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Citizen McCain, Cont'd

A few Senators really, really believe that Sen. John McCain (R-Ariz.) can serve as president (not "should" serve, necessarily, but "can").

Back in late February, a New York Times story revisited the question of whether McCain, who was born in the Panama Canal Zone (where his father was serving in the Navy), fit the constitution's requirement that the president be a "natural-born citizen" of the United States.

Sen. Claire McCaskill (D-Mo.) quickly sprung into action, introducing a bill clarifying that children born to U.S. military personnel serving overseas can indeed grow up to be president. In a show of bipartisan magnanimity, Sen. Barack Obama (D-Ill.) signed on as a co-sponsor the bill the next day, followed by Sen. Hillary Rodham Clinton (D-N.Y.) a few days later.

But that's about as far as the bill went. It hasn't budged out of the Senate Judiciary Committee, and it only has four co-sponsors. So on Thursday, McCaskill tried again, this time introducing "a resolution recognizing that John Sidney McCain, III, is a natural born citizen." The new measure has already beaten its predecessor by picking up five co-sponsors, including Obama and Clinton again.

Of course, McCaskill's first measure was a bill -- and would thus have the force of law if passed by both chambers and signed by President Bush. The new one is simply a "sense of the Senate" resolution. Individuals only have five senses, but the Senate has many more -- and expresses them nearly every day, though none are legally binding.

So why introduce a second measure rather than simply passing the first, which is more legally definitive? A Senate aide explained that there are actually court cases pending on related immigration issues, which have nothing to do with McCain or the presidency but address the definition of citizenship. Passing a new law on the subject right now could interfere with those cases. Thus the new resolution, which is only about McCain.

If the Arizonan's candidacy is ever seriously challenged in court, McCain and the he-can-be-president forces do appear to have one important ally in the immigration policy world: Homeland Security Secretary Michael Chertoff.

At a Senate Judiciary Committee hearing last week, panel Chairman Patrick Leahy (D-Vt.) asked Chertoff whether he had any question that McCain could be president.

"My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen," Chertoff answered.

"That is mine, too," said Leahy.

So everyone appears to agree. Let's see if any legislation gets passed.

By Ben Pershing  |  April 11, 2008; 10:58 AM ET
Categories:  2008 Campaign , Senate  
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Bill Clinton said Hillary robbed a bank!, Jesus!!!

Posted by: Anonymous | April 11, 2008 12:41 PM | Report abuse

Olson and Tribe have analyzed this for McCain, but there report has not been realized.
Please ask the McCain campaign to post it on the web.

Posted by: vt | April 11, 2008 1:37 PM | Report abuse

Pretty damn sad we have to make a law stating those born of American Citizens abroad in or out of the service are American Citizens.

Hell Illegals having kids are the ones that shouldn't be getting Citizenship

Posted by: John C. Page III | April 11, 2008 4:13 PM | Report abuse

Lawyers Tribe and Olson have produced an opinion supporting McCain, and AP has reported it.

But there seems to be no copy of the report or memo on the web, as of yet.

I think we would all like to read it to see their reasoning. It should be read into the Congressional Record with the bill introduced Thursday.

Why doesn't the Washington Post reporting team track this down and post it?

McCain has Ted Olson the former solicitor general and the man who argued Bush v. Gore at the Supreme Court, working on it.

Olson, who is backing McCain, and Harvard law professor Laurence Tribe who is supporting Democrat Barack Obama, jointly noted they believe the Constitution allows someone like McCain to run for president.

"It goes without saying that the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States," they wrote.

If they wrote it, where is it?

This is actually a challenge to the Post reporting staff. Here is news. Go get it. You have press credentials and 6 Pulitzers. The McCain campaign will give it to you. Go for it.

Posted by: publius2 | April 12, 2008 11:21 AM | Report abuse

The Tribe-Olson memo should be included in the Congressional Record debate.

Posted by: Former | April 12, 2008 11:23 AM | Report abuse

It's wonderful of Obama and Clinton to sign on to this new Bill.
A new BILL does not change the Constitution; one can not write an Unconstitutional Law and make it stick.

People born in foreign Countries are Citizens with dual citizenship in most cases. They become U.S. Citizens by Statute or law after birth not at birth making them "Naturalized Citizens".

1. The Panama Canal Zone was NOT an OWNED U.S. Territory. It was LEASED from Panama.

2. McCain was Born in Colon, Republic of Panama August 29, 1936 which has never been part of the Canal Zone nor the Coco Solo Naval Base.

3. The Hospital at Coco Solo, McCain claims to have been born in, Land was acquired by Franklin D Roosevelt by Executive Order 8981 on Dec 17, 1941 and construction was not completed and Commissioned until September, 1942 when McCain was 6 years old.

4. McCain References the Naturalization Act of 1790 as justification for his claim. The Act was deemed UNCONSTITUTIONAL and partially repealed in 1795 and completely repealed in 1882.

5. 8 USC 1101(a)(38):

(38) The term "United States", except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.

5. FAM 1116.1-4 Not Included in the Meaning of "In the United States"

(TL:CON-64; 11-30-95)

c. 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 added)

Posted by: Donaldd | April 13, 2008 9:43 AM | Report abuse

8 USC 1401(a) and (c),

The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof;" (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

8 USC 1101(a)(23):

(a) As used in this chapter-- (23) The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever.

