Jim Henderson (Just Sayin) sends these questions on the presidential eligibility clause:
If Senator Cruz’s eligibility depends upon his attaining “natural born citizen” status as the result of a grant of that status by Congress, what provision of the Constitution empowers Congress to do so?
I realize the obvious answer should be the Naturalization Clause. The recent discussions [by Neal Katyal and Paul Clement] offer that the English parliamentary expansions of “natural born subject” status lend credence to a view that the Framers intended to afford to Congress, within the power to provide a uniform rule of naturalization, the power to declare persons not “natural born” by circumstance and common law, to be “natural born” by statutory status. This argument has an appeal, but as I contemplated the possibility that the Constitution extended such a power to Congress, additional questions arose. One I will refer to as the Presidentinator Question. The other is the more common limited powers question.
As to the limited powers question, we know, and should agree, that the general government set up under the Constitution is one of limited, donated, express powers. So given the more common and general understanding of “naturalization,” why isn’t the correct construction the obvious one? By obvious, I do mean the one limited to the power to make citizens of aliens.
As to the Presidentinator Question, what principle that can be justified in the law, in the history of the law, that would confer a power on Congress to create statutory “natural born citizen” status for certain categories of individuals, sufficient to meet the Qualifications Clause requirements of Article II, but that would not also empower Congress to pass this amendment to the Naturalization Act:
”Any naturalized citizen of the United States, having been elected to serve as the Governor of one of the States, shall have the status of, and in all respects be considered, a ‘Natural Born Citizen.’”
(Note: here is his initial post on the Cruz question, and a followup here).
On the first point, Parliament's power to convey "natural born" status on those who were not natural born subjects under the common law was understood as part of its naturalization power. The acts that conveyed that status were called acts to "naturalize" certain persons or groups of persons. As a result, the founding generation in America likely understood the power to make a "Rule of Naturalization" as including the power to declare by statute who might be a citizen (naturalized) by birth. And, as confirmation, the 1790 Act that made such a declaration was called a "Naturalization" act.
The second question is a whole lot harder. I suppose one could say that Congress does have this power (that is, to declare someone with no connections to the United States at birth to be, retroactively, a natural born citizen). But that would be highly problematic in terms of how we understand the purposes of the presidential eligibility clause. If the purpose of the clause was to prevent European noblemen (including, perhaps, specific European noblemen) from scheming to become President, that purpose would not be served if Congress could declare them natural born citizens retroactively. They would just need to scheme to obtain the requisite declaration from Congress. So I accept the premise of the question, which is that the clause should not be read to give Congress such a power.
One possibility is to say that the power to declare natural birth cannot be exercised retroactively. Unfortunately, there is no historical basis for that proposition. The English statutes declaring natural-born status for persons born abroad were frequently retroactive (e.g., 4 Geo. II, ch. 21 (1731)). That is, they said that persons born in specified circumstances were declared to be natural born subjects, whether already born or born in the future. (The statute of 4 Geo. II, ch. 21 conveyed natural-born status on persons "born ... or which shall hereafter be born" abroad to an English father). And some of the statutes conferred natural born status on specific living people. Since the whole basis for Congress' power to declare natural birth stems from Parliament's power to declare natural birth, I see no way to say Congress' power can't be retroactive when Parliament's power obviously was.
My answer instead is this: Congress is limited to recognizing natural-born status for people with some connection to the United States at birth. That limit is established by Parliament's practice, which was only to convey natural born status upon persons born abroad whose parents (or at least one of them) were English subjects. Parliament never passed a naturalization statute anything like the one posed in the hypothetical above (with one exception).
The exception is significant and confirms the general practice. In the 1708 naturalization statute (7 Anne, ch. 5 ), Parliament gave natural born status to all European protestants who would move to England and take allegiance to the English monarch. But this grant was repealed three years later because of “divers Mischiefs and Inconveniences,” see 10 Anne ch. 9 (1711), and was not repeated. I think it plausible to conclude that the 1708 Act was regarded as in excess of Parliament's proper naturalization power, and that the general view saw Parliament's (and thus Congress') power to declare natural birth as limited to persons with connections through their parents at birth.
So my answer to the second question is that the hypothetical statute is unconstitutional because it conveys natural born status on someone who had no connection to the United States at birth -- a power not generally exercised by Parliament and thus not included in Congress' naturalization power.