Posted on 01/15/2016 1:18:15 PM PST by SeekAndFind
The showdown over eligibility may shift from the political arena to the courts – at least, it might if two plaintiffs get their way. Both Ted Cruz and Marco Rubio face legal challenges to their presidential ambitions based on the circumstances of their birth. In Florida, the challenge comes from a voter whose previous lawsuit against Barack Obama’s eligibility went nowhere, and names both Republican contenders. Rubio’s legal team didn’t exactly shrug it off, but asked the court to do so instead:
This week Rubio sought to have a court complaint in Florida against him thrown out, saying the argument "would jeopardize centuries of precedent and deem at least six former presidents ineligible for office." (Last week he told reporters of Cruz, “I don’t think that’s an issue.”)
Rubio was born in Miami in 1971. But Rubio’s Cuban immigrant parents did not become U.S. citizens until 1975.
That's convinced so-called birthers to conclude Rubio is ineligible under Article 2 of the Constitution, which says “no person except a natural born citizen … shall be eligible to the Office of President.” …
A Fort Lauderdale man, Michael Voeltz, filed a complaint against Rubio and Cruz in December, arguing they are "naturalized citizens, or at the very least, simply fail to comply with the common law Supreme Court established definition of natural born citizen …"
Rubio filed a motion to dismiss on Jan. 11. The 34-page filing, heretofore unknown, shows that Rubio's legal team spent considerable time researching the issue. "Senator Rubio is a natural born citizen of the United States and he is eligible to be President of the United States," it concludes.
Interestingly, the first argument in the motion goes to a lack of standing. That would be pretty much a standard approach to lawsuits anyway, but perhaps not the most politic of arguments. The motion argues that the question raises only a general claim of injury to the plaintiff rather than a “particularized” injury. While that’s based on plenty of precedent, it might rub some who see standing as a barrier to properly enforcing the Constitution the wrong way. That irritation might increase with the second major argument based on Berg v Obama that eligibility is “a non-justiciable political argument,” although again based on substantial precedent. Politically, Rubio is on much firmer ground with his positive argument in the latter part of the motion on what makes him an eligible candidate.
Meanwhile in Texas, Newton Schwartz has filed a new lawsuit to declare Cruz ineligible. Schwartz wants the suit to go straight to the Supreme Court:
The federal case filed in Texas argues that the question must be presented to the Supreme Court for fair adjudication instead of left up to popular consensus.
"The U.S. Constitution is not a popularity document for fair weather only," says the lawsuit filed by Newton Schwartz says.
"However persuasive, one finds each side in this debate, the final decision ultimately rests in the hands of five or more of nine Justices on the Supreme Court as mandated by the Constitution." …
The suit argues that the constitutional mandate that the president must be a "natural-born citizen" has never been settled in court and warned that the "mounting questionings crescendo" must be settled as soon as possible. It goes on to note the "persistent doubt" about President Obama's eligibility.
Well, that would at least put an end to the debate, although it’s doubtful that the district court will pass the case directly to the Supreme Court. At least thus far, Cruz has not had the opportunity to file a brief in this case, but it will probably follow along the same lines as Rubio’s motion in Florida, asking to dismiss it outright. Who knows, though? Cruz did a pretty good job of arguing his case last night, and might relish representing himself at the Supreme Court in an emergency hearing — assuming that the Supreme Court would bother to hear it, which is a fairly large assumption at this point.
Don’t get your hopes up, though. The courts steered very far clear of this issue with Obama, and there’s no reason to think they want to get themselves ensnared in this debate now. If Congress wants to clarify the phrase “natural-born citizen,” they have plenty of room to do so, and the courts will probably be happy in this one instance to send the controversy to Capitol Hill.
In other words, Cruz's description of "New York values" are precisely the values that Trump specifically cites as springing from his New York upbringing. Repeatedly. And even distinguishes from Iowa values. Amazing.
What a cynical phony Trump is on this issue. And now you have the video proof.
Cruz supporters keep saying that. Where are y'all getting that from???
This is clearly a controversy...it's in the papers with legal experts lining up on both sides. And clearly Declaratory Judgment is designed to be issue prior to a lawsuit. As clearly stated in the wikipedia article I posted.
