Could a US citizen born through "birth tourism" become President?

Question

A few years back, there was a lot of news coverage of the increase in "birth tourism". Basically, people would come to the US very late in their pregnancy to have children with US citizenship, and then return to raise these children back in the parental homeland.

Would it be a plausible scenario that one of these "non-resident" citizens emigrating and running for office, particularly the office of president?

From what I've read, to become President, one must be a citizen over 35 who has lived in US for 14 years (Correct me if I'm wrong). There's lots of info regarding "naturalized" citizens in public office, but little, if any, about foreign raised citizens (except those in military/foreign service born to at least one US citizen).

Answer 1

Could a US citizen born through "birth tourism" become President?

Yes in principle, with some provisions:

Article II, Section 1 of the U.S. Constitution imposes only three eligibility requirements on persons serving as president, based on the officeholder’s age, time of residency in the U.S., and citizenship status:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." These requirements have been modified twice. Under the 12th Amendment, the same three qualifications were applied to the vice president of the United States. The 22nd Amendment limited office holders to two terms as president.

Regarding the natural born citizen thing the 14th amendment leaves little room for interpretation: if you were born in the US, then you are a citizen.

You'd also need to win applicable primaries and get elected, but that's a different story.

Answer 2

To serve as president, one must:

1. Be a natural-born citizen of the U.S.
2. Be at least 35 years old
3. Have been a resident of the U.S. for at least 14 years

Provided they've lived in the US long enough and are old enough, there's nothing that would prevent a "birth tourist" baby from being elected president. But that raises another, fourth qualification to serve as president that's so obvious most people don't think about it. You must:

4. Be elected

A "Manchurian candidate" who grew up in another country and has spent the majority of their lifetime outside the U.S. would likely be viewed unfavorably by the electorate, especially if they have strong ties to an adversarial nation. It's perfectly possible for them to be elected, but they'd have to be a great candidate to overcome the negative optics around their personal history.

Answer 3

The Supreme Court hasn't directly ruled on the meaning of the natural-born citizen clause. However, obiter dictum in the Wong Kim Ark ruling gives us some clues. Emphasis mine.

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

And:

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

And:

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

And much of the English common law is examined, all in support of the conclusion:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."

Thus, a similar argument can be formed regarding the natural-born citizen clause (rather than the citizenship clause), namely that:

• In order to determine the meaning of the natural-born citizen clause, we have to look at the meanings of the words under the common law that the United States inherited from the colonial era pre-dating the constitution.
• Under that common law, "natural-born citizen" includes all individuals born in the territory who acquired citizenship at birth, even if the parents were aliens who were merely visiting the country.
• Therefore, the natural-born citizen clause should be read as including those born through "birth tourism".

It has been argued that there is some wiggle room regarding the interpretation in the case of individuals born to parents who were not lawfully admitted to the United States, however, that is a different situation from the one contemplated by this question.

Note however that the Wong Kim Ark ruling is only binding precedent regarding the meaning of the citizenship clause, and not the natural-born citizen clause, and it is possible that the Supreme Court would take a different interpretation if actually asked to rule on the meaning of the natural-born citizen clause. But it does give hints about what conclusions would be most supported by the case law that the Court would examine if this question were put to it.

Answer 4

Under the 14th amendment (emphasis mine):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

Thus, such a person would meet the "natural born citizen" requirement, regardless of the parents' immigration status at the time of the birth.

Also under the 14th amendment, if the person involved demonstrates disloyalty to the United States after having previously taken an oath to protect the Constitution. But if they remain loyal to the United States and live there for all of their lives (or at least 14 years of it), then they become eligible from the age of 35.

Answer 5

Could a US citizen born through “birth tourism” become President?

It seems the question may have been answered over 120 years ago. Chief Justice Fuller seemed to think so and he didn't much care for the possibility.

United States v. Wong Kim Ark [p715]: FULLER, C.J., Dissenting Opinion, March 28, 1898. In comments concerning the Court's opinion, CJ Fuller was suggesting that the majority opinion concerning "natural-born citizen", by implication, meant that a child of a birth tourist (modern term) could lead to the possibility that child could become president.

