No, The Constitution Does Not Allow Children Born Of Non-Citizens To Become President Of The United States

Nikki Haley, the daughter of two non-citizens, is patently ineligible to serve as President or Vice President under Article II, Section 1 of the Constitution

The following analysis is a detailed response to critiques of an article I wrote earlier this month that garnered national attention, and was even Truthed by President Trump, shedding light on Nikki Haley’s ineligibility to serve as President or Vice President under the Constitution.  My article was published originally on my Substack and American Greatness, and was titled “The Constitution Absolutely Prohibits Nikki Haley From Being President Or Vice President.”

As A Threshold Matter, Nikki Haley, The Daughter Of Two Non-Citizens, Must Provide Proof That Her Parents Were Lawful Residents When She Was Born

As we head into the New Hampshire Republican primary, the presidential field has consolidated around three major candidates: Donald Trump, the frontrunner by wide margins, Nikki Haley, and Ron DeSantis.  With Vivek Ramaswamy’s distant fourth place finish in Iowa and subsequent endorsement of the 45th President, Trump’s edge in New Hampshire looks insurmountable.

Recent polling suggests that he commands an outright majority of all New Hampshire GOP voters, meaning that even if all the remaining candidates dropped out and rallied around a single challenger to Trump, their collective effort would still fail – without, perhaps, outside help from Democrats and Independents.  With recent reports that Ron DeSantis’ War Room has been dissolved, and all the staff being laid off in the aftermath of Iowa’s disaster, it seems to have proven true Nikki Haley’s post-Iowa declaration that the Republican Primary has now become “a two person race.”

That is, unless the Constitution has any say.

If the only two remaining viable candidates are, in fact, Trump and Haley, it should actually just be a one-person race.  That is because of the two, Donald Trump is the only candidate still running who qualifies as a natural-born citizen under the Constitution’s Eligibility Clause in Article II, Section 1.  Unlike Nikki Haley, President Trump’s two parents were both citizens at the time he was born on American soil, in Queens, New York, in 1946.  His father was a citizen by birthright, his mother was naturalized – and completed the naturalization process years before Trump’s birth.  Therefore, he meets the Constitutional standard for eligibility.

Nikki Haley, on the other hand, is a much different story.  Nikki Haley was born “Nimarata Randhawa” in Bamberg, South Carolina, in 1972.  But at the time of her birth, neither one of her parents were American citizens.  As recently unearthed by investigative journalist Laura Loomer, both “Haley’s parents were Indian immigrants who did not become U.S. citizens until after her birth in 1972. Her father, Ajit Randhawa, became a naturalized U.S. citizen in 1978, Haley’s office said. Her mother, Raj Randhawa, became a U.S. citizen in 2003, a year before Haley won a seat in the S.C. House.”

Loomer’s report further states her inability to confirm whether Haley’s parents actually ever went through the naturalization process to receive citizenship.  This, on its own, is quite worrying.  But even if one or both of Haley’s parents ultimately did become naturalized citizens subsequent to Haley’s birth, Haley has never demonstrated proof that her parents were lawful residents at the time she was born.

Critically, nobody seems to have answers as to whether Ajit and Raj Randhawa were lawfully permitted to reside in the United States at the time of Haley’s birth at all! Even if they were, what was the status of their lawful residence?  Were they here on student visas?  Some kind of employment visa?  Whatever might have been the 1972-equivalent of an H-1B, something else?  Nobody has answers to these critical questions.

Unless proven otherwise, one cannot be at fault for asking – based on the alarmingly scant information available on a leading presidential candidate – whether Haley’s parents were unlawfully residing as illegal aliens?  This would make Nikki Haley a so-called “anchor baby,” flouting the letter and spirit of the Constitution in the most obnoxious way possible.

The onus of proof of citizenship must be placed squarely on Haley’s campaign.  If the question ever gets litigated, any objective court should make a determination of the lawfulness of Haley’s parent’s residency status based on the laws of 1972, and not attempt to make equivocations between the generally understood meaning of citizenship some fifty years ago, and its commonly understood meaning today: one that recklessly (and suicidally) confers citizenship upon anyone who makes it to these shores, including the anchor babies of illegal aliens.

The Biden regime’s interpretation of citizenship would have been abhorrent to the framers of the Constitution, all our Founding Fathers, and nearly every generation in American history up until five minutes ago, who toiled long and hard for the privileges and immunities of citizenship.  Simply because that longstanding precedent is ignored and mocked with impunity today does not make it right, nor does it abnegate the urgency to enforce our laws.  In fact, the opposite is true: we should be enforcing our laws more vigilantly than ever, given the direness of the situation.

