The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a previous post, I outlined the reasons why we should pass a constitutional amendment to abolish the requirement that the president must be a "natural born" citizen of the United States. It's worth noting that I am far from the first person to propose such an idea. Perhaps the most prominent previous proposal of this type was that of conservative Republican Senator Orrin Hatch (Utah), who put forward the Equal Opportunity to Govern Amendment in 2003. It would have opened up the presidency to anyone who has been a US citizen for at least 20 years.
Hatch retired in 2019, after serving for in the Senate for over forty years. But his October 2004 statement in favor of the amendment makes points that remain just as relevant today; though, sadly, the GOP's descent into anti-immigrant xenophobia makes it much less likely that a prominent conservative politician would submit a similar amendment now:
While there was scant debate on this provision during the Constitutional Convention, it is apparent that the decision to include the natural born citizen requirement in our Constitution was driven largely by the concern over 200 years ago that a European monarch might be imported to rule the United States.
This restriction has become an anachronism that is decidedly un-American. Consistent with our democratic form of government, our citizens should have every opportunity to choose their leaders free of unreasonable limitations. Indeed, no similar restriction bars other critical members of the government from holding office, including the Senate, the House of Representatives, the United States Supreme Court, or the President's most trusted cabinet officials.
The history of the United States is replete with scores of great and patriotic Americans whose dedication to this country is beyond reproach, but who happen to have been born outside of our borders. These include former secretaries of state Henry Kissinger and Madeline Albright, the current Secretary of Labor Elaine L. Chao, and former Secretary of Housing and Urban Development Mel Martinez, who is now running for a Senate seat in Florida. As our Constitution reads today, none of these well-qualified, patriotic United States citizens could be a lawful candidate for President….
This is also true for the more than 700 immigrant recipients of the Congressional Medal of Honor – our nation's highest decoration for valor – who risked their lives defending the freedoms and liberties of this great nation. But no matter how great their sacrifice, leadership, or love for this country, they remain ineligible to be a candidate for President. This amendment would remove this unfounded inequity.
Hatch's 20 year requirement strikes me as far too long. A much shorter period – say, five or ten years – should be enough to capture any possible benefit of imposing a waiting period, such as ensuring that the would-be candidate is loyal to US and knowledgeable about US politics. But, as a practical matter, few if any serious potential candidates are likely to have been citizens for much less than twenty years. Even if imperfect, Hatch's amendment would be a huge improvement over the status quo, and would render eligible nearly all those naturalized citizens who would have a serious chance of winning a presidential election.
As noted in my last post on this topic, it is highly unlikely that an amendment like this can pass in the near future. But, for reasons also explained there, it is very possible that will change over time.