Senator McCain was either born in the Panama Canal Zone or in Panama proper. Neither of these locations is located in the United States. He claims he was born in the Panama Canal Zone. Hence, let us analyze his citizenship status with the assumption that he was born in that location. McCain cannot be a U.S. “citizen” under the Fourteenth Amendment which requires that a born “citizen” be born in the United States and be subject to the jurisdiction thereof. Since the Constitution does not provide any source for McCain to be a U.S. citizen, we must look to Congressional Acts for any such basis. Additionally, even if McCain were to be declared a “citizen” under the Fourteenth Amendment or any Congressional Act, he would still have to prove that he was an Article II “natural born Citizen.”
Some have raised the question whether under the Act of August 4, 1937, Sec. 1, 50 Stat. 558, codified at INA Section 303(b) (8 U.S.C. 1403), McCain may be declared an Article II "natural born Citizen." Before we examine Section 303(b), we must first look at Act of May 24, 1934, Sec. 1, 48 Stat. 797, ch. 344, which granted citizenship to the foreign born children of U.S. citizen mothers or fathers. This law became effective in 1934. McCain was born on August 29, 1936. Hence, it would appear that this statute applied to him. But upon close examination, we can see that it does not provide him with citizenship. While Section 1993 of this law granted U.S. citizenship to children born oversees to U.S. citizens, it granted citizenship only to children who were born out of the United States and out of its jurisdiction. Hence, those born in the Canal Zone (an unincorporated territory) and not in Panama (which was out of United States jurisdiction) did not qualify for citizenship because while the Canal Zone was physically located out of the territory of the United States, it was not out of the jurisdiction of the United States. Hence, when McCain was born on August 29, 1936 in the Canal Zone, this statute did not grant him U.S. citizenship and there existed no other statute that could do so. In other words, Senator McCain was not a U.S. citizen under any Congressional Act when he was born. Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship.” (Chin implicitly recognizes that a Fourteenth Amendment “citizen” is not the same thing as an Article II “natural born Citizen”). Not being a born “citizen” under any Act of Congress, he surely cannot argue that he is a “natural born Citizen” under any such Act.
The next statute to examine is INA Sec. 303 which provides:
"(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States."
First, we know that McCain was born on August 29, 1936. This statute did not go into effect until 1937. The problem for McCain using INA Sec. 303(b) to gain “natural born Citizen” status is therefore that the Act did not exist when he was born and can only help him retroactively. But “natural born Citizen” status must be established at the time of birth. Apart from want of constitutional authority and the fact that the children were not born "in the country," this could be another reason why the Third Congress in the 1795 Act removed the words "natural born" from the 1790 Act, which had created "natural born citizens" retroactively.
Second, by using this statute to be declared a "natural born Citizen," McCain would be gaining the status by statute. We know that “natural born Citizen” status cannot be so gained, for Congress has the constitutional power to naturalize persons but not to make them “natural born Citizens.” Even the Foreign Affairs Manual at 7 FAM 1131.6-2(d) recognizes the distinction between being a “natural born Citizen” under the Constitution and being declared a “natural born citizen” under a Congressional Act: "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes." The manual commits error here, for the act only gives “citizen” status and in suggesting that anyone could be a "natural born citizen" by statue. Except for the repealed 1790 Act, Congress has never made any such attempt.
Third, the text of the statute confers only the status of "citizen" and not "natural born Citizen." Article II mandates that one be a "natural born Citizen" and not only a "citizen" to be eligible to be President.
The question then is what other avenue exists for McCain to be declared an Article II “natural born Citizen.” According to Vattel, being physically born out of the country did not necessarily mean that one was not born “in the country.” E. Vattel, The Law of Nations, Or, Principles of the Law of Nature. Sec. 215-217. Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born. Additionally, the country on whose soil the child might be born might adhere to a jus sanguinis system of conferring citizenship (meaning that born on its soil alone would not confer citizenship and therefore allegiance and loyalty on the child). Being born under those conditions, this child would therefore be born with sole allegiance to the country of his parents and would qualify as a “natural born citizen” of that country. Hence, it can be argued that McCain is a “natural born Citizen” under federal common law that emanated from the law of nations which had its source in natural law, as described by Vattel and all of which the Framers accepted as our federal common law during the Founding. In such case, “natural born Citizen” status is not created by Congress but rather by law that already existed among civilized nations and was, indeed, jus gentium. It is this law (natural law that became the law of nations and which became U.S. federal common law) from which the Founders extracted the meaning of "natural born Citizen." Reliance on common law to make McCain was also utilized by Tribe and Olson in drafting their position paper which is the basis of Senate Resolution 511. See also Chin, “Why Senator John McCain Cannot Be President” (also recognizes common law citizenship that existed during the Founding). This argument is McCain’s best chance for “natural born Citizen” status. This argument also brings good news for members of our military who are serving and defending our country from abroad, who may give birth to children there, and who may want those children to be eligible to be President.
Chin, in his article, “Why Senator John McCain Cannot Be President,” said about Senator McCain: "In a government of laws, not of people, rules apply equally to all. . . . In addition, no legitimate system of laws can dispose of this question by saying it does not matter whether Senator McCain is a natural born citizen; inconvenient laws cannot be ignored simply because one expects to get away with it. It cannot be that because he is a major party's nominee, he is, therefore a citizen at birth. Senator McCain must find a sound legal basis to be a natural born citizen. The implications of that legal principle must be equally available to every person similarly situated."
Commenting on McCain's philosophy on how the judiciary should function, Chin quoted McCain as saying: "'When applying the law the role of judges is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law.'"
McCain, like Obama, has been sued over the question of whether he is an Article II “natural born Citizen.” McCain produced his birth certificate for those who challenged him. Congress fully investigated and researched his status, with the Senate passing Resolution 511 (which is legally flawed) in which it declared him to be a “natural born Citizen.” The courts also expeditiously addressed the issue. Surely, the same standard as applied to McCain applies to Obama. Surely, Congress should have dealt with Obama as it did with McCain. Surely, we would also expect the courts to deal as promptly with Obama's case as they did with McCain's. But why was it so easy to apply these principles to McCain but so hard to apply them to Obama? Has Obama found "a sound legal basis to be a natural born citizen?" Not even close. Is he not "similarly situated" as was McCain? Other than McCain just being a candidate for President and Obama going on to win that Office, he surely is.
We are still waiting for the Court to decide Obama's and Congress's motion to dismiss the Kerchner et al. complaint for, among other things, lack of standing and government immunity. Let us hope that the Court will, indeed, "faithfully and accurately" determine what our Founding Fathers intended when they wrote the "natural born Citizen" clause and apply that finding to Obama so that our nation may know whether he is eligible to be President and Commander in Chief of the Military. Let us hope that the Court acts to support and defend the Constitution in this historic case by finding that the plaintiffs have standing and that the defendants are not immune from suit.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831