Legal to become president if U.S. adds new state/territories?

Question

If the U.S. adds a new territory, are the people currently living there able to become president? Or does the territory have to become a state in order for the people to be eligible to become president?

Answer 1

If the U.S. adds a new territory, are the people currently living there able to become president?

No.

Or does the territory have to become a state in order for the people to be eligible to become president?

Not necessarily.

What does "natural-born citizen" mean?

The meaning of the natural born citizen clause of the constitution is unclear in many respects, but virtually all scholars agree that a person who was a US citizen at birth, and who has remained a US citizen until present, is a natural-born citizen.

There is a small minority of scholars who insist that a US citizen at birth is only a natural-born citizen if they were born in the US (for example, Ted Cruz would not be considered a natural-born citizen). There is an even smaller minority who insist that a person must have at least one US citizen parent in order to be a natural-born citizen.

But for all practical purposes, these minority viewpoints are irrelevant. The only thing that matters is whether someone was a US citizen when they were born.

Citizenship of people living in US territories

When a US territory is created, the people living there don't automatically become US citizens, and if Congress eventually gives them US citizenship, the canon of presumption against retroactivity applies: a statute should not be read to be retroactive unless there is evidence that it was intended to apply retroactively. That means the people who get US citizenship under the statute don't become natural-born citizens; they're considered to have been automatically naturalized when the statute went into effect. But if there's a statute saying that people born in the territory are US citizens at birth, then people born in the territory after the effective date of that statute are natural-born citizens, since they are citizens at birth.

I will use Hawaii as an example. Hawaii became a territory in 1898. Citizenship was granted in 1900. Statehood was not granted until 1959.

8 USC §1405 governs the citizenship of people born in Hawaii:

A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900.

So, Hawaiians didn't become US citizens when Hawaii was annexed. They were granted US citizenship 2 years later. A person born in Hawaii on or after April 30, 1900 is a natural born citizen. Applying the presumption against retroactivity, we see that a person who was born in Hawaii between August 12, 1898 and April 29, 1900, or who was a citizen of independent Hawaii when it was annexed by the United States, was not a natural born citizen and could not have become President.

In addition to the presumption against retroactivity, there is also another canon of construction that applies here: Congress could have used the "is a citizen of the United States at birth" language for the other two categories of Hawaiians too, but chose to omit it. Presumably, Congress acted purposefully in doing so, with the intent of granting citizenship at birth to only one of the three categories. (I can't remember whether this canon has a name.)

Can Congress grant natural-born citizen status retroactively?

If the US were to acquire a new territory and saw fit to bestow citizenship retroactively to birth on some natives of that territory, would those people be eligible for the presidency? No one knows the answer to that question.

As an example of when Congress has granted citizenship retroactively, the Immigration and Nationality Technical Corrections Act of 1994 created 8 USC §1401(h), which granted citizenship retroactively to birth to individuals who had been born outside the US to a US citizen mother and alien father prior to May 24, 1934. This act was necessary because, prior to that date, only US citizen fathers could transmit citizenship, not US citizen mothers.

A person granted citizenship under this statute would be over the age of 89 now, so we're unlikely to see one run for president. It's an open question whether someone who obtained US citizenship through this statute would be considered eligible for the presidency. One could argue that "natural-born citizen" implies a person who actually was a citizen when they were born and that retroactive grants of citizenship are a mere legal fiction that cannot override the meaning of the constitution.

Answer 2

This issue has never been addressed, even in dicta, by any court case of which I am aware, and I've read many of the relevant case laws in articles about this issue.

The language of the constitution is unclear on this point and its meaning in general is subject to a lot of debate by academics.

There are legitimate reasons for both interpretations.

Some of the analysis applying to foreign born children U.S. citizens (who are "natural born citizens), arguably points to a theory of the requirement that would hurt residents of the newly acquired territory because that case law looks to the status of the person on the day that they were born.

The original constitution overcame the issue for the new colonies by grandfathering in people who were in the colonies at the time that they became independent. This could be taken either as an implied precedent for newly acquired territory, or as a precedent for the fact that an exception for newly acquired territory requires express constitutional language, depending upon your approach to interpreting the text.

Answer 3

tl;dr

It can be complicated, and it usually comes down to the language Congress uses in the legislation that treats the addition.

Background

Article II, § 1 of the U.S. Constitution lays out the eligibility requirements for a president.

No person except a natural born citizen . . . shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

To see whether someone is a "natural born citizen" there are a couple of places one can look.

First, 8 U.S.C. § 1401 deals with nationals and citizens of the United States at birth. It details a list of circumstances in which an individual may be considered a U.S. national by birth. Setting aside most of the situations that don't appear to pertain to your question:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

The definition for "United States" comes from 8 U.S.C. § 1101, which deals with both nationality and immigration. Section 1101(a)(38) explains that:

The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.

Congress updates it frequently—for example to reflect the political union with the Commonwealth of the Northern Mariana Islands, which took effect on November 3, 1986.

But 8 U.S.C. § 1101 alone probably isn't outcome determinative. It's possible that one might still be considered a natural born citizen of the United States if other legislation (e.g., the covenant recognizing political union itself or a Congressional resolution) recognizes the status.

For example, people still debate whether Senator John McCain is a natural born citizen under 8 U.S.C. § 1401 or by virtue of other Congressional legislation. He was born at a military installation associated with the Panama Canal Zone in 1936, which was not widely considered a U.S. territory at the time. The next year (1937), Congress passed 8 U.S.C. § 1403, which retroactively awarded citizenship to those born in the zone on or after February 26, 1904. So some people argue that he became a natural born citizen retroactively under § 1403, while others argue he was a natural born citizen at the moment of his birth under § 1401.

For territorial additions (like the Marianas), presidential eligibility likely comes down to they way in which the legislation that recognizes the union treats citizenship. Births after the effective date of the union likely face a lower hurdle to natural born citizenship, while those born before the effective date may be more dependent on a retroactive grant.