Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.
(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)
But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?
No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)
What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.
There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.
In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.
So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.
That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.
So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)
In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”
If you are so sure of that then take the test —
As the Supreme Court pointed out in Minor (1875):
"Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization."
Are there any “native-born”, “foreign-born”, or “aliens” on that list???
http://www.foreignborn.com/visas_imm/start_here/4birth_abroad.htm
No. There are only two categories under the Constitution: NBC, and naturalized. Other terms have been applied at times, and any decent regulation will account for that. But the US Constitution only knows of 2 categories.
Aliens, of course, are not citizens - but may become citizens thru naturalization.
If the first class was natural born citizens, then what is this class called?
Electors do no such thing, They merely cast their electoral vote for the candidate who received the most votes in their state.
From Article 2, Section 1 of the Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."
Uncle Chip, if you don't like the way your state chooses its electors, you should ask your state's legislature to change its manner of choosing its electors. There is no Constitutional requirement that the electors be chosen by voters.
(1) The Founders trusted state legislatures to choose, in its own manner, its own electors; and
(2) The Founders trusted the electors to choose our presidents.
I trust the Founders.
That's just the way it is, Uncle Chip.
Indeed. Bump.
They were called “NBC”. That was resolved in WKA. For Minor, it simply did not matter. It wasn’t a citizenship case, and the court specifically refused to resolve any doubts.
TWO classes under the Constitution: NBC & naturalized. Since Minor did NOT determine the limits of NBC, a government official was free to determine Wong Kim Ark was not a citizen...and thus the WKA case arose.
Had Minor determined the meaning of NBC, there would have been no WKA case.
Show me in what you posted where it says that the appointed electors are given the authority to interpret and apply the NBC clause in any way???
Uncle Chip, the Constitution authorizes and empowers electors (and no one else) to choose our presidents. The Founders entrusted that power to electors and to no one else.
The Constitution also establishes eligibility standards limiting the electors' choices. The Constitution thus requires the electors to interpret and apply those standards so that they can perform their president-selecting function.
Does that seem overly complicated or mysterious to you?
So then did they fail in their Constitutional duties these last two election cycles or succeed???
Ted Cruz
Ted Cruz -2016
BTW I remember this discussion over electors in 2008 and it was a mute point since they would never be chosen as electors unless their votes were locked in in very sorts of ways.
The sticky point was that Congress had to vote to accept or reject the electoral votes after they had been cast. Before that vote, if just one Senator or Representative objected, then Congress was adjourned and the objection dealt with.
Obviously in 2008 and 2012 no Republican Congressman had the whatever to object to the electoral votes for the Kenyan, but do you really think that the Democrats would reciprocate and just sit on their hands and not object.
Actually there was a third: by marriage.
Labor Day Pop Quiz [Updated]:
What terms are used to refer to these different classes of citizenship by the US Government:
1] Both parents US citizens and birth on American soil: ________________________.
2] Both parents US citizens in the military/government service and birth on foreign soil: _________________________.
3] Both parents US citizens and birth on foreign soil:
________________________.
4] Neither parent US citizens but birth on American soil: ________________________.
5] Only one parent US citizen and birth on American soil: ________________________.
6] Only one parent US citizen and birth on foreign soil: ________________________.
7] A naturalized citizen: ________________________.
8] A person undergoing naturalization: ________________________.
9] Children born to parents undergoing naturalization: ________________________.
10]Children brought to the US by parents who subsequently undergo naturalization:_________________________.
11]Children born to parents who are undergoing naturalization but then fail to complete it:_________________________.
12]Children brought to the US by parents who subsequently undergo naturalization but then fail to complete it:_________________________.
[Answers: natural born citizens, native born citizens, foreign born citizens, naturalized citizens, aliens/foreigners/non citizens]
Extra Credit Available
From what i have heard of Cruz and what little i know about him i would vote for him over any liberal even if he was born in Africa.
I did not vote against Obama because of being convinced he was not an American, i voted against him because i believed he was un American, big difference.
By the same token i would vote for Cruz because he is American even if he is not an American.
The arguments on citizen ship are confusing and i respect the people who want to get it right.
But where were they at when some of the much easier to understand questions were being circulated, where were they at when the state of Alabama was forced to remove the ten commandments from the state capital?
Where are they at when the police say you must have a permit to carry a fire arm, and a half dozen other things that are so obviously against the constitution.
Where are they at when the police break into private homes or attacks a mother who only has issues with the school and they do this with a tank or armored cars?
Frankly I am not too sure about that.
Luv that remark by Walter Williams, and I didn’t realize how handsome he is. He’s certainly growing older gracefully.
One of my favorite novels was Ayn Rand’s “We the Living,” and she said it’s the closest she will ever come to writing a biography.
While I like her love of freedom, etc., I didn’t always agree with her, and was disappointed to find out that she had some kind of relationship with a married man who was her friend’s husband.
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