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Many Fixes Floated for Presidential Citizenship

Tuesday’s Senate Judiciary hearing on the question of whether naturalized citizens should be eligible to become president was focused decidedly on the little ones: infants, toddlers and teenagers living in the United States who are constitutionally barred from serving as commander in chief when they grow up.

But in the debate on whether to amend the Constitution to allow non-native-born Americans to become president, California Gov. Arnold Schwarzenegger (R) continues to be the big draw. Although he barely was mentioned at the hearing, his presence was felt in the packed hearing room. One woman in the audience even donned an “Amend for Arnold” T-shirt and matching button.

Regardless of whether the effort is ultimately aimed at current officeholders such as Michigan Gov. Jennifer Granholm (D), who was born in Canada, or the 25,000 foreign-born children adopted into the United States every year, the movement appears to be gaining steam.

“I had no idea that this was growing as fast as it is,” House Judiciary ranking member John Conyers (D-Mich.) said during his testimony. He was one of six lawmakers who spoke in support of the idea Tuesday and is among five Members to introduce a proposed fix.

In addition to Conyers, Senate Judiciary Chairman Orrin Hatch (R-Utah) and Reps. Dana Rohrabacher (R-Calif.) and Vic Snyder (D-Ark.) have all introduced constitutional amendments. The two Republicans’ proposals are identical. Along with that of Conyers, which is similar, they would make those who have been citizens for at least 20 years eligible for the presidency.

Snyder’s version would require at least a 35-year citizenship in addition to a least 14 years as a resident. Reps. Darrell Issa (R-Calif.) and Barney Frank (D-Mass.), who also testified, have signed on as co-sponsors to Snyder’s resolution.

Schwarzenegger became a citizen in September 1983 and holds both American and Austrian citizenship. He has previously expressed support for Hatch’s plans.

Hatch originally scheduled a hearing on his resolution in summer 2003 but postponed it until this week, and it’s unlikely the issue will see much more attention before the end of this Congress. On the other side of the Capitol, the House Judiciary Committee has not announced plans to hold a hearing on any of the three bills referred to the panel, but pressure could mount within the Republican Conference to bring up the issue soon, perhaps early next year.

Sen. Don Nickles (R-Okla.), meanwhile, is attempting to clear up at least one gray area legislatively. His proposal does not attempt to get around the Constitution’s requirement that a president be a “natural born citizen” (a standard the 12th Amendment subsequently applied to the vice presidency by ensuring that no one ineligible to become president can become second in command). Nickles instead wants to clarify what the term means via statute.

“Does it mean only children born within the boundaries of the United States? If so, does it include only children born abroad to a U.S. citizen who is serving in the military or employed by our government overseas?” he asked in his testimony. “Or does it also include a child born abroad to a U.S. citizen simply living or working abroad? Could it include a child born abroad but adopted by a U.S. citizen? It is time that we put an end to these speculations.”

Nickles maintains that “at minimum” Congress should “make clear who is eligible to run for president under the current language of the Constitution,” and this could be done simply by defining the term “natural born.”

The question of whether someone born abroad to parents serving in the military could have factored in the 2000 election had Sen. John McCain (Ariz.) become the Republican presidential nominee. He was born in the Panama Canal Zone to U.S. citizens subject to the jurisdiction of American sovereignty, making him a “natural born citizen” under the widely accepted interpretation of the clause.

But the exact meaning of the Constitutional requirement has never been ironclad, an ambiguity Nickles seeks to eradicate. Some scholars question whether Congress proceeding absent a constitutional amendment would clarify the passage without subjecting it to constitutional challenge, but others believe Nickles’ legislation is consistent with actions taken by the First Congress and presumably allowed by the courts.

Overall, the lawmakers and the three scholars who testified were unanimous in their desire to see some clarity or change brought to the issue of presidential eligibility. Sen. Dick Durbin (D-Ill.) said he supported Hatch’s efforts to amend the Constitution. Fellow Judiciary members Larry Craig (R-Idaho) and Dianne Feinstein (D-Calif.) — the only other lawmakers to attend — were more circumspect.

“In a land of immigrants committed to the dream of equality, the Constitution’s natural born clause seems, well, un-American,” said Yale law professor Akhil Amar. He explained that, by the standards of its time, the document is “hugely pro-immigrant.” Under 1701 English Act of Settlement, no naturalized subject in England could ever serve in the House of Commons, Lords, or the Privy Counsel, or an array of other offices. “The Constitution repudiated this tradition across the board, opening the House, Senate, Cabinet and federal judiciary to naturalized and native alike.”

Yet in 1787, Amar testified, there was a very real fear that a foreign earl or duke might cross the Atlantic and use his European riches to buy friends, win the presidency and then pervert the fledgling American system and establish a monarchy.

He said it was for this reason, and not a fear that a foreign government would send an agent into the United States to become president decades later and undermine the country as its commander in chief — a scenario that has been used as an argument against Hatch and others’ proposals — that the founders inserted the “natural born” clause. A close look at why the framer added it, he said, “can help us decide whether their reasons still make sense today.”

The two other scholars who testified supported proposals to remove the natural-born requirement more explicitly, although they differed on how to go about it. Both, incidentally, have foreign-born adopted children.

Syracuse University professor John Yinger likened the effort to remove the natural-born requirement as the “next step on the path toward equal rights” and full implementation of the egalitarian principles embraced by the founders, a task he believes the nation moved toward with the 14th, 15th and 19th Amendments.

Matthew Spalding of the Heritage Foundation said he supports a 35-year citizenship requirement because that would virtually ensure that candidates came to the United States as youngsters (because presidents, on average, are in their 50s when they assume office) and thus were sufficiently attached to their country. He also cautioned that the issue of dual citizenship is significant and needs to be addressed.

Spalding also expressed great reticence “about the politicization of this question. We are trying to square an important principle of our Constitution with the legitimate concerns of national unity,” Spalding said, suggesting that perhaps it should not take effect until 10 years after its ratification. “It should not be resolved based on immediate calculations to advance or hinder the political aspirations of any particular individual or party.”

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