Members of Congress have over the years made various attempts to change the meaning of "natural born Citizen" as it is found in Article II. One of these attempts is most noteworthy because it pertains to children born in the United States. After H.J. Res. 88 failed to make it out of committee, Sen. Nickles (OK) along with Landrieu (LA) and Inhofe (OK) brought forward S. 2128 in February 25, 2004, the Natural Born Citizen Act, a bill to define the term “natural born Citizen” as used in Article II of the Constitution of the United States to establish eligibility for the Office of President. http://www.govtrack.us/congress/bill.xpd?bill=s108-2128.
This bill provided as follows:
To define the term ‘‘natural born Citizen’’ as used in the Constitution of the United States to establish eligibility for the Office of President.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Natural Born Citizen Act’’.
SEC. 2. DEFINITION OF ‘‘NATURAL BORN CITIZEN’’.
(a) IN GENERAL.—Congress finds and declares that the term ‘‘natural born Citizen’’ in Article II, Section 1, Clause 5 of the Constitution of the United States means—
(1) any person born in the United States and subject to the jurisdiction thereof; and
(2) any person born outside the United States-- (A) who derives citizenship at birth from a United States citizen parent or parents pursuant to an Act of Congress . . ."
Paragraph (1) repeats the same language that we find in the Fourteenth Amendment. But if a Fourteenth Amendment born citizen is automatically an Article II "natural born Citizen," why would such a bill be needed? This attempt at amending the “natural born Citizen” clause shows that there are members of Congress who understand that just being a Fourteenth Amendment born citizen does not make one an Article II “natural born Citizen.” Congress also tried such changes with S. 2678 (2008); H. J. RES. 15 (2005); H. J. RES. 104 (2004); H. J. RES. 47 (2001), and approx. 25 other times since the 1870s. If a Fourteenth Amendment born “citizen” was the same as an Article II “natural born citizen,” why would members of Congress see a need for this bill? Hence, it can be seen that just being born in the United States and being declared a “citizen” under the Fourteenth Amendment does not automatically make one an Article II “natural born Citizen.”
It is also noteworthy to examine the Natural Born Citizen Act Summary that accompanied the bill which states in pertinent part: “The bill is intended to clarify the term and end uncertainty about the eligibility requirements to run for the Office of the Presidency. The definition of this term is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. Congress should be the institution that defines this term, not the courts.” http://www.jcics.org/natural%20born%20summary%20%28word%29.doc. The same information was expressed by Senator Nickles of February 25, 2004 when he addressed the Senate on the bill and which statements are contained in the Congressional Record. Sen. Nickles, in his speech when introducing the S. 2128, announced that: “There is obviously a need for clarification. In the absence of judicial interpretation, Congress can express a legislative interpretation of Constitutional terms. We should not wait for an election to be challenged and the courts to decide what ‘natural born’ means.” Sen. Inhofe referred to the repealed Naturalization Act of 1790 and used it to argue that in the absence of any judicial interpretation, Congress has the authority to define what a “natural born Citizen” is. Among other things, the bill provided that “any person born in the United States and subject to the jurisdiction thereof” is an Article II “natural born Citizen.” Hence, the Senator recognized that simply being born in the United States and being subject to the jurisdiction thereof does not necessarily make one an Article II “natural born Citizen.” The bill did not advance and met the same fate as other similar Congressional proposals to amend Article II’s “natural born Citizen” clause.
What is important is that this “natural born Citizen” issue as it pertains to children born in the United States existed in Congress as far back as February 2004 and has yet to be resolved. What is also important is that this bill would have directly impacted Obama’s eligibility to run for President of the United States. Whether or not this bill if enacted into law would have been Constitutional is another question.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
November 20, 2009