Let's Put an End to this Birther Nonsense about Ted Cruz

Red State ^ | January 19, 2016 | Jake from Red State

[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.

[TheCipher]

I would NOT be surprised that , if elected, Trump, along with Sheriff Arpaio brought forth the evidence so as to make it VERY EASY to overturn EVERY SINGLE executive order written by Obozo.

They don't need any evidence to do that. An incoming president can invalidate any executive order with a stroke of the pen.

[jospehm20]

Cruz was a Canadian citizen less than two years ago. I do not think that a candidate holding citizenship from another country until he was over 40 years old and already in the US Senate is what the founders had in mind as somebody qualified to be President. There are many high positions in our government that Cruz would be very qualified for and great in but being President is not one of them. I keep hearing how smart Cruz is but I just can’t square that with him not seeing this coming and doing more to get in front of it years ago. If I had known all of what I know now about his situation earlier I would not have donated a penny to his campaign. He simply is not a NBC and qualified to be President in my view.

[Sun]

But the bottom line still is that Sen. Cruz IS a Natural Born Citizen:

“..The law in effect then, and now, made Ted Cruz a U.S. citizen at birth.”

more: http://nation.foxnews.com/sen-ted-cruz/2013/03/11/spokesman-senator-cruz-us-citizen-birth

Isn’t sad, that with all that’s going on in the world, Trump has us talking about this?

[Praxeologue]

But Donald Trump on TeeVee said it’s important, so it must be.

[Cboldt]

-- 'naturalization act' of 1790 states

And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.

This would seem to be an act which 'naturalize someone who meets these specific requirements into the status of NBC- not just into `naturalized citizenship' such as an illegal alien would be naturalized' --

You may notice that the words "shall be considered as" have been emphasized. Anybody who tells you that the Act is a definition is misleading you. Congress did so deliberately (misled you). In the ordinary use of the English language, the phrase "shall be considered as" is as assignment of pretend.

There is a social security regulation that says, essentially, a person up to the age of 22 shall be considered as a child. That doesn't mean a person is in fact a child until they reach the age of 22, it means that the law will play make believe. This is called "legal fiction," and it is so common in statutory law, so as to be unremarkable.

If we look at only the 1790 law, and admit the fact (and it is a fact) that "shall be considered as" is legal fiction, then what the founders said about the subject, in the 1790 act, was this:

the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States are not natural born citizens, but for purposes of law, we will pretend they are

The Act, on its face, disproves the contention that Cruz is an NBC. It doesn't help his case, it demolishes it!

-- And the counter argument, the one trump is making, was that both parents would need to be citizens ... --

The statute is ambiguous as to one or both parents, but it doesn't matter. When you grok what the 1790 Act says, actually in plain English, when you grok that is expressly excludes what is described (children born abroad) from the conclusion (NBC), then it doesn't matter if the child had one parent, two parents, three parents (donor sperm), four parents (donor sperm and donor egg), or even zero parents (test tube baby).

-- I'm not sure how the justices argued away this act In the Bellei case in order to strip him of his citizenship --

The legal fiction created by this act was repealed in 1795. The justices didn't have to argue it away, and plus, Bellei is, say the justices, naturalized.

At this point, many people deploy "magic thinking" and relapse into believing that a person can be "natural" (which is better thought of as "under the constitution") and naturalized (which is better thought of as "NOT under the constitution, but under Act of Congress") at the same time. They want to believe, so badly, that a person born abroad of a citizen parent is an NBC, that they become, on this point, literally kooks.

It's not an issue in real life. Just these people want to preserve the dream that their child can grow up to be president. The kids are citizens, but they are not 100% American at birth. A person born in Canada of a Cuban father and US Mother is not 100% American at birth. It's not their fault. They may turn into the best advocate for America, but they were born mixed. We the people can abandon the constitution via stupidity. Hell, I think we have.

[samtheman]

At this point, many people deploy “magic thinking” and relapse into believing that a person can be “natural” (which is better thought of as “under the constitution”) and naturalized (which is better thought of as “NOT under the constitution, but under Act of Congress”) at the same time. They want to believe, so badly, that a person born abroad of a citizen parent is an NBC, that they become, on this point, literally kooks.

---

yup

[Cboldt]

-- There is no controlling authority on the question of what constitutes a natural born citizen under Article II, Sec. 1 --

So what?

Now, your first reaction is probably wonder. We don't need to have a case that says what NBC "is," we can use a case that says what NBC "isn't," if the circumstances of Cruz birth fits the pattern of that case.

And there is a case that nearly exactly fits Cruz's condition. Child born abroad of one citizen parent, where the citizen parent met all the conditions prescribed in a Act of Congress, and the child was made a citizen, at birth, solely by the operation of an Act of Congress.

This (and the fact that Cruz is not NBC) is settled law, and those who stridently hold otherwise, who know the Bellei case, are guilty of misleading a gullible public.

I don't know if you are one of those people, but my spidey senses say you are.

[Cboldt]

I want to believe that my lottery ticket is a winner, too. It might be.

Really, this argument is so emotional, due to attachment to a dream, a wish. I mean, if I lose my lottery ticket, I've probably lost a buck or two, ten bucks if three numbers matched.

The people will toss the constitution, just to preserve a dream that their lottery ticket is the winner.

[samtheman]

Yes. Very well said.

And by the way, have you seen this. You really have to watch the whole thing:

http://www.freerepublic.com/focus/f-news/3385568/posts

[VideoDoctor]

An incoming president can invalidate any executive order with a stroke of the pen.

Do you THINK when you read.

I said "so as to make it VERY EASY to overturn EVERY SINGLE executive order written by Obozo."

EASY, as in very POPULAR, because he's openly proven to be a fraud.

Then followed by indictment for fooling the public.

In politics, it's BEST to have the people on your side, and in your favor, when you go after someone.

That's where Trump's at currently.

[LucyT]

jospehm20 wrote:

""Cruz was a Canadian citizen less than two years ago. I do not think that a candidate holding citizenship from another country until he was over 40 years old and already in the US Senate is what the founders had in mind as somebody qualified to be President. There are many high positions in our government that Cruz would be very qualified for and great in but being President is not one of them.

""I keep hearing how smart Cruz is but I just can't square that with him not seeing this coming and doing more to get in front of it years ago. - If I had known all of what I know now about his situation earlier I would not have donated a penny to his campaign. - He simply is not a NBC and qualified to be President in my view.""

[null and void]

Constitutional Eligibility

[null and void]

Uhhh, khakis...

[melancholy]

Welcome back, Lucyt. You were missed.

IMO, at least, anyone who stood fast against 0b0z0*s NBC status or lack thereof, assuming that 0b0z0t0llah*s American mother was his real mother and that he was born on USA soil, should have second thoughts about a worse case of someone who was born abroad.

No two ways about it.

[melancholy]

Should have second thoughts-————> should NOT have second thoughts...

[hoosiermama]

May be correct it I will wait for the SCOTUS decision Up to now it’s just opinion. It needs to be “settled law”

[null and void]

If the son of a Cuban born in Canada to an American mother is a Natural Born Citizen (NBC) of the United States our Constitution is dead. No way in hell the founders would consider such a child an NBC. In fact they would not have even consider the child an American citizen!

The Founding Fathers intended that for that one singular position, The President of the United States and the Commander in Chief of it's military, the holder of that position must be free of any hint of divided loyalties.

A dual citizen at birth (Is he a citizen of the birth country Canada? A citizen of Cuba through his father's citizenship? A citizen of America through his mother? or does he divide his loyalties in thirds?) would be subject to opposition party attack no matter what he did or didn't do with respect to a foreign crisis.

What would the Cuban Missile Crisis have looked like if Kennedy's father was Cuban?

[TheCipher]

Do you THINK when you read.

Do you THINK when you write ? VERY EASY could be interpreted in 2 ways. With what was posted in the rest of your post, it could be interpreted to mean NOT DIFFICULT because they would have evidence to show he was not eligible in the first place, thus invalidating his executive orders. If you wanted to imply popular, you should have either said that or put on the end of the sentence "because he's openly proven to be a fraud"

[VideoDoctor]

Hey!.. you vote your conscience and I'll vote mine.

END of discussion.

[TheCipher]

?

What does this have to do about voting ( by the way, I am for Trump ) ? I think you misunderstood me. The way I interpreted it ( mistakenly ) was as I told you. Now I have seen many people on other posts that think executive orders are written in stone. Never having talked to you before, I thought you fell into that category with the way I interpreted what you said. I was just informing you ( now I know you didn't need informing ) that they aren't written in stone and can be whisked away by the next president.