“Cruz was referring to theories being touted by MANY people who insist that both parents have to be natural born citizens for the child to be a natural born citizen.”
The only ones I have seen calling for two citizen parents said just that, two CITIZEN parents, not two NATURAL BORN citizen parents. It should be obvious that if two natural born citizen parents were required there never would have been ANY natural born citizens in this country since there were no natural born citizens at the time the country was founded. That is the reason for the clause saying, “...or a citizen of the United States, at the time of the adoption of this constitution.” The exception had to be made because there were no natural born citizens over the age of 35 until at least 35 years after the constitution was adopted.
“And my understanding is that it doesn’t matter what the laws are *now* but what they were when you were born.”
The applicable law has not changed since you were born and CANNOT BE CHANGED by legislation. It can only be changed by constitutional amendment. Statutes do NOT affect the constitution.
Thank you very much for the post.
Amendment XIV Section one
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.
Read it carefully, it does not mean what some people think it means. It says citizen and not natural born citizen and then there is the currently overlooked requirement, “subject to the jurisdiction thereof.”
“We may have to resurrect the Sanity Squad. My goodness.”
Ain’t it amazin’ sometimes?
“I didn’t watch the debate but I cannot believe he would say that.” “
He did, I transcribed the following quotation of Senator Ted Cruz in the debate:
I would note the Birther theories that Donald has been relying on some of the more extreme ones insist that you must not only not only be born on U.S. soil, under that theory not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified, and interestingly enough Donald J. Trump would be disqualified . . . because . . . because Donald’s mother was born in Scotland, she was naturalized . . . .
“If parents had to both be natural born citizens for the child to be a natural born citizen there never would have been ANY natural born American citizens.”
It is a pleasure to finally see someone else recognizes how Ted Cruz used such an obvious lie and impossible claim, which he is obligated as the Constitutional legal expert he claims to be must know.
That requirement comes from the Federal Rules for Civil Procedure. (Among other special legislation passed regarding declaratory judgments.)
Somehow that quotation was changed when it posted. I’ll retype it and post again.
*Sigh* ... The Rubio supporters tell us that it doesn’t matter who his parents were, as long as he was born in the country. The Cruz people tell us that it doesn’t matter whether he was born in the country, or who his father was, as long as his mother was born in the country. And most Republicans can’t even see the destruction that is being wrought by all of this continued erosion of constitutional standards.
“As I understand it, only one federal case has been filed. The attorney who filed it has not suffered an actual injury. So he likely does not have standing to bring the case.”
I think you understand correctly, but we’re going to see MANY more of these kinds of lawsuits, though the real issue isn’t really whether Cruz is NBC or not, but how much doubt has been put into the minds of how many voters.
Most voters can’t and don’t want to follow the nuances of this issue, but they can definitely decide that everything else being equal it might just be better to play it safe and not vote for someone who MIGHT not actually be NBC.
[Something caused the original post to become garbled, so this is the corrected post.]
“I didn’t watch the debate but I cannot believe he would say that.”
He did, I transcribed the following quotation of Senator Ted Cruz in the debate:
I would note the Birther theories that Donald has been relying on, some of the more extreme ones, insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil . . . under that theory not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified, and interestingly enough Donald J. Trump would be disqualified . . . because . . . because Donald’s mother was born in Scotland, she was naturalized . . . .
“If parents had to both be natural born citizens for the child to be a natural born citizen there never would have been ANY natural born American citizens.”
It is a pleasure to finally see someone else recognize how Ted Cruz used such an obvious lie and impossible claim, which he was obligated to know is a physical impossibility given his repeated claims in the debate and out of the debate about being a legal expert on the Constitution. It appears to have been a deliberate move to use the strawman argument to divert attention away from his own ineligibility by getting the audience to focus on Trump’s parentage.
Here is a quotation from the book of law used by the authors of the Constitution and its natural born citizen clause, and this is what it had to say about defining a natural born citizen and parents.
Emmerich de Vattel: The Law of Nations
BOOK I. OF NATIONS CONSIDERED IN THEMSELVES.
CHAP. XIX. OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT.
§ 212. 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. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
“Let’s be accurate here. Referring to what people have argued in the past does not make it a lie. It makes it a RECOGNITION that such theories exist.”
