Posted on 01/07/2016 9:35:59 AM PST by Isara
Senator Ted Cruz is wise to laugh off Donald Trump's intimation that his constitutional qualifications to serve as president may be debatable.
The suggestion is sufficiently frivolous that even Trump, who is apt to utter most anything that pops into his head, stops short of claiming that Cruz is not a "natural born citizen," the Constitution's requirement. Trump is merely saying that because Cruz was born in Canada (of an American citizen mother and a Cuban father who had been a long-time legal resident of the United States), some political opponents might file lawsuits that could spur years of litigation over Cruz's eligibility.
The answer to that "problem" is: So what? Top government officials get sued all the time. It comes with the territory and has no impact on the performance of their duties. Indeed, dozens of lawsuits have been brought seeking to challenge President Obama's eligibility. They have been litigated for years and have neither distracted him nor created public doubt about his legitimacy. In fact, most of them are peremptorily dismissed.
On substance, Trump's self-serving suggestion about his rival is specious. (Disclosure: I support Cruz.)
A "natural born citizen" is a person who has citizenship status at birth rather than as a result of a legal naturalization process after birth. As I explained in Faithless Execution (in connection with the term "high crimes and misdemeanors"), the meaning of many terms of art used in the Constitution was informed by British law, with which the framers were intimately familiar. "Natural born citizen" is no exception.
In a 2015 Harvard Law Review article, "On the Meaning of 'Natural Born Citizen," Neal Katyal and Paul Clement (former Solicitors-General in, respectively, the Obama and George W. Bush admininistrations), explain that British law explicitly used the term "natural born" to describe children born outside the British empire to parents who were subjects of the Crown. Such children were deemed British by birth, "Subjects ... to all Intents, Constructions and Purposes whatsoever."
The Constitution's invocation of "natural born citizen" incorporates this principle of citizenship derived from parentage. That this is the original meaning is obvious from the Naturalization Act of 1790. It was enacted by the first Congress, which included several of the framers, and signed into law by President George Washington, who had presided over the constitutional convention. The Act provided that children born outside the United States to American citizens were "natural born" U.S. citizens at birth, "Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."
As we shall see presently, Congress later changed the law, making it easier for one American-citizen parent to pass birthright citizenship to his or her child, regardless of whether the non-American parent ever resided in the United States. But even if the more demanding 1790 law had remained in effect, Cruz would still be a natural born citizen. His mother, Eleanor Elizabeth Darragh Wilson, is an American citizen born in Delaware; his native-Cuban father, Rafael Bienvenido Cruz, was a legal resident of the U.S. for many years before Ted was born. (Rafael came to the U.S. on a student visa in 1957, attended the University of Texas, and received political asylum and obtained a green card once the visa expired. He ultimately became a naturalized American citizen in 2005.)
As Katyal and Clement observe, changes in the law after 1790 clarified that children born of a single American-citizen parent outside the United States are natural born American citizens "subject to certain residency requirements." Those residency requirements have changed over time.
Under the law in effect when Cruz was born in 1970 (i.e., statutes applying to people born between 1952 and 1986), the requirement was that, at the time of birth, the American citizen parent had to have resided in the U.S. for ten years, including five years after the age of fourteen. Cruz's mother, Eleanor, easily met that requirement: she was in her mid-thirties when Ted was born and had spent most of her life in the U.S., including graduating from Rice University with a math degree that led to employment in Houston as a computer programmer at Shell Oil.
As Katyal and Clement point out, there is nothing new in this principle that presidential eligibility is derived from parental citizenship. John McCain, the GOP's 2008 candidate, was born in the Panama Canal Zone at a time when there were questions about its sovereign status. Barry Goldwater, the Republican nominee in 1964, was born in Arizona before it became a state, and George Romney, who unsuccessfully sought the same party's nomination in 1968, was born in Mexico. In each instance, the candidate was a natural born citizen by virtue of parentage, so his eligibility was not open to credible dispute.
