John McCain: Is he "Natural-Born"?

[UGAalum94]

Originally Posted by AGDee

Everytime I read "natural-born" I think to myself.. What if your mom had a c-section??? LOL, sorry...

LOL, I was so going to post about that with a Shakespeare's MacBeth joke.

I can only imagine the citizenship issue that could result from hiring a non-citizen to be your surrogate with such terminology.

[GeekyPenguin]

Originally Posted by MysticCat

I'm glad I don't do immigration law.

Immigration law is a nightmare! I'm in our immigration clinic right now and we have a flowchart that's about 4 ft tall in tiny font that we use to determine citizenship - it's so insane.

[MysticCat]

Originally Posted by UGAalum94

There's no question about citizenship, just a question about "natural-born," in McCain's case, right? It's because we not only have to worry about whether he's a citizen, but whether he's a "natural-born" citizen in the Constitutional sense.

Right. At least, that's how I understand it.

And I'm looking at this language in 7 FAM 1116.1-4c (in the State Department document to which I linked earlier): Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth. (Emphasis mine.)

GeekyPenguin??

[Kevin]

Originally Posted by MysticCat

Right. At least, that's how I understand it.

And I'm looking at this language in 7 FAM 1116.1-4c (in the State Department document to which I linked earlier): Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth. (Emphasis mine.)

GeekyPenguin??

You're asking the wrong question. We're talking about the definition of a natural born citizen within the meaning of Article II.

That's not necessarily the same thing.

[MysticCat]

Originally Posted by Kevin

You're asking the wrong question. We're talking about the definition of a natural born citizen within the meaning of Article II.

That's not necessarily the same thing.

I'm aware of that, at least as far as the McCain question goes, although others in this thread have raised more general question about the citizenship of military kids born overseas. So in reality, we're talking about more than the definition of a natural born citizen within the meaning of Article II.

As I said, I stay as far away from immigration law as I can. I'll admit haven't done much searching, but I'm not aware of much that talks about what "natural born citizen" means in the Article II context. It seems to me, however, that the State Dept's interpretation of what this portion of the XIV Amendment -- "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . ." might be relevant to any discussion on the meaning of "natural born citizen" in Article II, section 5.

[Tom Earp]

Claire McCaskil of Mo. Senator has proposed an ealy amended part of what is under discussion on this thread and can just be done on a big cheif tablet and brought up to recify the wording.

But, if a child is born of natual American parents, they are consider Americans.

I hope the legal writen word would be more easier to read and decipher.

[Kevin]

Originally Posted by MysticCat

I'm aware of that, at least as far as the McCain question goes, although others in this thread have raised more general question about the citizenship of military kids born overseas. So in reality, we're talking about more than the definition of a natural born citizen within the meaning of Article II.

As I said, I stay as far away from immigration law as I can. I'll admit haven't done much searching, but I'm not aware of much that talks about what "natural born citizen" means in the Article II context. It seems to me, however, that the State Dept's interpretation of what this portion of the XIV Amendment -- "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . ." might be relevant to any discussion on the meaning of "natural born citizen" in Article II, section 5.

It might not be. Remember that the Vth amendment's and the XIVth amendment's due process clauses have been given different interpretations although they say essentially the same thing.

I'm pretty sure the issue would be one of first impression for which the Court would have little guidance. Too bad we have to wait until McCain is elected and the Democratic party sues to find out.

[MysticCat]

Originally Posted by Kevin

It might not be.

Which is pretty much the same thing as me saying it might be. I didn't say that without question it is relevant, just that it might be.

Too bad we have to wait until McCain is elected and the Democratic party sues to find out.

Give it a rest, Kevin. Implicit hypocracy is not becoming, and you know that Republicans would sue just as quickly as Democrats if the shoe were on the other foot. Besides, how would "the Democratic Party" have standing? (You at least get a gold star, though, for not saying "the Democrat party.")

Besides, you're the one who said:

Originally Posted by Kevin

As far as deciding something before election day, the Supreme Court is not in the business of issuing advisory opinions. You have to have an Article III Case or Controversy. The issue is not yet ripe for decision. Only if McCain wins the general election does this ever become an issue.

Actually, I would assume if it's not ripe prior to the election, it's not ripe until after the electoral college has voted. Assuming a suit was brought then, wouldn't the appropriate relief under the XX Amendment be that the vice-president elect becomes president? I don't see how the Democratic candidate could benefit from a decision adverse to McCain?

[MysticCat]

Originally Posted by Tom Earp

Claire McCaskil of Mo. Senator has proposed an ealy amended part of what is under discussion on this thread and can just be done on a big cheif tablet and brought up to recify the wording.

. . . .

I hope the legal writen word would be more easier to read and decipher.

Any further comment by me would be superfluous.

[skylark]

Originally Posted by MysticCat

Actually, I would assume if it's not ripe prior to the election, it's not ripe until after the electoral college has voted. Assuming a suit was brought then, wouldn't the appropriate relief under the XX Amendment be that the vice-president elect becomes president? I don't see how the Democratic candidate could benefit from a decision adverse to McCain?

I hadn't thought about it, but now that I have I think you're right on this. So who would have standing to sue? Mike "Presumable VP" Huckabee? Because I doubt that he would mess up his party that way.

