The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[66] but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company; 8 U.S.C. § 1403 was cited in Judge Alsup's 2008 ruling, described below. A March 2008 paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe opined that McCain was eligible for the Presidency.[67] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural-born citizen.[68] In September 2008, U.S. District Judge William Alsup stated obiter in his ruling that it is "highly probable" that McCain is a natural-born citizen from birth by virtue of 8 U.S.C. § 1401, although he acknowledged the alternative possibility that McCain became a natural-born citizen retroactively, by way of 8 U.S.C. § 1403.[69]
These views have been criticized by Professor Chin, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court's Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[70] The U.S. State Department's Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.[71] It also states in general that "it has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen [
]".[72] In Rogers v. Bellei the Supreme Court only ruled that "children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment", and didn't elaborate on the natural-born status.[73][74] Similarly, legal scholar Lawrence Solum concluded in an article on the natural born citizen clause that the question of McCain's eligibility could not be answered with certainty, and that it would depend on the particular approach of "constitutional construction".[75] The urban legend fact checking website Snopes.com has examined the matter and cites numerous experts. It considers the matter "undetermined".[76]