Article II, Section 1 Of The Constitution Requires That In Order To Meet The High Constitutional Threshold For Eligibility, The Qualifier’s Parents Must Have Both Been Citizens At The Time Of His Or Her Birth

American citizenship is a privilege, not a right.  This was so long and well understood by our Founding Fathers that it became simple common sense, not something they contemplated would ever need to be spelled out in painstaking detail.

All that said, however, the relevant question is one of Presidential Eligibility, not birthright citizenship – and that term’s constitutional relationship to “natural-born” citizenship.  In short, citizenship and the question of birthright, although an important issue on its own, especially today with our unprecedented illegal alien crisis, is an entirely separate question from Presidential Eligibility, which is the rightful domain of Article II, Section 1 of the United States Constitution, not the Fourteenth Amendment.

Section 1 of the Fourteenth Amendment states as follows: “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.”  Several points must be underscored: First, this amendment deals with the basic privileges and immunities of American citizenship – and, specifically, the citizenship status of the approximately four million slaves freed because of the Union’s victory over the Confederacy in the Civil War.  The architects of this amendment were patently not contemplating Presidential Eligibility, the domain of Article II, and, notably, the only such article in the entire Constitution where the term “natural-born citizenship” arises.

Those who otherwise like to conflate the meaning of the Fourteenth Amendment with questions of Presidential Eligibility cite the landmark Supreme Court decision, United States v. Wong Kim Ark (1898).  There, the Supreme Court decided that the child of two lawfully residing Chinese immigrants should be conferred all the privileges and immunities of citizenship on the basis of birthright.

Importantly, the defendant of that case was not a leading presidential candidate seeking the highest office of the land, but a mere day laborer seeking re-entry into the United States after being denied under the Chinese Exclusion Act following a trip abroad.  After a comprehensive scrutiny of the facts and history, the Court, rightly or wrongly, determined that Wong Kim Ark should be conferred with the privileges and immunities of citizenship because, critically, Wong Kim Ark’s parents were lawful residents.

To support this theory, the Court referenced Yick Wo v. Hopkins, a case from 1886 which determined that lawfully residing Chinese persons, despite “remaining subjects of the emperor of China,” could receive the protection of American laws – a fundamental distinction, by the way, from the full privileges and immunities of citizenship – so long as those persons “are permitted by the United States to reside here” – in other words, legal residents.

By analogy, the Court found that Wong Kim Ark, born of lawfully residing parents, could thus be conferred with the basic privileges and immunities of citizenship.  The holding of Wong Kim Ark is significant, for our purposes, on multiple counts: one, implicit in its reasoning, though not explicit, is the grafting of the phrase “natural-born citizen” upon the Fourteenth Amendment.

While it may be true that the Fourteenth Amendment vaguely outlined the contours of this phrase, nowhere is it stated explicitly, for one; and to the extent those contours are vaguely outlined, nowhere does that one-to-one imputation necessarily establish that the same qualifications for citizenship, as a consequence of Wong Kim Ark, would be exhaustive of the requirements stated in the Presidential Eligibility clause.

The persons contemplated by the Fourteenth Amendment were so obviously former slaves, the person contemplated by Wong Kim Ark was a Chinese day laborer. Critically, in neither instance was the President of the United States a party to the case, or the fundamentally distinct issue of Presidential Eligibility implicated at all, let alone of front and center concern.

For that all-critical question, we look elsewhere.  In the 1874 decision, Minor v. Happersett, clarity on the determination of Presidential Eligibility, and what the phrase natural-born citizenship means as applied to that issue, is underlined.

There, a unanimous Supreme Court stated: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.

These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”

So, the Court held that “doubts” existed as to the citizenship status of children born to non-citizen parents, doubts that lingered, and were not dispelled, contrary to popular belief, in Wong Kim Ark.  The Happersett decision also followed the passage of the Fourteenth Amendment by eight years, so the idea – as some modern scholars who contest my analysis claim – that the Amendment somehow put a rest to the ambiguity of the meaning of natural-born citizenship, no less as that question applies to Presidential Eligibility, is false.

If anything, these two decisions only reinforce the view that the question of natural-born citizenship on its merits remains undecided, and second, the issue of Presidential Eligibility, as an entirely separate Constitutional consideration, derives its principal meaning from sources other than the Fourteenth Amendment.

