea raises various and complex questions.

As we understand it, if a baby is born in any of the United States, regardless of the citizenship of the parents, that child is considered a US citizen. Is that correct? What is the status of a child born to US citizens who are stationed (e.g., with the military or foreign service) in a country other than the US? Suppose the parents are just traveling (though why a near-term mother would be traveling is questionable), is the child considered a US citizen and would s/he be eligible to hold the office of President of the US? Suppose the child it born in Guam, Puerto Rico, American Samoa or some such place, that is, an American Territory or American Protectorate? Does what he location is called (a territory or a protectorate) influence the child’s citizenship status? How about if the child is born in a US embassy? Are embassies considered US territory for such purposes?

We understand that Puerto Ricans have a special status in regards to the US, but we really don’t know what it is. Are they American citizens? Could someone born in Puerto Rico hold the office of President of the US? Does the eventual status of such a region influence that status? For example, a number of states were “Territories” before they became states. What effect did being born in a territory before it became a state have on eligibility to become president?

That brings another issue to the fore. The first Presidents of the US (Washington, Adams, Jefferson, Madison, Monroe, et al.) could not have been born in the US since it did not exist as such at the times they were born. How was the issue of their not being born in the US handled at the time? To the best of my knowledge, they were all born in what became part of the US but could not have been the US before the Constitution.

It is getting farther and farther in the past which will or would resolve the issue, but, at one time, the Philippines held some sort of special status with the US. If someone was born during that period, would s/he be eligible to hold the office of President of the US? Does dual citizenship have an effect on eligibility?

Finally, can a citizen, born in the US, be denied his or her citizenship a la “Man Without a Country”? By the same token what happens when a US citizen abrogates his/her citizenship? As I understand it, Bobby Fischer, the chess champion, did just that, becoming a citizen of Iceland. Could he have reversed that decision and reclaimed his US citizenship or would he have had to apply and become a naturalized citizen to regain his citizenship?

It hardly needs saying, it became a wide ranging discussion, but we lacked an expert. We will very much appreciate you help

2

There are a bunch of questions in there and some are complicated. I will try to be brief.

The key term for being eligible to become president is “natural born citizen”. It isn’t defined exactly but it generally means being a U.S. citizen from birth rather than becoming one later. It doesn’t always mean being born on U.S. soil hwoever. There was a grandfather clause at the adoption of the U.S. Constitution that allowed the early presidents to be eligible because they were deemed citizens as soon as it existed.

  1. Any child born on U.S. soil is a U.S. citizen regardless of who the parents are.

  2. Native born Puerto Ricans are U.S. citizens as are those born in the U.S. Virgin Islands. They can be president. John McCain was born in the Panama Canal zone to U.S. citizen parents for example and he was Obama’s opposition.

  3. American Samoa is a weird case. Most Somoans are U.S. nationals rather than U.S. citizens. The practical differences are very small but I don’t think they can become president but they can have U.S. national passports.

  4. You can revoke your U.S. citizenship but it is strongly discouraged and irreversible. It could leave someone stateless in theory. How do I go about renouncing my U.S. citizenship? - The Straight Dope. You couldn’t be president after doing that.

  5. The U.S. doesn’t prohibit dual citizenships but doesn’t acknowledge them either. It is just a guess but you could probably still be president if you revoke citizenship to the other country before running as long as you were born a U.S. citizen.

  6. Someone can be a natural born citizen and be born abroad but I don’t know all the rules for things like embassies. Being born on a U.S. military base abroad to two U.S. citizen parents for example would generally make someone a natural born U.S. citizen and they would be eligible to become president.

3

Okay, trying to address each of your points: There are two ways to be born an American citizen, termed in lawyers’ Latin ius soli and ius sanguinis. Ius soli says that if you were born on U.S. territory and subject to the laws thereof, you are a citizen. That one is explicit in the 14th Amendment. (“Subject to the laws thereof” means that children born to diplomats or to an invading, occupying force are excluded – they’re not subject to such laws. But even the children of illegal immigrants (who are obviously subject to the laws by virtue of their being deemed illegal for not having complied with immigration law) are legally citizens by virtue of that provision. Ius sanguinis says that the children of U.S. citizens are themselves citizens, even if born overseas. This is granted by statute, and is subject to a whole bunch of nuances.

Again by statute, citizens of most U.S. territories and commonwealths (American Samoa being the big exception) hold U.S. citizenship. DoperJRDelirious, IIRC a lifelong citizen of Puerto Rico, is as eligible to be elected President as John McCain or Joe Biden. So could a Guamanian or an inhabitant of one of the Northern Marianas.

On the earliest Presidents, the Constitution, Article II, Section 1, beginning of paragraph 5:

The Philippines were a U.S. territory from 1898 (when Spain ceded them to us) until 1935, and a commonwealth from then until independence in 1946 (albeit occupied by Japan 1942-45). It was mentioned in a thread some months ago what their citizenship.nationality status was, but I don’t recall the answer.

I’m going to leave the abrogation of citizenship question (voluntary or involuntary) to be dealt with by an expert like Eva Luna.

