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.
Why?
I linked to the story, which clearly states that he has provided his Canadian BC and the paper renouncing his Canadian citizenship. If it is true that he has not shown the papers registering him at the Consulate, then why not provide them?
Maybe, and that is a slim maybe but for sure Ted Cruz is not a Natural Born Citizen. Sans his CRBA his is at best a grand fathered in naturalized US citizen, maybe.
How can that be true if Cruz (just by example) can get a Certificate of Citizenship after he reaches the age of majority?
-- American citizenship was an option that his mother could elect or forgo. --
That's what we disagree on. I say the statute confers citizenship, even if his parents don't obtain a CRBA.
-- Compare that to the child of an illegal alien born in the US who becomes an American citizen at birth. The only proof of citizenship needed is a birth certificate. --
I say there is a similar principle here. Citizenship exists independently of the certificate. The only difference is the means of certification. Certification of citizenship for a native born person is a birth certificate, and for a foreign born citizen, is a CRBA, passport, or Certificate of Citizenship.
I want to revisit two statements you make in your post, and you tell me if they contain any conflict.
No it did not, The Constitution says that only a Natural Born Citizen (NBC) is eligible to serve as POTUS. The question than becomes what did the founders understand to be a NBC in 1788.
I know that. I was responding to a reference to those items in another post.
Birth records are sealed naturally to curtail identity theft and protect privacy. I can't get a copy of your birth certificate without your consent. You can look up "how to get a copy of your birth certificate" at any birth records registrar, they have similar requirements for getting a certified copy of your birth certificate.
As for why Cruz released his birth certificate, I assume it was to provide at least part of the evidence that he was a citizen at birth. His BC shows his mother born in the US. I agree with those who say this is not sufficient evidence to establish citizenship, but it is part of that package.
We can’t take this seriously without your picture at the top of your column. /s
Nothing is relevant other than Cruz’s mom’s birth certificate.
This might be angels on the head of a pin, but I say citizenship exists independently of certification. Not as common today as in years gone by, but some people born in the US, to US citizen parents, don't get birth cerificates. They are still citizens.
I agree that a CRBA serves the same purpose for citizenship determination, and there is also a Certificate of Citizeship which can be obtained by a person who doesn't have a CRBA but meets the stautory criteria for citizenship.
However, a better argument for McCain (made by some at the time I believe) would be that children born abroad, to citizens in military or consular service, fall under the original understanding of "natural born" at the time of the Founders.
The authors cite to the Naturalization Act of 1790 and ignore the fact that the Naturalization Act of 1795, with the lead of then-Rep. James Madison and with the approval of President George Washington, repealed it and specifically changed "shall be considered as natural born citizens" to "shall be considered as citizens of the United States."
James Madison the "father of the Constitution" changed the wording from "natural born citizen" to "citizen". Madison was no dope and the change was to prevent a foriegn born from becoming Commander in Chief. But this also serves to illustrate that "citizen at birth" does not mean "natural born citizen".
See more at
https://cdrkerchner.wordpress.com/tag/harvard-law-review/
I agree with that. His US citizenship depends on operation of a US Statute. If he was naturally a citizen, he would be so without operation of a statute.
A natural born citizen is so because of Natural Law not government laws. Some one born on soil with two citizen parents is a natural born citizen because no other sovereign but the sovereign of the soil he was born on has any claim to his elegance.
This is not rocket science.
That sort of logic appears in the resolution too.
Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to Americans serving in the military nor to prevent those children from serving as their country's President;Whereas such limitations would be inconsistent with the purpose and intent of the "natural born Citizen" clause of the Constitution of the United States, as evidenced by the First Congress's own statute defining the term "natural born Citizen";
If the statute confers citizenship then Crus is a citizen via statute and not a Natural Born Citizen (NBC). NBC is via Natural Law not statute.
Please ping me when you post Teds’ moms’ birth certificate. TIA
Provide something in the Constitution or Congressional statute that says that NBC must have two citizen parents.
I’m sure Ted’s mom actually arrived in Maryland as an infant from an alien spaceship. This is all a conspiracy to get an alien into the White House.
But he didn't wait until the age of majority. His mother registered him at the consulate. And if Cruz waited before or until the age of majority, he would have to apply for it. It is a nine page form. This is called citizenship through derivation.
I don't disagree. I said that you can't lose your claim to citizenship. Cruz has every right to make such a claim and there are ways to do that. If he failed to get a CRBA, it will be a much more complicated and lengthy process.
I say there is a similar principle here. Citizenship exists independently of the certificate. The only difference is the means of certification. Certification of citizenship for a native born person is a birth certificate, and for a foreign born citizen, is a CRBA, passport, or Certificate of Citizenship.
The difference is that the native born is automatically a citizen without having to apply for anything. For someone born overseas, they must take a proactive approach to obtain citizenship. It is not automatic. You have to apply for it. First, you have to prove that you are eligible.
I want to revisit two statements you make in your post, and you tell me if they contain any conflict.
No conflict whatsoever. Ted Cruz is automatically a Canadian citizen at birth. If his mother failed to apply for US citizenship for him, he could do it himself. The other choice is to remain a Canadian citizen only.
One other point ... I don't see the activity (of a foreign born citizen) as applying for citizenship. I see it as applying for certification of citizenship.
First you have to prove that you are eligible. There are restrictions on who can become an American citizen even if your mother or father was/is an American citizen. some examples:
Birth Abroad to One Citizen and One Alien Parent in Wedlock (This is the one that matters if Obama was born outside the US)
A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be the genetic or the gestational parent and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.
Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother:
A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth. The U.S. citizen mother must be the genetic or the gestational mother and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.
I see the various conditions that apply to someone born abroad to be significantly different than the acquisition of citizenship thru birthright citizenship, jus solis There are conditions that circumscribe who is eligible to get derivative citizenship being born overseas. And laws are revised changing these conditions. There are no such limitations and conditions for those born on US soil. Are both natural born citizens? I have my doubts.
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