The distinction between the favored construction of the Fourteenth Amendment by the legal establishment that finds in it grounds for natural-born citizenship, despite, critically, the Amendment’s notable omission of that phrase, and the entirely separate issue of Presidential Eligibility, is one noted by many well-reputed legal scholars, both past and present.

For instance, Michael D. Ramsey, who is a Law Professor at the University of San Diego and former law clerk for the late Justice Antonin Scalia, wrote in a University of Pennsylvania Law Review article published in 2017 that “…as to persons born in the United States, the Fourteenth Amendment appears categorically to declare them citizens at birth.

The question, germane only to the [Presidential] Eligibility Clause, is whether persons in these categories are “natural born” citizens (as opposed to citizens by positive law), and the strong implication of a reading based on [Emmerich de] Vattel is that they are not.”  [Emphasis mine.]

“Vattel” here refers to Emmerich de Vattel, who wrote a leading treatise on international law and citizenship, The Law of Nations (1758), widely known and read by our Founding Fathers at the time the Constitution was adopted some thirty years later.  Vattel’s profoundly influential masterwork included the language “natural-born citizenship,” which is how the Founding Fathers learned of the famous phrase that ultimately made its way into their handiwork.  Because our Constitution does not define the phrase, resort must be made to Vattel’s own work, which is very clear about its meaning: “…natural-born citizens, are those born in the country, of parents who are citizens.”

This phrase is supported by legislation passed in the years shortly after the Constitution was adopted.  Notably, the Naturalization Act of 1790, passed by the First Congress, uses the term “natural-born citizens” in the same exact way it was used by Vattel: “…the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”  Hence, the 1790 Naturalization Act, passed just three years after the Constitution was enacted, lends strong support that the Framers of the Constitution understood “natural-born citizenship” to mean exactly as Vattel had conceived: namely, only to be granted to persons born of American citizen parents.

Why Wong Kim Ark Does Not Apply To Questions Of Presidential Eligibility

Those who insist that Nikki Haley is eligible to become President of the United States must overcome at least two serious hurdles.  First, the threshold issue: they must prove that – within the letter and spirit of Wong Kim Arkthat both of Haley’s parents were lawful residents at the time of her birth on U.S. soil in 1972.  To date, she has not even met that most essential of benchmarks, which is absolutely intolerable for someone who believes herself entitled to not only the privileges and immunities of citizenship, under the Fourteenth Amendment, but moreover, the entirely separate question of Presidential Eligibility under Article II, Section 1 of the Constitution.

Before proceeding to the second issue, a few side issues should be discussed.  One, even if it were true that Haley met the threshold test for Wong Kim Ark by proving, beyond a shadow of a doubt, that both her parents were lawful residents (something, again, that Haley has still not even demonstrated) in the United States at the time of her birth, there remain several corollaries that must be addressed.  The first, the text of the Fourteenth Amendment reads, in relevant part, that: “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…”

The key phrase, “subject to the jurisdiction thereof” is important because implicit in that phrase is the understanding that the United States has complete and exclusive jurisdiction over the party.  This goes to fundamental questions of social contract theory: the Declaration of Independence spells out that rights are secured by Governments, instituted among Men, which derive “their just powers from the consent of the governed.”

Here, Jefferson was borrowing a phrase from Locke, based on the idea that government by consent requires that the citizenry willingly opt-in to the social contract in order to have their rights, in turn, be given protection.  For the purposes of citizenship, a person born to non-citizen parents who critically owe allegiances to a foreign government cannot enjoy the full privileges and immunities of citizenship without going through a process of naturalization first.

Thus, under the Fourteenth Amendment, it is doubtful whether an individual, even one born on U.S. soil to non-citizen parents qualifies as a natural-born citizen, let alone a “natural-born citizen” as that term applies to questions of Presidential Eligibility under Article II.  To the extent that Wong Kim Ark muddies the waters on these foundational questions of citizenship, it is incumbent upon courts to swiftly intervene to resolve them.

Regardless, the idea that Nikki Haley automatically qualifies as a natural-born citizen, let alone is eligible to run for President under the Fourteenth Amendment – to the extent that Presidential Eligibility and the original and true understanding of “natural-born citizens” have anything to do with the Fourteenth Amendment at all – is far from determinative.

