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.
That’s awesome
Look on the upside of the downside ....and there's plenty of downside. Trump could turn out to be a 60's liberal Democrat indifferent to RKBA, immigration, territorial integrity, and fiscal sanity. He could turn out to be a stalking-horse for Hildebeast (remember that 45-minute private conversation with Slick Willie before he announced?) or a Rockefeller clone.
What we do get, which is the upside of some pretty good downside, is a free look at whether Obama's acts and E.O.'s can be invalidated due to NBC issues, once we break into his trove of protected identity and education documents. If Ted Cruz isn't NBC enough for SCOTUS, then chances are that Indonesian Passport Boy isn't either. Especially if his trendy Red mom never got around to trotting him down to the State Department office in Hawaii to reclaim his U.S. citizenship and turn in his Indonesian documents -- and we've heard he kept that passport. If he renaturalized, he couldn't have kept it -- capiche?
If we find out Obama's not NBC, his whole _residency becomes a peel-off sticker, his acts and legislation subject to legal attack as invalid, and the White House declared vacant for his entire eight years in orifice.
I hope to God it’s not true when Dad Cruz said the two of them took the Canadian oath of citizenship. I cannot imagine that any candidate, especially one as smart as Cruz, would run with this hanging out there.
Because if it’s true, we have a real bag of snakes on our hands.
Birth of U.S. Citizens Abroad
A child born abroad to a U.S. citizen parent or parents may acquire U.S. citizenship at birth if certain statutory requirements are met. The child’s parents should contact the nearest U.S. embassy or consulate to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) to document that the child is a U.S. citizen. If the U.S. embassy or consulate determines that the child acquired U.S. citizenship at birth, a consular officer will approve the CRBA application and the Department of State will issue a CRBA, also called a Form FS-240, in the child’s name.
According to U.S. law, a CRBA is proof of U.S. citizenship and may be used to obtain a U.S. passport and register for school, among other purposes.
The child’s parents may choose to apply for a U.S. passport for the child at the same time that they apply for a CRBA. Parents may also choose to apply only for a U.S. passport for the child. Like a CRBA, a full validity, unexpired U.S. passport is proof of U.S. citizenship.
Parents of a child born abroad to a U.S. citizen or citizens should apply for a CRBA and/or a U.S. passport for the child as soon as possible. Failure to promptly document a child who meets the statutory requirements for acquiring U.S. citizenship at birth may cause problems for the parents and the child when attempting to establish the child’s U.S. citizenship and eligibility for the rights and benefits of U.S. citizenship, including entry into the United States. By law, U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States.
Consular Report of Birth Abroad (CRBA, or Form FS-240)
If you are a U.S. citizen and have a child overseas, you should report his or her birth as soon as possible so that a Consular Report of Birth Abroad can be issued as an official record of the child’s claim to U.S. citizenship. Report the birth of your child abroad at the nearest U.S. embassy or consulate. Check the American Citizens Services portion of the webpage for the nearest Embassy or Consulate in the country where your child was born for further instructions about how to apply for a CRBA. Please note:
A Consular Report of Birth Abroad of a U.S. citizen is only issued to a child who acquired U.S. citizenship at birth and who is generally under the age of 18 at the time of the application.
The U.S. embassy or consulate will provide one original copy of an eligible child’s Consular Report of Birth Abroad of a U.S. Citizen.
A more secure Consular Report of Birth Abroad of a U.S. Citizen was introduced in January 2011. This new CRBA has been updated with a variety of state of the art security features, and is printed centrally in the United States. U.S. embassies and consulates no longer print CRBAs locally, but you still must apply there. The central production was initiated to ensure uniform quality and reduce vulnerability to fraud. The previous version of the CRBA continues to be valid proof of U.S. citizenship.
You may replace, amend or request multiple copies of a Consular Report of Birth Abroad of a U.S. Citizen at any time.
