Unnatural born citizens and acting Presidents.

• Author: Ho, James C.

No Person except a natural born Citizen... shall be eligible to the Office of President.(1)

No matter who wins the White House this November, I--and millions of other Americans like me(2)--once again will have suffered a certain measure of exclusion from the selection process. We have the right to vote, to be sure. But we cannot serve as President.

Some might say that this is of little consequence. After all, it is not as if there are currently any credible candidates for the presidency who are barred from the office by virtue of their citizenship status.(3) But the current absence of such candidates can be blamed on the prohibition itself,(4) and in any case may only be a temporary condition.

More importantly, eligibility for office alone promotes democratic values separate and apart from actual service in office. For one way to assess whether an individual is a full and equal member of a community is to ask whether the individual is eligible to serve in the highest office in that community. As Randall Kennedy has noted, "[i]t is important that a formal proposition of American life is that every native-born American child could conceivably grow up to become president."(5) Indeed, Article II, Section 1, Clause 5 of the Constitution guarantees every native-born child that right. George W. Bush, Albert Gore, and Ralph Nader are all natural born citizens. So is Pat Buchanan (no kidding!). Thus, whichever one of them wins, the others can take some comfort in the knowledge that they at least had the opportunity to represent their fellow citizens in the Oval Office. But although a citizen too, I was not born here. The Constitution forbids someone like me from serving as President of the United States.

Of course, the Constitution also imposes the additional requirements of age ("thirty five Years") and residency ("fourteen Years a Resident within the United States").(6) Thus, eighteen year-old voters, like non-natural born citizens, are not members of the class of individuals eligible to be President. But at least they can be someday (so long as they are natural born citizens) because the age and residency requirements are within their reach. Lack of natural born citizenship, by contrast, permanently prohibits an individual from ever becoming President.

Perhaps this business of distinguishing between natural born citizens and merely naturalized (unnatural?) citizens for purposes of Presidential eligibility makes sense;(7) perhaps not.(8) Perhaps it's a matter that Congress ought to debate. After all, Congress has recently contemplated restoring the suffrage to convicted felons.(9) If convicted felons should enjoy the right to vote--indeed, a felon's right to the Presidency is constitutionally guaranteed (barring, of course, disqualification following conviction by a court of Impeachment)--why shouldn't law-abiding, non-natural American citizens have those rights, too--not only to vote, but to serve as President as well?

Of course, any such debate would be futile, you say--a waste of time, because Congress can't do it alone. The law could not be more clear, nor more daunting: a constitutional amendment is necessary (and how often does that happen!(10)) before we will ever see a non-natural born citizen in the Oval Office.(11) Or is it?(12)

I

We begin, of course, with the text of the Constitution. The text expressly states that "no Person except a natural born Citizen ... shall be eligible to the Office of President."(13) As the Supreme Court has explained, "[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that."(14) That is, we look to the common law at the time of the founding(15) (as opposed to, say, an act of Congress).(16) At common law, children born within the sovereign's territorial jurisdiction were citizens at birth, and were so whether or not their parents were citizens(17)- a principle of territoriality later codified by the Fourteenth Amendment.(18) In addition, children born outside of the territory, but to citizen parents, also enjoyed citizenship at birth.(19) (One resumes, of course, that the natural born citizen requirement does not additionally exclude otherwise eligible individuals born by Caesarean section.)(20)

Thus, although Senator John McCain, who was born in the Panama Canal Zone to American parents, falls within the common law definition of "natural born citizen,"(21) millions of immigrant American citizens who were born outside of the United States and to non-U.S. citizens do not.

But our story does not end there. For although non-natural born citizens are quite unambiguously ineligible "to the Office of President," the Constitution distinguishes between actually holding the office of President and merely acting as President. Article II, Section 1, Clause 5 of the Constitution states that "[n]o Person except a natural born Citizen ... shall be eligible to the Office of President."(22) The text is clear: only natural born citizens may be President. But what if the individual elected to the Office of President is removed from office, resigns, dies, or is otherwise unable to discharge the powers and duties of the office? Two separate and distinct questions must be answered. First, to whom do the powers and duties of the office of President fall? Second, does that individual actually "become President," or does he or she serve in some different, temporary, "acting" capacity?

Every schoolchild can answer the first question. When the President is unable to do the job for any reason, the Vice President fills the breach.(23) And if the Vice President is also unavailable, further succession is determined by an act of Congress.(24) Congress has thus designated for presidential succession, first, the Speaker of the House of Representatives, followed by the President pro tempore of the Senate, and then an orderly progression through the Cabinet.(25)

Simple enough. But on to the second question: what is the nature of that succession? What role does the successor play? The answer is: it depends. It depends on the reason why the President cannot serve, and it depends who is called upon to serve in his place.

Under the Twenty-Fifth Amendment, ratified in 1967, the Vice President "shall become President"--but only if the President is removed, resigns, or dies.(26) That is, only when a President permanently vacates office because of removal, resignation, or death does the Vice President actually become President. Under these circumstances, the office of Vice President is vacated, and the former Vice President (as President) "nominate[s] a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.(27)

What if the President is removed, resigns, or dies, thereby permanently vacating office, but the Vice President is not a natural born citizen (or is not yet 35 years old, or hasn't been a U.S. resident for 14 years)? Under these circumstances, but for the Twelfth Amendment, the locus of Presidential power would be uncertain and ambiguous, and we would have a true constitutional crisis on our hands, because presumably a Vice President who hopes to serve as President must be constitutionally eligible to do so. So what then? (Contrast the so-called constitutional crisis that purportedly arose from the impeachment proceedings against President Clinton, during which the path of anticipated devolution of Presidential power was never truly in doubt). Fortunately, the Twelfth Amendment rescues us from such a crisis. Ratified in 1804, that Amendment extends the same eligibility requirements for Presidents to Vice Presidents.(28) Thankfully, we will never have to worry about uncertainty as to who "shall become President" when a sitting President is...