Andrew C. McCarthy: Cruz, Natural Born Citizen

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.

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.

-- You are making things up again. --

No. Not making anything up, just restating what you said. I think you are irrational, or a sloppy analyst of your own words, or jerking me around.

@32 - When Cruz was born in Calgary, his mother had to register his birth at the US Consulate to convey citizenship.
@136 - You are taking it too literally. The point is that his mother had to take an overt, positive step to convey citizenship.
@136 - He could apply later if his mother decided not to apply for citizenship for him.

Either his mother had to act (mandatory) to convey citizenship, or not. Those two positions are mutually exclusive, and you have asserted both as true.

"Mother had to register his birth at the US Consulate" results in a CRBA. @32 you say his mother had to register his birth at the US Consulate. Later, @136, and now @179 you say "After that you must pursue a different avenue." which is something other than a CRBA.

You further say that a person is not a citizen until the examiner approves the application.

Then you say that my statement: "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." is me making things up. Obviously those are direct quotes of what you said, but they are equivalent statements of fact.

-- FYI: You have up to five years to get a CRBA. --

Got a cite for that? The government webpages suggest that a CRBA is obtained as long as the applicant is less than 18 years of age.

Question: when did the applicant acquire citizenship? --Upon approval.--

Heh.

8 USC 1401 opens with:

The following shall be nationals and citizens of the United States at birth:

and kabar says that's not true. A person isn't a citizen at birth, they are a citizen upon approval. That application and approval are required.

My previous estimation of you as an honest, straight shooter, that estimation is shot to hell in a handbasket. I used to trust what you posted, I don't trust your assertions any more. Not any of them. I see you as a crank and crackpot. I figure the sentiment is mutual, so goes the war.

-- "A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth" ... But only after securing U.S. diplomatic recognition of the U.S. citizenship after the occurrence of the birth. --

That doesn't make logical sense, and even if it did, it omits obtaining certification via U.S. Citizenship and Immigration Services, which is not the same as diplomatic recognition.

The statute says what it says, "shall be nationals and citizens of the United States at birth", and the USCIS webpage says,

Form N-600, Application for Certificate of Citizenship, is filed to obtain a Certificate of Citizenship which serves as evidence of your or your child's U.S. citizenship. You may file Form N-600 if you were born abroad and are claiming U.S. citizenship at birth through your parents. You may also file Form N-600 to obtain evidence of citizenship if you automatically became a U.S. citizen by operation of law after your birth but before you turned 18 years of age.

USCIS FAQ Page

If you and kabar are correct, that paragraph would read remarkably differently. Perhaps along the lines of:

Form N-600, Application for Citizenship, is filed to obtain a Certificate of Citizenship which creates your or your child's U.S. citizenship. You may file Form N-600 if you were born abroad and are seeking U.S. citizenship at birth through your parents.

Under your and kabar's view, the USCIS sentence about citizenship being automatic for some foreign born persons is impossible. No foreign born person automatically becomes a US citizen by operation of law.

“If they are considered as natural born citizens, where is the exclusion for qualifying for the Presidency?”

The statutory, therefore manmade and artificial, law using the “natural born citizens” phrase was the United States Naturalization Law of March 26, 1790 (1 Stat. 103), “An Act to establish an uniform Rule of Naturalization.” Natural born citizens cannot be naturalized, because they are already natural born citizens requiring no naturalization or naturalization laws. The Constitution provides the U.S. Government no powers to grant citizenship to a natural born citizen. The Constitution only authorizes the U.S. Government to grant U.S. citizenship to aliens by means of a uniform Rule of Naturalization. The soon to be repealed Act naturalized the foreign born and alien children of U.S. Citizens born abroad. To be a natural born citizen a person had to be born in the United States with U.S. Citizen parents. Until 1866 the children born in the United States with alien parents were themselves aliens who had to become U.S. citizens by applying for naturalization.

The United States Naturalization Law of March 26, 1790 (1 Stat. 103) used the phrase, “shall be considered as natural born citizens,” in much the same manner as it used the sentence: And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States.” In other words, the “shall be considered as” was for purposes of administering the immigration and naturalization laws and not for administering every other law affecting U.S. citizens or natural born U.S. citizens.