Which brings me to the second, even more difficult hurdle for Nikki Haley: establishing that her citizenship status – whether the child of lawfully residing immigrant non-citizens, or possibly illegally residing non-citizens – falls under the gambit of Article II, Section 1’s original meaning of the phrase “natural-born Citizen.”  As previously discussed, based on Vattel’s own words and subsequently corroborated via the 1790 Naturalization Act, the universally understood meaning of the phrase “natural-born citizen” at the time the Constitution was promulgated meant “born … of parents who are citizens.”

The holding of Wong Kim Ark, to the extent that it is even valid law (and several leading constitutional theorists would beg to differ), only tenuously implicates questions of natural-born citizenship.  Even when it does, those questions emphatically have nothing to do with Article II, Section 1, the only clause in the entire Constitution that explicitly spells out the requirements of Presidential Eligibility.  In Wong Kim Ark, the Court only mentions the Presidential Eligibility clause once: merely to assert that “[t]he constitution nowhere defines the meaning of these words… [meaning, natural-born citizens].”

Interestingly, in that same paragraph, the High Court explains that the phrase “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.”  After this reference, nowhere else does the majority in Wong Kim Ark make reference to the Presidential Eligibility clause.  It simply drops the issue outright, hoping, perhaps, that readers would carelessly and blithely just assume that the Fourteenth Amendment and citizenship by birthright relates to Presidential Eligibility under Article II, Section 1.

That said, however, if one resorts to using the Court’s own recommended tools for construction – “the common law” and “principles and history of which were familiarly known to the framers of the constitution” – and if the Court had applied those tools with reference to Article II, one would be forced to reach the conclusion that citizenship by birthright did not automatically make a person a natural-born citizen and thus eligible under Article II, Section 1, by itself.  In fact, quite the contrary – which, again, is supported by Vattel and the 1790 Naturalization Act.

It is perhaps because of this irrefutable conclusion that the majority in Wong Kim Ark decided to drop the issue without further comment.  The dissenting opinion of the case, however, which was written by John Marshall Harlan, famously and nobly the sole dissenter in the case Plessy v. Ferguson, that perpetuated the insidious legal doctrine of “separate but equal,” noticed, and eviscerated, the majority’s faulty reasoning. Much as in Plessy, a decision that remained law for over a half century until being overturned by Brown v. Board of Education (1954), Harlan once again was ahead of the curve, and had the moral and constitutional upper-hand, with history on his side, on the question of Presidential Eligibility.

Harlan tackled the question of Presidential Eligibility boldly and head-on, writing: “…I submit that it is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”

Thus, Harlan stated plainly the issue that the majority hedged: Presidential Eligibility, which requires that a candidate be a natural-born citizen, emphatically does not encompass individuals born on American soil to non-citizen parents, at least based on the original understanding of the phrase.

Anyone who deviates from that standard risks engaging in “living constitutionalism,” the liberal theory of construction that words do not have objective meanings, but always change with the times.  The late Justice Scalia would denounce this folly every chance he got, frequently proclaiming that the Constitution is decidedly not a “living document,” but rather, “dead, dead, dead.”

The majority in Wong Kim Ark, much like Nikki Haley herself, and those who are adamant she meets the constitutional qualifications for eligibility, are engaging in odious “living constitutionalism” on the question of “natural-born” citizenship by “updating” the phrase’s original meaning to the standards of modern times.

At least on this question, both Wong Kim Ark and Nikki Haley are wrong – and this is a critical issue that requires the courts to intervene and resolve at once.  Nikki Haley, a self-identified conservative, would have Scalia rolling over in his grave.

Regardless of where one ultimately stands on the question of Presidential Eligibility, the urgency for judicial intervention should be obvious to all.  Natural born citizenship, as a qualification of Presidential Eligibility under Article II, Section 1, comported, in its original meaning, with the venerable legal concept known as jus sanguinis, or right by descent, in contradistinction with jus soli, or right by soil.

And on its face, that makes perfect sense for arriving at the current interpretation of Article II, Section 1.  It is intuitive how an American born overseas to two citizen parents, whether on military assignment or simply on vacation, should not be disqualified for serving as President simply because such a person was not born on U.S. soil.  This is why the Founders, and common sense, favored jus sanguinis for natural-born citizenship as a requirement of Presidential Eligibility.

