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Schwarzenegger May Pump Life Into 'Non-Native' Amendment

December 13, 2003|Richard Simon | Times Staff Writer

WASHINGTON — For those pushing a constitutional amendment to allow foreign-born citizens such as California Gov. Arnold Schwarzenegger to run for president, consider how long it took to pass the last constitutional amendment: 203 years.

The campaign that led to the 1992 final approval of the 27th Amendment, which bars Congress from voting itself an instant pay raise, was launched by James Madison.

But supporters of removing the constitutional bar to presidential candidates who are not "native born" believe the proposed amendment, which has languished in Congress for three years, may gain momentum because of the election of the Austrian-born Schwarzenegger.

Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) has proposed an amendment to allow foreign-born Americans to run for president after 20 years as U.S. citizens. Another amendment with a 35-year requirement has been introduced in the House by a bipartisan group of lawmakers, including Rep. Darrell E. Issa (R-Vista), who helped bankroll the successful recall of California Gov. Gray Davis, paving the way for Schwarzenegger's election.

Issa said he was not backing the amendment, which was proposed before Schwarzenegger's election, to promote the governor for president. But he said that Schwarzenegger was a "good poster child" for amending the Constitution. California would not have been well served, he said, if its constitution had barred foreign-born governors.

Issa acknowledged that the amendment to allow foreign-born presidents was a long shot. Constitutional amendments must be approved by a two-thirds vote of both chambers of Congress and ratified by three-fourths of the state legislatures.

"Amending the Constitution is always an uphill fight, as it should be," said Stephen A. Saltzburg, a George Washington University law professor.

For 200 years, Saltzburg said, the restriction against foreign-born presidents has drawn little criticism, and the burden is on the amendment's proponents to show it would benefit the nation.

"That burden may be difficult to bear," he said, "because most people do no lightly reject the status quo when it comes to the Constitution.''

Dozens of proposed constitutional amendments have been considered, but not quite made the grade, in recent years. They include amendments to require a balanced budget, ban flag burning, impose term limits on members of Congress, repeal the two-term limit for presidents and abolish the federal income tax. Both the Senate and the House approved a balanced-budget amendment, although the Senate voted in 1982 and the House, not until 1995.

"The odds are always against any proposal to amend the Constitution," said USC law professor Erwin Chemerinsky. As for allowing foreign-born citizens to run for president, Chemerinsky said, he did not sense the kind of public concern over a serious problem or need that successful efforts to amend the Constitution require.

Still, the idea could gain momentum because of efforts by both parties to appeal to the growing ranks of foreign-born voters. The number of naturalized citizens has grown from 6.5 million in 1990 to 11.3 million in 2002, according to the nonpartisan Urban Institute.

The proposal also has gained the support of Democrats because of Canadian-born Michigan Gov. Jennifer Granholm, a rising Democratic Party star.

John Yoo, a visiting professor at the University of Chicago Law School, said he believed the proposed amendment stood a "strong chance." Making naturalized citizens eligible to become president would fall "within the tradition of amending the Constitution to expand democracy, whether it be expanding the franchise or making elected representatives more directly elected," he said.

Yoo said that although he thought the chances of Schwarzenegger's becoming president were remote, his election as governor pointed up "the absurdity of keeping naturalized citizens ineligible for the presidency, when they can hold other positions of great importance in our society."

Not all amendments have taken decades to approve. The 26th Amendment, which gave 18-year-olds the right to vote, cleared Congress and the states in just a year.

Rep. John Conyers Jr. of Michigan, the top Democrat on the House Judiciary Committee and a sponsor of the amendment to allow foreign-born citizens to run for president, said the limitation "contradicts the principles for which this country stands." In introducing the proposed amendment, he said, "every citizen of the United States should be entitled to dream of becoming president."

Historians trace the requirement that the president be native born to fears of foreign influence in the new country. Reports circulated that a European monarch might be imported to rule the United States.

Hatch, who has called his proposal the "equal opportunity to govern" amendment, said the limitation was "decidedly un-American" and did not apply to any other federal office, including Congress, the Supreme Court and the Cabinet.

But many members of Congress -- Democrats and Republicans alike -- do not see the issue as important enough to make it a high priority. Rep. Thomas G. Tancredo (R-Colo.) called it "a solution in search of a problem."

And some members of Congress are downright hostile to the idea.

During a 2000 hearing, Rep. Spencer Bachus (R-Ala.) said: "While it may be possible for some naturalized citizen to be totally fair when dealing with his home country, I am not sure he could ever escape at least the questions of the American people and their suspicions on whether or not he was being fair."

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