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.
Not true. He also said it in an interview.
And, guess what?
The courts will grant them standing.
By the way, if you actually listen to Justice Scalia in that exchange you will see that it is not just a question with no meaning in his mind.
:: What bothers me is Cruz didn’t bother to get rid of his Canadian citizenship ::
That question should be sent to the Canadian government, ne c’est pas?
Was Cruz a “citizen of Canada” for simply being born on Canadian soil? What is the collective understanding of the Canadian government? What is THEIR understanding of “citizenship?
I suspect that a fair number of Congress people are dual citizens. They are of course tight-lipped about that.
When I was in high school, in 1966, I had a wonderful, patriotic US History teacher (thank you, Mr. Benofsky).
We studied this issue and, at that time (and with no pending controversies) it appeared that everyone believed what NBC meant was “born here”.
I followed the Obama threads. I understand the desperation to believe “this can’t possibly be happening”. But the proof that Obama wasn’t born here has never surfaced.
The proof that Cruz wasn’t born here, OTHO, is undisputed. If the USSC has to rule on this (and I hope they don’t), there is at least some chance that they will rule Cruz is not an NBC.
All they need is one win.
Cruz will need a 100% win record all the way to SCOTUS.
First, one needs to consider the constitutional provision itself, as it was understood when adopted. Second, the 1790 naturalization act was repealed by the 1795 naturalization act. Third, the 1795 act eliminated the 1790 “natural born citizen” provision. 4th, the 1795 law corrected the 1790 clause to merely bestow or recognize those born of American parents as “citizens” — significantly NOT nbc’s. This was a patently key change in the new act, which otherwise mostly added new content to the naturalization- of - aliens provision. (And while we’re at it, the repealed 1790 act only addressed children of American parents, not children of an American patent and a citizens of foreign powers ... But again, that law didn’t work to Congress’ expectations and had to be repealed anyway shortly after it was passed.). Relying on repealed laws that never applied to anybody alive today — gets us almost nowhere. But the phrase “natural born citizen” was pretty well understood at the time it was put in our Constitution... All this has been discussed here and elsewhere — I’m not going to get pulled into it again now. My major point is just to point out how unreliable much of the professional media commentary is nowadays. Especially on matters regarding our country’s constitution ( including our individual liberties!) and governmental system. It seems that “anything goes” and that advocacy ( even of candidates and positions I like a lot) is now standard fare as “news articles”. Beware the media!
“His Mom was/is a U.S. Citizen.”
All that means is his parents had the right to request the U.S. Department of State to grant their child born with Canadian citizenship with an optional right to claim U.S. citizenship in accordance with artificial statutory law of the U.S. Code. Such U.S. citizenship was acquired by right of statutory law and artificial law and not by natural law. Natural born citizenship is by self definition that citizenship which is acquired by the authority of natural law and not by artificial law, manmade law, or statutory law. Any citizenship conferred by artificial manmade law is by definition not natural law or natural citizenship.
Even if Cruz is 100% natural born, it will be an issue.
I have a cousin born overseas (parents were employees of the State Dept). No one ever gave dual citizenship a thought until he applied for a job and was told he’d have to give up a citizenship of which he was completely unaware.
Cruz got his citizenship thru jus sanguinis, i.e., thru his mother. When Cruz was born in Calgary, his mother had to register his birth at the US Consulate to convey citizenship. But Cruz was also a Canadian citizen at birth thru birthright citizenship, i.e., jus solis.
If you read the Tribe-Olson opinion on McCain you will find that they found McCain eligible on the basis of both jus sanguinis (both parents US citizens and jus solis, McCain was born in the Canal Zone, considered a US territory. In that same opinion they found Obama eligible because he was born in Hawaii.
So the question is do the children of illegal aliens who are citizens automatically thru jus solis,, i.e., birthright citizenship eligible to be President as a natural born citizens. 300,000 children are born to illegal aliens annually. The same holds true for non-US citizen tourists here on visas or green card holders.
The Courts have never ruled on the issue. It needs to be done sooner rather than later. Cruz would be the first President ever born outside the country and having only one US citizen parent.
The controversy over Chester A. Arthur's eligibility over 120 years ago is instructive. Also, the reason why Obama's birthplace matters is that under the laws at the time, his mother would not have been able to convey citizenship to him even though she was an American citizen.
And yet in upholding the law of citizenship as set forth by the immigration act a concurring opinion by Associate Justices Antonin Scalia and Clarence Thomas proposed that the Supreme Court simply did not have the power of "conferral of citizenship on a basis other than that prescribed by Congress".
This case was about something beside NBC. This was a child born out of wedlock to a foreign woman and a US man in a foreign country. According to the law the child didn't meet the citizen at birth requirement.
Coming next week...
I know Ted. Nice guy, but he's terrible.You know, I've never heard him say that he wants to make America great again. Really. I haven't.
So what does that tell you? Some people say it's because he wants to make America worse.
Look, I'M not saying that. But some people are. And you know, that's something Cruz is going to have to deal with.
It's probably best that I bring it up now before the Democrats do.
I say it because he's a good guy. And I want to help him. But he's terrible.
-Donald Trump (next week)
See my post #32
“What bothers me is Cruz didn’t bother to get rid of his Canadian citizenship...senators should NOT have dual citizenship...all of freeperdom used to agree on that. He maintains he didn’t know he was a Canadian citizen until 2014.....and he’s a lawyer???”
He also said he didn’t know he had a Canadian passport.
How the heck do you NOT know? And #2 how is it that no one in government alerted a sitting senator of this fact?
I believe that is false. The statute that confers citizenship does not depend on registering the birth. CRBA is a relatively easy and highly reliable way to document US citizenship, but it is not the ONLY way to do so.
Justice Scalia: “Well, maybe. I’m just referring to the meaning of natural born within the Constitution. I don’t think you’re disagreeing. It requires jus soli, doesn’t it? “
Justice Scalia: “Of course the interesting thing about that provision, it requires that he be natural born at the time of the adoption of the Constitution. Thats what it literally says.“
Ps: what I am saying above is that we cannot rely on many published articles or even “analyses” when they appear in the mass media today. Too much uninformed or biased , distorted writing. Secondly, if you want to support a candidate, tell us why you think s/he will do good things in office — and dont twist facts or history. One argument could be that since Obama is clearly ineligible (daddy, forgetting where Obama was or wasn’t born) but has nevertheless been permitted to occupy the office, that any of several other similarly- ineligible candidates should now be permitted to maybe win the office too. Not the world’s strongest argument but at least it doesn’t misstate American history.
There was a time, long ago in a galaxy far, far away when I looked into getting a Canadian passport. The terms "greeting" and "1-A" had something to do with it, as I recall.
Even using tested methods from the original Paper Chase. it wasn't really possible.
I do not believe Canada just sends you a passport. Even if your name is Ted Cruz.
So, if this is true (and it's the first I'm hearing of it), it's a problem.
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