Let's Put an End to this Birther Nonsense about Ted Cruz

Red State ^ | January 19, 2016 | Jake from Red State

[Cincinatus' Wife]

The past eight or so years should have proven conclusively that the various strains of birthers out there do not know about which they speak. Nevertheless, this has not stopped them from continuing in their ways. The latest speculation I've seen surrounds the Naturalization Act of 1790 passed by the First Congress. Here is the relevant portion:

And the children of citizens of the United States, that may be born beyond sea, or 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...

Birthers have been asserting that, since Rafael Cruz* did not become an American citizen until 2005, and while he was in Canada with his wife, during which time Ted was born, he became an Canadian citizen. This, in the Birthers' view, disqualifies Ted from this Presidency, as "the Founders" never would have intended someone like him becoming President

But look closer at the bolder portion. It never says that the father has to be a citizen of the United States at the time the child is born. All it says is that citizenship "shall not descend to persons whose fathers have never been resident in the United States." It is indisputable that Rafael Cruz was in the United States for a period of time prior to both Ted's birth and his marriage to native born American citizen Eleanor Elizabeth Darragh Wilson in 1969. He fled Cuba in 1957 at the age of 18, arriving in Texas. There, he attended the University of Texas, graduating with a degree in mathematics in 1961. He even married his first wife there, Julia Ann Garza, in 1959. They later divorced, but not before he had two daughters with her. He was also granted political asylum in 1961 upon his graduation from UT.

In other words, Ted Cruz's birth meets everything required in this 1790 act. His mother, Eleanor Wilson, was a citizen by birth in the United States, fulfilling the requirement of a child being born to at least one citizen, and his father had lived in the United States for years and been granted political asylum here prior to his move to Canada.

With all of this said, the 1790 act is far from the only word on the issue. If we're talking about the Founders' intentions, it is also important to note that the Constitution specifically leaves to Congress the prerogative to "establish an uniform Rule of Naturalization" in Article I § 4, and because of this, the ways and conditions under which a person acquires citizenship today. Here is the relevant section of the current law:

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen year...This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date.

And, just in case we are curious as to what the law looked like when Ted Cruz was born on December 22, 1970, we can look to the Supreme Court Case of 1971 Rogers v. Bellei. Here is a layman's summary of the case (emphasis mine):

[Aldo Mario] Bellei (plaintiff) was born in Italy in 1939 to an Italian father and American mother, and visited but never lived in the United States. Bellei failed to comply with Section 301(b) of the Act, and in 1963 was consequently warned twice in writing by the United States that he was at risk of losing his United States citizenship. In 1964 and 1966, Bellei was informed by the American embassy in Rome, verbally and in writing, respectively, that he had lost his United States citizenship. Bellei challenged the constitutionality of the Act against Rogers (defendant), claiming the Act violates the Fifth Amendment Due Process Clause and Fourteenth Amendment Citizenship Clause. The Supreme Court granted certiorari.

And via the case syllabus, here is how the Court ruled:

Syllabus

Appellee challenges the constitutionality of § 301(b) of the Immigration and Nationality Act of 1952, which provides that one who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, who has met certain residence requirements, shall lose his citizenship unless he resides in this country continuously for five years between the ages of 14 and 28. The three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk, 387 U. S. 253, and Schneider v. Rusk, 377 U. S. 163.

Held: Congress has the power to impose the condition subsequent of residence in this country on appellee, who does not come within the Fourteenth Amendment's definition of citizens as those "born or naturalized in the United States," and its imposition is not unreasonable, arbitrary, or unlawful. Afroyim v. Rusk, supra, and Schneider v. Rusk, supra, distinguished. Pp. 401 U. S. 820-836.

296 F.Supp. 1247, reversed.

The Cruz family moved back to the United States in 1974, when Ted was about four years old. Unlike Bellei, he has been a resident of this country ever since, thus meeting the requirements in place when he was born. All of this is irrelevant now, though, as Congress removed the portion of the law Bellei challenged in 1978.

In other words, Ted Cruz is absolutely eligible to run for President. Furthermore, the precise requirements for citizenship have evolved over the years. Even in the days of the Founders, this was true, as the 1790 act was superseded by the Naturalization Act of 1795 and then later by acts in 1798 and 1802.

Bellei aside, the general trend since World War II is that the Supreme Court prefers to liberalize, not restrict, the requirements for citizenship. Joseph M. Bessette has a great summary of this in his article on naturalization for the Heritage Foundation. If they take up the Cruz eligibility case, I'd think they are far more likely to continue that trend than to impose any more restrictions upon the process. Is that what birther types really want?

So, to make a long story short, the Ted Cruz birthers (and the Marco Rubio ones, honestly) are engaged in a losing battle. The Senator from Texas is every bit as eligible as all other natural born citizens to run for and be elected to the Presidency. This current Quixotic crusade they are undertaking, facts be damned, is nothing but an attempt by rabid Trump supporters to disqualify one of "their guy's" rivals from the race, because they evidently understand that Cruz is a real threat to Trump winning the nomination. This is classic banana republic totalitarianism, and we are better than that.

P.S.: For further reading, this article from the Harvard Law Review, written by former United States Solicitors General Paul Clement (Bush 43) and Neal Katyal (Obama) is definitely worth a read.

[little jeremiah]

Anyone who calls people concerned about candidates or sitting presidents actually having the qualifications in the matter of eligibility is an enemy of the Constitution and therefore the American people.

[little jeremiah]

Other people were given the evidence as well. I am sure that the truth will come out. Trump has hinted at this quite broadly a number of times and keep in mind at his first rally in Pheonix he appeared with and was introduced by Arpaio and they said they had been working together. Whatever Arpaio knows, Trump knows. No doubt about it.

