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.
The blockquote refutes the contention that "must register birth at the US Consulate to convey citizenship."
Cruz is a citizen of the US, even if his birth was not registered at the US Consulate. He is a US citizen even if he never obtains certification of citizenship.
It's probably best that I bring it up now before the Democrats do.
The Donald is a classic concern troll.
His only Birth Certificate is from Canada.
If he were not a known US Senator, he would have to provide documentary proof on how that Canadian BC translates to US Citizenship...to obtain a Drivers License or Passport.
I think he should at least be required to do the same to get on the POTUS ballot in 50 states.
“Horse Crap. Cruz’s parents reported his birth to the American Consulate, which sealed his citizenship. Cruz was never naturalized.”
I never said he went through the naturalization procedure to acquire U.S. citizenship. I said he acquired his U.S. citizenship by the authority of artificial, manmade, statutory law. See the artificial statutory law and note how that authority is contrary to natural law that requires no artificial, manmade, statues to establish authority for the acquisition of U.S. citizenship. Note this statutory law is separate from the also statutory, manmade, statutory laws concerning the acquisition of U.S. citizenship by naturalization after birth:
U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT. 7 FAM 1131.1-1 Federal Statutes....
a. Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is governed by Federal statutes. Only insofar as Congress has provided in such statutes, does the United States follow the traditionally Roman law principle of “jus sanguinis†under which citizenship is acquired by descent (see 7 FAM 1111 a(2)).
b. Section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) gives the Secretary of State the responsibility for the administration and enforcement of all nationality laws relating to “the determination of nationality of a person not in the United States.”
7 FAM 1131.1-2 Applicable Statute....
The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens. Instructions in 7 FAM 1130 will note when a law is retroactive.
7 FAM 1131.1-3 Delegation of Authority....
Consular officers may decide cases involving acquisition of citizenship by birth abroad. Designated nationality examiners may also do so in connection with providing passport and related services. If guidance is needed, a case may be submitted to the Department (CA/OCS) for decision or advisory opinion.
7 FAM 1131.2 Prerequisites for Transmitting U.S. Citizenship....
Since 1790, there have been two prerequisites for transmitting U.S. citizenship to children born abroad:
(1) At least one natural parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.
7 FAM 1131.4-1 Establishing Blood Relationship
(CT:CON-349; 12-13-2010)
a. The laws on acquisition of U.S. citizenship through a parent have always contemplated the existence of a blood relationship between the child and the parent(s) through whom citizenship is claimed. It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born. Absent a blood relationship between the child and the parent on whose citizenship the child’s own claim is based, U.S. citizenship is not acquired. The burden of proving a claim to U.S. citizenship, including blood relationship and legal relationship, where applicable, is on the person making such claim.
b. Applicants must meet different standards of proof of blood relationship depending on the circumstances of their birth:
(1) The statutes do not specify a standard of proof for persons claiming birth in wedlock to a U.S. citizen parent or out of wedlock to an American mother. The Department’s regulations also do not explicitly establish a standard of proof. The Department applies the general standard of a preponderance of the evidence. This standard means that the evidence of blood relationship is of greater weight than the evidence to the contrary. It is credible and convincing and best accords with reason and probability. It does not depend on the volume of evidence presented.
(2) Section 309(a) INA (8 U.S.C. 1409(a)), as amended on November 14, 1986, specifies that the blood relationship of a child born out of wedlock to a U.S. citizen father must be established by clear and convincing evidence. This standard generally means that the evidence must produce a firm belief in the truth of the facts asserted that is beyond a preponderance but does not reach the certainty required for proof beyond a reasonable doubt. There are no specific items of evidence that must be presented. Blood tests are not required, but may be submitted and can help resolve cases in which other available evidence is insufficient to establish the relationship. For the procedures for establishing legal relationship to or legitimation by a citizen father once blood relationship has been proven, see 7 FAM 1133.4.
c. Children born in wedlock are generally presumed to be the issue of that marriage. This presumption is not determinative in citizenship cases, however, because an actual blood relationship to a U.S. citizen parent is required. If doubt arises that the citizen “parent” is related by blood to the child, the consular officer is expected to investigate carefully. Circumstances that might give rise to such a doubt include:
(1) Conception or birth of a child when either of the alleged biological parents was married to another;
(2) Naming on the birth certificate, as father and/or mother, person(s) other than the alleged biological parents; and
(3) Evidence or indications that the child was conceived at a time when the alleged father had no physical access to the mother.
d. If the child was conceived or born when the mother was married to someone other than the man claiming paternity, a statement from the man to whom the mother was married disavowing paternity, a divorce or custody decree mentioning certain of her children but omitting or specifically excluding the child in question, or credible statements from neighbors or friends having knowledge of the circumstances leading up to the birth may be required as evidence bearing on actual natural paternity.
e. Suggestions for developing cases that involve questionable blood relationships are given in the following sections.
7 FAM 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents
7 FAM 1131.6-1 Status Generally
(TL:CON-68; 04-01-1998)
Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. One exception is that they may be subject to citizenship retention requirements.
