Donald Trump Is Right About Cruz's Presidential Eligibility

Reason.com ^ | January 20, 2016 | Jacob Sullum

[VitacoreVision]

After many years of debate, the meaning of "natural born citizen" remains unsettled.

During last week's Republican presidential debate, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.

Here is a sentence I never thought I'd type: Donald Trump is right. Cruz describes a consensus that does not exist.

The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement-solicitors general under Barack Obama and George W. Bush, respectively-say "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution." They call claims to the contrary "specious" and "spurious."

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."

As Catholic University law professor Sarah Helen Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes both birth abroad to parents who were citizens, and birth within a nation's territory and allegiance."

Writing in The Boston Globe last week, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz's belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."

Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz's constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.

[tacticalogic]

I don't think courts should even have the power to determine who is eligible.

Too much power for one thing.

And no one respects them if there is a single arguable hole in their rulings.

What then to make of Trump's claim that he'd be doing the public a favor by bringing suit?

[Arthur Wildfire! March]

Well said. Also state balloting has influence.

FRegards ....

[Yosemitest]

Those IDIOTS could NOT BE MORE WRONG, EVEN IF THEY TRIED !

Arizona Court Declares Lawyers Mario Apuzzo and Leo Donofrio Totally Cracked on What Makes a Natural Born Citizen

Now IF the Court had given such a “definition,” it still would’ve merely been non-binding dicta, or side commentary —
as any such determination was clearly non-essential to the matter they were deciding.
Such reasoning might have been convincing to a later Court — or it might not have been.

But the fact is,
they simply didn’t create any such “definition” of “natural born citizen” —
in spite of Apuzzo’s (and Leo Donofrio’s) elaborate twisting of their words to try and make it sound as if they did.

And even if they had — which they didn’t — it would’ve been OVERTURNED 23 years later, in the definitive citizenship case of US v. Wong Kim Ark.
In that case, the Supreme Court told us quite clearly, in not one, but in two different ways, that Wong Kim Ark,
who was born on US soil of two NON-citizen Chinese parents, wasn’t thereby JUST “a citizen” —
he was ALSO “natural born.”

If he was “natural born,” and he was “a citizen,”
then it is inescapable that the Court found young Mr. Wong to be a natural born citizen.


The 6 Justices who agreed on the majority opinion (against only 2 dissenters) also discussed the implications of such status for Presidential eligibility.
So they in fact found
that Wong Kim Ark would be legally eligible to run for President upon meeting the other qualifications — reaching the age of 35, and 14 years’ residence.

Mr. Wong, who lived most of his life as a simple Chinese cook in Chinatown, never ran for President, of course.
And in the highly racial America of his day Wong almost certainly could not have been elected if he had tried.

But according to the United States Supreme Court, legally speaking,
Mr. Wong DID HAVE the legal qualification to eventually run for, and serve as, President of the United States —
if the People should have decided that he was the right person for the job.

There’s much deeper we could go into the issue, of course.
I haven’t found the time to refute Mr. Apuzzo’s bogus “two citizen parents” claims in the full, absolute detail that I would like to.
There is an awful lot of refutation here, here, and here,
though.

It would be nice to put ALL of the pieces together in one place.
However, for those who don’t mind a bit of digging, the references given above are a good start.

But never mind — a court in the State of Arizona the day before yesterday quite clearly and authoritatively refuted Mr. Apuzzo for me.
The court smacked down Apuzzo’s and Donofrio’s claims in no uncertain terms.

Judge Richard Gordon DISMISSED the ballot-challenge case of Allen v. Arizona Democratic Party.
And he did so “WITH PREJUDICE,” which means
“This case has been fully heard and judged on its merits
and we’re done with it —
don’t attempt to darken my door with this same accusation ever again.”

Note that again:
Apuzzo’s claim has been officially tried in a court of law, on its merits, and found to be totally cracked.
And the ruling struggled to stretch barely past two pages into three.
That is NOT a lot of discussion,
which indicates that this was not anything even REMOTELY resembling a “close call.”


The pertinent language in Judge Gordon’s ruling is as follows:

“Plaintiff claims that
President Obama cannot stand for reelection [in the State of Arizona] because he is not a ‘natural born citizen’ as required by the United States Constitution… Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution,
Arizona v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 54, 3 P.2d 983, 986 (1931),
and this precedent fully supports
that President Obama is a natural born citizen under the Constitution
and thus qualified to hold the office of President.
See United States v. Wong Kim Ark
, 169 U.S. 649, 702-03 (1898) (addressing U. S. Const. amend. XIV); Ankeny v. Governor of the State of Indiana,
916 N.E.2d 678, 684-88 (Ind. App. 2010) (addressing the precise issue).
Contrary to Plaintiff's assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.“

Ouch. That’s gonna leave a mark.

