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The “natural-born citizen” ceiling

Vox - Mon Apr 12 15:30

Ted Lieu at a judiciary committee hearing on impeachment.
Rep. Ted Lieu (D-CA) during the first impeachment of President Donald Trump. Lieu, who served as an impeachment manager during the 2021 impeachment, is not eligible for the presidency.
Doug Mills-Pool/Getty Images

The Capitol rioters’ apologists are still eligible to be president — and immigrant lawmakers who fought to hold Trump accountable are not.

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Immigrants who have lived abroad or grown up with stories of political chaos know that the most violent days always start out in an eerie quiet, as January 6, 2021, did in Washington, DC. By 1:10 pm that day, after former President Donald Trump issued his call for thousands of supporters to march on the Capitol, anyone who was paying attention knew that something dangerous was about to take place.

Within a matter of minutes, at the other end of the National Mall, a Capitol police officer banged on the door of Rep. Ted Lieu (D-CA). “You need to evacuate immediately,” Lieu recalls the officer saying before urging him to remove the lapel pin that identified him as a member of Congress and directing him down five flights of stairs to a secure location.

From that room, as Lieu and Reps. David Cicilline (D-RI) and Jamie Raskin (D-MD) witnessed the events, they decided that they had to draft an article of impeachment right then and there.

By 3:09 pm, Lieu had seen enough. He sent a text message to every Democrat on the House Judiciary Committee to start gathering support: “If we don’t do anything besides send strongly worded press releases, then we are complicit in battering lady justice and our Constitution,” the text read. Before they left the Capitol that night, the recipients of that text had resoundingly agreed to impeach Trump again.

Lieu ultimately served as an impeachment manager, laying out the constitutional provisions and principles that he argued should disqualify Trump from ever again holding the presidency as the trial unfolded in Congress and in the court of public opinion. But among the nine impeachment managers, Lieu stood alone as the only one who would not be allowed to hold that office under the Constitution’s natural-born citizen requirement in Article II.

That constitutional clause requires that anyone holding the presidency be born a citizen of the United States — either born on US territory or, if born abroad, the child of at least one US citizen. Tens of millions of immigrants who live in the United States, including 18 who serve in Congress, are thus categorically disqualified from holding the country’s highest office. Never amended since the Constitution’s adoption, the clause implies that naturalized Americans, who affirmatively chose to be part of this country, are inherently unsuited as stewards of its political institutions while those born on US soil are automatically better ones.

But in the aftermath of the Capitol insurrection, it was those would-be disloyal subjects who foregrounded their immigrant experiences to make the nation confront the high stakes of letting democracy slip away. Rep. Pramila Jayapal (D-WA) told the Cut, after contracting Covid-19 while being in close contact with maskless Republican members of Congress that, as “an immigrant woman of color,” she understood that this event “was going to be terrible and consequential. And that it would not be fixable quickly.”

Arnold Schwarzenegger, the former Republican governor of California, said the insurrection reminded him of Kristallnacht, the night the Nazis in Germany torched synagogues, vandalized Jewish-owned homes and businesses, and killed close to 100 Jews as Adolf Hitler consolidated power in 1938. “Wednesday was the ‘day of broken glass’ right here in the United States,” the Austrian-born actor said in a Twitter video that has been watched close to 40 million times. The insurrectionists “did not just break down the doors of the building that housed American democracy,” he said. “They trampled the very principles on which our country was founded.”

Those who incited and directed this insurrection, meanwhile, would face no constitutional bar to becoming president. Nor would natural-born citizens, including Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) and Rep. Mo Brooks (R-AL), who denounced the violence but opposed efforts to hold Trump accountable while downplaying their own roles in firing up the riotous mob.

As the country tries to make sense of the attack with a sweeping congressional investigation launched March 25, many now question exactly how to define loyalty to the republic and the Constitution.

“Where you happen to be born,” Lieu told me in an interview, “is irrelevant to how much you love America and whether you are a patriot.” And yet, the Constitution restricts nearly 21 million naturalized citizens (and 25 million other foreign-born US residents who may at some point gain citizenship) from running for the presidency.

The Framers gave the country a constitutional architecture that presumes patriotism from a segment of the population, whose only reason for pledging allegiance to the flag is the accident of birth. This is the immigrant loyalty paradox.

Equating birthplace with allegiance dates back to feudal times

Article II, Section 1 of the Constitution explicitly states that “no Person except a natural born Citizen […] shall be eligible to the Office of President,” among other age and residency requirements.

The clause has been the subject of much contemporary debate since Trump peddled false, racist conspiracies about former President Barack Obama’s birth certificate in the run-up to the 2008 election. Similar baseless doubts have been raised about Cruz’s qualifications given his birth in Canada to an American mother, and more recently, about whether Kamala Harris could hold the vice presidency as the daughter of immigrants.