So The Donald needn't fear. Like President Obama, President Cruz would spend more time working on which turkeys to pardon on Thanksgiving than on frivolous legal challenges to his eligibility. Ted Cruz is a natural born U.S. citizen in accordance with (a) the original understanding of that term, (b) the first Congress's more demanding standard that took both parents into account, and (c) the more lax statutory standard that actually applied when he was born, under which birthright citizenship is derived from a single American-citizen parent.
It may be absurd, but this is jus solis. If you are born in Puerto Rico or Guam, you are eligible to be President according to Tribe and Olson. We need the court to decide this issue now.
So far Cruz has beem challenged on being on the primary ballots in NH, VT, and FL. NH and VT have decided he is. I expect many challenges to follow.
Or a variation. If a tree falls in the forest, and there is nobody there to hear it, did the tree fall? Well, go look. Yep, it fell. This isn't quantum physics where the tree didn't fall until you looked!
-- IDK and am not sure how it matters. --
Under kabar's proposition, that conference of citizenship depends on registering his birth at the US Consulate, Cruz would have lost citizenship if his birth wasn't registered at the consulate.
That is the error that I wanted to correct. The other point, is certification necessary for practical reasons, is one of those "it depends" things. A passport is a form of citizenship certification.
No he wouldn’t have. He had until he was 18 to assert it.
“A Consular Report of Birth Abroad of a U.S. citizen is only issued to a child who acquired U.S. citizenship at birth and who is generally under the age of 18 at the time of the application.”
and then there is another option after that:
“Certificate of Citizenship issued by U.S. Citizenship and Immigration Services (USCIS)
A person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452. Visit USCIS.gov for further information.”
http://travel.state.gov/content/passports/en/abroad/events-and-records/birth.html
I agree with that. Although crossing the US/Canada border was pretty easy up until 9/11.
The correction I offered was that Cruz doesn't become a non-citizen if his his mother failed to register his birth at the US Consulate, which is what your statement, read literally, implied. You said she had to register his birth at the consulate to convey citizenship.
Correct. His parents could have and may have not pursued a CRBA. In that case he has a biggger problem: Certificate of Citizenship issued by U.S. Citizenship and Immigration Services (USCIS)
A person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452. Visit USCIS.gov for further information.
A CRBA or the above are the ONLY documentary proof of US Citizenship for US Citizens born on foreign soil. It's the very limited and clear path of documentary proof. The only two paths that exist.
Let's see one of those, or have a Federal judge issue a declaration that he has reviewed the docs and agrees Cruz is a US Citizen.
As far as anyone knows he has not even provided proof of US Citizenship, much less resolved questions of whether he is NBC in accordance with Article II.
I never said that. She would have to apply for his citizenship at some point or he could do it upon reaching majority. You don't lose your claim to citizenship. But it will be far more difficult if you don't register at the time of birth. Obviously, his mother did register him.
As far as anyone knows he has not even provided proof of US Citizenship, much less resolved questions of whether he is NBC in accordance with Article II.
Easy to confirm..Does Cruz possess a US Passport?
Correct. Failure to register the birth at the consulate is not necessary to confer citizenship. Nor is registration prior to the age of 18 necessary to confer citizenship. As you point out, “there is another option after that.” we’re back to the metaphysical, with me saying he’s had citizenship all along, and you saying that it isn’t citizenship until it’s certified, but we both agree that he could probably get certification today (if there is no CRBA and no passport), even if his mother did not obtain a CRBA.
Are you saying that Ted Cruz has not resolved a suit in Florida on ballot eligibility?
That primary is 68 days from now.
THAT'S A SERIOUS ISSUE.
If so there is documentary proof.
Let's see it.
Otherwise he's likely to be denied ballot access in numerous jurisdictions.
At post 32, you said this ...
When Cruz was born in Calgary, his mother had to register his birth at the US Consulate to convey citizenship.How is that diferent, sunbstantively, from "that conference of citizenship depends on registering his birth at the US Consulate"? (which you now claim you never said)
“Since the Citizen Clause of the Constitution gave Congress sole authority to define citizenship, Cruz’s citizenship is Constitutional.”
