'Natural Born' Issue for Ted Cruz Is Not Settled and Not Going Away

NBC News ^ | 01/18/2016 | Pete Williams

[SeekAndFind]

While the nation's legal scholars differ over the exact meaning of the Constitution's requirement that a person must be a "natural born citizen" to become president, they're unanimous in saying Ted Cruz is wrong about an important point.

"As a legal matter, the question is quite straightforward and settled law," Cruz has said. "People will continue to make political noise about it, but as a legal matter it is quite straightforward.

In fact, the experts say, it is neither settled nor straightforward.

It's not settled -- because the Constitution does not define "natural born," a phrase that appears in the nation's founding document only once.

And though the federal courts have chewed on it from time to time, the U.S. Supreme Court has never officially said what it means.

It's not straightforward -- because at the time the Constitution was written there were different ideas about what the phrase meant and competing legal theories about where the power to confer citizenship came from.

The meaning of the term is so unsettled that scores of constitutional experts have been writing about it in the weeks since Donald Trump made it an issue in the 2016 campaign.

[Cold Heat]

Context: Plaintiff challenged constitutionality of immigration law providing that person who acquires US citizenship by virtue of having been born abroad to at least one US parent and who meets certain residency requirements loses US citizenship unless s/he resides in the US for five years between the age of 14 and 28. Lower court held the law unconstitutional. The Supreme Court, in a 5-4 decision reversed, finding that persons born abroad to US parents do not come within the Fourteenth Amendment's definition of citizens as those "born or naturalized in the United States," and, therefore, are not entitled to 14th Amendment protections. In other words, over a strong dissent, the Supreme Court created a third "type" of non-constitutional citizenship - applicable to children born abroad to US citizen parents.

[Cboldt]

It is a citizenship case.

[fireman15]

First I have reservations about both Trump and Cruz, but I will support either enthusiastically if either becomes the Republican nominee. If the Democrats take the presidency again the country is done.

Your reference to “Birfer Morons” is distasteful, rude and inaccurate. You must not have participated in discussions here regarding Obama, forged documents, lies, distortions and constitutional law that took place here after Clinton campaign operatives first tried to make it an issue. There were many well researched and extremely informed discussions here.

The reason Obama’s campaign was able to keep the issue from derailing his campaign using ridicule had nothing to do with the facts or the legal arguments. From your post you seem to think that ridicule is a tactic that will work for Cruz as well, but that is very doubtful because of numerous factors.

First the media was in the tank for Obama and more than willing to use ridicule and repeat innacuracies and overlook serious issues with Obama’s documentation. Second there wasn’t a State Attorney General anywhere willing to risk his or her career by questioning a black candidate’s eligibility. Third Obama was an unknown and perceived as likeable during his first presidential campaign and people were willing to give him the benefit of the doubt.

Senator Cruz is not a favorite of the media. They are more likely to use any issue to try and trip him up. State Attorney Generals are unlikely to feel that taking any challenge from a competitor or even a private citizen over Cruz’s eligibility seriously will have any negative consequences for their career. Cruz may even have difficulties from GOPe party officials.

Cruz is a known entity and has made plenty of enemies during his career both as a lawyer and a politician. A lot of people who have dealt with him are not fond of him, and a sizeable percentage of the population is not likely to give him the benefit of the doubt on anything.

Obama actually claimed and provided documentation showing he was born in Hawaii. Being born in Canada to a mother who was listed on Canadian voter rolls and a father who was not a US citizen is going to be a problem for many people in the general election. Cruz did not bother to renounce his Canadian citizenship until he made the decision to run for president. I understand that he is also keeping his relevant records sealed. That will not sit well with many people.

I am noticing a very nasty streak from Cruz supporters this last week and I find it unsettling. I am not making an argument against him right now because of any legal argument... just that this is an issue that will have negative repercussions if it is not addressed meaningfully by Ted Cruz quickly and decisively. Attacks on other candidates are not going to cut it.

[Cold Heat]

Here is the strongest dissent... Since the Court this Term has already downgraded citizens receiving public welfare, Wyman v. James, 400 U.S. 309 (1971), and citizens having the misfortune to be illegitimate, Labine v. Vincent, ante, p. 532, I suppose today's decision downgrading citizens born outside the United States should have been expected. Once again, as in James and Labine, the Court's opinion makes evident that its holding is contrary to earlier decisions. Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a federal statute. In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons "born or naturalized in the United States" includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relinquished it. Afroyim v. Rusk, 387 U.S. 253 (1967). I dissent.

Note: Here, again, the Court clearly equates a "native born" or "born" citizen with "natural born" citizen status. It is worth noting, however, that the Supreme Court did create a third "type" citizenship - applicable to children born abroad to US citizen parents and that the Supreme Court held that such citizenship was not "constitutional citizenship" protected by the 14th Amendment.

[Cold Heat]

When were your kids born?

[Dstorm]

Can’t say I remember, it’s been almost 40 years since I was in the barracks. I looked it up and found the following:

latrine lawyer
noun phrase

A soldier who is argumentative, esp on fine points, and tends to be a meddler, complainer, and self-server (1940s+ Army)

Sounds like many posters here and elsewhere

[Cboldt]

I know the case. I've briefed it here on FR, and presented and argued in excruciating detail what certain passages stand for.

There is no difference, among the 9 justices, that Bellei was naturalized and was a full fledged citizen at birth, and all agree he would be a citizen today if he had 5 years residence in the US before reaching the age of 21.