The Supreme Court has stated that properly understood, the definition of “natural-born” covers anybody who was a US citizen at birth, meaning they did not have to go through naturalization at a later time. In the 1898 case United States v. Wong Kim Ark, the Court explained that, in British common law, “natural-born British subject” meant “a British subject who has become a British subject at the moment of his birth. […] Any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject.”

Because the Court adopted this definition, it has never had to rule on the issue of an immigrant president — even if the prospective commander in chief had lived here the overwhelming majority of their life.

Lieu, for instance, was born in Taiwan but arrived in Cleveland, Ohio, with his family when he was three years old, first taking up residence in the basement of a woman’s home as his parents cobbled together a livelihood reselling flea market purchases. The sole accident of his birth disqualifies him from ever rising to the country’s highest office.

The idea that Lieu might be more loyal to Taiwan, which he left as a young child, than to the country where he was educated, trained as a lawyer, and has served for years as a public servant, might seem absurd in 2021. But birthplace has long been seen as synonymous with loyalty, going to ancient concepts of British common law, said Stephanie DeGooyer, a Burkhardt fellow at the University of California Los Angeles and the co-author of “The Right to Have Rights.”

In 1608, the King’s Bench in England issued a seminal decision in Calvin’s Case, establishing that a person who was born in Scotland after the unification of the crowns of England and Scotland was a subject of the British king and entitled to all the benefits of English law.

“Before we’re talking about citizenship, we’re really talking about allegiance to the prince or the crown … and they’re obligated to be responsible for you,” DeGooyer told Vox. In feudal times, allegiance mattered because it determined which lands an individual could own — and in Calvin’s Case, inherit. But it also cut the other way, she said, determining which individuals received protection from the king.

However, the intent of the Framers does not seem to have been to exclude individuals with a demonstrated commitment to American systems of government. Rather, their preoccupation was with the control of the US military by a foreign commander. “Permit me to hint,” John Jay wrote in a letter to George Washington during the Constitutional Convention of 1787, “whether it would not be wise & seasonable … to declare expresly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.” If the president had no other allegiances, their logic went, the US Army could not be directed to act against any other interests but American ones.

But the security failures at the Capitol highlight that a natural-born president, too, can have other interests that the military can be commanded to serve. On March 3, DC National Guard chief William Walker told senators that the Pentagon’s top brass delayed the approval of military assistance to the Capitol Police because “they didn’t like the optics” and the presence of uniformed troops would “inflame” the rioters.

It was in those three hours and 19 minutes of delay that Capitol Police shot Ashli Babbitt as she tried to enter the Speaker’s Lobby.

Ideas about citizenship have evolved, but the Constitution hasn’t

The association of birthplace with loyalty is what underlies US birthright citizenship, a concept that Trump sharply criticized as president despite his father being its beneficiary. By the 19th century, however, modern nation states began instituting their own methods of becoming a citizen other than through birthright, according to DeGooyer.

“We’ve long accepted that you can change allegiances and change citizenships,” she said. “But what we remain attached to is the feudalistic thinking about perpetual allegiance — that you can only be under one.” Even if an American acquires citizenship from another country, the allegiance at birth still predominates: For instance, natural-born Americans who later become dual citizens are not barred from the presidency.

“Why should somebody just born here have an automatic higher sense of belonging or loyalty than somebody who begins that journey at five?” DeGooyer asked.

This suspicion of immigrants’ “true loyalties” has permeated our politics throughout time. Debates about what precisely birthright citizenship entails predate the Civil War. Asian Americans, who themselves have been the targets of recent violence, have withstood being characterized as threats to the nation throughout history. During World War II, US officials segregated Japanese Americans in internment camps using loyalty questionnaires that asked respondents to “swear unqualified allegiance to the United States” and “forswear any form of allegiance or disobedience to the Japanese Emperor.”

More recently, immigrant public servants have faced attacks to their loyalty because of this distinction, primarily from Trump and his supporters. Ukrainian-born Lt. Col. Alexander Vindman, known for his role in the first impeachment of Trump, was smeared after his testimony because of his heritage.

After his October 29, 2019, hearing in the House, Trump attorney Rudy Giuliani tweeted: “A US gov. employee who has reportedly been advising two gov’s? No wonder he is confused and feels pressure.” Vindman and his family escaped from the Soviet Union as Jewish refugees when he was 3, and the “dual loyalty” charge has been historically deployed as an anti-Semitic dog whistle.

Last year, during one of his campaign rallies in Minnesota, Trump also excoriated Rep. Ilhan Omar (D-MN), a refugee of Somalia’s civil war, for telling “us how to run our country,” though she had been elected to do exactly that.