[skylark]

My own opinion is Congress should amend the constitution NOW in order to alleviate the ambiguity. I think it is even in the Democratic Party's interest to fix the issue than leave it up in the air.

[scbelle]

Originally Posted by LionInMI

Hi, this is me and this subject has been quite the topic of debate in my family since nittanyalum sent me the link to the thread. My Dad is retired Navy and my brothers are active military, one of my nephews was born on a base in Germany so that brother is particularly interested in this too.

My Dad and I spent a lot of time on the phone and googled as we talked. I do believe this should be a nonissue about McCain's candidacy, but I see where the idea that it might take a Supreme Court decision to put a "final word" on it comes from.

My Dad's opinion is that I was born under the U.S. flag to American parents on an American installation on land leased by the U.S. government and my birth was recorded by the Department of State, so there could be no misinterpretation of my birthright.

But I do see the gray area that has been referenced if someone takes the "strict constructionist" viewpoint. Googling about the leases we hold in Cuba and Okinawa (where we also lived) was really interesting. Castro hasn't cashed our lease payments since 1959 and many Okinawans oppose the continued forced lease of their land to the U.S.

We turned up an article in the Christian Science Monitor from 2002 that put an interesting spin on how the U.S. even defines the land it leases in Cuba. When efforts to extend constitutional rights to the detainees in Guantanamo Bay were raised, the government (some might say conveniently) argued that the base was still Cuban "sovereign territory", not U.S. sovereign territory (so they didn't have to extend U.S. protections to the prisoners). So it feels to me like they blurred the issue even more with those arguments. Here's the article: http://www.csmonitor.com/2002/0320/p03s01-usju.html

So maybe the definition comes down to whether "natural born" depends on someone being born on U.S. "controlled" land or U.S. "sovereign" land? Military bases would absolutely fall under the controlled land definition, thereby extending all military or diplomatic kids born overseas the same "natural" designation.

I told my Dad how upsetting it was to learn that I may not be able to run for President now. He said he'd vote for me anyway.

My dad said that, too. Yay for levelheaded fathers. All of the stuff I read indicates that if it did come to a Supreme Court decision that McCain would win the case. I don't understand the wiki article that says that children are not subject to US jurisdiction when born overseas. But while they SAY that, it's not functionally true. When a child of military parents are born here in Germany, for example, the parents receive the German birth certificate (a long and short form). You are then required to file paperwork for: a Consular Report of Citizen birth abroad, a social security card, a US passport with a SOFA stamp (which means that you, as a dependent of a military person shall abide by the agreement made by the US and Germany) and must register in DEERS, the system that keeps track of vital stats and eligibility for benefits, namely Tricare coverage. You are subject to all of the rules and laws that govern military posts, which are put in place by the US government.

I also saw how in 2004 a representative from OK had introduced the Natural Born Citizen Act, but it died. I wish they would reintroduce that bill. It would make things so much easier... not only for military or government children born abroad, but also for foreign-born children adopted by US citizens. <Hey, then Maddox and Zihara could be president one day... >

[MysticCat]

Originally Posted by skylark

So who would have standing to sue?

I'm really not sure.

Originally Posted by scbelle

I don't understand the wiki article that says that children are not subject to US jurisdiction when born overseas.

Just to be straight, it was the Department of State that said that.

But while they SAY that, it's not functionally true. When a child of military parents are born here in Germany, for example, the parents receive the German birth certificate (a long and short form). You are then required to file paperwork for: a Consular Report of Citizen birth abroad, a social security card, a US passport with a SOFA stamp (which means that you, as a dependent of a military person shall abide by the agreement made by the US and Germany) and must register in DEERS, the system that keeps track of vital stats and eligibility for benefits, namely Tricare coverage. You are subject to all of the rules and laws that govern military posts, which are put in place by the US government.

Ah, that's interesting. Just based on what you've described, and invoking my continuing disclaimer that I may not know what I'm talking about , it sounds like what the Department of State describes may be the legal status of things -- that perhaps you're not a citizen by virtue of your birth but by virtue of the filed and approved paperwork.

[Kevin]

Originally Posted by MysticCat

Besides, you're the one who said:
Actually, I would assume if it's not ripe prior to the election, it's not ripe until after the electoral college has voted. Assuming a suit was brought then, wouldn't the appropriate relief under the XX Amendment be that the vice-president elect becomes president? I don't see how the Democratic candidate could benefit from a decision adverse to McCain?

Good point.

[jon1856]

I spoke this afternoon with the person I know who is working with one of the candidates.
They indicated that while there maybe some minor noise and perhaps some smoke brought up prior to the general election, nothing major will be said about matter.

Afterwords? No answers, they simply had none.

If McCain does win, just about anyone could start a Federal case I think.

And even if the Congress does get its act together, matter would still end up in the Supreme Court.

And I would agree that VP would just take over position.

All that said, I just received this e-mail from Slate:
today's blogs: The latest chatter in cyberspace.
Panama John

By Michael Weiss
Posted Thursday, Feb. 28, 2008, at 6:16 PM ET
Bloggers assess John McCain's constitutional fitness to be president and whether or not Obama's anti-NAFTA stance is provably bogus.
http://www.slate.com/id/2185471/
In which one bloggers does ask if Huckabee would have a legal standing now. A bit tongue in cheek.
For more bloggers:
Read more about the nonstory:
http://blogsearch.google.com/blogsea...G=Search+Blogs