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.
If Obama can be prez so can Cruz!
It is not up to the Supremes. It is up to Congress. The constitution specifically empowers Congress AND ONLY CONGRESS with the power to establish the rules of naturalization (Article I Section 8).
Don’t matter that Ted Cruz is a Natural Born Citizen of Canada, or that he forgot to report loans from that bank, Golden Sachs, his wife works for, or that he advocated for Trans-Pacific Trade, or that he will be beholden to wealthy donors, or that he handed out teddy bears at the border with Glen Beck to welcome the children, at least he is a real conservative...sigh
Lets sing that Springsteen song together:
“Born near the USA, Born near the USA.” Come on you know the words.
Obama lied. Born in hawaii etc. mother American citizen etc.
Cruz told the truth. No MSM to have his back.
“They never caught my buddy Bob when he robbed that bank, killed that guy and took his boat to flee the country. Cool! I can too!”
Good luck with that.
There was a time when people raising issues about Cruz’ eligibility were summarily banned. Hilariously, our ‘principled liberal’ could not be pried out from under his rock back then. But he’s obviously kept a close watch, and has recently taken to slithering out of his safe space. It’s knee slapping funny, when you think about it.
The various laws through the years give insight into what NBC actually meant to the framers of the Constitution, but particularly those of 1790 and 1795 because they had many members of the Constitutional Convention also in Congress, and George Washington, the president who signed those laws, was also the president of the Constitutional Convention. So, THEIR understanding of what was meant by the founders when they wrote “NBC” central and decisive.
So, IF later Congresses MISUNDERSTOOD the meaning of “Natural Born Citizen” and are writing constitutionally questionable laws if applied to presidential qualifications, then the Supreme Court could be called upon to answer the question.
“Can we drop this phony matter now? This article proves Ted Cruz is a natural-born citizen.”
“Sorry, GOPe!”
On the contrary, the article proves Ted Cruz is not a natural born citizen by proving he is the exact opposite, a naturalized U.S. citizen who is ineligible to be POTUS. The U.S. Naturalization Act of 1952 used by Ted Cruz as the source of authority for his acquisition of U.S. citizenship is a naturalization statute that naturalized Ted Cruz as a U.S. citizen. The U.S. Supreme Court decisions concluded persons born abroad can acquire U.S. citizenship only by naturalization, including the children of U.S. citizens. There is simply no wiggle room whatsoever, the statutes and the case law have left no room ofr doubt whatsoever that Ted Cruz is a naturalized U.S. citizen with no possibility of eligibility to be a lawful POTUS.
And I will also admit my own bias which is to prefer Cruz as President.
That said, the uncertainty involved in the issue as far as Cruz is concerned is sufficiently significant that in my view, Cruz should engage the issue directly.
I know that an effort is already in process to arrange membership on convention Credentials and Rules committees to prevent nomination of Cruz on Natural Born Citizen grounds--deny Credentials to delegates who are committed to vote for him; adopt rules preventing nomination of individuals who are not born in the Geographical Territory of the several states.
The bottom line on the Technical is that it is legally uncertain whether or not Cruz would be held eligible under Article II Sec. 1 by the U S Supreme Court if the issue ever reached the Court.
Among Constitutional Lawyers, the bar is divided between those who are of the opinion that the clause requires birth in the Geographical Territory of the United States and those who believe that persons who are Citizens of the United States at birth under then applicable Citizenship Law are also eligible.
None of the authorities you site; none of the editorial views expressed; none of the published analysis is controlling. The issue would be decided by the Supreme Court on purely political grounds as they exist when the issue reaches the Court. The outcome is not conclusively predictable.
The issue about parentage and personal history is bogus except to the extent it is relevant under the citizenship statutes.
The current state of the assumed law on the topic reflects movement by the sophisticated bar. Prior to 2000, the bar was of the strong view that birth in the sovereign territory of the United States was required. That view has moved in the direction of citizenship at birth. Frankly, I believe the movement is the result of the widespread knowledge that the current occupant of the White House was born outside the United States.
For the most part, the Constitutional Bar is made up of Liberals whose principles, if any, are sufficiently flexible to accommodate their interest in a specific result.
However, the uncertainty involved works against the Cruz interest to a significant degree--I doubt that he is going to get the nomination unless the issue gets resolved.
Frankly, given Senator Cruz's high level of sophistication on Constitutional Law issues, I am disappointed that he has not advanced a plan to get it resolved earlier.
Two clarifications:
1. Speaking in generalities, “parents” means one or both parents because “children,” not “child,” are the progeny. The wording spoke of both classes (parent & child) in the plural. Your interpretation, therefore, would need to have been written:
“And the CHILD (not 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...”
2. A citizen in 1790, though never explicit in this statement, was presumed to be male, i.e., a father rather than a mother. BUT the essence & fullness of citizenship DID change officially, if not over time and in otherwise general practice, with the passage of the 19th constitutional amendment, which leaves no doubt that “citizen” means either parent.
No! This article does not prove Cruz is a natural born citizen. Constitutionally speaking, clearly Cruz is not a natural born citizen (article II, section I, clause 5 if you are interested) but what this and other articles prove, as well as Obama’s (illegitimate) presidency, Cruz’ and Rubio’s candidacies is the need for the courts and congress to step in and clarify this matter once and for all.
Personally, I hope that determination will be that the constitution means what it says it means in plain language, that you are ONLY eligible if you are born on American soil of two citizen parents, that you are more than 35 years in age and you have lived in this country for at least 14 years.
In this dangerous age, with this massive unfettered illegal invasion, anchor babies growing up with no real connection to this country, barely able to speak English, this is more important than ever, even though it means right now that a one good man we all admire can never be president; however, he can serve this country in any other capacity. Voting for Ted Cruz is extremely short-sighted and has the potential for rendering great harm to this country!
“Good luck with that.”
Guess what? It works. So I am having good luck with that.
Maybe you liberals should be worried the next president finds Obama isn’t a US citizen and causes all kinds of grief for you guys.
I'm not versed, brother, I'm not versed! It confuses the hell out of me.
Apparently it is common. Well, obviously it is. The closest I got to it was "group think," but I could always cut through that.
How do you know that? Can you get inside our minds and manufacture our thoughts?
I was taught exactly the same! Only it was high school civics in the 1960s. I bet there are plenty of people here who would say they were taught the same in their high school civics in the 1950s, and if my parents were still alive I am quite certain they would say they were taught the same in the 1930s! And as I remember, my mother was quite concerned about Obama’s eligibility, and felt he was not eligible because of his non-citizen father, when he was running the first time! (Fortunately she did not live to see what a mess Obama has made of things.)
This phony nonissue is all the Trumpsters have. They’re desperate.
Exactly. That's one of the things that's so ridiculous about it. The definition was and has been *settled law* for over 200 years..to the point it was taught to schoolchildren as a regular part of the curriculum.
It's not some kind of big, convoluted mystery, some people just don't like the definition as it was.
“It’s doesn’t matter if he is legally eligible to run.
28% is impossible to overcome.”
Yep. But people don’t seem to get that.
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