So your statement that "natural born means both parents " has been DENIED by the courts !

These IDIOTS ALWAYS QUOTE LIBERALS !

Not only could the Founding Father define "natural born citizen", BUT ... THE FOUNDING FATHERS DID DEFINE IT !
And you ARE refusing the definition of "natural born citizen" CLEARLY DEFINED by our FOUNDING FATHERS !

Ted Cruz's PARENTS fulfilled ALL those requirements of the law that time, for Ted Cruz to be a "Natural Born Citizen".
Ted Cruz did NOT NEED a Court and a Judge to "Nationalize" him.

“Senator Cruz became a U.S. citizen at birth, and he never had to go through a naturalization process after birth to become a U.S. citizen,” said spokeswoman Catherine Frazier.
... The U.S. Constitution allows only a “natural born” American citizen to serve as president.
Most legal scholars who have studied the question agree that includes an American born overseas to an American parent, such as Cruz.

The only definition that matters is the one GIVEN BY OUR FOUNDING FATHERS.

They addressed children of citizens,
where one parent who was a citizen,
and one parent who was an immigrant who had resident in the United States for a period of time,
and the child's RIGHT to be a NATURAL BORN CITIZEN,
EVEN IF "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:"

1st United States Congress, 21-26 Senators and 59-65 Representatives

As Hans von Spakovsky wrote in his Commentary "An Un-Naturally Born Non-Controversy":

... The Constitution, federal law, and the historical understanding of the Framers, as well as prior British legal traditions and law, all support this view.
In a recent article in the Harvard Law Review, two former U.S. Solicitor Generals, Paul Clement (who served under President George W. Bush) and Neal Katyal (who served under President Barack Obama) stated:

All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning:
namely, someone who was a U.S. citizen at birth
with no need to go through a naturalization proceeding at some later time.
And Congress has made equally clear from the time of the framing of the Constitution to the current day that,
subject to certain residency requirements on the parents,
someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

Thus, former California Gov. Arnold Schwarzenegger would not be eligible to run for president
because the Austrian native had to go through the naturalization process to become a U.S. citizen.

Certainly the Framers of the Constitution held this view of “natural born” citizen.
They had a deep understanding of British common law and applied its precepts, particularly as explained in Blackstone’s Commentaries, throughout the Constitution.
The U.S. Supreme Court in Smith v. Alabama (1888) recognized that
“the interpretation of the Constitution of the United States is necessarily influenced by the fact that
its provisions are framed in the language of the English common law,
and are to be read in the light of its history.”

Senator Cruz meets all three qualifications in the Constitution to be the president of the United States
if the American people make that choice.

One of those precepts of British law was
that children born to British citizens anywhere in the world,
even outside the dominions of the British Empire,
were “natural born” citizens of the Empire
who owed their allegiance to the Crown.
This historical understanding is explained in great detail by the Supreme Court in a well-known 1898 case, U.S. v. Wong Kim Ark.

The First Congress, which included many of the Framers of the Constitution, codified this view of a natural born citizen.
A mere three years after the Constitution was drafted, they passed the Naturalization Act of 1790,
which specified that the children of U.S. citizens born
“out of the limits of the United States, shall be considered as natural born Citizens.”
The modern version of this Act is found at 8 U.S.C. §1401.
It contains a list of all individuals who are considered “nationals and citizens of the United States at birth.”
Paragraph (g) includes:

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 years. 

Ted Cruz was born in Canada in 1970;
his mother, who was a U.S. citizen by birth from Delaware, was in her 30s at the time.
She met Cruz’s father, who was born in Cuba, as a student at Rice University.
These facts show that
Cruz’s family background clearly meets the standard set out in the federal statute for being a natural born citizen who did not have to go through any naturalization process to become a citizen.;
That was also the case for Senator Barry Goldwater, who was born in Arizona before it became a state,
and Governor George Romney, who was born in Mexico.

The bottom line is that Senator Cruz meets all three qualifications in the Constitution to be the president of the United States if the American people make that choice.
The same is true of my wife, who was born in Manila.
Her father, whose family had been in America since shortly after the Pilgrims got to Massachusetts,
was temporarily working abroad for an American company—just like Ted Cruz’s father.

My wife is not likely to run for president,
but there is no question that she—like Ted Cruz, Barry Goldwater, George Romney, and John McCain—is eligible to be president
and to swear an oath to “preserve, protect and defend the Constitution of the United States.”


Hans A. von Spakovsky is a a former commissioner on the Federal Election Commission and Justice Department lawyer. 
He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”(Encounter 2012)
and  “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).

[Arthur Wildfire! March]

Outstanding work, Yosemitest!

Let the Truth win out!

So a trial was ruled just yesterday regarding natural born status?

