New Jersey judge: Ted Cruz eligible for presidential nomination

CBS News ^ | April 12, 2016 | AP

[centurion316]

A New Jersey judge has ruled that Texas Republican Sen. Ted Cruz meets the constitutional requirements to be president and may appear on the state's presidential primary ballot.

Judge Jeff Masin ruled Tuesday that a child of a citizen-father or citizen-mother is "indeed a natural born Citizen within the contemplation of the Constitution."

[Joachim]

. . . Judge Pelegrini’s decision will become the case law for years to come.

Although Judge Pelegrini’s decision might become persuasive (it was cited in the New Jersey opinion by Administrative Law Judge Masin, after all), as an "unreported" opinion by a single judge in the Commonwealth Court of PA, by law it cannot be even cited as persuasive, let alone as precedent, in the Commonwealth Court of PA.

The regulations are here, with the specific provision (69.414) here. (There are still sources such as this saying that all unreported opinions can be cited as "persuasive", but that version of the regulation (which became effective Jan 1, 2011) was removed from the code effective June 5, 2012.)

[centurion316]

The courts have been looking for a convenient excuse to ignore this issue. This decision should get the job done.

[centurion316]

My views of this dispute can be summarized from two perspectives:

The first view can be seen from the Constitution and the legal history of this subject. The best discussion that I have found and one that I agree on most points has been written my Michael Ramsey (see link below). I don’t think that the call is as close as he presents, but he does give a good review of both points of view and he provides good references. I believe that the founders were following the example of both English common law and statute history to define the classes of citizenship that was clearly understood by educated contemporaries. I think that the current law as reflected in USC 8, Section 1401 is exactly what the founders intended the Congress to do and their legislative actions are well within that powers. As Pellegrini has said, Citizen at birth and Natural Born Citizen have the same meaning and therefore Mr. Cruz is eligible for the Office of President.

My second view is a prediction on what the courts will do. We now have the first two decisions that directly address the issue of Presidential eligibility. We no longer need to rely on articles, or worse, some convoluted and incorrectly reading of some unrelated SCOTUS opinion. I believe that courts will agree with these two decisions and this approach will become the consensus in the courts. The reasons are not just legal, they are certainly shaped by politics. Today’s courts are never going to say that descent of citizenship can occur from the father to his children, but not from the mother. Since the courts have generally accepted that the 14th Amendment decided that all persons born on U.S. soil (excepting those of diplomats) are natural born citizens, the courts are never going to say that children of American citizens born abroad cannot be natural born citizens. While some rogue judge or court may say something different, in the end the Pennsylvania and New Jersey cases will prevail in some form.

I doubt that this dispute will make it to the Supreme Court, but it should. More likely, the Court will let a lower court decision stand and that will be the end of it. The courts did not bail out those who didn’t want Obama elected in 2008 and they won’t bail out the voters this year either.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485