[Cincinatus' Wife]

Huh?

[VideoDoctor]

Got it! You're right.. so am I.

No offense taken by me Cipher.

[Nea Wood]

Ann Coulter said words to the effect of, whether or not you believe Ted Cruz is a NBC depends on whether or not you support him for President! That about sums it up.

With all the disagreements, the numerous articles and quotes, etc., clearly the issue is not cut-and-dried and needs to be settled once and for all.

[TheCipher]

None taken here either.

[danamco]

Another Cruizing BOT trying to FOOL you, Mr. Jake from Red State, with his own unconstitutional agenda. Simple as can be, the Three Legged Stool is required in Ted’s case, and he’s NOT able to sit on it, being an Anchor Baby made in Canada!!!

[little jeremiah]

I left out the word “birther” by mistake. Should read:

Anyone who calls people who are concerned about candidates or sitting presidents actually having the qualifications in the matter of eligibility “birthers”. is an enemy of the Constitution and therefore the American people.

[Ladysforest]

A naturalized citizen is naturalized by virtue of a law or statute. Ted Cruz cannot have had US citizenship at all through his mothers citizenship IF a law had not been passed so that IF they met certain STATUTORY REQUIREMENTS he would be issued a FS-240. A CRBA. Have you seen your CRBA?

By the way, Cruz has not released his CRBA yet. A lot of people wonder why.

[Ladysforest]

Across the bottom of a pre-2011 CRBA is printed the following:

A Consular report of Birth is proof of United States citizenship by law: 22 USC 2706.

By law.

[little jeremiah]

I did like Cruz in the beginning but because I know he is not a natural born citizen, that made me distrust him since he being a constitutional lawyer and all, knows that, and still ran. Now I’ve looked into him a lot more, there is a lot more there that is definitely abhorrent.

[little jeremiah]

It is very weird he has not released it. I can only assume that the most likely reason is that his mother did not get one for him. There are rumors his mother had taken Canadian citizenship along with Cruz’ father. I wonder if this is factual and if so, would Cruz have any US citizenship of any kind.

[seekthetruth]

All Ted Cruz needs to do is proceed to get a judgment from the court and put the issue to rest.

Question is, will he? Or will he just take a chance if he ends up being the nominee that the DEMS won’t file a suit for the decision?

I hope Cruz is smart enough to at least get a judgment and put it to rest.

[Ladysforest]

He released his Canadian birth certificate. He released his mothers birth certificate. He released his renunciation document. The only thing he has not released is his CRBA.

So, his campaign used ambiguous reference to mother Cruz applying for it at the consulate. Not when though. Was Ted a baby? Was Ted a teen?

It isn’t out of bounds to consider that both of Teds parents MAY have applied for Canadian citizenship at the same time, as in,together. They were married and had a family, child born right there in Canada. They had a business based in Canada. They lived in Canada quite a few years. Father Cruzs’ Canadian citizenship came through in 1973 I am told. He ditched mother Cruz and young Ted and trotted back to the USA for a year. Mother Cruz STAYED BEHIND. I have wondered why she would stay? Alone and expat with a young child in a country which borders her home country. Anyway, I don’t do conspiracies, but it is an interesting question from a human interest angle.

I don’t think I have heard mother Cruz has come out and stated that she never naturalized to Canada. I don’t even know if there is a claim floating around that she did so. Only that Cruz insists she didn’t.

[little jeremiah]

If he refuses, to me that says he figures the ruling would be against him.

[little jeremiah]

I read some quote from Cruz’ father (dang I wish I knew where), sometime in the last week or so, that he and his wife became Canadian citizens.

[Ladysforest]

I read that OTHER people have claimed that Teds father said that. I have never found a source which directly quotes father Cruz saying it.

[Ray76]

NPR quotes him as saying he became a Canadian citizen. No mention of when he did so or if the wife did.

http://www.npr.org/sections/itsallpolitics/2013/06/20/193585553/how-ted-cruzs-father-shaped-his-views-on-immigration

[little jeremiah]

I’ve read it as a direct quote with quotation marks around it. I’ll see if I can dig it up.

I wish I wasn’t so obsessive.

[David]

Now, your first reaction is probably wonder. We don't need to have a case that says what NBC "is," we can use a case that says what NBC "isn't," if the circumstances of Cruz birth fits the pattern of that case.

And there is a case that nearly exactly fits Cruz's condition. Child born abroad of one citizen parent, where the citizen parent met all the conditions prescribed in a Act of Congress, and the child was made a citizen, at birth, solely by the operation of an Act of Congress.

This (and the fact that Cruz is not NBC) is settled law, and those who stridently hold otherwise, who know the Bellei case, are guilty of misleading a gullible public.

I don't know if you are one of those people, but my spidey senses say you are.

What exactly do you think Bellei has to do with the Article II Sec. 1 issue? The correct answer is nothing.

It is a straight citizenship statutory decision and under the applicable statute, the plaintiff was held to have lost his citizenship under the language of the specific statute because he failed to meet the specific residency period test. Nothing to do with the Natural Born Citizen question; nothing to do with Article II, Sec. 1.

Not even language that might give you a suggestion as to how the Court would come down on the Constitutional question if it ever got there.

My two earlier posts are precisely correct--there is no Supreme Court authority that has anything to do with the question presented here.

My guess, and it is only a guess, is that if Cruz could get the issue to the Court before the decision would conclusively answer an election result is that the Court would be likely to hold him eligible. But that's only speculative guess.

I don't think at this stage he can effectively campaign for the nomination and at the same time organize and fund a Supreme Court appeal on the Natural Born Citizen issue.

I also think that if he gets to the Convention under circumstances where Trump is no longer a candidate, the party will deny him the nomination which I presume would effectively exclude him from the election process.