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.
Have you found Mons' birth certificate yet? And when will Cruz release his Consular Report of Birth Abroad? TIA.
Why not the CRBA?
Were this the 1800's or even the early 1900's I would agree, but we are talking 1970 and not even born in the USA. Sorry Ted Cruz is not a Natural Born Citizen of the USA, NBC for Canada maybe, NBC for the USA definitely not.
That just confirms our disagreement. Likely an academic point, figuring Cruz has a US passport, or there is a CRBA. at least you have backed away from the necessity of a CRBA in order for Cruz to be a citizen today.
-- 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. --
I haven't expressly stated it in my remarks, but I've assumed for the sake of argument that, to use your vernacular, "Cruz is eligible." In my vernacular, if circumstnaces of his birth meet the statutory requirements, then he IS a citizen, before he presents himself to the examiner. Your position is that he is not a citizen until the examiner says so.
The Constitution gave Congress sole authority to define citizenship in the Citizenship Clause. So where is your definition of NBC in any law or statute? I really don’t give a damn what Sir Somebody said. We declared our Independence from British law.
Why are CRBAs not open to the public? Or why didn't Cruz produce one?
CRBA's are not open to the public for a similar reason that birth certificates aren't. A person could snag one and represent himself as that person.
I have no idea if Cruz has either a CRBA or a Certificate of Citizep, or even a US Passport. I've read that he traveled on a US Passport while in high school. Lack of production could be due to not having one, or not thinking it was necessary to make the argument, or maybe to allow tension to build over the issue. All I have on that question is speculation.
How do you know that?
No need to apologize. As anybody who has read our exchange can see, my point of view is in complete agreement with what you said there.
The only disagreement we might have is whether or not his US citizenship exists before it is certified to exist.
I was just listening to Rush. I never got from Trump that he was questioning whether Cruz was an American citizen. It was whether he was a natural born citizen, according to the Constitution.
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Cruz needs to be properly vetted. Whether he is a natural born citizen is very much debatable. Levine, Rush, and many others want to make it a non-issue, when it is very much an issue.
me: How do you know that?
Nevermind, I found this on a post in another thread. I'm assuming the statement is accurate, don't have a link to the article. This is the first time I've read of filing for and receiving either a CRBA or passport. Wasn't yanking your chain, was sincerely looking for a source of the claim.
According to an article in the Dallas Morning News on 8/18/13, "She registered his birth with the U.S. consulate, Frazier said, and the future senator received a U.S. passport in 1986 ahead of a high school trip to England."
Why the phony strawman? Of course Cruz is a citizen. He gets his derivitive citizenship thru his mother, jus sanguinis I assume he has a CRBA. I am not backing away from anything. You are making this stuff up out of whole cloth.
I haven't expressly stated it in my remarks, but I've assumed for the sake of argument that, to use your vernacular, "Cruz is eligible." In my vernacular, if circumstnaces of his birth meet the statutory requirements, then he IS a citizen, before he presents himself to the examiner. Your position is that he is not a citizen until the examiner says so.
Precisely correct. Until you prove that you are eligible, you are not a citizen. Cruz was a Canadian citizen without any conditions.
You do realize that Cruz had the option of not applying for US citizenship.
>>What do you think?
I still think:
Ted Cruz is a U.S. citizen;
U. S. citizens are either natural born or naturalized citizens;
Ted Cruz is not a naturalized citizen;
Therefore..
:)
Really? A sitting US senator without a passport? He has traveled around the globe as part of a number of CODELs. Do you think he was using a Canadian passport?
I have no idea if Cruz has either a CRBA or a Certificate of Citizep, or even a US Passport. I've read that he traveled on a US Passport while in high school. Lack of production could be due to not having one, or not thinking it was necessary to make the argument, or maybe to allow tension to build over the issue. All I have on that question is speculation.
I was not aware of any sealed consular records until the story I linked to. As I said, I can't verify it. My only advice to Cruz is full disclosure and no sealed records. If he has a CRBA he should produce it.
Trump didn't raise this issue. The Dems did with Rep. Grayson who said he would sue if Cruz got the nomination declaring him ineligible. Cruz is being challenged in a number of states about being ineligible to be on the ballot because he is not a natural born citizen. He may try to preempt all of this. McCain got a Senate Resolution. Rubio has similar questions since neither of his parents were citizens when he was born. However, Rubio was born on US soil.
I don’t know that. I am just assuming that was the case. Shouldn’t that be common knowledge?
You initially said that if a certain foreign born person didn't have a CRBA, then he's not a citizen. At a later point you said that if he didn't have a CRBA, but had a Certificate of Citizenship, he would be a citizen.
I think those are conflicting statements. One amounts to "no CRBA, no citizenship," the other allows an alternative to CRBA. You don't see those two positions as inconsistent, and by golly, I am not about to argue the point with a person who sees those two positions as consistent.
-- You do realize that Cruz had the option of not applying for US citizenship. --
Your question assumes your conclusion as to our difference. You say that citizenship depends on applying, I say that certification depends on applying.
Assume for the sake of argument there is no CRBA and no passport and no Certificate of Citizenship. The person is not a citizen, says you. So, years elapse, and for some reason the person decides to "apply for citizenship" using the Certificate of Citizenship approach. The examiner finds everything in order and grants a Certificate of Citizenship. Question: when did the applicant acquire citizenship?
The relevant statute says ...
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 ...
About this question:
why the founders imposed the natural born Citizen requirement for presidential candidates but not for congressional candidates.
Ted Cruz is clearly a citizen but the question the Constitution poses is; were his parents citizens?
About this question:
why the founders imposed the natural born Citizen requirement for presidential candidates but not for congressional candidates.
Ted Cruz is clearly a citizen but the question the Constitution poses is; were his parents citizens?
“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 ...”
But only after securing U.S. diplomatic recognition of the U.S. citizenship after the occurrence of the birth.
You are making things up again. FYI: You have up to five years to get a CRBA. After that you must pursue a different avenue.
Your question assumes your conclusion as to our difference. You say that citizenship depends on applying, I say that certification depends on applying.
The burden of proof is on the applicant. You have to provide various documents to substantiate your claim. There is no presumption that you are eligible for derivative citizenship.
Assume for the sake of argument there is no CRBA and no passport and no Certificate of Citizenship. The person is not a citizen, says you. So, years elapse, and for some reason the person decides to "apply for citizenship" using the Certificate of Citizenship approach. The examiner finds everything in order and grants a Certificate of Citizenship. Question: when did the applicant acquire citizenship?
Upon approval. Do you think we make people citizens retroactively and require them to file tax returns for all the years prior to acquiring citizenship? Do you think that laws involving inheritance, survivor benefits, etc. can be applied retroactively now that one is a citizen? Nice try.
I'm don't why we should care. The question is: is Ted a natural born citizen?
I think that logically you have three - and only three - choices:
1. Ted is not a citizen.
2. Ted is a naturalized citizen.
3. Ted is a natural born citizen.
Is it your position that he is #1 or #2?
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