A recent article by Gabriel Chin (http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621#PaperDownload) suggests that John McCain cannot be president because he is not a "natural born citizen" under the United States Constitution. This article contradicts the opinion of Laurence Tribe and Theodore Olson, who have concluded that McCain can be President, either because his birthplace, the Canal Zone, was under exclusive U.S. jurisdiction, or because he obtained citizenship by statute in 1937.
Obviously this discussion is irrelevant. No one is going to kick McCain out of the race because he isn't a US citizen; the courts are not going to touch this with a ten-foot pole. But it does present an intriguing question: Can I become President?
I was born in Riyadh, Saudi Arabia, to two American citizens. Because my parents are American, I was born a US citizen. Because my father was not a Saudi citizen, I am not a Saudi citizen, nor am I a citizen of any other country.
I had always been told that I could not be President because I was not born within US territory. However, an alternative interpretation of "natural-born" would include those who were born as US citizens, excluding only those who become citizens through naturalization. The recent discussion appears to follow this model.
The text of the constitution isn't clear on this issue, although "natural-born citizen" does seem to read most logically as "becoming a citizen naturally," rather than by operation of naturalizing process. Nor is the purpose exactly clear. One might think that being born to American parents would be enough to ensure that one is not under the allegiance of a foreign power, or that one knows America quite well. On the other hand, the founding generation might well have wanted to keep the nation out of the traitorous fingertips of those of us who, despite being born as US citizens, were raised and brainwashed in Saudi madrassas.
(Note to FBI readers: Actually, I went to a British school known as "The Puffin School," and my most traiterous impulse is a tendency to spell the shade "grey" instead of "gray.")
So, what do we think? Absent practical considerations (electability; my tendency to make cutting jokes about Pennsylvanians), can I become President?
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An interesting conundrum. And there's even more grey (ha!) area involved. I know "natural born" (lay on, MacDuff!) American citizens who have moved overseas with no specific intention of returning, but who get their children American citizenship just in case. The children are generally dual citizens, but they don't need any naturalization. Their citizenship is, on paper, indistinguishable from yours, even if your relationships to American and American citizenship are quite different. Do they meet the legal test? (Leaving aside that a genuine dual citizen could never be elected.)
The other interesting side issue (other than, of course, the circumstances that would conspire to put you on either major party's ballot) is who could actually challenge your role. There are actual cases regarding John McCain's eligibility that have been filed in federal court, and most observers aren't sure that the standing is there. So even if Presidential Nominee Cassin is cruising to a Constitutionally dodgy victory, is there anyone who can stop his apparently foreign menace?
Well, it might be that this kind of constitutional prohibition is supposed to be decided by the legislature, or even by the voting public. It seems to me that the Constitution addresses itself to more people than just the Courts, and the public (and the legislature, through the impeachment process) does have the power to remove such a candidate without judicial action.
As for the courts:
I don't know all that much about standing law. But at least some violations (for instance, violations of the prohibition against the establishment of religion) can be challenged by regular citizens, under the taxpayer standing doctrine. It's unusual, but it is available in certain cases.
I don't know what the explicit justification is establishment clause cases. But maybe it's that 1)the establishment clause is designed to protect the public, not individuals, 2)it's a structural protection rather than an individual rights protection, and 3) it's hard to imagine who else would be able to bring such a case.
Arguably all of those factors exist in the realm of election requirements.
Even if taxpayer (or voter) standing is not available,, there is an obvious person to challenge such a decisions--Barack Obama. Assuming he can show injury (presumably after an electoral loss), he might be able to defeat a standing challenge. Of course, he would then lose his case under some version of the political question doctrine.
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