2016] RETHINKING PRESIDENTIAL ELIGIBILITY 1069
itself has been challenged in the courts, quite apart from the challenges that
have been brought against the presidential candidates themselves. In 2012,
for example, Abdul Karim Hassan filed several lawsuits claiming that the
Natural Born Citizen Clause contravened the Equal Protection Clause of the
Fourteenth Amendment and that it was essentially a form of discrimination
based on national origin. Hassan’s lawsuits were not successful and have
each been dismissed.
180
On a deeper level, the lawsuits brought by Hassan and others, and the
many proposals to change the Constitution, raise the question of why
Congress cannot allow the foreign born children of U.S. citizens to be
“natural born citizens” by statute. Certainly, it is within Congress’s power
to offer a statutory definition of natural born citizenship, and it seems that
Congress not only has the power to legislate like this but that it has actively
tried to do so in the past. In 2004, a bill was introduced in the Senate that
sought to offer a statutory definition of natural born citizenship that would
include the children of American citizens born overseas.
181
The language
of the proposed legislation would have extended presidential eligibility to
“any person born outside the United States . . . who derives citizenship at
birth from a United States citizen parent or parents pursuant to an Act of
Congress.”
182
And in 2008, the Senate famously passed a unanimous
resolution declaring that John McCain was a natural born citizen.
183
Rather than let issues of who is eligible linger, Congress might consider
doing something additional to clear them up. First, Congress should grant
standing to ordinary citizens to be able to challenge a presidential
candidate’s eligibility in the federal courts.
184
Second, it should enact
9N64]; see, e.g., James C. Ho, Unnatural Born Citizens and Acting Presidents, 17 CONST.
COMMENT. 575, 576–77 (2000); Randall Kennedy, A Natural Aristocracy?, 12 CONST.
COMMENT. 175, 176 (1995) (explaining that, despite the many reasons “Henry Kissinger
should not have become President . . . his having been born in Germany is certainly not one
of [the reasons why]”); Randall Kennedy, The Right of All Citizens: Why Naturalized
Americans Should Be Allowed to Run for President, N
EW REPUBLIC (May 12, 2011),
https://newrepublic.com/article/88161/obama-birther-constitution-natural-citizens-president
[https://perma.cc/HJ9A-ETSM].
180. See, e.g., Hassan v. Colorado, 870 F. Supp. 2d 1192, 1201 (D. Colo. 2012), aff’d,
495 F. App’x 947 (10th Cir. 2012).
181. See Natural Born Citizen Act, S. 2128, 108th Cong. (2004); see also Seymore, supra
note 5, at 950 n.131 (discussing this legislation).
182. See Seymore, supra note 5, at 950 n.131.
183. See Resolution Recognizing that John Sidney McCain, III, Is a Natural Born Citizen,
S. Res. 511, 110th Cong. (2008) (finding that Senator McCain is a natural born citizen).
184. The scope of congressional power to influence standing has been a source of some
controversy. In recent years, the Supreme Court has granted certiorari in two cases to
consider whether the conferral of standing by statute is constitutional, especially in
circumstances where a plaintiff’s injury in fact is not concrete and particularized; however,
the Court did not rule on the merits in either case. See Edwards v. First Am. Corp., 610 F.3d
514 (9th Cir. 2010), cert. granted, 564 U.S. 1018 (2011), cert. dismissed as improvidently
granted, 132 S. Ct. 2536 (2012) (per curiam); Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir.
2014), cert. granted, 135 S. Ct. 1892 (2015), vacated and remanded, 136 S. Ct. 1540 (2016).
But see Mark Seidenfeld & Allie Akre, Standing in the Wake of Statutes, 57 A
RIZ. L. REV.
745 (2015) (arguing that Congress is “institutionally superior” to courts in evaluating the
gravity of likely harms to a plaintiff and therefore has the ability to confer standing by
statute).