[Cboldt]

The Arizona case cited was decided in 2012, on the subject of Obama's qualifications. It did not consider the ramifications of birth abroad.

The obamabirthbook.com website puts all it's eggs (for Obama) in the "born in the US" basket, and spilled lots of ink refuting the contention that Obama's Hawaii BC was an unreliable, perhaps forged piece of evidence of Obama's birth in the United States.

[Arthur Wildfire! March]

Thank you for your input. FREgards ....

[Cboldt]

You are welcome. The site also misrepresents what Wong Kim Ark said about NBC, and for reasons that puzzle me, it (Wong Kim Ark Court) and most other citizenship opinions do not cite Article IV, Sec. 2 for a determination of who was a citizen under the constitution. Focus is put on the 14th amendment, which has two baskets, one being "born in" and the other being "naturalized in" the US.

I was reading cases on the subject of citizenship in general, and to make the point that courts are fallible, there is a line of cases decided on a fictitious (does not exist) clause in the Mexican constitution relating to marriage. That has no bearing on Cruz or Obama, but hundreds of cases were decided wrongly because the courts accepted a highly relevant legal authority as existing, that did not in fact exist! The outcome of the cases hinged on this error.

[Arthur Wildfire! March]

Are federal judges trying to cite foreign law now? Elena

Kagan — was she the one who said we should do more of that?

[Cboldt]

-- Are federal judges trying to cite foreign law now? --

They have to for rendering decisions on certain types of multi-national citizenship cases.

8 USC 1409 - Children born out of wedlock

while the person is under the age of 18 years ... the person is legitimated under the law of the person's residence or domicile

For a person born abroad, out of wedlock, the case can turn on the law of the person's residence or domicile, which is typically a foreign country. There is a big body of case law on 1409.

[Arthur Wildfire! March]

God bless you for bringing your scholarly background here to the forum.

FRegards ....

[Cboldt]

-- Are federal judges trying to cite foreign law now? --

I'd add that even 1401 includes, but does not recite, that the marriage be one that is recognized in the country of birth. If the marriage isn't recognized, then the birth is out of wedlock, and 1409 applies. That doesn't mean citizenship does not attach, only that the analysis proceeds under a different law.

[Cboldt]

Thank you for the encouraging words.

[Yosemitest]

"So a trial was ruled just yesterday regarding natural born status?"

From the link:

March 9, 2012

[Carry_Okie]

And even if they had — which they didn’t — it would’ve been OVERTURNED 23 years later, in the definitive citizenship case of US v. Wong Kim Ark.

It may be the law, but it's a crappy decision and opinion.

The 6 Justices who agreed on the majority opinion (against only 2 dissenters) also discussed the implications of such status for Presidential eligibility.

It was five, not six. One of the justices was not present. I suggest you read that dissent. It's a lulu. More importantly, read the pedigree of the justices. That opinion, the justices, and the dissent are discussed here.

[Arthur Wildfire! March]

Thank you, Carry Okie.

An engineer with words.

[Carry_Okie]

Wong Kim Ark is important. It is the sole basis for anchor babies. It was decided by a claque of railroad lawyers representing the cheap labor express, some of which are guilty of other really bad decisions.

[Arthur Wildfire! March]

There you go, building again with words, advancing discussion to our anchor baby mess.

Well done.

I managed to load the Wong Kim Ark page despite my lagginess. Thank you.

[Carry_Okie]

Accept Wong Kim Ark over "natural born" and you get Wong Kim Ark with regard to anchor babies.

Not a good deal. It was a badly crafted decision.

Does soil make a citizen or is it immersion in a culture? Do I become a native of a country because I happened to be in their airspace for 45 minutes or is it where I was raised? More importantly, does a country deserve a claim on my life and labor because of the incident of birth or is it with the friends and family that raised me and their affiliations?

These are fundamental questions of citizenship and volition that the entitlement to indenture the crown exerted ignored with its claim of belonging to the soil. I don't think we wish to go there, especially when "the king" is a dependent and democratic majority. It reeks of the road to serfdom.

[Arthur Wildfire! March]

‘Does soil make a citizen or is it immersion in a culture?’

Immersion in the culture. And frankly, many escapees from communist nations make the very best citizens, such as Dezi Arnez [sic?] — husband in ‘I Love Lucy’. He secretly supported the CIA against communism.

But who to trust and not to trust?

FRegards ....

[Arthur Wildfire! March]

Trying to take Glenn Beck seriously for a moment ...

Beck Pleads Cruz Rally To Accept Even ‘Marxist Atheists’ Because ‘They Renew Us’
http://www.freerepublic.com/focus/f-news/3387884/posts

~~~~

Constitutional considerations aside for a moment, it is great that Cruz’ father assimilated so profoundly.

But that would not have engender trust in Cruz’ father. His son, however? Yes. Massive trust.