Posted on 03/20/2016 11:46:56 AM PDT by conservativejoy
With all of the non-stop coverage of the 2016 presidential election, have you noticed as of late that Donald Trump has not said a peep about Ted Cruz not being eligible for the presidency? Earlier this year, Trump questioned whether Cruz was a natural born citizen because he was born in Calgary, Canada (to a U.S. citizen mother). Trump asserted this very question would be caught up in the court for years. Much editorial space was spent on major newspaper and TV networks discussing this issue. Many legal scholars even agreed that Trump may have a case against Cruz.
This weekend, it occurred to me, this issue has faded from the public eye. The major media outlets stopped talking about it (maybe because Trump has moved on to other things.) But, it remains an important and largely unresolved question. So, I decided to look through some of the filings in the lawsuits filed against Cruz, and discovered an opinion from a Pennsylvania Senior Judge Dan Pellegrini that gives an absolute smack down to all of these Ted Cruz birther claims. Judge Pellegrini in his 22 page memorandum opinion found that Ted Cruz was a natural born citizen thereby ruling that Cruz’s name can appear on the Republican primary ballot in Pennsylvania on April 26, 2016. Why this particular opinion piqued my interest is that it is the first I have seen anywhere that actually tackles the Constitutional questions surrounding Cruz’s eligibility. For example, cases in Utah and Florida, were recently dismissed on procedural technicalities (like standing). What is even more shocking - the opinion was issued last week - and I couldn't find any major network or newspaper covering it. (WSJ had a short blog post, and a few local newspapers covered it in PA). You would think that on the heels of such extensive coverage of the issue earlier this year, that the media would jump all over the first major opinion to addresses these important Constitutional questions that Trump brought up during the campaign. I guess, that's wishful thinking, but I will go through the opinion, anyway, as I think its illustrative of what will be found if/when this question is appealed to an even higher court, perhaps even the U.S. Supreme Court.
The heart of the question stems from Article II, Section I, of the U.S. Constitution which requires that a President be a "natural born" citizen. The challenge was filed by Carmon Elliot, a registered Republican in Pennsylvania. Elliot claimed Cruz should not be allowed to appear in the ballot because he is not a "natural born citizen."
Firstly, Cruz's attorneys argued that the Court should not address this issue at all because it is a "political question" that should not be addressed by the Judiciary. The judge found "no Constitutional provision places such power in Congress to determine Presidential eligibility." Bottom line (and this is important), the judge found that the courts can move forward with deciding the case.
So how did Judge Pellegrino of the Commonwealth Court of Pennsylvania arrive at his decision that Cruz was eligible?
The judge relies on several pieces on legal scholarship. First, a memo produced in 1968 by Charles Gordon, then the General Counsel of the United States Immigration and Naturalization Service, which says: "The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries." He also points out a 2011 Congressional Research Service Memo entitled the "Qualification for President and the ‘Natural Born’ Citizenship Eligibility Requirement." The document concludes:
"The weight of legal and historical authority indicated that the term 'natural born' citizen would mean a person, who is entitled to U.S. citizenship 'by birth' or 'at birth' either by being born 'in' the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents."
Then the judge spends four pages quoting from the recent work of Paul Clement & Neal Katyal in the Harvard Law Review, in which the two Constitutional scholars (from different sides of the political aisle) conclude that "as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase 'natural born citizen' in the Constitution encompasses all such citizens from birth."
In his conclusion, the Judge states:
Having extensively reviewed all articles cited in the opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a "natural born citizen" included any person who is a United States citizen from birth.Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States..
The judge's decision is ripe for a higher court review, but it is significant nonetheless. As election law expert Dan Tokaji points out in the Election Law Blog this case could ultimately be headed for the U.S. Supreme Court.
"A state court ruling would be helpful, but only a Supreme Court ruling could dispel the uncertainty surrounding its meaning. The good news is that review of a state court decision on Cruz's eligibility could be sought in the U.S. Supreme Court. The Supreme Court’s jurisdiction to review federal law questions is broader than that of lower federal courts," he wrote.
So perhaps, one thing Trump said is correct that this question could end being caught up in the courts for some time. The petitioner, Mr. Elliot, already said he plans to appeal the Judge’s decision.