Things get much murkier, however, when contemplating a child born on U.S. soil to two non-citizen parents, illustrative of the principle of jus soli, such as an anchor baby born in Texas to parents who illegally crossed the southern border and were vicious drug traffickers operating a dangerous cartel.  Based on current U.S. law, for purposes of Presidential Eligibility, the former scenario introduces more legal complications than the latter, which is absolutely insane.  Common sense would dictate that the child produced in the former scenario should not be disbarred from the Presidency, whereas in the latter case the child should.

Especially today, where our borders are not even enforced, and dangerous drug cartels enter our country with impunity, poisoning the blood of our people in turn – and leading to hundreds of thousands of avoidable, Fentanyl-related deaths by the year – more urgent than ever is the absolute need to keep invaders out of the country, and certainly out of the highest elected office of the land.

Nikki Haley’s view of Presidential Eligibility would allow dangerous criminals to become President of the United States, by simple matter of birthright: not only does that run afoul of the letter, spirit, and original meaning of natural-born citizenship under Article II, Section 1, but even the precedent of Wong Kim Ark, which conferred the basic privileges and immunities of citizenship only upon children born of lawful residents.

Thus, no matter how one squares it, it is undisputable that, based on the original meaning of the term natural-born citizen, Nikki Haley, the daughter of two non-citizens, would not qualify for the presidency.

How To Solve The Problem

What should be done?

For starters, Nikki Haley should offer proof beyond a reasonable doubt that her parents, Ajit Randhawa and Raj Randhawa, were lawful residents at the time of her birth in 1972.  Part of this documentation showing proof of lawful residence should include Haley’s birth certificate, so we can confirm she was born on U.S. soil.  Americans are also entitled to a comprehensive summary of the permanent residence status of Nikki Haley’s parents, and a legal explanation of how that permanent residence status was 1) lawful, based on the laws governing alienage in 1972; and 2) comported with the letter and spirit of Wong Kim Ark’s holding, which only ruled on the bare minimum privileges and immunities of citizenship (and, critically, remained deafeningly silent on Presidential Eligibility-related issues), upon an individual who demonstrated proof positive that both his parents were lawful residents at the time he was born.

Finally, Haley should provide detailed documentation, if such proof exists, of her parents’ naturalization proceeding: what years did they become naturalized, who oversaw the process, under what conditions were they found to have qualified for citizenship?  If possible, the qualifications of the presiding official or agency that oversaw the process of naturalization should likewise be disclosed.

The fact that Haley’s campaign would not be transparent with this documentation on so fundamental an issue in the first place should outrage all Americans who still believe in the rule of law and upholding the Constitution’s original meaning.

Second, President Trump’s legal team – or, ideally, the Republican National Committee – should file a lawsuit to automatically challenge Nikki Haley’s eligibility for President.  It is clear, based on the original understanding of natural-born citizenship, that Haley is ineligible to serve as President – as well as Vice President, under the Twelfth Amendment.  Wong Kim Ark results in more questions than answers, particularly on the fundamental issue of Presidential Eligibility.

The longstanding assumption that the Fourteenth Amendment implicates natural-born citizenship is errant on its face.  To go one step further and then apply that faulty reasoning to Article II, Section 1 by claiming that citizenship by birthright was the intent of that Article’s framers makes a mockery of the historical record and should not be tolerated under any circumstances whatsoever.

Given that America is now facing an immigration catastrophe without precedent, the urgency to decide on these all-important constitutional issues is perhaps greater than at any point in our history.  The question of Presidential Eligibility goes to core issues about American identity, natural right, and social contract theory.  It is incumbent that the Supreme Court intervenes to resolve these issues at once.

Every American who still believes that we are “a government of laws, not of men,” as John Adams famously opined, should welcome a challenge to Nikki Haley’s eligibility – for it would demonstrate that no elected official, no matter how powerful, is above the law.  The Presidency demands, as our Founding Fathers envisioned – and wrote into their constitutional tapestry – a much, much higher standard for its occupant than the mere privileges and immunities of basic citizenship.

We would dishonor ourselves and our forefathers and render a grave disservice to all they sacrificed for and bequeathed upon us, if we reduced their lofty standards of citizenship because we find ourselves inadequate to meet the demands of self-government, the only known formula across every age for the preservation of liberty and the avoidance of tyranny.

Paul Ingrassia is a Constitutional Scholar; a two-time Claremont Fellow, and is on the Board of Advisors of the New York Young Republican Club and the Italian American Civil Rights League. He writes a widely read Substack that is regularly re-truthed by President Trump. Follow him on X @PaulIngrassiaSubstackTruth SocialInstagram, and Rumble.

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