7 FAM 1111.2 Citizenship

(TL:CON-64; 11-30-95)

a. U.S. citizenship may be acquired either at birth or through naturalization.

b. U.S. laws governing the acquisition of citizenship at birth embody two legal principles:

(1) Jus soli (the law of the soil), a rule of common law under which the place of a person's birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.

(2) Jus sanguinis (the law of the bloodline), a concept of Roman or civil law under which a person's citizenship is determined by the citizenship of one or both parents. This rule, frequently called "citizenship by descent" or "derivative citizenship", is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.

Posted by: Donaldd | April 13, 2008 10:02 AM | Report abuse

There are more important things for Congress to do than make a new law to allow some republican crook to run for president. If there's a question of his citizenship than he ought to drop out until the issue is clarified. As the law stands now, he is not a citizen. Those republicans. They can't get anything right. I'm tired of kowtowing to a bunch of cheaters, liars and thieves.

Posted by: pmaza | April 13, 2008 10:09 AM | Report abuse

Donaldd: You should send your research to Ted Olson, the lawyer working on this for McCain. His law firm's website says his email is tolson at gibsondunn dot com.

Good luck in getting a response. The AP reported that he issued a memo or report, but there is no sign of it from the campaign.

The reporters are uninterested, as usual.

Remember, the Watergate caper was just a third rate burglary that did not warrant any attention from the press.

Posted by: Bob Woodward | April 13, 2008 5:52 PM | Report abuse

Yeah, Pmaza, those Democratic crooks, like Elliot Spitzer and his presidential candidate friends in congress, would love to have illegal immigrants getting drivers licenses, and who knows, getting voter registration cards. By your own logic, if there's a question of their citizenship, maybe they should leave the country "until the issue is clarified..." American citizens are tired of putting up with a bunch of cheaters, liars and thieves.

Posted by: ttj | April 13, 2008 8:28 PM | Report abuse

I don't know enough about this to make a comment other than I find it all very interesting.

I would like to learn more.

When I served in the Marines I met a lot of people who were serving in our armed forces in order to gain citizenship.

McCain is of American parents. His family served, he served. I don't see the problem past some legal red tape.

Is it really a big issue?

Posted by: Vance McDaniel | April 14, 2008 2:37 AM | Report abuse

Has anyone stopped to think that the candidates are all U.S. Senators and directly responsible for most if not all of the problems this country faces ?
We are just replacing one out of touch fool with another. These people are the problem and will not be a solution. All compromised and flawed beyond repair. Were doomed.

Posted by: David Crosby | April 14, 2008 10:32 PM | Report abuse

During the same year Congress debated and approved the Citizenship Clause in 1866 (ratified 1868), Justice Noah Haynes Swayne in U.S. v. Rhodes (cited in U.S. v. Wong Kim Ark) declared that:

"All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together"

Sir Edward Coke in Calvin's Case (1608):

"Neither the climate nor the soil but obedience and allegiance that makes the subject born."

Allegiance is the keyword, the determinant, to citizenship, the unifier and equalizer of both "natural-born" and "naturalized."

Grammatically read as the author, Senator Jacob Merritt Howard, and the 39th Congress intended the Citizenship Clause to convey, particularly by employing the pair of commas:

"All persons subject to the jurisdiction of the United States are citizens of the United States."

Having been born of American parents, Senator John McCain was born "subject to the jurisdiction of the United States" and, reciprocally, "in the allegiance of the United States"; hence, a "natural-born" citizen of the United States under the Citizenship Clause of the Fourteenth amendment (grammatically read).

My blog at:

Posted by: domingo arong | April 15, 2008 3:39 AM | Report abuse

This is a very good discussion. It should be shared with Ted Olson, He should be asked for a copy of the report he did with Professor Tribe.

All those who are interested should take a look at GW Law Professor Jon Turley's blog:

April 15, 2008 4:57 AM

Posted by: Raffles2008 | April 15, 2008 8:00 AM | Report abuse

The reason the Panamanian people resented the Panama Canal Treaty (following us fighting their war of independence against Columbia for them, by the way) was because it specified the US had perpetual sovereignty over the Zone. The American flag flew over the Zone; the Panamanian flag did not. If the Panamanian people did not think the Zone was Panamanian territory, then it must have been American.

If the Zone was not American territory, why did it take a Treaty to transfer it to Panamanian sovereignty? Re-negotiation of property and equipment leases do not require treaties. The Wikipedia article on Jimmy Carter refers to 'the return of sovereignty ... to Panama' with the Carter-Torrijos Treaty.

Posted by: Sam | April 15, 2008 12:35 PM | Report abuse

Olson holds that McCain is natural born by birth to US parents, not by birth in a US territory, so sovereignty is not an issue to him. But the bloggers say he may have been born in a hospital outside the Zone, so they are up in arms on their territorial theory.

Posted by: Petro | April 15, 2008 6:57 PM | Report abuse

It's like an honorary degree. If congress wants you to be a natural born Citizen, they can call you that.

Will it all just go away if McCain is elected and sworn into office? I think not. This will make the election of George Bush in 2000 look like just so much chad. See the discussion as it escalates at and participate.

Posted by: PanamaJohn | April 24, 2008 6:29 PM | Report abuse

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