If Supreme Court Justices are allowed to be foreign born, why not the president?

This year, the American people get the privilege of participating in the quest for two leaders in two branches of government. On one side, there is the presidential election for our commander and chief. On the other, is the search for a member of the highest judicial court in the nation.

What both searches reveal is that America has denied the position of President to foreign-born citizens, but has allowed foreign-born citizens to hold the position of Supreme Court Justice.

Unlike the position of President and Vice-President, the U.S. Constitution does not specify that a Supreme Court Justice must be born in the United States. In fact, according to the Supreme Court website, there have been six Justices born outside the United States, including the notorious Justice Felix Frankfurter. Moreover, it does not look like failure to be born in the U.S. poses any problem for Justice hopefuls this year.

There were three potential candidates for the Supreme Court vacancy including foreign-born citizens. Mariano-Florentino Cuéllar was born in Mexico and grew up in Texas and California. Jacqueline Nguyen was born in Vietnam. She and her family fled to the U.S. when she was 10 where they lived at a refugee camp in California before settling in Los Angeles. Lastly, Sri Srinivasan was born in India and grew up in Kansas.

Now I want to make a disclaimer. When I refer to foreign-born citizens, I mean a naturalized citizen. There is a distinction between a “naturalized citizen” and a “natural born citizen.” A natural born citizen is either born in the United States or born abroad, but to at least one United States citizen parent. A naturalized citizen is one is made a citizen through the operation of some law. All the Justices and the potential candidates above are naturalized citizens, not natural born citizens.

So why has America allowed foreign-born nationals (naturalized citizens) to hold a position of Supreme Court Justice and not the seat of President?

The shallow answer is that the role of the President is more important than the role of a Justice. However, there is room to argue that Justices hold significantly more power than the President does. Justices are appointed for life terms, while the President is limited to eight years in office (two terms of four years each). Thus, Justices have the ability to influence the American legal scene for a far longer period than a President ever could.

While the Justices no doubt have to navigate the waters of American politics, no one could argue that it is as treacherous as the waters the President must cross. The Obama administration has been a colossal example of how government can make a leader ineffective in his position. In the end, Justice Kennedy may have gotten his way in the last eight years more than President Obama ever did.

So the question is why shouldn’t a naturalized citizen be eligible to hold the seat of President of the United States?

A foreign-born President has many advantages. It adheres more closely to the American value of being a nation of immigrants. It brings additional perspectives and principles to the role. Moreover, from an international affairs standpoint, it brings a source of legitimacy if our President is a leader that foreign nations can relate to.

This country should consider allowing foreign-born American citizens the opportunity to become President (this would require an amendment to the Constitution). At the moment, a large portion of the American population, who are as equally capable and patriotic as any “natural born citizen,” are unable to hold the position simply because they had no choosing to who and of where they were born.

Besides, how great would it be to repay our loans to China with the silhouette of Arnold flexing on all our dollar bills?

Foreign-born Justices


  1. Just to play devil’s advocate (my mother was a naturalized citizen, as are many other family members; I have no anti-immigrant issues): the President is the commander in chief of our military. That may have been the concern of the Founders. Also, it wasn’t until Marbury v. Madison that the full scope of the powers of the Supreme Court really became clear.

    I tend to think your analysis of what “natural born citizen” (in the context of eligibility for the Presidency) means is correct, but it actually has never been ruled on by the Supreme Court. I’ve read arguments for the proposition that it means “born within the U.S. or its territories” that aren’t irrational, though. Someday they will have to weigh in on it.

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