Can a foreign-born citizen run for president? The Federal Election Commission thinks so.
Earlier this month, commission members agreed that Abdul K. Hassan, a Guyana-born naturalized U.S. citizen, could qualify as a presidential candidate. In an advisory opinion, the commission concluded that Mr. Hassan may be considered a candidate and could solicit funds to support his campaign. However, he would be ineligible for federal matching funds.
The Constitution says that 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." Mr. Hassan freely admits that he does not meet this requirement. That doesn't matter, according to the Federal Election Campaign Act, which defines a candidate as "an individual who seeks nomination for election, or election, to Federal office." There is no question that Mr. Hassan is seeking election, even if he could not legally hold the office. A legitimate candidate must have received more than $5,000 in campaign contributions or made more than $5,000 in campaign expenditures. Mr. Hassan has yet to clear this bar, but if he does, his hat is formally in the ring.
The FEC withheld an official vote on the question pending the outcome of Mr. Hassan's quixotic federal case seeking to overturn the natural-born-citizen requirement. He argues that this explicit constitutional restriction is itself unconstitutional. "Under the Fifth and Fourteenth Amendments, race and national origin are the only two classifications that are subject to the highest level of judicial scrutiny (strict scrutiny)," he claims, "and almost every law (or probably every law) subject to strict scrutiny by the U.S. Supreme Court in the last 60 years has been declared invalid." Mr. Hassan cites the 1964 Supreme Court case Schneider v. Rusk, which overturned part of the Immigration and Nationality Act because it gave disparate treatment to naturalized and native-born citizens. "This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born," Justice William O. Douglas wrote for the majority. "This is an assumption that is impossible for us to make."
In other years, these type of crackpot efforts might go unnoticed, but Mr. Hassan's presidential run draws the sort of attention that makes the Democratic National Committee rather uncomfortable. Earlier this year, prospective Republican presidential candidate Donald Trump brought mainstream attention to the question of the circumstances of Barack Obama's birth. The White House responded by finally releasing a long-form birth certificate from Hawaii, which for the most part put the issue to rest. Yet if the FEC formally votes to allow Mr. Hassan to be a candidate under federal law, it will present an opportunity for state legislatures to revisit the ballot-access issue - something a dozen states have debated already. It's the sort of distraction Mr. Obama's campaign could do without.
For Mr. Hassan's part, his campaign is focused on solving the government's fiscal mess and saving "the American people from more tax increases, spending cuts and job losses." He sounds presidential already.
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By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists