They KNOW this is an unresolved issue -- as they tried to water down here:
S. 2128 [108th]: Natural Born Citizen Act
Natural Born Citizen Act Summary
PURPOSE: To define the term “natural born Citizen” as used in the Constitution to include three categories:
(1) Any person born in the United States and subject to the jurisdiction thereof,
(2) Any person born outside the United States to a U.S. citizen parent or parents who are eligible to transmit citizenship, and
(3) Any person adopted by the age of 18 by a U.S. citizen parent or parents who are otherwise eligible to transmit citizenship to a biological child.
This bill is intended to clarify the term and end uncertainty about the eligibility requirements to run for the Office of the Presidency. The definition of this term is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. Congress should be the institution that defines this term, not the courts.
Congressional Authority:
In the absence of a judicial interpretation of Constitutional language, Congress can express a legislative interpretation of Constitutional terms. A federal court would likely give great deference to Congress’ interpretation. The Congress also has broad authority regarding issues of citizenship. Article 1 Section 8 of the Constitution grants authority to Congress to “establish a uniform rule of naturalization.” Several federal judicial decisions recognize Congress’ plenary powers regarding issues pertaining to citizenship that do not specifically fit under the Fourteenth Amendment. Notably Rogers v. Bellei (401 US 815) and US v. Wong Kim Ark (169 US 649) say that Congress has the power to regulate matters pertaining to citizenship not specifically defined by the Fourteenth Amendment.
In addition, Congress has previously used their naturalization power to define the term “natural born” as used in a statute. In the Naturalization Act of 1790 Congress defined “natural born” to include children born abroad to citizen parents. Although the language was not kept in later naturalization laws, that specific language was not challenged.
Persons Born Outside the United States to Citizen Parents:
This bill clarifies that the term “natural born Citizen” includes children born outside the United States to citizen parents. This provision provides comfort and certainty to members of the American military and foreign services, as well as expatriate families, that their children, too, are eligible to run for president. These children are no less qualified than children born on American soil, and they should not be treated differently. Of course, children born to American citizens abroad would only be eligible to run for president if they satisfied the fourteen year residency requirement in addition to the “natural born” requirement.
Support for the position that the term “natural born Citizen” should include children born outside the United States to citizen parents is particularly well articulated in a law review article by Jill A. Pryor entitled The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty. This article argues that “any person with a right to American citizenship under the Constitution, laws or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.”
Persons Adopted by Age 18 by a Citizen Parent:
This bill also ensures that children adopted by citizen parents, who are full-fledged members of American families are treated the same as if they were the biological children of American parents born abroad. Under adoption law, adopted children are to be treated as natural issue of their adoptive parents. They are to be accorded the same rights, duties and responsibilities as biological children. They are being raised by Americans in America. Adopted children of American citizens should be allowed the same opportunity as biological children to pursue all their dreams. They should be afforded the chance to give back to this country by serving in its highest office.
Interesting. I hadn’t thought about the adoption case. That would be an example of a kid born abroad to non-citizens and definitely not a citizen at birth later (up to 18 years!) becoming a “natural born” citizen for purposes of presidential eligibility.