Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.
(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)
But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?
No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)
What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.
There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.
In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.
So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.
That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.
So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)
In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”
The meaning of “natural born Citizen” was fully understood by the authors of the Constitution. There was no confusion about its meaning. Being intimately familiar with the concepts contained in natural law, and using these concepts to form the Constitution, the authors of the Constitution considered it obvious to every educated man at that time that natural born Citizens were those who were born on a country’s soil to parents who were the country’s citizens. The concept of “natural born Citizen” was written into the Constitution before the US Congress existed and before any US laws were created. It needs no statutory laws to define it or to clarify it.
You said quite a bit about something you clearly haven't researched.
buridan's exact question was presented to SCOTUS in 1971 in Rogers v. Bellei. It is settled law. SCOTUS ruled that it is absolutely within Congress's power to set residency requirements for citizens born overseas. The dissenting opinion agreed with buridan that Congress should not have such power because it doesn't have such powers over 14th Amendment citizens.
In any case, the residency requirements have been repealed.
Wow! I can almost hear the "NAH NAH, NAH NAH........NAAAAH NAAAAH"!
You sure told me....didn't you.........
“Yes, the 1790 Act was repealed 5 years later with the natural born Citizen language removed. They did it for a reason.”
What reason?
And the [&^%$#$%, ^%!%^&*, *^%$] individual mandate in Obamacare.
What you have done is very illustrative of why the country is in the mess it is in. Effectively, rather than relying on your own intelligence, your own conscience and your own liberty to make a rational decision on your own.... you have surrendered that individual liberty to 9 unelected and unaccountable people....
Far too many so called conservative are just like KB, surrendering their liberty to all kinds of unelected and unaccountable bureuacrats on a daily basis....
That doesn’t make any sense at all in the perspective of history, and what exactly “America” was at the time. You over shot here dude....
“I’m not interested in your slander of two great conservatives (Levin and Cruz).”
I did NOT slander Levin or Cruz anywhere in my post that I can see.
I wrote:
“Given the precedent set by Barry’s inauguration twice, I support Ted Cruz as a candidate for POTUS.
“I note that CATO writer, Ilya Shapiro, goes out of his way to point out that if Barry was born outside the US then the same statute that makes Cruz a citizen at birth would prevent Barry from having been one.”
When I pointed out that Levin, who I have great respect for and listen to regularly, skipped over reading on the air the part of Shapiro’s article pointing out that Barry would be ineligible if foreign born, it was not slanderous in any way towards Levin that I can see.
Again I fully support Cruz as a candidate and I support Mark Levin’s support of Cruz’s eligibility and my post reflects that. After the past five years, I am virtually certain that no federal judge will ever rule Ted Cruz to be ineligible.
“I wonder when, if ever, people are going to realize that their thoughts, reasonings, beliefs etc are NOT settled law.”
“So when they think they have “nailed” others who disagree with them on something, and get combative, superior, demanding, insulting and just plain HUFFY about the differences, that they are blowing smoke in the wind.”
“. . . I can’t remember which Article of the Constitution does this, but the Constitution itself gives Congress the authority to define citizenship by statute.”
I hope these unfriendly comments were not directed at me. I very tentatively questioned some of CATO’s reasoning. I made no dogmatic statements whatsoever. It is doubtful that Congress can “define” natural born citizenship. It can establish a “uniform rule of naturalization” (Art. II, Sect. 8), but naturalization pertains to those not citizens at birth. An originalist approach to the Constitution would look for the meaning of “natural born citizen” in legal materials known to the framers and ratifiers.
You asked about residency requirements for parents. Rogers v. Bellei was regarding residency requirements for the child. I misread your comment.
Thank you for the reference to Rogers v. Bellei, which I should have known about. Thanks!
This IMNVHO, is theological thinking. Everyman his own priest. Every reader of the Scriptures (COTUS) to interpret it in his own way.
Very well, then. The way I interpret Art II is that a "natural born Citizen," is at the very least, the offspring of two people who were citizens at the time of his birth. Without the SCOTUS, without constitutional authority, what makes me wrong and you right?
If you answer, "The will of the voters," why have a written Constitution?
What I think has happened is that with a man of legitimately questionable eligibility having "won" the Presidency, many of us have decided to use it as a precedent to fight our way back to constitutional republican government with an as yet potential candidate whose eligibility is less than clear-cut to those who interpret the Article II my way, or their way, as opposed to those who agree with you.
Kenny full of Bunk? Could be. When the SCOTUS says so, I think Cruz will be an unbeatable candidate.
The fact that the potential candidate is strong in our beliefs makes the question more difficult. But, the question remains.
LOL!
Posse, in order to make that statement, you need to rely more on your theory that the definition that Vittel had given the term in his obscure treatise was the only definition of that term in the entire world. Further you have to ignore the fact that when the First Congress passed the First Law on the subject, they ignored Vittel and declared that the children of citizens born abroad would be Natural Born Citizens.