The effects of this difference in rights and duties is seen in the inequalities of the two different means of acquiring the U.S. citizenship. The person who shall be considered as a natural born citizen can have that U.S. citizenship revoked by the Department of State and the Federal courts; whereas the Department of State has no power to revoke the U.S. citizenship of an actual natural born citizen. The person who shall be considered as a natural born citizen for purposes of immigration and naturalization must satisfy residency requirements to obtain and maintain U.S. citizenship; whereas an actual natural born U.S. Citizen does not have that same burden to retain U.S. citizenship. Likewise with the eligibility for the Office of the president of the United States and the office of the Vice president of the United States, the person who shall be considered as a natural born citizen for purposes of immigration and naturalization is not eligible for those offices; whereas an actual natural born citizen is free of natural born duties to foreign allegiances and thereby satisfies the purpose of the Constitution’s natural born citizen clause to exclude foreigners from those offices and command of the American army. The authors of the Constitution’s natural born citizen clause were well acquainted with English-British laws that all naturalized persons and denizens were excluded from being members of the Privy Council, the House of Lords, the House of Commons, civil or military office, place of trust, grant of lands, grant of tenements or hereditaments from the Crown or others to trust for him according to The Act of Settlement 1701. The authors of the Constitution were far more inclusive than the Act of Settlement 1701, but they did reserve the Office of the President and the Office of the Vice President for those persons who were born in the United States with U.S. citizen parents then known as natural born citizens of the United States.

Perhaps you did not understand the terminology. A person can possesses a right to possess a tangible or an intangible asset, but that person may then fail to possess that asset by failure to actually secure it and take actual possession of the asset before the asset is lost to the person having the right to possess the asset. The same is true of citizenship in some cases. It is not enough to be born with the right to possess citizenship. A person must act to secure the citizenship and defend its possession. While a natural law can authorize the right, recognition, and exercise of natural born citizenship and an unnatural and artificial statutory law can authorize the right, recognition, and exercise of native and naturalized citizenship; a person must still act to secure the citizenship and defend it against those persons and organizations who would otherwise deny the right of citizenship. Example: even though a person is a natural born citizen, born in the United States with U.S. citizen parents, the Real I.D. law can allow the TSA and the U.S. INS to deny recognition of the U.S. citizenship of persons identifying themselves with a driver’s license identification card from the States of Illinois, Missouri, Texas, Wshington, and perhaps other states. In other words, whether or not you are a person who has a right to claim citizenship at birth or after birth, your right can be denied by the government under certain circumstances, unless you successfully defend the right with other forms of identification acceptable to the government. Consular officers are diplomatic personnel from the Department of State. They have the authority to deny recognition of U.S. citizenship whether or not it was actually a right at birth.

I understand the terminology just fine, and don't disagree with anything in your most recent post.

A person can be a citizen, in fact, and some government actor may refuse to acknowledge the fact of citizenship unless suitable evidence is produced.

Let's say that the INS denies recognition of the U.S. citizenship of a person identifying themself with a driver's license identification card from the State of Illinois, Missouri, Texas, Washington, or perhaps some other state. Does that mean that the person is not, in fact, a citizen? Does citizenship depend on the government actor recognizing it?

Then there is the example of "Consular officers are diplomatic personnel from the Department of State. They have the authority to deny recognition of U.S. citizenship whether or not it was actually a right at birth." Is such a denial conclusive, or can it be appealed? Has a State Department or INS denial of certificate of citizenship ever been reversed by a judge? If so, citizenship depends on the circumstances of birth, not on recognition by a consular officer or INS agent.

I find recognition of citizenship-in-fact to be variable. My point is not on the recognition of citizenship, it is on the existence of it.

Kabar asserted that US citizenship flat out doesn't exist until it is recognized. IOW, if Cruz hadn't applied for some Certification of Citizenship, Cruz would not be a citizen of the US - notwithstanding the fact that 8 USC 1401 says Cruz is a US citizen at birth. Kabar says a person can elect, by inaction, to void the operation of 8 USC 1401. You intimated similar, saying one becomes a citizen "But only after securing U.S. diplomatic recognition of the U.S. citizenship."