And even before the most recent bout of far-right xenophobia, immigrant politicians have had to make their loyalties resoundingly clear to avoid having their judgment questioned. In March 2000, while visiting her native Czech Republic, former Secretary of State Madeleine Albright had to publicly turn down an overture from then-President Vaclav Havel to succeed him as head of state.

“I am not a candidate and will not be a candidate. […] My heart is in two places, but America is where I belong,” Albright said in a televised interview next to Havel, adding that while she felt “an unshakable pride in my native land,” she also had “an unshatterable commitment to my adopted one.”

At the US State Department, however, Asian American diplomats have been restricted from assignments in foreign countries of their heritage to “lessen foreign influence,” according to an internal policy manual.

The immigrant caucus remains excluded as some call for change

An entire generation of high-ranking public officials have been denied the opportunity to run for president because of their status as naturalized citizens. Among them are obvious rising stars, such as Lieu, Jayapal, Omar, Indian-born former US District Attorney Preet Bharara and Japanese-born Sen. Mazie Hirono (D-HI).

But the last time the political class had any serious interest in passing an amendment to allow immigrants to run for president, it was from the Republican side. In 2003, Sen. Orrin Hatch (R-UT), then the chairman of the Senate Judiciary Committee, introduced an amendment to remove that obstacle from the Constitution, calling it “an anachronism that is decidedly un-American.” Instead, it would have required candidates to have been naturalized for 20 years and residents for 14.

At the time, Schwarzenegger, Gov. Jennifer Granholm (R-MI), and even former Secretary of Transportation Elaine Chao were seen as the amendment’s most immediate beneficiaries. (Some even dubbed it “the Arnold Amendment.”) The effort eventually fizzled out, and in 2016 a CBS News poll found that only 21 percent of Americans supported a constitutional change.

More recently, some opinion columnists and law professors have also pushed for change. Harvard Law’s Noah Feldman and Randall Kennedy have advocated for repealing the natural-born citizen requirement, arguing that it would send a pro-immigration message to combat xenophobia. Besides, these commentators argue, this requirement does not apply to any other high political offices in Congress or the judiciary.

Lieu put it this way: “What makes America great is that we judge you on your character — not on your bloodline, or your last name, or your race or ethnicity or gender.”

Kevin Walsh, a law professor at the University of Richmond School of Law and former clerk to Justice Antonin Scalia, took these efforts a step further in 2019. After publishing a law review article proposing an “’Irish Born’ One American Citizenship Amendment,” he also sent letters to the offices of Republican Sens. Mike Lee (Utah), Mitt Romney (Utah), Ben Sasse (Nebraska), John Cornyn (Texas), and then-Senate Majority Leader Mitch McConnell. In a 2019 email exchange, he shared a set of “FAQs” that he forwarded to those offices advocating the change.

“Any proposed constitutional amendment must overcome a powerful status quo bias,” Walsh wrote. “This amendment will also need to overcome the opposition of ‘blood and soil’ white nationalists. It’s worth picking a fight with such people. Patriots hold the high ground here, not nativists.”

It is unclear if Republicans responded privately to this proposal, and Walsh did not respond to requests for comment from Vox.

The Democratic majority on the Senate Judiciary Committee would likely be amenable to a similar proposal today. Still, any amendment would require a virtually unachievable two-thirds majority in the Senate and House of Representatives, or approval in a constitutional convention called for by two-thirds of the state legislatures.

Hirono, the only immigrant in the Senate, sits on that committee, and she recognizes a subtler equalizing effect of the Wong Kim Ark decision. In a copy of her forthcoming memoir obtained by Vox, Hirono writes that this decision “established the Fourteenth Amendment as overriding existing naturalization law, thereby nullifying constraints on non-whites becoming citizens.”

Hirono, of course, was also forced to evacuate the Senate floor during the siege on the Capitol, kept in a secure location and told not to share details with family and friends who wanted to know if she was safe. “I did not doubt that if the insurrectionists found any of us, they would physically hurt us,” she writes.

Unlike Trump, Hirono had to take the Oath of Allegiance in 1959 upon becoming a US citizen, pledging to “defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” The Capitol overrun, she could not help but think that this domestic attack could have been avoided.

“As I contemplated the sorry end to what had been an unremittingly disastrous presidency,” she writes, “I lamented, not for the first time, how much carnage would have been avoided if only Republicans had been brave enough to remove the corrupt president from office during his first impeachment trial.”


Jesus A. Rodriguez (@jesusrodriguezb) is a student at Georgetown University Law Center and a legal intern at the Liberty and National Security program at the Brennan Center for Justice.