It is a lie, because Ted Cruz invented the nonsensical claim and used the invented lie to divert the attention of the audience away from his own ineligibility and make a failed attempt to make it look as if Trump had the same eligibility problem. In reality, Ted Cruz’s invention is not only not the historical definition being used, his claim also would make it impossible for any natural born U.S. citizens to exist at all. A child cannot have a perpetual chain of natural born citizen parents and ancestors, because the first generation of citizens have to have been naturalized as citizens before there can be any natural born citizen children. The definition being used to disqualify Ted Cruz, Barack Hussein Obama, Marco Rubio, Bobby Jindal, Rick Santorum, Mitt Romney, Michelle Bachmann, John McCain, George Romney, and others is the actual definition for the natural born citizen clause of the Constitution that comes from various historical case law, naturalization acts, and legal treatises, and most particularly from:
Emmerich de Vattel: The Law of Nations
BOOK I. OF NATIONS CONSIDERED IN THEMSELVES.
CHAP. XIX. OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT.
§ 212. 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. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
“Cruz was referring to theories being touted by MANY people who insist that both parents have to be natural born citizens for the child to be a natural born citizen.”
That is a false statement. The authors of the Constitution used as one of their principal sources for the natural born citizen clause in the Constitution the above quotation from Emmerich de Vattel: The Law of Nations. Under that doctrine the parents of the child had to be U.S. citizens, and the child had to be born in the allegiance of the United States, which usually meant within the United States. Nowhere does Vattel or any other source require the parents to be natural born citizens. Senator Ted Cruz lied when he said the theory Trump was using required the parents to be natural born citizens.
“Of course that theory is NOT a lie. The best you can call it is that it is a MIS-UNDERSTANDING of the term “natural born†as it applies to a child.”
Of course,, Ted Cruz’s statements were a lie, because he was obligated to know and state the truth, which he most obviously did not do. Any person, especially a Constitutional expert and attorney-at-law, has to know the accusation Ted Cruz made could be nothing more than an impossible fantasy, because the first generation of citizens cannot be natural born citizens. Cruz is responsible for not engaging in such “so-called misunderstandings.
“But to say that such theories do not exist does not comport with reality. THEY DO. I’ve debated it with a few FReepers myself.”
You can find a Freeper, real or fake, who will say just about anything. That does nothing to change the fact it is already general public knowledge the authors of the natural born citizen clause were using Vattel’s Law of Nations along with other well known legal sources of the time to formulate the natural born citizen clause and the Constitution. Being the professed attorney-at-law and expert on Constitutional law Ted Cruz claims to be, he does not have the option to proclaim ignorance of the law as a defense for his misrepresentation of the natural born citizen clause and its definition. He is obligated to know and respect the definition found in Vattel’s Law of Nations, whether or not he chooses to accept Vattel’s definition as the basis of the natural born citizen clause. He must sill take honest notice of Vattel’s definition rather than deceive the audience with inapplicable impossibilities.
“RE:He said this falsehood,”
Let’s make that a bit more accurate.
“He REFERRED to this falsehood which is believed by quite a number of people interested in this subject in order to rebut it.”
That is itself also a falsehood. No one who is seriously contesting the eligibility of Ted cruz and the others has done so by saying the parents had to be natural born citizens. That is a falsehood and a lie. The opposition is based upon the requirement that the parents must be citizens, not natural born citizens.
28 U.S. Code § 2201
a) In a case of actual controversy within its jurisdiction, (...) any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
And Rule 57, which you cited, says the following:
A declaratory judgment is appropriate when it will "terminate the controversy" giving rise to the proceeding. (...) The "controversy" must necessarily be "of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts." (...) The petitioner must have a practical interest in the declaration sought and all parties having an interest therein or adversely affected must be made parties or be cited.Â
So again, federal courts will not issue a declaratory judgment unless there is an actual case or controversy involving the requesting party, as opposed to a theoretical controversy.
It doesn’t have to be a case, and clearly there is a controversy.
It doesn’t have to be a case, and clearly there is a controversy.
justiciable means capable of being decided by a court.
A court can certainly decide whether Cruz is a Natural Born Citizen or not.
The justiciablity of an issue involves several factors, not the least of which is standing. I’d suggest that you consult more than wikipedia before making your pronouncements.
Carry on.
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