The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In almost every recent election, some prominent candidate's eligibility for the presidency or vice presidency has been questioned on the theory that they do not meet the requirements of the Natural Born Citizen Clause of the Constitution. In 2016, the target was Ted Cruz. In 2008 and 2012, it was Barack Obama, who was assailed by "birtherists" who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, also came under attack because he was born in what was then the Canal Zone.
The latest Natural Born Citizen-controversy focuses on Democratic vice presidential nominee Kamala Harris, thanks to a Newsweek article by conservative legal scholar John Eastman, claiming that she isn't eligible despite being born in the United States, due to the possibility that her parents were not yet US citizens at the time she was born. Eastman's argument has, predictably been taken up by Donald Trump, just as Trump previously claimed Ted Cruz was ineligible in 2016, and promoted "birtherist" attacks on Obama.
Eastman's argument is weak, and has already drawn strong rebuttals by co-blogger Eugene Volokh, and others. I would add that much of Eastman's analysis rests on his extremely narrow interpretation of the Birthright Citizenship Clause of the Fourteenth Amendment, which I criticized here. For what it is worth, I also defended Cruz's eligibility in 2016. While I am no great fan of either Cruz or Harris, neither is ineligible to be president.
But the most objectionable aspect of this situation is that the Natural Born Citizenship Clause exists at all, thereby barring virtually all immigrants from holding the highest office in the land, and opening the door to ridiculous attacks on the eligibility even of people who have been US citizens all their lives, such as Cruz, Obama, and Harris. Instead of focusing on the candidates' policies, competence, and character, we instead spend valuable time and effort debating such irrelevancies as where they were born and the exact legal status of their parents at the time.
Back in 2016, at the time of the Cruz controversy, I made the case for abolishing the natural born citizen requirement. It remains just as relevant today:
The "natural born" citizen requirement was originally inserted into the Constitution because some of the Founders feared that European royalty or nobles might move to the United States, get elected to the presidency, and then use the office to advance the interests of their houses. Whatever the merits of this concern back in the 1780s, it is hardly a plausible scenario today.
One can argue that immigrants have less knowledge of the country and its customs, and might make worse presidents for that reason. But that problem is surely addressed by the constitutional requirement that a candidate for president must have been resident in the United States for at least fourteen years. As a practical matter, anyone who attains the political connections and public recognition needed to make a serious run for the presidency is likely to have at least as much knowledge of the US and American politics as most serious native-born candidates do.
Perhaps the most obvious objection to letting immigrants ascend to the presidency is the fear that they might be less loyal than native-born citizens are. But there is no good reason to think that people who became Americans by choice are less likely to be loyal than those did so merely by accident of birth. Indeed, the reverse conjecture is at least equally plausible. Even if some immigrant groups might, on average, be less loyal than natives, the same conjecture can be made about members of some ethnic or racial groups, as compared to others. Such statistical correlations – even if valid – would not justify categorically excluding members of those groups from the presidency, and the same point applies to immigrants.
The significance of this issue should not be overstated…. Exclusion from the presidency has little or no practical impact on the lives of the overwhelming majority of naturalized citizens. Nonetheless, categorical exclusion from eligibility for the nation's highest office is an important symbolic affront to immigrants, even those who have no desire to run for the presidency themselves. Consider, for example, how blacks, Hispanics, or Irish-Americans might feel if their group was similarly excluded….
Abraham Lincoln once said that "[w]hen [immigrants] look through that old Declaration of Independence, they find that those old men say that 'We hold these truths to be self-evident, that all men are created equal'; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are." That principle will only be fully realized when we abolish the discriminatory exclusion of immigrants from the nation's highest political office.
To the points made in my earlier piece, I would add that another reason for abolishing the Natural Born Citizen Clause is to take away the opportunity it creates for unscrupulous politicians to raise bogus eligibility issues against their opponents. Even if these claims lack legal merit, they poison the political atmosphere and divert scarce public attention away from real issues.
I am not optimistic that a constitutional amendment abolishing this requirement can be passed anytime soon. The anti-immigrant attitudes of much of the GOP base precluded it, at this time. In addition, any amendment is extremely difficult to pass, given the requirement of securing two-thirds majorities in both houses of Congress, and then winning the support of three-fourths of state legislatures.
But things might well change as the passions of the current political moment pass, xenophobic sentiment recedes (polls consistently show younger voters are much more supportive immigration than older ones), and more people come to realize that the Natural Born Citizen Clause is at best stupid, and at worst an example of outright bigotry. At the very least, people may get tired of having to hear about this kind of claptrap every four years.
UPDATE: As before, I should acknowledge Harvard Law Professor Randall Kennedy's longstanding advocacy of getting rid of this clause, which has influenced my own views.
UPDATE #2: Since the initial version of this post was put up, Trump has said he "will not be pursuing" the issue of Kamala Harris' eligibility. If so, that makes it unlikely the question will end up in Court, as happened with the issue of Ted Cruz's eligibility in 2016 (courts—correctly in my view—ruled in Cruz's favor). Of course, Trump might still return to the issue if he finds it politically advantageous to do so.
Meanwhile, the Natural Born Citizen Clause may already have had an impact on the 2020 election even aside from the controversy over Harris. A story in the New York Times suggests Joe Biden rejected Sen. Tammy Duckworth as a potential running mate in large part because of concerns that there might be litigation over her eligibility under the Clause. Duckworth was born in Thailand to an American-citizen father and a Thai mother.
There is plenty of room for reasonable disagreement over whether Duckworth would make a better vice president (and potential president) than Harris. But it's a shame that the issue had to be decided on a basis so completely irrelevant to her competence to do those jobs.
It's also worth noting that the incident illustrates how even a small risk of disqualification under the Clause can influence candidates' calculations. Had the issue gone to court, it would likely have resulted in a ruling in Duckworth's favor, as happened in the very similar case of Ted Cruz (who was also born abroad to American-citizen parents). But Biden and his advisers evidently concluded that the risk was still too great to countenance.