Posted on 01/19/2016 8:55:20 AM PST by 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.
Yeah. I should have used eligible.
With 28% of the public believing he is not eligible to run.
It’s doesn’t matter if he is legally eligible to run.
28% is impossible to overcome.
A 22 year old shall be considered as a child (this is REAL US regulation, today, right now)
Rogers v. Bellei decides the outcome. Cruz is naturalized.
Anyone who uses the slur “birther” identifies themselves right out of the gate as folks who care more about political expedience than they do about constitutional adherence.
The 1790 Immigration and NATURALIZATION Act says that they shall “be considered as natural born,” not that they ARE natural born. The phrase conveys the exact same meaning as the word “naturalized.”
And besides, Cruz’s citizenship was not granted via the 1790 NATURALIZATION Act. It was granted solely via the provisions of the 1952 Immigration and NATURALIZATION Act.
He was made a citizen by statute, not by nature.
Attempting to prove that someone is a natural born citizen by referencing naturalization statutes just evidences the degree of your ignorance on the issue. The only entity capable of providing details about who is or is not an natural born citizen is the Supreme Court, and only to the extent that the specifically reference that constitutional provision. SCOTUS decisions relating to naturalization are irrelevant.
The SCOTUS has in fact dealt with natural born citizenship in Minor v. Happersett (1874), and in that case they defined it as born in the U.S. to citizens.
I have to agree, virtually impossible to overcome, but it’s early yet. We’ll see what happens in the coming months, but IMHO Sen. Cruz has not been well served by his campaign staff, nor his SuperPAC (which the general public cannot tell apart).
I have a friend, one who is quite expert in the obscure details of historical immigration and naturalization law, who says that Cruz, under the laws of Spain, could also lay claim to Spanish citizenship via his grandfather and father. I haven't taken the time to verify it, but it's interesting nonetheless.
“””I think his birther shot at Rafael was also a warning to Obozo. Trump was involved with Sheriff Joe if I remember correctly.”””
Do mean Sheriff Joe who said he had all the goods on obama and was set to make a major announcement... like two years ago????
Good one. :)
"...Afroyim's broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not "born . . . in the United States," but he was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen
Also:
The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
Don’t get your legal advice from Jake at RedState. Just saying, you’ll be bankrupt, jailed, your pets will be removed and adopted out, you’ll end up divorced with no inheritance, and then Jake, dear Jake, he’ll confess .... bbbbbut I’m not a lawyer!
Remember Hillary Clinton’s emails and all the criminal things they showed her to be doing? Remove those classified headers, remove before sending. Remember Benghazi, and Bill Clinton’s personal record on women?
Remember Planned Parenthood suing the people who exposed them haggling over the price of the organs of babies - $75, $100, would have taken $50, but maybe “we’ll check around and see what other clinics are getting and bump the price up if we need to”? Remember Planned Parenthood calling these people liars and deceivers who have blood on their hands?
Remember socialist Bernie Sanders getting up and saying to Hillary Clinton, “the American people are sick and tired of hearing about your d-— emails”? Remember HRC calling the families of Benghazi victims liars?
There is nothing to this issue with Ted Cruz’s birth. That’s the case even when we go with the Constitution writers’ intents as laid down in the law, which clearly weren’t to nail down specifics for American posterity, although they could have. Considering the law on citizenship including NBC changed FOUR times in less than the first 15 years of the nation under the Constitution, it’s a very good thing they didn’t nail anything down. They would have been amending A LOT.
And at this time in history, the whole issue is nothing, except maybe a gigantic gift to Hillary Clinton and all secular humanists/Democrats.
If the Dems run a similar candidate, which they will likely want to do at some point, and so don’t want to question Cruz’ eligibility now, then they will simply not challenge him or her, and the courts will do absolutely nothing.
The Dems have no interest in pursuing this one. But they will sit back, regroup, and let it consume the time and energy of their opponents, and maybe even, they hope, a candidate or two, in the infighting, and maybe more importantly, take the heat off THEM.
funny!
I prefer to get advice on the constitution from Mark Levin.
How in the dickens anybody can read this case for the proposition that Bellei was NBC truly is a mystery. Still, I've had a good number of people tell me that exactly what the case stands for. Being charitable, I figure it's ignorance and wishful thinking. But damn!!
We humans sure are wired funny.
Didn't have anything "conservative" to discuss in the interim?
Funny that.
Has HILLARY CLINTON, or BERNIE SANDERS, or any DEMOCRAT, been asked what they think on the question of Ted Cruz’s eligibility?
I’d like an answer to THAT.
I did a quick search and nothing turned up immediately. It may take some digging, if there’s anything at all.
“We humans sure are wired funny.” It’s always puzzling when we confront magic thinking, unless you’re versed in the phenomenon.
I find that the so called celebrity experts and talking heads are correct about 1 time in a hundred. After looking up a few things and having my eyes opened, I don't any of them, and assume they are lying - because most of the time they are. Not on everything, just saying the legal analysis is lacking.
Somebody has a lid on revealing this to the public. I find it fascinating that the public can be so totally duped, on what is a really simple legal point.
500 years ago, Galileo was a kook, everybody knows the sun orbits the earth. And then we have the settled science of global warming.
You believe what you want - I'll believe what I want, and we both go away happy.
But .. I hope Trump has not cut off his nose to spite his own face. Cruz is the legislator who could help Trump write the legislation to put forth the changes he wants to get done.
I don’t understand why Trump would start such a mess. The only thing I can think of .. the RNC made a deal with Trump. The RNC would rather have Trump than have to deal with the “strict construction” of Cruz.
This will be America’s loss. And .. America cannot stand many more.
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