What you term as a third class of citizen, is what the dissent sees as a full fledged citizen whose citizenship can be stripped by Act of Congress, after the Act grants it. The majority said Bellei was naturalized, but not IN the US, so didn't get 14th amendment protection. The dissent said that the location, or where he was naturalized was immaterial, and Bellei should be, as a matter of law, covered by the 14th amendment.

A citizen covered by the 14th amendment is either born in the US or naturalized.

Not presented for argument, I accept your invitation to part ways. Presented only as a brief restatement of the case. The case that would not and could not exist, but for the fact that Bellei was naturalized.

[Cold Heat]

ahh....well to refresh, we called them Sh*thouse lawyers.

[Dstorm]

82 and 84

[PA Engineer]

Why did Obama spend many thousands of dollars to not do this in Hawaii?

Do you remember this too.

Hawaii plane crash: Obama birth certificate lady only death in plane crash, 8 ok

We all new there was something fuddy about this incident.

[Cboldt]

I think everything in that post is correct. I think you don’t understand what it is saying. In pretty strong terms, the excerpts you reproduce say, in so many words, Bellei was naturalized. He doesn’t have a constitutional right to US citizenship, at all. But here is a statute that gives him citizenshiup, and we (the court) have to decide if citizenship, once granted by statute, can be taken away by statute.

[Dstorm]

i did interact with a lot of barrack bartenders. they were pretty good with everclear and garbage cans

[Cold Heat]

Yes, but in the rendering of the decision they negated the congressional statute, (I think it was 1951) that gave a foreign born child of a US citizen, born status. This was the law that made ted cruz a natural born. The diference is the definition of a single word, as I have argued, in the 14th. That word is jurisdiction. Under the jurisdiction of......

This related to Jus solis and Jus_sanguin..

In other words the jurisdiction now ends at the waters edge, so to speak.

One wonders now what authority is used to collect taxes from expats still citizens?

however, I was only interested in the Cruz issue and he was born inn 1970 so I have not investigated further to see if Congress rewrote the statute or exception to it, or if this has been ignored, changed or whatever since 1971.

In any case, it is my belief and understanding that jurisdiction regarding travelling citizens will follow then as long as they do not renounce. This is Jus Sanguin....sp?

[Cold Heat]

Yes, I get that, but why did they essentially nuke the statute, because that is what it appears happened here. they did not need to do that and re-interpret the 14th, did they? just to rule on the statute? They did not have to revert to jus Solis. Jus Solis is what gave us anchor babies to the chagrin of many here. Or at least the exacting originalist interpretation of Jus Solis did.

As you said, I am a crappy layer....I am not making any claim to the contrary, but I can read. And I can interpret intent and the effect of changes in law. And I do have a good idea today what was in the mind of the founders when they wrote the article.

[Cold Heat]

Make that Lawyer....I am not a crappy layer...

[Cboldt]

No, the Bellei case upheld the statute. It was Congress that removed the residency requirement to the child.

Just a few posts above, you quoted from the dissent of Brennan and Douglas. Were you citing it with approval? I mean, do you agree with what they say the law should be? Are they accurately stating the law?

That paragraph, carefully read, is an excellent summary of the case, and it also very well lays out why Bellei and all others similarly situated are considered naturalized (the opposite of natural) citizens at birth.

Bellie was a full fleged citizen at birth, there is absolutely no disagreement on that, everybody agrees. You agree, I agree, 9 justices agree. It's about as contentious as the proposition that humans have 4 fingers and a thumb on each hand.

[Cold Heat]

And with that I give this up to someone else who likes to be knocked about and frustrated by someone else’s stupidity.

[Cboldt]

-- why did they essentially nuke the statute --

We're talking only about a part of the statute. The part that conditions citizenship after the age of 21 on having obtained 5 years of residence by then.

The majority upheld that part of the statute. The dissent would nuke that part of the statute.

Funny, it took that many words to get to the bottom of your "why did they", because I have no clue who "they" are, in your mind.

Set the anchor baby issue aside for the time being. That really is a separate inquiry under the law, and trying to process both, simultaneously, will confuse the hell out you. So too will holding some affection for finding NBC to children of servicemen born abroad. That has some complicating factors, and if you let that affection in, you will bias your reasoning. Citizenship is cold hard law - sometimes harsh, but generally undertanding once you fully get it. Citizenship is a legal art that is as exact and predictable as accounting and engineering. It can and should be undertaken with steely-eyed, unemotional care.

[Cold Heat]

It was 5-4,was it not...and no I don’t agree with all of the dissent or of the decision not because of the end product, but because of the way they came to it seemed unusual and a over worked interpretation. For example, I do not agree that jurisdiction for a citizen ends at the waters edge, and I don’t believe it ever has.

Natural born citizenship is often a matter of investigation to determine if there is a security issue. I think that was the intent and that was what they knew when they were silent on the issue when they wrote it.

Again, the 14th was written not vaguely but with room to argue it’s meanings because no case of citizenship is really the same as the next.

I thought it was so simple...in reality.

I am a retired building contractor and former electrical contractor. I see over done plans, designs, and over built stuff that did not need to be the way it ended up, as if it was designed by committee and not a expert.

The interpretations of judges read the same way to me in some cases, and this is one.

[Cold Heat]

That has some complicating factors,

Not sure but I think we are on the same page, but perhaps looking at it from different perspectives. My perspectives are based on what I am comfortable with.