The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning, USA Today published my op ed making the case for abolishing the constitutional requirement that the president must be a "natural born" citizen. This step would enable immigrants to become president, and also put an end to the sorts of ridiculous controversies over eligibility under the Clause that have arisen in every presidential election since 2008. The op ed is coauthored with Harvard Law School Prof. Randall Kennedy, one of the leading academic experts on racial and ethnic discrimination. I have been a big fan of Prof. Kennedy's work since I was a young law student in the 1990s, and it is a great honor to coauthor this piece with him. We differ on many issues, but we completely agree on this one.
Here is an excerpt:
This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a "natural born" citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth.
We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished….
In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by "birthers" who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible….
Barring naturalized citizens from eligibility for the presidency is little different from discrimination based on race, ethnicity or gender. Such unchosen circumstances of birth say nothing about a person's competence or moral fitness for office. Our legal system rejects the natural born requirement elsewhere. It does not apply to governors, members of Congress, justices of the Supreme Court, cabinet officers, or the Chair of the Joint Chiefs of Staff. It should be removed as a condition for eligibility for the presidency.
In the remainder of the op ed, we address some standard justifications for keeping the Clause, and also explain why prospects for enacting a constitutional amendment to repeal it are likely to improve over time (though it will still be an uphill struggle due to the large supermajority needed to enact any amendment).
I discuss GOP Senator Orrin Hatch's 2003 proposal to repeal the Natural Born Citizen Clause (mentioned in the op ed) in greater detail here. The similarity between racial and ethnic discrimination and discrimination on the basis of parentage and place of birth is analyzed in greater depth in Chapter 5 of my recently published book Free to Move: Foot Voting, Migration, and Political Freedom (Introduction available for free download here).