Your statement is false. This did not occur until Federal legislation was enacted in 1866. See:
U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1100 ACQUISITION AND RETENTION OF U.S. CITIZENSHIP AND NATIONALITY 7 FAM 1110. ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES....
Until 1866, the citizenship status of persons born in the United States was not defined in the Constitution or in any federal statute. Under the common law rule of jus soli—the law of the soil-persons born in the United States generally acquired U.S. citizenship at birth.
e. This rule was made part of the Civil Rights Act of April 9, 1866 (14 Statutes at Large 27)....
U.S. citizenship was determined by the States, and any person with citizenship in one of the United States of America was also a U.S. Citizen. The children born abroad with U.S. Citizen fathers did not acquire U.S. citizenship at birth until new laws were enacted to extend that privilege without dispute in 1855. See:
7 FAM 1132.3 April 14, 1802
(TL:CON-68; 04-01-1998)
a. Section 4 of this Act (2 Stat. 153,155) stated, in part, that: “the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never resided within the United States.â€Â
b. This Actâ€TMs formula of permitting transmission of citizenship by “persons who now are, or have been citizens†raised a question whether persons who subsequently became citizens by birth or naturalization could transmit citizenship to their children born abroad. The right of such persons to transmit was clearly provided in the Act of February 10, 1855.
7 FAM 1132.4 February 10, 1855....
a. On this date, Congress enacted “An Act to Secure the Right of Citizenship to Children of Citizens of the United States Born Out of the Limits Thereof,” (10 Stat.604).
b. It stated, in part, that: “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.â€Â
c. The Act of February 10, 1855 did not repeal the Act of April 14, 1802.
7 FAM 1132.5 Section 1993, Revised Statutes of 1878....
a. The provisions of the Act of 1802 and the Act of 1855 were codified as Section 1993 of the Revised Statutes of 1878. From 1878 to 1934, Section 1993, Rev. Stat., stated that: All children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.
b. Section 1993 permitted the transmission of citizenship only by U.S. citizen fathers until it was amended prospectively on May 24, 1934, to permit transmission by U.S. citizen mothers. (The similar rights of women were also addressed by the 1994 amendment to section 301 INA (see 7 FAM 1133.2-1).)
Until 1866, the citizenship status of persons born in the United States was not defined in the Constitution or in any federal statute. Under the common law rule of jus soli—the law of the soil-persons born in the United States generally acquired U.S. citizenship at birth.
e. This rule was made part of the Civil Rights Act of April 9, 1866 (14 Statutes at Large 27)
Agreed. That would be proof of citizenship.
Would that be proof of NBC?
One more, a passport.
The Act also establishes the United States citizenship of certain children of citizens, born abroad, without the need for naturalization: "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 natural born Citizens".
This is correct but the candidate's citizenship is not the constitutional issue.
The issue is about the words in the Constitution, which doesn't seem to offer a complete answer.
Let's noodle this a bit.
The Constitution states the requirements for a candidate seeking the office of Representative thusly;
No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States,
The Constitution states the requirements for a candidate seeking the office of Senator thusly ;
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States,
The founder's words were straightforward and clear about the requirements to run for office as a member of the House of Representatives or the Senate.
The Constitution states the requirements for a candidate seeking the office of president thusly ;
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President ;
Notice those words, "natural born Citizen" and then question why the founders imposed the natural born Citizen requirement for presidential candidates but not for congressional candidates.
My research indicates to me that the founders were addressing the citizenship of both of the candidate's parents in order to avoid the possibility of electing a president who may have a divided allegiance.
What do you think?
“An American citizen is either natural born or naturalized. Ted is definitely not the latter. Ergo...”
When I had American history, “natural born” was defined as being born of parents both of whom were American citizens.
If you want to reference original intent, at the time those words were placed in the Constitution, citizenship derived strictly from the father. It was that way in the United States until about 1930.
Are you saying that Cruz doesn’t have a drivers license or passport?
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.