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.
“You haven’t answered my question.”
I believe that I have answered that question in several different ways, but for some reason you are not understanding the concept.
“The issue under debate is whether or not the right exist before it is recognized.”
That is why I emphasized that the citizenship is a right. This right which comprehends the bundle of civil rights that defines citizenship comes into existence at birth, assuming all the pre-conditions of parent citizenship and residence are met at birth.
“Does “the one” possess US citizenship at birth, or only after applying for it?”
The right to claim citizenship that came into existence at birth. The right to actually enjoy the current and future civil rights of the at birth right to citizenship is PERFECTED, i.e. completed, finished, executed, enforceable (Black, 6th ed), by satisfaction of the preconditions at the required time and place. In other words, the act of possession begins at birth and may or may not be fully completed, executed and be enforceable until a Consular Officer or other State Department official certifies the statutory requirements have been satisfied.
Using the word “possess” to define the difference, a analogy may be the right obtained by the acquisition and possession of a winning 100 million dollar lottery ticket, which gave the purchaser-possessor the right to claim the 100 million dollars, but the right to actually experience the enjoyment of the 100 million dollar winnings will not commence and be executed until certain conditions for redeeming the lottery ticket brings about the execution of the possessed right.
I don’t know how I can make it any clearer. The right of citizenship come into existence at birth, assuming the conditions for the existence of the right are present; but the rights of citizenship will remain unexecuted and unfulfilled until the rights possessed since birth have been settled and executed for the enjoyment of the possessor of those birth rights.
I understand the concepts very well. JD with honors. What I had been asking in simple terms you hadn't answered directly. E.g., hypo about all the conditions met, evidence not submitted to government, what do YOU find?
Now you bring up the notion of perfecting a right (which I also understand), and my question would be does the right exist before it is perfected?
I completely agree that citizenship of a foreign born person is presumed absent, and that any government ministerial function that depends on citizenship will be denied unless the paperwork is in order. That citizenship without the paperwork is hollow. But it exists, just the same, and you appear to agree that it exists (albeit in a useless form) before being recognized, certified, perfected, vested or whatever else you want to call "paperwork in order."
The correct answer is not pointless. It is the question: is Ted Cruz a natural born citizen?
He is either natural born, naturalized or not a citizen.
Your replies seem to avoid choosing between these options. Do you have another category of citizenship?
If you’re correct, then is Ted Cruz is not a citizen?
I've got to get on to some paying work. Hope you have a great day, and I look forward to interacting with you again.
I was reading this morning posts on this site, and of course, anybody can post, but the statement was made that Cruz’s father had become a Canadian citizen four years before Cruz was born, also his mother. It is hard for me to believe that that qualifies Cruz as natural born citizen.
Cruz should have paper work documenting his foreign birth as an American citizen, filed shortly after birth. But his father being a Canadian citizen...
Any claim that Cruz did not know he had a Canadian birth certificate is absurd.
Did you read the article?
Yes, but now the claim is made that Cruz’s father was a Canadian citizen at the time of Cruz’s birth. He did not mention that in the article.
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
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.
As I explained, an overt action had to be taken by the mother to obtain US citizenship for her infant son. It was my assumption that she did register the birth with the consulate. Obviously, Ted could not do that himself. The use of the word "had" is meant to describe what actually happened.
Tom had to pay by check to buy the sofa. This is not to say that check was the only method to buy the sofa. He could have used cash or a credit card but had neither. Am I saying that the only way to buy a sofa is by check?
You further say that a person is not a citizen until the examiner approves the application.
Why is that such a difficult concept to understand? Ted Cruz received DERIVATIVE citizenship thru his mother. There are laws and regulations who can transmit and receive such citizenship. I provided you with the link showing those requirements as well as giving you an excerpt of one of the conditions that concerned Obama. Here it is
Birth Abroad to One Citizen and One Alien Parent in Wedlock
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.
Obama was born in 1961 to his 17 year old mother. If Obama was not born in Hawaii, his mother could not transmit US citizenship to him. Those were the rules at the time of his birth. They were changed later.
There is no such thing as a citizen in waiting. In the hypothetical you provided about someone who only realized his eligibility many years later, I explained why citizenship is not retroactive and only becomes effective upon approval. You cite the statute "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.
