Monday, May 19, 2008

Is McCain Eligible to Be President? Part II

Short answer: it's not clear, but no one other than another candidate would have standing to bring a legal challenge to McCain's candidacy.

This article at Politifact gives the full scoop, with a far better discussion than the completely incorrect discussion from that I discussed in an earlier post. (This confirms my earlier conclusion that Politifact is well-researched, while is unreliable.)

Politifact points out that none of the other Republican candidates are going to sue to challenge McCain's eligibility, and Obama won't either. But there are lots of other minor party candidates who could also potentially sue him. Let's imagine McCain wins in November. Wouldn't, say, former Rep. Bob Barr, who will probably be the Libertarian Party candidate, have standing to sue? I've never understood how standing is determined, but it seems that Barr would have a case that he'd have a decent chance if McCain weren't in the race. Wouldn't that be enough to give him standing?

Here's an interesting tidbit: McCain's Canal Zone birth only makes him a citizen because of special legislation giving citizenship to those born in the Canal Zone with two American parents. For the rest of us born "in the United States," we are Constitutionally guaranteed citizenship by the 14th Amendment. (My father, born abroad to an American mother and a non-American father, is a citizen because of other legislation.)

Just to be clear: I think McCain should be eligible. This is mostly just idle chit-chat, paired with the hope that sloppy language in the Constitution doesn't cause us any problems.

1 comment:

Jonah B. Gelbach said...


there's a really interesting series of posts over at Balkinization on this issue. As it happens, Jack Balkin (Yale Con Law prof) wrote an article 10 years back that skewers the so-called "strict construction" school of con law (i use quotes because while gop politicians love to claim they are "strict constructionists", few if any of the con law profs and judges they laud would attach that label to themselves). here's a post by Balkin about this; his paper is available here.