I have to admit that it is possible for a person to "fly under the radar" and never seek recognition of citizenship (that goes for people born in the US too, say, hypothetically, without a birth certificate), and for practical purposes, their US citizenship is pointless. But should that person have a change of mind at any point in their life, and was able to produce suitable evidence, they could inform the US government and be noticed as a citizen. Were they a citizen before the government noticed?

First, as you surely know it is possible to find an attorney who will claim and argue just about anything for or without a price, including propositions which will end in the attorney’s own gruesome death. Accordingly, we must dispense with any notion that something an attorney argues must necessarily be authoritative and valid because of the attorney’s expertise or lack thereof.

“Kabar asserted that US citizenship flat out doesn’t exist until it is recognized. IOW, if Cruz hadn’t applied for some Certification of Citizenship, Cruz would not be a citizen of the US - notwithstanding the fact that 8 USC 1401 says Cruz is a US citizen at birth.”

Yes, that does happen in some cases and not in others. Remember, the U.S. Government does not officially recognize dual citizenship as being lawful under U.S. Federal laws. Claims of dual citizenship are being accommodated by the U.S. Government by turning a blind eye towards a person’s exercise of other citizenship in all but a few circumstances, and this id due to decisions by the Supreme Court of the United States. In some cases, however, the foreign state wherein the birth took place or the foreign state of the father’s citizenship does not permit the person to claim citizenship with any other state. In this circumstance the parents and/or the child upon reaching the age of majority must renounce any U.S. citizenship or right to claim U.S. citizenship. In these circumstances a child may never claim or secure the right to U.S. citizenship despite the willingness of the U.S. Government to grant such U.S. citizenship at birth.

It should also be remembered that this right to U.S. citizenship at birth is authorized by unnatural, manmade, and artificial statutory law as a means of administering the immigration and naturalization of foreign born persons and not by natural law. Consequently, the statutory laws can be changed in the near or the distant future to compel the Supreme Court of the United States and the Department of State to enforce the existing citizenship law that allows a person to declare allegiance only to the united States or only to a foreign state. Likewise the statutory law could return the naturalization laws to where it was before 1866, which denied U.S. citizenship to foreign born children of U.S. citizens and/or to U.S. born children of foreign or alien parents residing in the United States. Because natural born citizens acquire their U.S. citizenship by the operation of natural law and not by statutory law, no statutory law can deprive them of their U.S. citizenship at birth.

“Kabar says a person can elect, by inaction, to void the operation of 8 USC 1401. You intimated similar, saying one becomes a citizen “But only after securing U.S. diplomatic recognition of the U.S. citizenship.””

The U.S. Statute authorizes the right to claim and adopt U.S. citizenship at birth, but it cannot compel a foreign born person to adopt and give allegiance to the sovereignty of the United States required to actually practice and be a U.S. citizen. There is also the issue of the effect upon a person when the person’s parents choose to renounce the child’s U.S. citizenship or fails to claim and assert U.S. citizenship in accordance with the minimum requirements for residency. Under the Law of nations, such a child may or may not retain a right to declare a claim for U.S. citizenship or other foreign citizenship upon reaching the age of majority or after reaching the age of majority for some foreign states. This is/was true for descendants of Cuban citizens.

Just to add one more example to the collection we are creating. I'm sure there are cases where the honest-to-God natural born citizenship of the person is not recognized by the government. Mistakes happen. We could argue over whether or not that person is a citizen or not, and both sides have an argument. I could say he's a citizen, and the government made a mistake, and my opponent could say the person is not a citizen, period, because the government doesn't find so.

That argument will be resolved the same way the argument about abortion and homosexual marriage being in the 14th amendment is resolved - never!

I'm sure there are cases that go the other way too, citizenship improvidently recognized. IOW, a person is not a citizen, but the government issues papers to the effect that make that person a citizen. Same loggerheads, one side no citizenship, the other side citizenship is what the government recognizes, and that is conclusive, final, and always correct.

Yes, that is why I was highlighting the differences between having a right versus exercising a right. The lawyers have a number of Latin phrases which break this down into much finer distinctions which would be lost in this kind of discussion.