Again, you are literally taking the meaning of the phrase "at birth" to mean that there is some sort of retroactive citizenship and that the approval process is not conditional. The reason "at birth" is there is to distinguish it from the naturalization process.
From the State Department Foreign Affairws Manual (FAM: - 3 Not Citizens by "Naturalization" (CT:CON 2013) Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides that the term "naturalization" means "the conferring of nationality of a state upon a person after birth, by any means whatsoever." Persons who acquire U.S. citizenship at birth by birth abroad to a U.S. citizen parent or parents who meet the applicable statutory transmission requirements are not considered citizens by naturalization.
If the person you posed in the hypothetical got in trouble in another country and needed consular assistance, he would not be considered an American citizen retroactively. Unless he holds a US passport or some other proof of citizenship, he is not our responsibility. We even caution people holding dual nationalities that there are limits to what we can do if they travel on another country's passport.
You are engaged in these verbal gymnastics to justify your contention that Cruz is a natural born citizen. He may or may not be. This issue needs to be litigated before the court for the reasons I have stated previously. It is not settled law.
Would you consider your Daughter a naturalized American citizen or Native born?
We have 300,000 anchor babies born each year to illegal aliens; thousands of tourists come here to have their children; and there are up to 15 million green card holders in the US, many of whom elect not to become citizens. Should their children be considered natural born as it pertains for eligibility to be President?
I should add definitely not naturalized since that process was never used to transmit citizenship. My daughter was placed on my wife’s passport and we filed a Consular Report of Birth Abroad.
My two oldest children were born in Berlin, Germany while I was stationed there in the US Army, I consider them native born period. I was required to get the FS-240 so I could prove they were American Citizens to get their passports to take them with me to the States, not to register then as American Citizens.
You could just as easily just applied for passports. I was stationed four years in Berlin at the US Mission (USBER).
Well that was how I was instructed to get the passports, don’t know what years you were there, I was there 80-84 Field Station Berlin
1983-87.
We disagree on that, unless by "had to be taken" you mean that she actually took an overt action.
-- Tom had to pay by check to buy the sofa. This is not to say that check was the only method to buy the sofa. --
Well, in the ordinary use of language, "had to pay by check to buy the sofa" is saying that his payment options were limited to payment by check - maybe the limitation arises by the form of funds he had at his disposal, maybe because the seller insisted on a check. If you mean something else by "had to pay by check," don't be surprised that your reader is confused.
-- Again, you are literally taking the meaning of the phrase "at birth" to mean that there is some sort of retroactive citizenship and that the approval process is not conditional. --
I never said that either the citizenship, nor the approval was not conditional. Both are conditional.
-- The reason "at birth" is there [in 1401] is to distinguish it from the naturalization process. --
the term "naturalization" means "the conferring of nationality of a state upon a person after birthThe way I read those statements together, citizenship under 1401(g) attaches at birth, and is not conditioned on approval. You have said that citizenship attaches after birth, on approval, and doesn't attach at all if the conditions are met and approval isn't sought. Well, that's the natural meaning of the words you typed, maybe you mean something different, and I'm just confused again.
-- You are engaged in these verbal gymnastics to justify your contention that Cruz is a natural born citizen. --
That's false. I find that Cruz is a statutory citizen, that because his citizenship depends on the statute, he is not a natural born citizen.
-- You really are a pedantic, pissant. --
That was uncalled for. I can only go by the words you type, and as i pointed out with the "had to pay by check" example, maybe the words you type are taken, by others, in a way different from what you intend.
As I previously observed you are not able to comprehend the constitutional question, hence further discussion is also as I previously stated, pointless.
Ted Cruz is a citizen but because both of his parents were not Ted Cruz is NOT a natural born Citizen in the Constitution.
If it offers you any relief, I will vote for Ted Cruz if he wins the Republican Primary.
I should have heeded the wise advice offered in Proverbs 14:7 and Proverbs 26:4. To that end I ask that you not response further. I trust you will understand and comply.
The Constitution, to be amended, has to go through the amending process, not just by a law passed by Congress. Under the “natural born” stipulation in the Constitution, natural born citizen ship descended from the father (Naturalization Act of 1790) — original intent. The fact that Cruz’s father may have been a Canadian citizen when he was born causes problems.
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