By the fifth clause of the first section of article two of the Constitution, it is provided that:

No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

In the convention, it was, says Mr. Bancroft,

objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President.

2 Bancroft Hist. U.S. Const. 193.

Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

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The Court applied English common law to reach its interpretation of "subject to the jurisdiction thereof" thus limiting its scope to the children of ministers and consuls. CJ Fuller disputes that "subject to the jurisdiction thereof" means only that; but also includes children of those temporarily visiting the United States; reasoning the parents are still loyal to and subject to the jurisdiction of their home country. Since such people are not subject to the jurisdiction of the U.S. then neither are their children who happen to be born in the U.S.

At p728-729, CJ Fuller adds:

The privileges or immunities which, by the second clause of the amendment, the States are forbidden to abridge are the privileges or immunities pertaining to citizenship of the United States, but that clause also places an inhibition on the States from depriving any person of life, liberty or property, and from denying "to any person within its jurisdiction, the equal protection of the laws," that is, of its own laws -- the laws to which its own citizens are subjected.

The jurisdiction of the State is necessarily local, and the limitation relates to rights primarily secured by the States, and not by the United States. Jurisdiction, as applied to the General Government, embraces international relations; as applied to the State, it refers simply to its power over persons and things within its particular limits.

These considerations lead to the conclusion that the rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English common law rule in vital particulars, and, among others, in that it did not recognize allegiance as indelible, and in that it did recognize an essential difference between birth during temporary, and birth during permanent, residence. If children born in the United States were deemed presumptively and generally citizens, this was not so when they were born of aliens whose residence was merely temporary, either in fact or in point of law.

CJ Fuller interpreted the Constitution and prior law in a manner consistent with my understanding as given in my original answer.

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[Original answer, minor editing.]

Possibly Currently, but that is based on an interpretation of the Citizenship clause in the 14th Amendment.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Some future Court could interpret the clause differently.

For example, of the State wherein they reside, taken narrowly, would mean that such a child, not being a lawful resident of any state at time of birth, is not a citizen of any state and, therefore, cannot be a citizen of the United States. (That child's mother would have to have been a resident of a state.)

That, of course, would end birth tourism.

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In United States v. Wong Kim Ark, it was the Court's interpretation of "subject to the jurisdiction thereof" and not the text of the 14th Amendment that allowed for "birth tourism". If a new case were to go before the Court, the Court could overturn the opinion in Wong Kim Ark (though after more than 120 years that seems unlikely).

Alternatively, Congress could, under Amendment 14, Section 5, pass a law to define that "subject to the jurisdiction thereof" excludes: children of ministers and consuls; children of those visiting the United States on a visa; children of those who have been granted entry on a request for asylum, until such time as asylum has been granted; children of those who are unlawfully in the United States; etc.

Those provisions would eliminate "birth tourism" and so-called "anchor babies".

Answer 6

Neither the Electoral College, nor the House, nor the Senate, nor the Supreme Court has shown that it is willing to enforce the eligibility requirements for the offices of President and Vice President. On one occasion (1876) a commission settled a dispute about which slates were part of the Electoral College.

But even when members of the Electoral College have cast twice as many votes as they were supposed to, the House and Senate did not refuse to accept the alleged votes. Instead, a Constitutional Amendment was passed to clarify how the voting would be done in subsequent elections.

The Electoral College is an especially weak institution. It faces substantial obstacles to acting as a deliberative body. For example, in the aftermath of the 2016 election, the State of Washington sued one of its representatives in the Electoral College because he dared to exercise discretion about whom to vote for. I cannot think of any other Federal Office whose holders can be punished by a state for diligently doing their federal job.

On three occasions, the Electoral College has elected a person who did not satisfy a strict interpretation of the "natural born citizen" clause. Neither Chester Alan Arthur's father nor Barack Obama's father was a U.S. citizen at the time of their births. Arthur was elected Vice President in 1880; Obama was elected president in 2008 and 2012. On none of these three occasions did any of the Electoral College, House, Senate, or Supreme Court object.