But in English law and practice, only existed at the municipal level. The concept of a citizen "National" did not exist in 1776 England.
So the concept of "citizen" does not stem from English common law. That is my point.
“So the concept of “citizen” does not stem from English common law. That is my point.”
Correct, because it is traceable linguistically and conceptually to the Roman civitas and conceptually to the earlier Greek Polis.
Did you happen to see John Greschak's analysis? He went into that.
“Did you happen to see John Greschak’s analysis? He went into that.”
Yes, I did. He did some very good work presenting screenshots of the original sources. His proposed amendment at the end wouldn’t fly. It is really difficult to draft an amendment that is effective in denying the ability to twist or circumvent its intent and letter. It is very worthwhile to examine the parts in which he presents the information about natural born subjects. One of my pet peeves are the people who ignorantly attempt to equate natural born subjects with natural born citizens. That’s sheer dumb and stupid craziness.
And nearly universal in how our legal community views the subject.
Did you happen to see my theory of how the citizenship issue got so conflated with English Common law?
“Did you happen to see my theory of how the citizenship issue got so conflated with English Common law?”
Probably, but I don’t recall now. I’ve seen so many of these various arguments. There certainly has been no shortage of so-called lawyers ignorantly arguing for English common law origins ever since the early 19th Century. Justice Grey in particular was responsible for screwing that one up as well.
From what I have been able to determine, the primary source for screwing it up was William Rawle. In his "A View of the Constitution" He explicitly states that American Citizenship derives from English Common law.
What makes this worse is that he was told differently by pretty much the entire legal community of Philadelphia, and yet he published that falsehood anyway.
Rest assured, he was not the origin of the lawyer joke....
Duh. Thanks for repeating my point. They were NOT born in the US; and required a special exemption. Period.
They weren’t born in the US. Period. They can no more be considered Americans by birth than a Russian born today can be born in the Soviet Union. The OP claimed all US Presidents were born in America. They weren’t; in fact they recognized they weren’t and wrote themselves a special Constitutional exemption to grant themselves eligibility.
They themselves realized they were NOT Americans by birth, and had to carve out a Constitutional exemption for themselves as a result. Nothing changes that.
The OP claimed all previous Presidents were US citizens at birth, which is a thoroughly preposterous fiction.
So you are saying Ted Cruz was born before the Constitution?
Otherwise he has to be a natural born citizen.
Various of his allies attempted to salvage his laughable claim, including you, but there is no repairing it. Eight of our Presidents were not born in the United States. That is a fact.
As to the rest, the courts -- not deranged billionaires with a cult following -- will make those decisions. So far, not a single one of these challenges has enjoyed any fate but to be laughed out of court; so much for TheDonald's® grasp of the law.
those claiming that common law had no place in America’s constitution ignore the fact that America went by common law during the American colonies in the 1700’s, and the Natural born term was commonly used and stemmed from the colonies borrowing statutory laws used in England- These colony laws were American laws, based on English laws- and common law- But birthers want to throw out this part of history because it conflicts with their “I hate Ted” ideology- The inclusion of the term ‘natural born citizen’ in the 1790 act was pretty obviously a result of the Colonies using the term to mean exactly what the English statute declared it meant- and not some fictional ‘born on American soil to 2 us parents’
Like the CRS report states, the weight of legal and historical authorities indicate that the term NBC refers to a person who is entitled to all the privileges and responsibility of us citizenship at birth or by birth- Recent court results show there is no difference between the two terms at birth and by birth . Those born off soil, and meeting the legal requirements for US citizenship AT BIRTH are not required to go through a naturalization process
Those making the claim that it is a form of naturalization because it is ‘granted by way of statute’ are essentially creating a third category for acquiring citizenship when the courts have declared several times there are only 2 ways- they declare that there is now a process of naturalization that does NOT require an actual process- but they cite no evidence, historical or legal, to show that the courts even recognize this third category of citizenship- The weight of evidence shows that there are only two ways to become a citizen- one: At Birth and By Birth, and two: After Birth- where immigrants must in almost every circumstance, take an oath of allegiance - Those saying that a process of naturalization isn’t needed for naturalization to occur have created a fictitious third category of citizenship- Naturalization by statute alone (with no need for the actual process of naturalization that all immigrants must undergo)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.