4

Really minor nitpick to Shagnasty’s masterly answer: John McCain was born to U.S. military parents in Coco Solo Naval Hospital, on Panamanian soil leased to the U.S. Navy, adjacent to Coco Solo Naval Air Station (where they were stationed), which is itself variously described as in or adjacent to the Panama Canal Zone. What this means in terms of ius soli citizenship is something that any random number of self-styled Constitutional experts will come up with an equal number of answers. What is clear, however, is that irrespective of any ius soli citizenship that may accrue to the place of his birth, he was and is a natural born citizen by ius sanguinis, both parents being U.S. citizens serving in the military and stationed outside the U.S. in service to their country.

5

The current law concerning acquisition of US citizenship for a child born outside the US says:[ul][]If both parents are US citizens, it is sufficient that one has had a residence in the US at some time prior to the birth of the child. How long it takes to establish a residence isn’t defined, but it seems that summer visits to grandparents aren’t enough.[]If one parent is a US citizen and one is not, the citizen parent must have been physically present in the US for a total of at least five years prior to the birth of the child, at least two of which must have been after her/his fourteenth birthday.[/ul]The reason the parent or parents are not in the US at the time of the birth is not considered under the law.

6

Coco Solo Hospital (and the Coco Solo Naval Air Station) was well within the boundaries of the US Canal Zone; it was not leased, but simply a part of the Canal Zone (map here). However, McCain’s US citizenship has nothing to do with his birth in the Canal Zone. It is entirely due to the status of his parents as US citizens. He would have an equal right to US citizenship if he had been born in Panama outside the Canal Zone, or in Colombia, or in Argentina.

Birth in the Canal Zone did not bequeath US citizenship. The Canal Zone was always technically regarded as Panamanian territory, although the US had the right to act as if it were sovereign there. There were a number of small Panamanian communities within the boundaries of the Canal Zone, and the children of Panamanians born in the Canal Zone were regarded as Panamanians citizens. (Panama regards anyone born in the Canal Zone to be eligible for Panamanian citizenship, and McCain could in fact run for president of Panama if he chose.)

The one unusual feature of the Canal Zone with regard to citizenship was that US citizens who were born there could pass on their citizenship to their children without ever having resided in the US. (In other cases, children born outside the US can only pass on their citizenship if they reside for a certain period of time within the US. This prevents the indefinite passing on of US citizenship in families that have emigrated from the US.)

7

And – although I doubt it mattered – it should be noted that all of the earliest presidents were natives of what were later to become the United States. They were all born in the Colonies, none having, say, come over from Britain as a young adult. I wonder if one had, would it have become a snarky campaign issue. (Martin Van Buren, born in 1782 in upstate New York, was the first president to have been born an American.)

8

Thanks for the correction. I was reporting, uncritically, what I’d been given to understand was the case about Coco Solo when it came up with reference to McCain’s eligibility at the time the Birther nonsense about Obama started.

9

Of the Founding Fathers, Alexander Hamilton was born on Nevis in the British West Indies. Although I don’t think he ever had presidential ambitions, I wonder how this would have been viewed with respect to natural born citizenship.

10

I wanted to start a thread about the “birther” thing, and what constitutes a “native born citizen”.

Obama is the son of an American woman and a Kenyan man. What is in dispute is where he was physically born.

Even if he was born in Kenya, does it matter physically where the child is born as long as one of the parents is an American citizen? One birther argument is that the mother was 19 when she gave birth, and she could not grant citizenship because she was under the age of majority. I think that is a fairly flimsy argument.

Let’s say the father is an American but the mother was foreigner?

Did the state of Hawaii give Obama a birth certificate, even though (for the sake of argument) he was born in Kenya?

Does Kenya keep records on these things?

For a time as a young teenager, Obama lived in Indonesia. Did he receive Indonesian citizenship? Since Obama was a minor at the time, did he have the right to terminate his citizenship? A quick check of Google states that Indonesia does not permit dual citizenship, and I doubt it did back in the 1980’s. If you were a child of American citizens who renounced their citizenship, do they have the right to speak for you?

11

As a child, do you even have the right to renounce your citizenship? It’s also very unusual for people with minor children who reside overseas temporarily to go through the long and complex process to acquire that citizenship for their children.

Regarding Kenya, if he were born there, the State of Hawai’i would have no reason to issue him a birth certificate, any more than the State of Kansas would. The U.S. government typically recognizes foreign birth certificates, though I believe they require certified translations of those not issued in English.

Does Kenya consider Obama a citizen under their laws? I am sure he is not interested himself for political reasons, but it’s a curious point. If so, is he the first president to have a claim to dual citizenship?

12

in re Mccain
The Panama Canal zone is a little more odd than usual and McCain’ citizenship is still questionable. A judge could only say that it was “highly probable” that he had natural born citizenship as it’e not entirely clear which law he fell under when he was born.

I’m posting from my phone or would do this more gracefully, just check the Mccain section at these links:

http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621#

13

The term in natural born not native born. There is no real defined term for this? Why because it’s never been tested.