7 FAM 1131.6-2 Eligibility for Presidency
(TL:CON-68; 04-01-1998)
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen...shall be eligible for the Office of President.â€
c. The Constitution does not define “natural born”. The “Act to establish an Uniform Rule of Naturalizationâ€, enacted March 26, 1790, (1 Stat. 103,104) provided that, “...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.â€
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
7 FAM 1131.6-3 Not Citizens by “Naturalizationâ€....
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.
7 FAM 1131.7 Citizenship Retention Requirements....
a. Persons who acquired U.S. citizenship by birth abroad were not required to take any affirmative action to keep their citizenship until May 24, 1934, when a new law imposed retention requirements on persons born abroad on or after that date to one U.S. citizen parent and one alien parent.
b. Retention requirements continued in effect until October 10, 1978, when section 301(b) INA was repealed. Because the repeal was prospective in application, it did not benefit persons born on or after May 24, 1934, and before October 10, 1952 (see 7 FAM 1100 Appendix L).
c. Persons born abroad on or after October 10, 1952, are not subject to any conditions beyond those that apply to all citizens.
d. Persons whose citizenship ceased as a result of the operation of former section 301(b) were provided a means of regaining citizenship in March 1995 by an amendment to section 324 INA (8 U.S.C. 1435). A more detailed discussion of the retention requirements and remedies for failure to comply with them is provided in 7 FAM 1100 Appendix L.
7 FAM 1131.8 Report on Applicant Who Has Not Acquired U.S. Citizenship....
When the post determines that a person applying for documentation as a U.S. citizen has no claim to U.S. citizenship at birth, the post should enter an “N†looking in CLASS via PLOTS in accordance with 7 FAM 1300 Appendix A. A discussion of the various types of lookouts is found in 7 FAM 1330.
7 FAM 1132.3 April 14, 1802
(TL:CON-68; 04-01-1998)
a. Section 4 of this Act (2 Stat. 153,155) stated, in part, that: “the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never resided within the United States.â€
b. This Act’s formula of permitting transmission of citizenship by “persons who now are, or have been citizens†raised a question whether persons who subsequently became citizens by birth or naturalization could transmit citizenship to their children born abroad. The right of such persons to transmit was clearly provided in the Act of February 10, 1855.
7 FAM 1132.4 February 10, 1855....
a. On this date, Congress enacted “An Act to Secure the Right of Citizenship to Children of Citizens of the United States Born Out of the Limits Thereof,” (10 Stat.604).
b. It stated, in part, that: “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.â€
c. The Act of February 10, 1855 did not repeal the Act of April 14, 1802.
7 FAM 1132.5 Section 1993, Revised Statutes of 1878....
a. The provisions of the Act of 1802 and the Act of 1855 were codified as Section 1993 of the Revised Statutes of 1878. From 1878 to 1934, Section 1993, Rev. Stat., stated that: All children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.
b. Section 1993 permitted the transmission of citizenship only by U.S. citizen fathers until it was amended prospectively on May 24, 1934, to permit transmission by U.S. citizen mothers. (The similar rights of women were also addressed by the 1994 amendment to section 301 INA (see 7 FAM 1133.2-1).)
7 FAM 1132.6 May 24, 1934
(TL:CON-68; 04-01-1998)
a. Section 1993 (48 Stat. 797) was amended by the Act of May 24, 1934, to permit American women to transmit U.S. citizenship to their children born abroad, regardless of the father’s citizenship.
b. The amended Section 1993 was in effect from May 24, 1934, at noon Eastern Standard Time until January 12, 1941. The text of the amended law is shown in 7 FAM 1135.6-1. It was repealed, and superseded by the Nationality Act of 1940. 7 FAM 1130 Page 12 of 69
UNCLASSIFIED (U)
7 FAM 1132.7 January 13, 1941
(TL:CON-68; 04-01-1998)
a. The Nationality Act of 1940 (NA) (54 Stat. 1137) went into effect on January 13, 1941. Section 201 NA addressed acquisition of citizenship by birth abroad. The pertinent text of Section 201 NA is shown in 7 FAM 1134.2.
b. The NA was repealed and superseded by the Immigration and Nationality Act of 1952.
7 FAM 1132.8 December 24, 1952
(TL:CON-68; 04-01-1998)
a. The Immigration and Nationality Act (INA) of 1952, the current law, has been in effect since December 24, 1952.
b. For original and amended provisions of this act, see 7 FAM 1133.2-1 and 7 FAM 1133.2-2.
He is a citizen at birth if his mother was a citizen at the time of his birth and satisfied the residency requirements. That’s the proof part. It’s not automatic but its not rocket science either. I never asserted that must register birth at the US Consulate to convey citizenship. There are other avenues.