Persons who acquired U.S. citizenship or U.S. nationality at birth in one of the following current or former territories or outlying possessions of the United States during relevant time periods are not eligible for a Consular Report of Birth Abroad of a U.S. Citizen because such persons are not considered to have been born abroad. Individuals born in these locations during the relevant times may establish acquisition of U.S. citizenship or non-citizen nationality, based upon the applicable agreement or statute, by producing their birth certificate issued from the local Vital Records Office along with any other evidence required to establish acquisition:
Puerto Rico
U.S. Virgin Islands American Samoa
Guam
Swains Island
The Panama Canal Zone before October 1, 1979
The Commonwealth of the Northern Mariana Islands after January 8, 1978 (8PM EST)
The Philippines before July 4, 1946
Other Citizenship Documents Issued to U.S. Citizens Born Abroad
Certification of Report of Birth (DS-1350)
As of December 31, 2010, the Department of State no longer issues Certifications of Reports of Births (DS-1350). All previously issued DS-1350s are still valid for proof of identity, citizenship and other legal purposes.
Certificate of Citizenship issued by U.S. Citizenship and Immigration Services (USCIS)
A person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452. Visit USCIS.gov for further information.
Yes, you can if the country where you are born recognizes jus soli - (if you are born in that country, regardless of the nationalities of your parents). The U.S. recognizes natural born citizenship if you are born here (even if neither of your parents is a U.S. citizenship) AND if you are born in another country as long as one of your parents is a U.S. citizen (and has lived here for the requisite amount of time). Canada did as well in 1970, the year Cruz was born. I don't know if Canada still does.
If they won’t take up the Obama records, they cannot take up the Cruz records.
Only the Electoral College and Congress (HOR) has standing. When they abdicated such in deference to the “popular election” results, it opened the field to ANYONE.
“Not the world’s strongest argument but at least it doesn’t misstate American history.”
1. Two wrongs do not make a right.
2. The Soviet Union had a constitution which guaranteed many noble rights, yet the totalitarian Communist government systematically destroyed those rights and tens of millions of Soviet lives while doing so. In each case, this totalitarianism was made possible by the direct abrogation of the written constitution/s and by the indirect subversion of those constitutions.
3. In case after case, each totalitarian government gained power and wielded power against the citizens by first subverting the rule of law and their constitutional governments.
4. If you want to preserve Freedom, you must first preserve the freedoms in law, and then act to preserve that rule of law responsible for preserving those freedoms. You cannot do that by embarking or tolerating infringements upon the rule of law or the infringement of Freedom in those laws.
FYI.
Canada and the U.S. need to get with the program.
His mother told him she never applied for Canadian citizenship for him. Most countries don’t have birthright citizenship. In actuality, his Canadian citizen was nullified when he voted in his first U.S. election, but he still went through the formality of renouncing it.
Court opinions, congressional statutes, Harvard professors... The ONLY thing that matters is- what did natural born mean when the Constitution was adopted?
hate to be a “neener-neener” but your link isn’t directed to the Canadian regulations...just an online info-site.
I’m still skeptical..
Horse Crap. Cruz’s parents reported his birth to the American Consulate, which sealed his citizenship. Cruz was never naturalized.
actually, canada is one of the few countries with birth right/ born on the soil citizenship (unlike the US)
The nature of the case is not pertinent. What is pertinent is the discussion about NBC. They specifically had an exchange about the requirements for Presidency.
Justice Scalia has indicated now in TWO separate instances that he leans toward a requirement of born on US soil.
That doesn’t mean that is how he would rule.
How so?
Enlighten me, please.
Candidates choose which questions they will answer. They have a thousand ways of sidestepping or ignoring altogether a question. And trump is very good at this. trump knew what it was doing.
Before the Constitution, the closest reference we have to Natural Born Citizen is from the legal treatise “the Law of Nations,†written by Emerich de Vattel in 1758.
http://www.constitution.org/vattel/vattel.htm
In book one chapter 19 § 212. Of the citizens and natives:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
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