IOW you have to believe that even though the Framers all agreed with you on the meaning in 1789, that they all conspired to use a different definition in 1790.
George Washington signed legislation that declared that the children of citizens born abroad would be considered Natural Born Citizens.
So whose opinion should I follow? George Washington, or some anonymous poster named Cold Case Possee Supporter?
I'll have to think about that for a moment.
It is clear to me that you are so invested in this issue that you would vote for the likes of Ted Kennedy or even Ted Bundy before you would consider voting for Ted Cruz. I understand that. I am not going to change your mind on this subject and to be honest, I'm not sure you have a mind to change.
My concern is for the preservation of Liberty and I believe it is an imperative that we give Ted Cruz the benefit of any doubt. Since you have no doubt, then I would expect you to continue in your quest to ensure, by any means necessary, that Ted Cruz does not get the nomination and that if he does, that he not be elected.
Since we have nothing more to discuss, I think it is best we part ways. I will not respond to any more of your posts, and I would appreciate it if you refused to respond to any more of mine.
Frankly I don't think you are long for this forum anyway. So good luck and watch out for falling bolts of lightning.
The reason was that there were American citizens living abroad at the time, some even in the diplomatic service, and this exception gave them time to adjust to the new realities of the newly adopted Constitution.
The 1790 Act created a statutory exception to the rule or definition that everyone knew to be so, thus the language:
"the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, SHALL BE CONSIDERED AS as natural born citizens".
Not "are" but "shall be considered as". It's an exception -- not a definition. The exception ended in 1795.
These words from Justice Waite in Minor vs Happersett on the matter:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.“
H/T to Red Steel on that one.
Kenny full of Bunk? Could be. When the SCOTUS says so, I think Cruz will be an unbeatable candidate.
The fact that the potential candidate is strong in our beliefs makes the question more difficult. But, the question remains.
Do you give a damn about the Founders' orginal intent - or is it all about 9 people and bureuacratic technicalities? Oh, wait...you've made that clear. Now go enjoy your lo flow toilets.
Your contributions have been great. It's not hypocrisy to weigh what's before you and act. I agree we have to let this stuff sink in, not to mention there is no declaration Cruz will run. Like you said, we need to be patient; like I said, we need to set it aside during this effort to defund, to stop wasteful spending, gum up Bambi's agenda the best we can, and throw the rats out in 2014.
“As with all matters legal, there is a longer form argument to take into consideration such matters as a statute at the time of Obozo’s birth which denied to an American mother (but not an American father) the right to pass citizenship to a newborn where the mother was between 18 and 21 years of age. That short-lived statute would be laughed out of any court today as an obvious violation of equal protection based on the suspect category of sex. If you think about it, it is a lot easier to KNOW who the mother is than who the father is, absent DNA testing. I am not very anxious to require DNA tests to prove NBC status.”
Even though the Federal 9th Circuit is the most overturned circuit in the nation it is noteworthy that a three-judge panel of that circuit in dicta in the Marguet-Pillado case has already declared that any foreign-born baby with a mere “biological-related” connection to a US citizen is a natural born citizen.
So the “suspect category” of marriage is also passé, at least in the 9th Circuit, in addition to the suspect category of sex.
It is also noteworthy that the Congressional Research Service (CRS) cited this Marguet-Pillado dicta in their paper on NBC eligibility, a paper that Barry’s lawyers cited in an eligibility court case. See my FR vanity post on the case:
“Obama cites US v Marguet-Pillado. Dicta implies Obama eligible even if born in Kenya (vanity)”
http://www.freerepublic.com/focus/f-bloggers/2857598/posts
In support of the opinion in US v Marguet-Pillado, 9th Cir. 2011, Judge Gwin, writing for the majority in his “III Analysis” dicta, states: “No one disputes that Marguet-Pillado’s requested instruction was ‘an accurate statement of the law,’ in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.”
The America we know will cease to exist after January 2015. When the Republicants take back the Senate and expand their control of the House, the oligarchs who put little barry bastard boy in power to end the Republic will just shut the economy down and step into their protected bunkers to wait out the death and disease mayhem to follow. America is no longer a nation of Rule of Law. The Constitution has been cancelled step by step so this discussion is merely a distraction from the reality about to crush We The People.
Congress has no authority to make an exception to a Constutional requirement. The 1790 act was drafted by the founders, and they of all people knew they had no authority to unilaterally grant an exception to the NBC clause. What the founders did in 1790 was to further define the archaic language to reflect their understanding of the meaning of the term at the time the constitution was drafted BY THEM.
George Washington knew that congress had no authority to grant an exception to the Constitution and he signed the act. The 1790 act CLARIFED the founders intent in drafting that clause.
To insist that the First Congress intended to grant an exception to the Constitution is to claim that one of the First acts of the founders was to violate the Constitution and that George Washington gleefully went along with that illegal act.
Who should I trust on this issue? You or George Washington?
Tell me Uncle Chip, is this a deal breaker for you, or are you willing to give Ted Cruz the benefit of your doubt in an attempt to save the Republic?
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