U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT. 7 FAM 1131.1-1 Federal Statutes....
a. Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is governed by Federal statutes. Only insofar as Congress has provided in such statutes, does the United States follow the traditionally Roman law principle of “jus sanguinis†under which citizenship is acquired by descent (see 7 FAM 1111 a(2)).
b. Section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) gives the Secretary of State the responsibility for the administration and enforcement of all nationality laws relating to “the determination of nationality of a person not in the United States.â€
7 FAM 1131.1-2 Applicable Statute....
The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens. Instructions in 7 FAM 1130 will note when a law is retroactive.
7 FAM 1131.1-3 Delegation of Authority....
Consular officers may decide cases involving acquisition of citizenship by birth abroad. Designated nationality examiners may also do so in connection with providing passport and related services. If guidance is needed, a case may be submitted to the Department (CA/OCS) for decision or advisory opinion.
Proof is necessary for certification (be that CRBA or passport of Certificate of Citizenship). Your words appear to be saying that he isn't a citizen until his citizenship is certified. I disagree with that, and contend that Certification only confirms the conclusion, Certification doesn't create the conclusion.
-- I never asserted that must register birth at the US Consulate to convey citizenship. --
I know that. That assertion was made by kabar, @ post 32. You jumped into that conversation @ post 67, saying, "All of the other ways require filing and confirmation of eligibility as well."
I took that as saying "All of the other ways [to confer citizenship] ..." and I still say that citizenship exists independently of any sort of certification.
Then he has some documentary proof of US Citizenship. It would be sufficient to obtain a Drivers License and Passport.
Let's see it.
And, since we know he was a Canadian citizen until 2014 and that he has a Canadian BC, his mother was the only means to confer US Citizenship. We should see her Birth Certificate proving her Citizenship.
That's what known as a document trail, and while it's probable Cruz could produce one eventually, there is sufficient question whether one exists currently.
He needs to present the Consular Proof of Birth Abroad. His mother's citizenship would have been validated by the US State Dept before issued and would complete the documentary requirements for US Citizenship.
If he does not have one of those, he needs to work that process post facto.
And that would be just to get a US Passport, or Drivers license from any state since 2014 when he renounced his Canadian citizenship.
And all of that does not adjudicate whether he meets the Article II definition of NBC.
Ted (and many, many observers and legal experts) claim Ted is NBC.
And there's a whole bunch of folks replying with: Just prove it.
Anyone who thinks this is going to go away without some documentary proof is living a fantasy. Whether Republican or Democrat opponent, or a State Attorney General and Governor for ballot access, the demand will come for proof.
What’s your point?
>>>I never got from Trump that he was questioning whether Cruz was an American citizen. It was whether he was a natural born citizen..
An American citizen is either natural born or naturalized. Ted is definitely not the latter. Ergo...
Birthright Citizenship in the United States: A Global Comparison
Since the Citizen Clause of the Constitution gave Congress sole authority to define citizenship, Cruz’s citizenship is Constitutional.
It’s a little metaphysical for me, like the question of the silence of a tree falling in the forest with no one to hear. Citizenship has benefits and before getting access to them the State requires proof that you are entitled. Are you a citizen before they agree that your proof is sufficient? IDK and am not sure how it matters.
No, it's not. That's a reasonable assessment of whether he is eligible.
Proof would be a Consular Report of Birth Abroad, the document everyone in his situation would need to even obtain a Passport or Drivers License. It is routinely issued.
Let's see it.
“I still say that citizenship exists independently of any sort of certification.”
If that were the case, there could not be a U.S. statute explicitly authorizing the U.S. Secretary of State and the U.S. Consular Officers to deny U.S. Citizenship for a person who is born abroad. Yet, there are such statutes authorizing the denial and the later revocation of U.S. Citizenship for persons born abroad. See:
U.S. Department of State Foreign Affairs Manual Volume 7
Consular Affairs. 7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT. 7 FAM 1131.1-1 Federal Statutes....
a. Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is governed by Federal statutes. Only insofar as Congress has provided in such statutes, does the United States follow the traditionally Roman law principle of “jus sanguinis†under which citizenship is acquired by descent (see 7 FAM 1111 a(2)).
b. Section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) gives the Secretary of State the responsibility for the administration and enforcement of all nationality laws relating to “the determination of nationality of a person not in the United States.â€
7 FAM 1131.1-2 Applicable Statute....
The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens. Instructions in 7 FAM 1130 will note when a law is retroactive.
7 FAM 1131.1-3 Delegation of Authority....
Consular officers may decide cases involving acquisition of citizenship by birth abroad. Designated nationality examiners may also do so in connection with providing passport and related services. If guidance is needed, a case may be submitted to the Department (CA/OCS) for decision or advisory opinion.
And the sooner you ascertain that the child is eligible for citizenship, the better. It is not as cut and dried as some people may think.
You are preaching to the converted.
You see my point. This goes beyond Cruz. We need this resolved sooner rather than later. We live in a global society with Americans living and working all over the globe. And birthright citizenship is a can of worms that needs to be ended. One of the effects is having a child of illegal aliens eligible to be President. Is that what our Founders wanted?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.