The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If unjustified exclusion of naturalized citizens doesn't move you to support a constitutional amendment to repeal the Natural Born Citizen Clause, maybe legal uncertainty will. Elimination of this uncertainty is the third best reason to support a repeal amendment. First is that repeal will make everyone better off and nobody worse off; second is that a repeal amendment makes for good politics. Even if you reject these first two reasons, though, elimination of legal uncertainty is independently desirable.
Although the Natural Born Citizen Clause unquestionably excludes millions of naturalized citizens, its most visible function in practical politics is to impose uncertainty and resulting costs respecting individuals whose "natural born" status is unclear. Because those who are plainly excluded do not bother to run, those who do run are either plainly not excluded or only arguably and uncertainly so. That means legal proceedings are inevitable.
In my earlier guest posts and most of the comments this week, we've been acting as if we know what "natural born Citizen" means. But we don't, at least not fully. We know that "natural born Citizen" excludes non-citizens and naturalized citizens. But there is genuine and deep legal uncertainty about whether some citizens are naturalized or natural-born.
Factual uncertainty can cause problems too, as birther excitement about Barack Obama illustrated. But factual uncertainty is likely to be less serious a problem than legal uncertainty. Simple matters of fact such as someone's place of birth can usually be ascertained and proven. When the evidence is pretty good, holdouts are likely to be people who would not politically support the person in question, and unreasonable persistence in holding out discredits the holdouts more than the candidate.
In the absence of a definitive judicial determination—-which we haven't yet had and probably never will—-legal uncertainty presents a problem more difficult to dispel. Jurists and scholars dispute whether "natural born" refers to a territorial concept (jus soli), a bloodline concept (jus sanguinis), or some combination, and how the law incorporated into the Constitution—whatever it may be—interacts with legislation enacted by Congress. The most recent comprehensive examination of the original legal meaning of the Natural Born Citizen Clause provided a new formulation of this meaning distinct from what the author described as the conventional wisdom as well as its leading alternative.
Republican Senator Ted Cruz's experiences in the 2016 presidential primary provide a recent illustration of the uncertain legal meaning of "natural born Citizen." By statute, Cruz has been a citizen of the United States from the time of his birth in Canada to a Cuban father and an American mother. But it is legally uncertain whether the federal statute supplying that status is a naturalization statute or one that makes him "a natural born Citizen." (The best formulation of Cruz's position is that "natural born Citizen" means "someone who was a U.S. citizen at birth with no need to through a naturalization proceeding at some later time.")
Despite the benefit to be gained from having a cloud removed from over his candidacy, someone in Cruz's position has good reason to avoid championing a repeal amendment. That would only lend legitimacy to a legal position he has rejected and could potentially undercut his support from people suspicious of foreign-born candidates regardless of citizenship status from one U.S.-citizen parent at birth.
Also, as many commenters have already noted, an amendment tied to any particular person's candidacy is unlikely to garner bipartisan support. Partisan politics must have had some influence on Senator Dianne Feinstein (D-CA), for example, when she said in 2004 in connection with "the Arnold Amendment" that "I don't think it is unfair to say the president of the United States should be a native-born citizen. Your allegiance is driven by your birth." (The political winds have since shifted for Democrats on immigration-related issues, of course. I'm guessing Senator Feinstein's old position on the Natural Born Citizen Clause has by now gone up in smoke.)
The legal uncertainty surrounding Cruz's eligibility imposed significant economic costs and incalculable (because unknown and unknowable) political costs. His participation in the 2016 Republican primary led to state election commission proceedings in five states (Illinois, Indiana, New Hampshire, New Jersey, and New York); lawsuits in six state courts (Florida, Hawaii, Illinois, New York, Pennsylvania, and Vermont); and lawsuits in six federal courts (Northern District of Alabama, Eastern District of Arkansas, District of New Hampshire, Eastern District of New York, Southern District of Texas (with appeal to the Fifth Circuit), and District of Utah (with appeal to the Tenth Circuit and petition for certiorari to the Supreme Court)). (HT: Derek Muller, Excess of Democracy.)
These proceedings all required time and money. But taken collectively, they yielded no definitive going-forward resolution. Some were resolved on non-merits grounds (such as lack of jurisdiction), or ended up moot or in a denial of certiorari at the Supreme Court when Cruz's candidacy was no longer viable. All of these proceedings—for just this one unsuccessful candidacy—were a waste of time and energy that amounted to nothing lasting for the law. And that is how such proceedings have consistently cashed out over time. Nobody who has paid attention to this status quo can defend it.
We're fortunate it has not been worse. Should it ever come to be that someone with an uncertain "natural born Citizen" status becomes President, whether through election or succession, that would be the worst possible time for the Supreme Court finally to render a judicial determination. Regardless of reasoning, the outcome would be understood primarily in partisan political terms. That's no good for the President, the Supreme Court, or the country. And all to what end?