It must also be emphasized the authority to grant the U.S. citizenship at birth for a foreign born person is a statutory Act for the Naturalization of foreign born persons. Statutes are not natural law. Natural born citizens are citizens because of natural law and not because of statutory law. Statutory law and natural law are the exact opposites of each other. By definition statutory law is not natural law and cannot authorize or unauthorized natural born citizenship, because natural born citizenship exists without the existence and before the existence of a statute. Natural born citizenship is the application of natural law, because the domestic birth of a child with two citizen parents does not permit the possibility of a non-citizen birth.

One final point - this discussion isn't about the durability of NBC as opposed to statutory citizenship, although I agree completely with your take on the difference between the two and the potential risks to citizenship, associated with birth abroad, e.g., law changes, courts reverse, etc.

The discussion was narrowly on the operation of 8 USC 1401(g) as it stands, and even more particularly on whether or not "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years" is, as a matter of law, a "citizen of the United States at birth," before that person is recognized as a 8 USC 1401(g) citizen by the government.

Is 1401(g) citizenship automatic, or conditional on applying for recognition?

There is a broader, similar question about citizenship in general. Is any citizenship automatic, or does all citizenship depend on showing suitable evidence (thinking of the person born in the US to US citizen parents, but without a BC, for example) to the government.

-- The U.S. Statute authorizes the right to claim and adopt U.S. citizenship at birth, but it cannot compel a foreign born person to adopt and give allegiance to the sovereignty of the United States required to actually practice and be a U.S. citizen. --

It "can't" usually because it doesn't even know the person exists! And even then, it practices discretion just because it is heavy handed and wasteful to go after foreign-born citizens, when you have plenty of locals to make into taxpayers, criminals and cannon fodder.

But (in my view) as a matter of law, the US government has the power and right to compel these citizens, the same way it compels the citizens it knows about. If the citizen doesn't like it, he can renounce his US citizenship.

“There is a broader, similar question about citizenship in general. Is any citizenship automatic, or does all citizenship depend on showing suitable evidence (thinking of the person born in the US to US citizen parents, but without a BC, for example) to the government.”

Citizenship. The status of being a citizen (Black, 6th ed).

Citizen. One who, under the Constitution and laws of the United States, or of a particular state, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights (Black, 6th ed).

Vest. To give an immediate, fixed right of present or future enjoyment.... To accrue to; to be fixed; to take effect (Black, 6th ed).

Note, citizenship grants civil rights and the protections of the political community in exchange for the duty of allegiance and subjection to the dominion of that political community. While a foreign born person may be offered the civil rights of citizenship, the foreign born person may not be obliged to accept the offer of those rights and duties associated with citizenship. The vesting of the civil rights provided by the membership in the political community represented by citizenship may be contingent upon the person performing the duties required to vest those civil rights to the satisfaction of the political community. In other words, although the civil rights associated with citizenship may be granted at birth, they may not become vested civil rights until and unless the duties required to vest those civil rights have been accomplished.

-- The statutes impose conditions which must be met and authorizes Consular officers to deny the civil rights of citizenship until and unless those evidentiary and residence requirements are met. Since the civil rights are not forthcoming from the political community until and unless the conditions are satisfied, no current and future enjoyment of those civil rights in the political community will occur. Therefore, by definition, no vesting of those civil rights has occurred. --

If I may paraphrase, I think I agree with what you say there. It doesn't get to the nub of the debate though.

If the conditions of the statute aren't met, the person isn't a citizen. If an examiner finds the conditions aren't met, he will find that the person is not a citizen. If the examiner finds the conditions are met, he will find that the person is a citizen.

The argument I had with kabar is different. It has to do with WHEN and IF citizenship vested, assuming the condisions are met. Is citizenship vested when the conditions are met (which is a circumstance of birth, and I say happens at the instant of birth), or is citizenship absent until the evidence is examined by the government, which will be later than the moment of birth, if it happens at all.

-- Think of it like the inheritor of a vast estate who must prove identity and satisfy the conditions of the codicil before the probate can settle the rights of the estate upon the inheritor claimant. --

You haven't answered my question. You are posing an alternative question, that of when the rights are recognized, and in that regard, I agree. They aren't recognized until they are recognized. The issue under debate is whether or not the right exist before it is recognized.

In inheritence, we are dealing with a transfer of property. In citizenship, we are dealing with a personal attribute, something that can't be taken from one and given to another. Does "the one" possess US citizenship at birth, or only after applying for it?

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