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.
Scalia did not say the second one if I remember correctly. I think it was Justice Stevens.
If that's NBC, welcome to Obama land.
As far as I know there is still no US Birth Certificate as his mother didn't pursue it upon return to Texas.
It would be nice for a Federal court to clear this up with a declarative ruling.
I think Scalia may place some significance to the 1790 immigration act as passed by Congress that define Natural Born Citizen as not necessarily "Jus Soli".
you’re asking me to do your homework? really??
That is your GUESS. What I know is that we have his ACTUAL WORDS about Jus Soli during a court case and during an interview.
Thanks for your informative post to me. I certainly don’t claim to be an expert here.
When I see the Liberal Media jumping all over this ‘story’ as a way to attack and destroy Cruz, it causes me stop and question why we’re helping them.
At the end of the day, if this does go before a court, Cruz will be deemed to be a U.S. Citizen, eligible to be President.
All of the other ways require filing and confirmation of eligibility as well.
No. Sen. Cruz said he didn’t have a Canadian passport. trump lied about this (like so many things).
Well, for one thing, it meant not requiring any future laws that weren't yet written in 1787.
If you have to have a law subsequent to 1787 to make you into a citizen, you aren't a "natural" citizen.
1. yes, I agree that 2 wrongs do not make a right.
(just as a practical matter, I think..guess.. that the courts will run away from finding against such a candidate now if only because that would force the courts to review the validity of the entire eight years of O....the courts COULD say that his actions in office were ‘presumptively valid” despite his ineligibility....but that would still leave the courts with the unenviable, difficult task of reviewing those actions nonetheless)
2. our American constitution recognizes that we have lots of individual liberties but, like the Soviet constitution, it has become a mostly-dead letter. especially (but not entirely limited to) in the last 7 years
3. Pray for America
Outright lie.
Well, since you were so quick to the post, I assumed you had a valid link that you were quoting from. Do you know what “CNTRL-C” does and how it supports your assertion?
Meh.
I’ll just assume you made all that shit up and move on.
Thanks
Citizenship exists independently of certification of citizenship. Certification, be it CRBA or passport or Certificate of Citizenship (8 U.S.C. 1452; USCIS Form N-600) require presentation of evidence to the satisfaction of the examiner.
But citizenship alone, that is a circumstance-determined event. If the circumstances satisfy the statute, citizenship is attached.
Birth Abroad to One Citizen and One Alien Parent in WedlockAcquisition of U.S. Citizenship by a Child Born AbroadA 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.
You have a confidence in this outcome that I cannot possibly share. I am long accustomed to the courts behaving one way when it benefits liberal causes, and a totally different way when it benefits conservative causes.
Apart form that, I know of a very prominent supreme court case in which they emphatically state that a person born outside the jurisdiction of the United States can only be a naturalized citizen.
People will say "That's just Dicta", but still, it represents the Opinion of the Supreme court at that time.
Link?
Yes, in the post. Two of them. One to a page about N-600 Certification of Citizenship, and one to Acquisition of U.S. Citizenship by a Child Born Abroad, which was excerpted in a blockquote.
http://lmgtfy.com/?q=birthright+citizenship+countries
the first result:
showing only the US and Canada as the only two developed nations supporting birthright citizenship... which is inaccurate, since the US has never legally recognized it (legal laziness). in fact, the 14th amendment specifically states citizenship is only bestowed to those born to parents under the jurisdiction of the US. illegal aliens do not qualify... as was the intended result per the one that wrote the amendment
To maintain that McCain enjoyed jus solis because he was born in the Canal Zone is risible and absurd. If that were the case, any offspring of Panamanians born in the Zone would be anchor babies. But they are not. McCain is a citizen via jus sanguinis alone.
I saw those but they do not support your topic sentence.
Yes. He’ll have to fight for it.
I just don’t trust any court now to decide in his favor. These are judges that are bought or blackmailed.
If this elections goes up against Sanders, not Clinton, we’re going to need someone who does fight to win.
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