US presidential qualification; 1994 &quot;equal treatment of women in conferring citizenship to children born abroad&quot; Inspired by Legal to become president if U.S. adds new state/territories? People born before May 24, 1934, to a US citizen mother and a non-US-citizen father, outside US territory, were not US citizens when they were born. But in 1994, 8 USC 1401 was amended by the addition of paragraph (h): (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States [shall be a national and citizen of the United States at birth]. Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? Would the answer depend on whether the person had been naturalized before 1994?
Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? This is an unresolved issue. Some scholars believe that to be a "natural born citizen" you have to be a citizen on the day that you are born. Other scholars believe that a "natural born citizen" is someone who gains citizenship by a means other than naturalization. No binding precedents resolve the issue because the phrase "natural born citizen" is used nowhere else in the law besides qualification to be the President of the United States, and the issue can't be resolved until someone is purportedly elected because there isn't an actual case or controversy until then, and there haven't been an examples that have come up that have tested this issue. My personal guess is that the courts would make every effort to find that someone who has been elected by the citizens of the United States as President, despite the inevitable debate by the public over someone's qualification as a "natural born citizen" during the campaign, is eligible to hold that position, because to do otherwise would seem massively undemocratic. So, I suspect that retroactive citizenship at birth would be held by the courts to make someone a "natural born citizen" and eligible to serve as President. Then again, I could see this issue being resolved by the courts on basically partisan lines too with conservative judges tending to hold that a liberal candidate was ineligible for office, and liberal judges making the opposite conclusions about a liberal candidate. This is one fair reading of what happened in the case of Bush v. Gore. Would the answer depend on whether the person had been naturalized before 1994? The citizenship by naturalization is irrelevant to whether you have another grounds for claiming citizenship that was present at birth or did not arise from naturalization. On October 25th, 1994, the naturalization became redundant.
Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof."
Impeachment In addition to the Constitutional qualifications, one may become ineligible to federal office by being impeached by the House, convicted and removed from office by the Senate, and having the Senate add the &quot;disqualification&quot; term to the sentence. This is surely something done by the legislature but it is not done by passing a law. Criminal Conviction One may also become ineligible by being convicted of treason or insurrection, and possibly other relevant federal offenses. Specific Laws Specifically 18 U.S. Code § 2381 provides that: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2383 provides that: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2385 (originally passed as the Smith Act)provides in relevant part that: Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) 18 USC §2387 provides in relevant part that: (a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States: (a) (1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or (a) (2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States— Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) (See also Chapter 115 which collects these and related sections of title 18.) (See also the Wikipedia article) (See further &quot;A Civilian's Guide to Insurrection Legalese&quot; from The Marshall Project.) Case law In United States v. Burr, 8 U.S. (4 Cranch) 470 (1807) Chief Justice Marshall wrote an opinion overturning the conviction of Aaron Burr, because Burr was not actually present at the overt act proved, as charged in the indictment. In Cramer v. United States, 325 U.S. 1 (1945) a conviction for treason was overturend because the court held the &quot;overt acts ... as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy&quot; Possible Future laws While treason is defined (or more exactly limited) by the constitution (Article III section 3), nothing in the constitutional provision requires or specifically authorizes that the penalty include ineligibility to office. (It merely says &quot;The Congress shall have power to declare the punishment of treason&quot;.) There is no specific Constitutional authorization for 18 USC 2383, 2385, or 2387, or their penalty sections beyond the general authority of Congress to pass laws and define crimes and their penalties. I am not certain that &quot;employment&quot; in 2385 and 2387 includes elective office, but I suspect it does. 2383 clearly includes elective office. Thus Congress has passed laws, with no specific constitution authorization, that deny people, as punishment for relevant crimes, eligibility to office or employment under the United States. What Congress has done in one case, it could do in another, if it saw fit. Congress could pass a law creating a new offense, or modifying an existing offense, to add the penalty of disqualification. But the Constitutional prohibition of ex post facto laws would mean that such a law would not apply to conduct that occurred before the law was passed or amended. Conviction required Congress may not declare a person guilty of a particular crime; that would be a bill of attainder, which is also specifically prohibited in the Constitution. A criminal conviction by a court is required to trigger the ineligibility provisions of sections 2381, 2383, 2385, 2387, or any similar law. Fourteenth Amendment Section 3 of the 14th Amendment to the US Constitution reads: No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. This forms another ground whereby an individual can be barred from some federal and state offices, but it is not one that can be invoked by Congress for specific people by name. Indeed it is not clear how it can currently be invoked. This provision requires a judicial determination that it applies to a specific person. From 1868 to 1872 there was a law in force for this purpose, but in 1872 Congress granted a broad amnesty which exempted most of those who would otherwise have been subject to this provision because of the US Civil War, and the law was soon repealed. In the wake of the events of 6 Jan 2021 several bills have been introduced to create ma new enforcement mechanism for this provision. To the best of my knowledge, none have yet been passed into law. See &quot;The 14th Amendment’s Disqualification Provision and the Events of Jan. 6&quot; for so9em relevant details and background. That article also says: Section 3 is different from a disqualification from federal office imposed as a sentence for an impeachment conviction. A disqualification sentence from the Senate is final and not, for all intents and purposes, subject to judicial review. By contrast, Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny ...
