Category Archives: Law: Constitutional Law

Any naturalized citizen can run for any office in the land — except for President and Vice-President. They have to have been citizens at time of birth. That, at least, is how I and almost everyone reasonable reads the relevant Constitutional clause — it's not about Caesarians.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That's certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that's a losing argument, and it hasn't gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that's no problem, right?

Not so fast.

From Adam Liptak's latest, A Citizen, but “Natural Born”? McCain's Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain's eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain's eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a 'strict constructionist' court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn't have meant in the earlier law, and the '37 act was just housecleaning.)

Mr. Liptak suggests we'll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain's ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water's edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don't think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don't think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

Via Pogo Was Right, FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants, comes this story which, while it speaks very well for Judge Robertson, carries the troubling implication that the judges with a strong view of the bill of rights may self-select off the FISA court.

FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants

Three years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government's domestic surveillance activities.

Robertson's abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House's warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

This week the Senate will vote to allow this corrupt administration to wiretap Americans for up to a week without a warrant, and to remove the check of liability on telcos that enable past (and by implication future) illegal wiretaps.

Parlous times.

What makes Republicans into Obama supporters? Unqualified Offerings explains:

It's all about too much power in the executive branch, which is a conservative principle. Because of the war in Iraq and partisan division, Bush and Cheney convinced Republicans that this is something you should be for. But guys who went to law school know better than that.

So do gals.

Prof. Anthony Sebok has a really interesting article up at Findlaw: in Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications? he argues that the proposal to give retroactive immunity to telecom companies who illegally wiretapped their customers may be an unconstitutional uncompensated taking as regards plaintiffs in currently pending claims.

Without doing some research, I don't know the law well enough in this area to form an opinion, but it's intriguing and I'd welcome comments from those who know the area.