This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a “natural born” citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth.
We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished. That eligibility for our highest political office is conditioned by an invidious discrimination buried in the Constitution itself should be highly disturbing.
In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by “birthers” who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible.
Ban does not apply to other offices
Sen. Tammy Duckworth’s stock as a potential running mate for Joe Biden reportedly declined in part because of concerns that there might be litigation over her eligibility since she was born in Thailand to an American-citizen father and a Thai mother. The incident illustrates how even a highly dubious accusation of ineligibility can derail a potentially promising nominee
Barring naturalized citizens from eligibility for the presidency is little different from discrimination based on race, ethnicity or gender. Such unchosen circumstances of birth say nothing about a person's competence or moral fitness for office. Our legal system rejects the natural born requirement elsewhere. It does not apply to governors, members of Congress, justices of the Supreme Court, cabinet officers, or the Chair of the Joint Chiefs of Staff. It should be removed as a condition for eligibility for the presidency.
Although the history of the natural born citizenship requirement is murky, its adoption probably stemmed from fear of skulduggery by European royalty who might seek election to the presidency. This concern, overblown in the 1780s, is even less plausible today.
The most obvious objection to letting immigrants ascend to the presidency is concern that they might be less loyal to the nation than native-born citizens. But there is no good reason to think that people who became Americans by choice are less likely to be loyal than those who did so merely by accident of birth.
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If the issue is that immigrant-citizens might have a conflict of interest by virtue of economic or social connections abroad, the same issue can arise with natural-born citizens, as witness the numerous conflicts arising from Donald Trump’s business dealings. The appropriate solution is to impose uniform conflict-of-interest rules that apply equally to all regardless of origins.
Time to end quadrennial claptrap
Some may fear that immigrants have less knowledge of American society than their native-born peers. But that concern is addressed satisfactorily by the Article II requirement that to be president a person must be 35 years of age and a resident within the United States for 14 years.
The constitutional amendment needed to repeal the natural born citizen requirement will be difficult to enact. Any amendment is an uphill struggle because of the required hurdle of securing two-thirds majorities in both houses of Congress, and ratification by three-fourths of state legislatures. This amendment would also face headwinds because of strong anti-immigrant sentiment on the political right. But things might well change as the current political moment passes, xenophobia recedes (polls show younger voters are much more supportive of immigration than older ones), and more people come to realize how ridiculous this restriction is. At the very least, Americans may get tired of hearing this claptrap every four years.
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Favoring the amendment is the fact that supporters hail from across the political spectrum. The two of us come from very different backgrounds and have widely divergent ideological views. But we agree that the time has come to put an end to this wrongful exclusion.
We are not alone. Robert Post, former dean of the Yale Law School and a strong liberal, denounced the requirement stirringly: “[A]t the very heart of the constitutional order, in the Office of the President, the Constitution abandons its brave experiment of forging a new society based upon principles of voluntary commitment; it instead gropes for security among ties of blood and contingencies of birth.” So, too, did former Sen. Orrin Hatch, R-Utah, a strong conservative. Proposing a 2003 amendment to abolish the clause, he described it as an “unfounded inequity” and “an anachronism that is decidedly un-American.” He was right.
Randall Kennedy is the Michael R. Klein Professor of Law at Harvard Law School. Ilya Somin (@IlyaSomin) is a law professor at George Mason University, and author of "Free to Move: Foot Voting, Migration, and Political Freedom."
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This article originally appeared on USA TODAY: Let immigrants be president. Repeal the natural born citizen requirement.