Is John McCain screwed?

Maybe. And it has nothing to do with Vicki Iseman:

Bottom line: Either McCain used the promise of public campaign funds as collateral for his loan, in which case he’s locked himself into the public campaign finance system (and its strict spending limits) and is massively screwed until September. Or he didn’t use potential public funds as collateral, which means he didn’t have anything to offer as collateral, which means he received an improper loan. Neither one of those scenarios is very good for the Straight Talk Express.

Interesting. Verrrry interesting.

P.S. Then, unrelatedly, there’s the fact that he was born in Panama. Obviously that one shouldn’t matter, but it’s an interesting ConLaw debate, if nothing else.

(Personally, I continue to maintain that the constitutional requirement should be changed to say that you have to have been a citizen — whether natural-born or otherwise — for 35 years. Thus the citizenship requirement would essentially replace the age requirement, and we’d prevent the obvious absurdity of someone who moved here when they were a toddler, like Jennifer Granholm, being ineligible because they’re considered some sort of dangerous foreigner.)

16 Responses to “Is John McCain screwed?”

  1. Mad Max, Esquire says:

    There is plenty for McCain to be screwed over…primarily the fact the base of his own party doesn’t like or trust him. This bank loan/public financing thing ain’t it.

  2. JO says:

    Do U.S. military bases have the same “domestic soil” protection such as Embassies?

    I’m thinking if he was born in say Panama City vs the military base, that could present a different argument.

  3. Anonymous Hoosier says:

    The analysis in that post is flawed — essentially, it says: McCain had two assets – his fundraising lists and the public funds. He must have used the public funds because the fundraising lists were worthless. The post’s reasoning for why the lists were worthless is that if they weren’t, he wouldn’t have needed money.

    Of course, anyone familiar with the concept of liquidity should recognize the error in that reasoning. One of the basic ways in which a collateralized loan is useful is that it lets you take assets that can’t immediately be turned into cash and draw value from them. A particularly ugly example is the entire industry that has arisen around loans collateralized by people’s disability payments — credit institutions will advance you thousands of dollars in exchange for payments that will only provide you $100/month, but will last the rest of your life.

    In the case of McCain’s fundraising lists, they did turn out to be valuable — but even had he failed to resurrect his campaign, they would undoubtedly have had significant value to the eventual Republican nominee, given that McCain had many supporters from outside the ordinary Republican fundraising base. Heck, had McCain failed in his comeback, those lists probably would have had a lot of value to *Senator Obama.*

  4. Anonymous Hoosier says:

    If the constitutional power to administer territories other than states did not exist, I think the question of McCain’s birthplace might be an interesting question. But the combination of two parents and the fact he was born in the Canal Zone (which but for Jimmy Carter’s foolishness would *still* be U.S. territory) makes it a slam dunk.

    The Obama-NAFTA story is much more interesting, in my view.

  5. MikeW says:

    How come the NY Times doesn’t write a story on Barack Obama’s eligibility? Barack is not completely native born but somehow the NY Times manufactures a story about McCain? There is more doubt about Obama’s eligibility than McCain’s.

  6. Brendan Loy says:

    Barack is not completely native born … There is more doubt about Obama’s eligibility than McCain’s.

    Huh?? Obama was born in Hawaii in 1961. Hawaii became a state in 1959. How on earth is he “not completely native born”? And how is there “more doubt” about him than McCain, who was born in Panama? That makes no sense, unless I’m either missing some crucial fact (if so, please, do tell) or you’re suggesting that the birthplaces/ancestries of one’s parents have some role in determining whether someone is “completely native born.”

  7. Brendan Loy says:

    In any event, this is a legitimate question, and the NY Times is hardly “manufacturing” anything. Nor does the article’s tone actually imply that McCain is ineligible; on the contrary, it seems to go to great pains to paint this more as an intriguing Constitutional Law question than a serious roadblock to McCain’s eligibility.

    Look, not everything in the NY Times is a hit job. But I guess now they’ll be criticized anytime they say anything other than that john McCain is God’s gift to humanity. It’s patently ridiculous, though, to pretend like the Times should somehow have just ignored this entirely. It’s a legit topic, and they handled it in a perfectly reasonable way.

  8. irishlaw06 says:

    The citizenship question actually isn’t that interesting. Under the Immigration and Nationality Act, he acquired citizenship immediately at birth (meaning he was born as an American citizen) as a result of being born to two American citizens, even if it’s not clear what the status of the Panama Canal Zone was at the time. I have a good friend who was born in the Panama Canal Zone about thirty years ago and he has a Panamanian birth certificate as well as a statement declaring that is an American citizen and has been from birth, the latter of which his parents had to apply for using an N-400 application for naturalization. Things would be far more interesting if one of his parents wasn’t a U.S. citizen when he was born or if he was born out of wedlock. There are dozens of pages of charts that govern that scenario.

    I think the “plain text” interpretation of Article II is that to be President, you must have been an American citizen at birth, as opposed to an American citizen who gained citizenship by applying for naturalization. This would mean that a person who derived citizenship (i.e., McCain’s parents were not citizens when he was born, but one or both naturalized before his eighteenth birthday, making him a citizen automatically upon their naturalization) probably would not be considered a “natural-born American” under Article II.

  9. irishlaw06 says:

    And no — military bases, unlike embassies, and not “U.S. soil.”

  10. dcl says:

    Brendan, if the rule was good enough to keep Hamilton out, it’s good enough for everyone else. Thus if the Constitution is so amended, I’m writing in Alexander Hamilton the presidential election following the change.

  11. Brendan Loy says:

    Look, I’m not saying you’re wrong, irishlaw06, indeed I’m sure that’s how SCOTUS would probably rule if this came to their desk, but…

    Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.

    Almost since those words were written in 1787 with scant explanation, their precise meaning has been the stuff of confusion, law school review articles, whisper campaigns and civics class debates over whether only those delivered on American soil can be truly natural born. To date, no American to take the presidential oath has had an official birthplace outside the 50 states.

    “There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”

    Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court.

    The conflict that could conceivably ensnare Mr. McCain goes…to the interpretation of “natural born” when weighed against intent and decades of immigration law. …

    Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase. …

    In a paper written 20 years ago for the Yale Law Journal on the natural-born enigma, Jill Pryor, now a lawyer in Atlanta, said that any legal challenge to a presidential candidate born outside national boundaries would be “unpredictable and unsatisfactory.”

    “If I were on the Supreme Court, I would decide for John McCain,” Ms. Pryor said in a recent interview. “But it is certainly not a frivolous issue.”

    Again, I’m not saying you’re wrong… and I would be personally outraged if this actually blocked McCain from becoming president (particularly if the decision were to be rendered after the voters have spoken)… I’m just not sure we should dismiss something as an uninteresting non-issue when multiple experts who’ve studied it closely have concluded it’s an unresolved question, a nonfrivolous issue, and “not a slam-dunk situation.”

  12. Brendan Loy says:

    dcl, the only problem with that plan is that Alexander Hamilton was eligible to be president.

  13. dcl says:

    Hmm, Brendan, the linked article fails to prove that Hamilton was a citizen of New York state. Recall, the boy was a bastard from the indies, so at that time, there are several reasons he might not have been considered a citizen.

  14. ndlaw06 says:

    I should have been more clear — the question of whether McCain was a citizen at birth isn’t all that interesting (which is why I specified that the citizenship issue isn’t all that interesting). The definition of “native-born citizen” as it is used in the Constitution certainly isn’t settled, at least not in any definitive way. But I don’t think there’s any real question as to whether McCain was born a citizen.