The law is not settled and will shortly be before the High Court (sitting as the Court of Disputed Returns) but theoretically: yes! The provision on Disqualification is s44, specifically subsection (i): Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. Which, on the face of it, makes eligibility to sit in the Australian parliament dependent on the citizenship laws of every other country in the world: all 195 of them. Indeed, right now, any citizen of Australia (which is itself a qualification by virtue of s16 or s34), is allowed to live and work in New Zealand, and to vote after a year's residence - that is they are &quot;entitled to the rights or privileges of a subject [but not a citizen] of a foreign power&quot;. Therefore, interpreted that way, no Australian is entitled to sit in parliament. Of course, a simple referendum1 could change the Constitution to fix that - except, a referendum must be called by parliament and we no longer have one. Personally, I think it is unlikely2 that the High Court will rule in such a way that would plunge the nation into a constitutional crises by deciding no one can sit in parliament or that who can sit is determined by the laws of foreign nations. Notwithstanding, at present there are 5 MPs who have been referred to the High Court (2 of whom have already resigned), 2 more who will be referred when parliament resumes in September, 21 known to have been born overseas who have not confirmed that they have renounced any foreign citizenship they might have and an unknown number who may have foreign citizenship by descent. Each of the cases is distinct: some were born overseas, some have foreign citizenship by descent, one is a 3rd generation Australian whose mother registered him as an Italian citizen when he was a child (17) and he claims he never knew. How the High Court will rule will almost certainly vary with the particular circumstances but its anyone's guess what they will decide. However, it appears that the drafters of the constitution intended that it should capture all dual-citizens, not just those who sought dual-citizenship by a deliberative act. If a person is found to be ineligible then different things happen depending on if they ware a Senator or a Member of the House of Representatives. For a Senator, the High Court would recount the results of the election - because of the strange way voting works for the Senate, only educated guesses can be made about who would replace whom (especially since the same citizen issue may apply to other candidates on the ticket). For a Member of the House of Representatives, a by-election would be held - because the Liberal/National government has a majority of 1 and 3 of their members are in the gun the results will be ... interesting. 1 Referenda in Australia are not simple. The Australian Constitution is specifically designed to be difficult to change while at the same time granting broad powers to parliament. It takes a nationwide vote and must be carried by a majority of voters nationwide and a majority in a majority of the six states (i.e. 4 or more). Since federation in 1901 there have been 44 referenda of which only 8 have been carried. In is generally accepted that a referendum is impossible to pass unless it has bi-partisan support: and sometimes not even then. 2 And by &quot;unlikely&quot; I mean &quot;impossible&quot; - a conclusion that the constitution must be read in such a way that parliamentary democracy becomes impossible would be contrary to law. Update in light of the High Court’s ruling: No Providing a potential parliamentarian has taken “all reasonable steps” to renounce foreign allegiance they are permitted to serve even if the foreign power refuses to allow them to renounce citizenship. In practice, this means writing to the foreign embassy and renouncing citizenship.
If the Attorney General has officially determined that you renounced US citizenship for the purpose of avoiding taxation, you have a lifetime ban under INA 212(a)(10)(E), and there is no immigrant waiver for this ban. See 9 FAM 302.12-6. I am not sure if the Attorney General has ever made such a determination about anyone. Otherwise, I don't see anything that would prevent you from immigrating to the US like any other foreigner.
A US citizen who resides abroad can register to vote in federal elections in the last state or territory where they resided in the US. So in your example, the US citizen who was resident in Puerto Rico, and who moves to Canada without first residing in any other state or territory, would register to vote in Puerto Rico. Since he is registered to vote in Puerto Rico, he does not vote in an election for choosing presidential electors since Puerto Rico doesn't have any presidential electors. Only the 50 states and DC have presidential electors, and each of them chooses the electors based on elections by people registered to vote in that state (or DC), so he would have to be registered to vote in some particular state or in DC to participate in an election for choosing presidential electors, but he does not qualify to register to vote in any of the states or DC, because he was not resident there last. Yes, US citizens who are neighbors in Vancouver, Canada, one of whom is a former New Yorker and the other of whom is a former Puerto Rican, would be registered to vote in two places (one in New York and the other in Puerto Rico). They would get two different ballots, and may even have different dates for elections (for elections that are not held on the November election day). They would have different offices to vote for, and, in the case of the ballot for the November election in a presidential election year, the New York ballot would contain an election for a slate of presidential electors, while the Puerto Rico ballot would not.
For the US, the Uniformed and Overseas Citizens Absentee Voting Act provides that just about any US citizen living abroad who has previously resided within the US is entitled to vote in federal elections as though they still lived at their last US address, provided they'd be eligible to vote if they still lived at that address. If you're overseas on duty in a uniformed service of the United States or as a spouse or dependent of such a person, it's based on your legal residence instead. This is a right of US citizenship; dual citizenship doesn't affect it. This State Department website has details; there's a special process you can generally use instead of the state absentee process. UOCAVA applies to all federal elections (including primaries); state and local election eligibility is up to the state. For Canada, citizens of Canada living there seem to have the right to vote regardless of any possible loyalty issues with another country. Canadians living outside Canada for over five years can't vote, but if you live there it seems as though it is allowed. So, the answer is seemingly "yes." For a definitive answer, contact the US consulate and Canadian election officials.
The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states 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 It is not disputed that said areas are &quot;in the United States&quot;. The court found that &quot;subject to the jurisdiction thereof&quot; is intended to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state neither of which are the case in your scenario. Technically, the child is not &quot;eligible&quot; for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport).