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.
Allow me to make the connection, once again.
If Cruz is naturalized, he cannot be a natural born citizen. The two classes are mutually exclusive.
The Bellei case establishes that Cruz is naturalized. If Cruz is naturalized, he is not a natural born citizen.
-- My two earlier posts are precisely correct--there is no Supreme Court authority that has anything to do with the question presented here. --
There is no need to compose or answer the precisely correct question, in Cruz's case. He is disqualified because he is conclusively a naturalized citizen on admitted facts.
We don't even need go to court. The GOP can disqualify him of its own volition. If Cruz doesn't like it, he can sue.
Ted Cruz didn’t have to be naturalized because he was born a NATURAL BORN CITIZEN.
I also was never naturalized because I, too, was born a NATURAL BORN CITIZEN, so I, too, am eligible to be president.
All you’re doing is repeating Trumop talking points.
Trump himself said Cruz is eligible to be POTUS, but that wzs before Cruz gained in numbers in the polls. Was Trump lying then, or is he lying now?
Cruz is naturalized.
Are you claiming a naturalized person is a “natural born citizen”?
You are wrong. Simple. If you had anything to back up your opinion, ... but you don’t. Laws were passed to naturalize those born in situations where they would not receive automatic citizenship.
Naturalization. Created.
By law.
You are wrong.
I do not repeat talking points from anyone. I have studied this specific topic for seven years and well over 500 hours. How long have you been at it?
Do you KNOW or have you LEARNED?
I have “learned” that someone can “study” this issue for seven years, and still be wrong, and will ignore the law.
Citizen by birth IS a NATURAL BORN CITIZEN. Cruz IS a Natural Born Citizen through blood - his mom:
Many Constitutional experts know Cruz is a NATURAL BORN CITIZEN. In fact, even Alan Dershowitz says: “He’s a natural-born, not a naturalized, citizen.â€
People become NATURALIZED citizens AFTER their birth, but Cruz did not have to, as he was BORN a NATURAL BORN CITIZEN.
I can anticipate the rebuttal, “By law, at birth.” The circle, it goes ‘round and ‘round.
Both the citizen parent and the child had to meet the provisions of statute for citizenship to be granted.
Congressional grants of citizenship is naturalization.
I was born in the United States to two citizen parents. My citizenship is granted (by nature) owing to the place of my birth (jus soli), and the undivided loyalties of my citizen parents (jus sanguinis), under the sole governance of the United States Constitution. That is, my citizenship does not depend on the existence of any statutory actions taken by the US Congress (nor can it ever be constrained by such); hence I am a natural born citizen.
Sun - a bit of illumination for you - Cruz would not have been a US citizen if not for filling out a bunch of NATURALIZATION forms. As in; to NATURALIZE.
And there is this - the Constitutional originalists concur that in the strictest sense the founders meant a child born on native soil to citizen parents. Had a law not been passed to “cover” situations like Cruz and his Canadian birth, he would not have been eligible to have his mom apply for his US citizenship. WHICH by the way, we have yet to see proof of having been done.
So, a reference for you is Binney. As in Horace Binney.
So, important for you to accept is that people who have done hundreds of hours of research BEFORE Cruz ever entered the picture are not doing so now just to blow Ted out of the water.
You do not know if you have not learned. You learn by doing your own independent research - SOURCE MATERIAL.
I have put in the time, and you have not. So you think you can school me? No. You cannot.
I will leave you with this, again:
Ted Cruz; “”As you know, I was born in Canada. My mother was a U.S. citizen at the time of my birth. She was a U.S. citizen from birth so, under U.S. law, I’m an American citizen by birth.” “Beyond that,” he added, “I will leave the legal consequences of those facts to others to worry about.”
That would never fly in court. Ever.
The SCOTUS has never applied the term “natural born citizen” to any other category than “those born in the country of parents who are citizens thereofâ€
The Venus, 12 U.S. 8 Cranch 253 253 (1814)
“The natives or indigenes are those born in the country of parents who are citizens.”
Minor v. Happersett , 88 U.S. 162 (1875)
“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens,”
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
“(A)ll children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
Ya’ll might be interested in THIS
http://www.fresnobee.com/news/nation-world/national/article54993300.html
Allow me to make the connection, once again.
If Cruz is naturalized, he cannot be a natural born citizen. The two classes are mutually exclusive.
The Bellei case establishes that Cruz is naturalized. If Cruz is naturalized, he is not a natural born citizen.
You can believe anything you like but that doesn't have anything to do with how the legal is likely to result.
Cruz became a US citizen at birth under the Congressional power to define citizenship. It may be reasonable to call the basis for his citizenship naturalization but that doesn't have anything to do with the outcome.
I suppose it is really worse--the citizenship statute under which Cruz becomes a citizen is also unconstitutional on its face because it makes children of US mothers citizens but not US fathers under the same circumstances. Read the Cornell Law Review on the topic.
If the argument gets to the Supreme Court, it will decide the issue on what it views as the current policy merits. We do not in fact have any precidential authority that tells us how the Court is going to view that question.
Best you can do is read the New York Times and listen to the guys who go down to the courthouse every day to argue Constitutional issues before the Supreme Court. The Times is telling you the requirement is an anachronism we need to dispense with; the lawyers are probably split 60-40 in favor of getting rid of it at present.
So whatever you like to the contrary not withstanding, and depending in part on how the case gets to the Court and when that happens, likely Cruz is eligible.
If it is after an election in which he is at the top of the ticket and wins, he is eligible and the Court might not even hear the case.
If he could somehow get there now, as in an appeal of one of these cases to kick him off a primary ballot, the Court is most likely to hold him eligible.
The party is gearing up to kick him out at the convention in which case he isn't likely to get to the Court; if he did, I am not sure I would guess how it comes out.
The party isn't likely to kick him out if both he and Trump get to the Convention. If Trump has the most delegates, he is the nominee; if Cruz has the most delegates and Trump is second, they won't kick Cruz out to take Trump--Cruz will be the nominee and the Court will hold any challenge to be a political question it won't answer until after the election. If Cruz wins, he is President and Natural Born--get over it.
You, like a number of people on the site here, and generally in our country, think the Constitution really means something on these close unresolved questions--it doesn't.
Among other things, the Court has already effectively repealed the Commerce clause in 1935. Obamacare is unconstitutional on its face--no reasonable argument to make it constitutional. King v. Burwell is a decision on a specific statute and the Court decided the case the other way.
As an abstract proposition, I tend to agree with your policy view and that of John Jay--the Constitution ought to require the President to have some fundamental personal relationship to the Country in the nature of birth under US sovereignty and familial foundation. But the drafters were sloppy and didn't spell it out. So you will have to deal with the consequences.
In my own case, as I set out above, " If the Liberals get their guy to impose an unconstitutional culture on America, I get my guy to unravel it. Although I could be persuaded Trump might do it; I believe Cruz, if elected, would do it."
If I don't get Cruz I would be willing to vote for Trump; if I don't get either one, I think the country has a lot of difficulty going forward under anyone else.
You can’t win a Presidental election with 28% believing you are not
qualified to run.
Or can you...
Ummm, no. Read the statute 8 USC 1401. Maybe you are mixing things up with out of wedlock, the Nyugen case. That concerns 8 USC 1409, where there is a distinction based on which parent is a citizen.
-- If the argument gets to the Supreme Court, it will decide the issue on what it views as the current policy merits. --
I see. So your contention is that it is the function of the courts to legislate naturalization policy. Interesting. I wonder about your "separation of powers" sentiments. But hey, it is popular to advocate legislating from the bench.
-- The party is gearing up to kick him out at the convention in which case he isn't likely to get to the Court --
Really? If he is eligible, and the party allows him to invest all the time and energy, and the party certified him eligible. You say that if the party reneges, Cruz can't get a hearing to restore his honor? Wow. What a country.
-- You, like a number of people on the site here, and generally in our country, think the Constitution really means something on these close unresolved questions--it doesn't. --
I don't see it as a close unresolved question, having reviews scores of cases on the subject. You are spouting nonsense, and from my point of view are an uninformed blowhard.
You are misleading people who may trust you. That's on your conscience, not mine.
> Cruz became a US citizen at birth under the Congressional power to define citizenship.
Congress has the power to naturalize.
"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."
See that kind of misses the point of how we should address this question as Constitutional Conservatives.
jospehm20's view; Cboldt's view; or my view and that of a number of similar members here isn't what counts.
On the merits, Cruz is likely to be the most effective Constitutional Conservative President out of the group so we should want to see him elected.
We have spent the last 32 years with a President who is not committed to Constitutional Governance and who is implementing policies, many of them in direct contravention of the Constitution, which are designed to eliminate our form of Government and install a culture totally inconsistent with that of a majority of our citizens.
The survival of our country is at stake and we need the most effective leader we can find to save us.
From a technical legal perspective, it is pretty likely that depending on the facts and circumstances on which the case reaches the Supreme Court, Cruz would be held eligible event though many of us can see sound legal arguments to the contrary.
I too have given Cruz money. And I too am particularly disappointed in his failure to address this issue in a timely way when I believe it could have been resolved to his advantage. But I am also prepared to suck up and get over it.
Josphehm20's argument about what the founders might have intended is probably correct. But what the founders intended is going to be seen in a Supreme Court opinion only if the Court has already decided the case on that basis for other reasons.
Between here and there, the issue that counts is what is best for the country on the choices before us.
> We have spent the last 32 years with a President who is not committed to Constitutional Governance and who is implementing policies, many of them in direct contravention of the Constitution, which are designed to eliminate our form of Government and install a culture totally inconsistent with that of a majority of our citizens.
Are you aware of the plan Heidi Cruz helped prepare and which she endorses? It is a form of “governance” inconsistent with our form of government.
http://i.cfr.org/content/publications/attachments/NorthAmerica_TF_final.pdf
She had supposedly been married before to another Canadian who later moved to London after their divorce.
I came across this the other day that has a few more details, as well as the interesting fact that. dual citizenship wasn't recognized in Canada until 1977
Ummm, no. Read the statute 8 USC 1401. Maybe you are mixing things up with out of wedlock, the Nyugen case.
As to Cruz, he was born before the statute was amended. The effective dates are in the footnotes which the cite doesn't pick up; if it is retroactive to dates at issue, you would be correct. Doesn't make any difference to the present argument about Cruz because whether or not the citizenship statute applicable to his birth status is really constitutional isn't going to be decisive.
-- If the argument gets to the Supreme Court, it will decide the issue on what it views as the current policy merits. -- I see. So your contention is that it is the function of the courts to legislate naturalization policy. Interesting. I wonder about your "separation of powers" sentiments. But hey, it is popular to advocate legislating from the bench.
No. You are misstating the argument. If you mean do I think that is a proper function of the courts, no, I don't.
But you need to grow up and deal with things the way they are, not the way you wish they were. You may not like it this way; I don't; but we need to address these issues in the real world.
The Court and related establishment interests are writing law and have been for a long time. There are lots of examples.
The debate here is over the question of who we should try to install as President.
And even there that is a close question. I think Cruz is smarter and closer to the levers of power than Trump is so I would probably pick Cruz. At the primary stage, I don't think the Article II, Sec. 1 question is really very relevant unless someone can make it legally relevant.
That has been tried already--to kick Cruz off the ballot in New Hampshire for example; there is a decision rejecting the effort. If he were my client, I would have a straw party appeal that decision to the federal courts and would then try to get a solid holding. Might not make that.
And Trump, as usual, is focused on the direct bottom line attack--and I don't think his motivation is totally adversary; he thinks, as I do, that Cruz ought to have acted long ago to get this issue out of the way.
As to your last point, that is really silly. ("The party allows him to . . . ") Cruz has gotten himself to the point where he is exposed; he should have dealt with it and hasn't; he will have to deal with the consequences.
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