Presidential Eligibility

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Article II, Section 1, Clause 5

The Constitution imposes three eligibility requirements on the Presidency—based on the officeholder's age, residency, and citizenship—that must be satisfied at the time of taking office. By virtue of the Twelfth Amendment, the qualifications for Vice President are the same. The Framers established these qualifications in order to increase the chances of electing a person of patriotism, judgment, and civic virtue.

First, Presidents must be thirty-five years of age or older. In contrast, Senators must be at least thirty years old, and Representatives no less than twenty-five years old. As Justice Joseph Story has noted, the "character and talent" of a man in the middle age of life is "fully developed," and he has had the opportunity "for public service and for experience in the public councils."

Second, the President must have been a "Resident" of the United States for fourteen years. By contrast, to be a Member of Congress, one must be an "Inhabitant" of the State one is representing. During the Constitutional Convention, James Madison contended that "both [terms] were vague, but the latter [‘Inhabitant'] least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business." Then as now, inhabitant meant being a legal domiciliary, but resident could mean either a domiciliary or a physical presence. Perhaps the Framers desired a person as President who had actually been present in the United States for the required period and had developed an attachment to and understanding of the country, rather than one who was legally an inhabitant, but who may have lived abroad for most of his life. On the other hand, the distinction may have been one of style rather than substance. As Justice Story later noted, "by ‘residence,' in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States."

There is some evidence that the Framers believed the fourteen-year residency requirement could be satisfied cumulatively, rather than consecutively. An earlier version of the clause excluded individuals who have "not been in the whole, at least fourteen years a resident within the U.S." (emphasis added), and historical evidence suggests that deletion of the phrase "in the whole" was not intended to alter the provision's meaning. This might explain the election of Herbert Hoover, whose successful 1928 campaign for President came less than fourteen years after his return to the United States in 1917. Others may argue that Hoover had simply maintained a United States domicile throughout his tenure abroad.

The third qualification to be President is that one must be a "natural born Citizen" (or a citizen at the time of the adoption of the Constitution). Although any citizen may become a Member of Congress so long as he has held citizenship for the requisite time period, to be President, one must be "a natural born Citizen." Undivided loyalty to the United States was a prime concern. During the Constitutional Convention, John Jay wrote to George Washington, urging "a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen." Justice Story later noted that the natural-born–citizenship requirement "cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office."

Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President. As early as 1350, the British Parliament approved statutes recognizing the rule of jus sanguinis, under which citizens may pass their citizenship by descent to their children at birth, regardless of place. Similarly, in its first naturalization statute, Congress declared that "the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens." 1 Stat. 104 (1790). The "natural born" terminology was dropped shortly thereafter. See, e.g., 8 U.S.C. § 1401(c). But the question remains whether the term "natural born Citizen" used in Article II includes the parliamentary rule of jus sanguinis in addition to the common law principle of jus soli. In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of "citizen" in the Fourteenth Amendment as well as the natural-born–citizenship requirement of Article II, and noted that any right to citizenship though jus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court's discussion in Wong Kim Ark, a majority of commentators today argue that the Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968.

The Presidential Eligibility Clause does not explicitly cover those who serve merely as Acting President, a constitutionally distinct office. Although Congress has imposed by statute, 3 U.S.C. § 19(e), the same eligibility requirements for service as Acting President, that provision may not be required as a constitutional matter.

James C. Ho
Partner
Gibson, Dunn & Crutcher, LLP