Obama Defense is Good For McCain

According to this news story, a federal district judge has dismissed a lawsuit against Sen. Obama, alleging that he is ineligible to be President because he was not born in the U.S. In fact, Obama was born in the U.S. (Hawaii to be exact), but that was not the basis for the dismissal. The case was dismissed on the ground that the plaintiff lacked standing, being unable to show a personal injury.

That's even better news for Sen. McCain than for Sen. Obama because while Obama is undoubtedly qualified, some uncertainty surrounds McCain's eligibility. The Constitution requires that the President be a "natural born Citizen." It is not entirely clear what this odious requirement means, but one pretty clear possibility is it requires that, at the time of his or her birth, the person in question was a citizen. McCain was born in the Panama Canal Zone, and so did not get automatic citizenship under the 14th Amendment. Moreover, according to an article by Professor Gabriel Chin in the online version of the Michigan Law Review, U.S. statutory law at the time of McCain's birth did not confer automatic citizenship on him. (The law was changed before McCain turned one, but Chin says that was too late for McCain to have been "born" a citizen.)

Other articles in the Michigan Law Review online symposium take issue with Professor Chin's analysis, but it is at least a contestable question whether Sen. McCain satisfies the constitutional requirement. Therefore, whereas Sen. Obama could have easily defended the case on the merits, a dismissal on standing grounds of a similar suit against Sen. McCain would be more valuable, because it would mean he would not need to defend against a potentially meritorious suit.

To my mind, the best approach would have been to dismiss on political question grounds. Per the 12th Amendment, Congress would seem to be the best judge of the qualifications of any Presidential candidate. And the Senate has already declared itself satisfied that McCain is qualified. (See story here.) Professor Chin says the Senate got it wrong, but given the offensiveness, in a nation of immigrants, of the "natural born Citizen" clause, any doubt should be resolved in favor of eligibility. (There's a limit to doubt, though, even for an odious clause, and so some people who would be eligible for the Presidency under a better Constitution, clearly are ineligible under ours. Sorry Ahnuld.)

Posted by Mike Dorf