The US Courts do not rule on things before the issue actually arises, so no one really knows what would happen.

Basically the general opinion of legal scholors is “natural born,” means you are a US Citizen and you didn’t have to take out papers to get them.

So using that logic, we could say, “Is Mr Obama a citizen?” Almost everyone would say, “yes he is.”

This leads us to point two. “Did Mr Obama take out any papers to achieve this citizenship?” The answer is no.

If Mr Obama is a citizen and didn’t take out any papers to achieve this, he is natural born.

So is this the answer? No. Why? Because, logic, and the law and what it says, is not up to us. It is up to the courts to decide.

We will never have a correct answer or a definitive answer to this until a case goes to the US Supreme Court.

Also consider immigration laws changed. For instance, until the Korean War a person who had a father or mother who was an American, and could prove it was a citizen.

With the Korean War and it also applied during the Vietnam War, if a child’s mother was a citizen the child was automatically a citizen, as in the case of a female soldier and a Korean or Vietnamese native. BUT, if the father was American and the mother was Korean or Vietnamese (or other) native, the child would have to take steps to prove his citizenship.

Those laws are reflective of the times, where the phrase “Mother’s baby, father’s maybe” applied. With DNA today it’s easy to prove who is who’s kid.

Again it all depends on who is on the US Supreme Court if a case ever came to trail. And who knows how they’ll interpret it

For instance, the 14th Amendment is about slavery.

The first part of it that says people born in the US and subject to its jurisdiction, are citizens. This was put in to reverse the Dred Scott Case, that said, blacks weren’t citizens.

Later on this was applied to everyone not just blacks, even though the intent of the amendment was slavery.

Now look at the 13th Amendment also about slavery.

It says neither slavery or involuntary servitude is allowed. Some people tried to get out of the draft by saying it’s involuntary servitude. The Supreme Court said, the US Constitution allows for a military and the draft is part of that. The people claimed, the 13th Amendment came later and changed it. The Supreme Court said “Nice try, but the 13 Amendment is about slavery, not the military.”

Now whether or not you agree or disagree isn’t the issue. The point is clear, the US Constitution isn’t what it says, it is what the US Supreme Court SAYS it is.

And that changes. The most striking example is child labor. You know we almost had an amendment to allow the government to regulate child labor? It never passed but today government at all levels regulate it.

What happened? The words to the Constitution never change, but how the court viewed them changed.

So this just show, while it certainly makes for interesting reading and fun discussion, no one can say for sure, till the court case comes up and is ruled on.

14

Being born on a military base has nothing to do with it as the base is not American soil. The key is that at least one parent is a US citizen. Not that I’m intending to run for Prez, but I fall into this category. I was born to two US citizens while my father was stationed in West Germany on an accompanied tour.

15

Again, it’s not that simple. At present, if both parents are US citizens, one has to have had a residence in the US before the child was born. If only one parent is a US citizen, she or he must have been “physically present” in the US for five years, at least two of them after her or his fourteenth birthday. Before 1986, those numbers were ten years, at least five after the fourteenth birthday. Straight from the horse’s (or rather State Department’s) mouth. (And, of course, any child born in the US is an American citizen from birth. I mention this only because the very first Birther argument I heard, back before the election even, was based on a misunderstanding of this rule.)

You’re right that it doesn’t matter where the child is born. US military bases or embassies have no special status for the purposes of determining whether a child is a citizen at birth or not.

16

I don’t get that. Why would someone need to revoke citizenship of the other country before being president? It might be a good move politically but I don’t think there is any legal requirement.

17

The exploratory committee is eagerly receiving contributions;).

Although as I interpret the current law, I may have to be legally domiciled in one of the 50 states or DC (i.e. somewhere that VOTES for president) to make the run.

18

Minor quibble here: children born to foreign diplomats and such stationed in the U.S. do not gain U.S. citizenship. The key phrase in U.S. code is that “a person born in the United States, and subject to the jurisdiction thereof” gets citizenship; anyone with “diplomatic immunity” is not subject to the jurisdiction of the United States.

19

John McCain has never formally renounced Panamanian citizenship, even though he was born in Panama, and is a Panamanian citizen under Panamanian law.

No parent can renounce citizenship for a minor child, that’s crazy talk. In fact, it’s very difficult to renounce American citizenship. The United States as a matter of policy will not allow you to renounce American citizenship if that would make you stateless, you first have to prove citizenship in another country. And you can’t renounce American citizenship in the United States, you have to leave before we’ll allow you to renounce your citizenship.

20

This is interesting because most of an embassy’s national (of the embassy) staff do not have diplomatic status. Or at least “outside the local jurisdiction”. Only the senior officials at an embassy hold full diplomatic emmunity. The mid-level staff holds diplomatic immunity while performing official duties, the lower-level staff typically does not.
cite: We apologize for the inconvenience... - United States Department of State

so, if the secretary and the chauffeur have a child in the US, that makes the child a US citizen? What happens if the secretary and the ambassador get it on?