Why Sen. John McCain Cannot Be President

Electronic copy available at: http://ssrn.com/abstract=1157621

Arizona Legal Studies

Discussion Paper No. 08-14

Why Senator John McCain Cannot Be President:Eleven Months and a Hundred Yards Short ofCitizenship

Gabriel J. ChinThe University of Arizona James E. Rogers College of LawAugust 2008

This paper can be downloaded without charge from theSocial Science Research Network electronic library at:http://ssrn.com/abstract=1157621

Electronic copy available at: http://ssrn.com/abstract=1157621

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AIN

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Gabriel J. Chin

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Abstract Because Senator John McCain was not a citizen at birth, he is not a “natural bornCitizen” and thus is not “eligible to the Office of President” under the Constitution.Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. Asrequested by Senator McCain’s campaign, distinguished constitutional lawyers LaurenceTribe and Theodore Olson examined the law and issued a detailed opinion offering tworeasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment’s grant of citizenshipto “all persons born . . . in the United States.” However, in the

Insular Cases

, theSupreme Court held that “unincorporated territories” were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born inunincorporated territories are not Fourteenth Amendment citizens. The Tribe-OlsonOpinion also suggests that Senator McCain obtained citizenship by statute. However, theonly statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937,Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. This essayconcludes by exploring how changes in constitutional law implied by the Tribe-OlsonOpinion, such as limiting the

Insular Cases

and expanding judicial review of immigrationand nationality laws passed by Congress, could make Senator McCain a citizen at birthand thus a natural born citizen.

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Chester H. Smith Professor of Law, Professor of Public Administration and Policy, University of Arizona.Website:www.jackchin.org. I am grateful for helpful comments from David Adelman, DeborahBeaumont, Reid Fontaine, Steve Legomsky, Earl Maltz, David Marcus, Toni Massaro, Robert McWhirter,Howard Miller, Marc Miller, Gerry Neuman, Barak Orbach, Polly Price, Vic Romero, Carol Rose, TedRuthizer, Jorge G. Souss, Roy Spece, Suja Thomas, David Upham, and Frank Wu. The views expressedherein are solely mine. August 13, 2008

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