CNN: Why Ted Cruz Is Eligible To Be pPresident

CNN ^ | January 14, 2016

[Yosemitest]

(CNN)... If Cruz gets enough electoral votes this fall,
then Congress
and not the Supreme Court
should be the final legal judge of Cruz's eligibility.
The Constitution's 12th Amendment clearly says that
Congress counts the electoral votes at a special session;
and thus Congress is constitutionally authorized
to refuse to count any electoral votes that Congress considers invalid.

Elsewhere, Article I, section 5 of the Constitution makes clear that
each house of Congress may "judge" whether
a would-be member of that house meets the constitutional eligibility rules for that house.
... If a dispute arises ... the Constitution clearly says
the Senate is "the judge" of Smith's birth certificate dispute.

Similarly, for presidential elections the Constitution's structure makes Congress the judge of any birth certificate dispute or any other issue of presidential eligibility.
Congress cannot fabricate new presidential eligibility rules but it is the judge of the eligibility rules prescribed in the Constitution.

Thus, ordinary courts should butt out, now and forever.
They have no proper role here,
because the Constitution itself makes Congress the special judge.
In legal jargon the issue is a "nonjusticiable political question."

[2pets]

"I can be just as STUPID as you can. So, by YOUR logic, since it says " ...And the children of ... ", I guess that means that if there are not TWINS born at the same time, they cannot be citizens ?"

-------------------------------------

I don't see where the term "and the children of" is used in the 1952 Law, Sec 301. Perhaps you can cite it.

[Ditter]

Sorry I am not a lawyer or a judicial scholar but it seems to me that all the supreme court did, was to insist that the laws in place should be followed. The dems wanted to cherry pick which precincts would be recounted and the law said recount all or none.

[CpnHook]

Subsection 7 uses the requirement "prior to." Cruz's mother was a resident of Canada prior to Cruz's birth. Words matter.

Yes, they do. And if I'm following your argument here, you're trying to assert that "prior to" means Cruz's mother had to have been in the U.S. in the period immediately preceding his birth. If that's the argument (and I can't fathom what else you might be saying), then you're misreading the statute.

"(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 ten years, at least five of which were after attaining the age of fourteen years[.]"

There are two problems with your argument.

1. The statute requires the citizen parent to have been "physically present" in the U.S. "for a period or periods" totally the requisite time. "Or periods" means these can consist of multiple, non-continuous periods of time. So it matters not that in the final period of time Cruz's mother was a resident of Canada, so long as at some time prior to the birth there was a period or periods of physical presence in the U.S. totaling 10 years, etc. This then has to mean "at any time prior to" or else allowance for multiple periods wouldn't make sense.

2. Your construction would be absurd on it's face. This is a statute applying to a birth abroad. . The statute can't be then purporting to make the mother be physically present in the U.S. for a period ending the date of the birth. Is the mother supposed to have magically crossed the border when she goes into labor? Your reading makes the statute a nullity -- in the case where the citizen parent is the mother it would never apply.

The effort to compare "prior to" with "at any time prior to" was good. But it seems you got preoccupied there and missed the back end where the statute allows multiple periods of time.

Did Cruz's mother meet the 10-year requirement? I don't know if that's been established. But the fact the she was a resident in Canada in the period leading up to the birth doesn't disqualify her.

[2pets]

"1. The statute requires the citizen parent to have been "physically present" in the U.S. "for a period or periods" totally the requisite time. "Or periods" means these can consist of multiple, non-continuous periods of time. So it matters not that in the final period of time Cruz's mother was a resident of Canada, so long as at some time prior to the birth there was a period or periods of physical presence in the U.S. totaling 10 years, etc. This then has to mean "at any time prior to" or else allowance for multiple periods wouldn't make sense."

That only works if Subsections 7, like Subsection 5, required "at any time prior to." It doesn't.

"2. Your construction would be absurd on it's face. This is a statute applying to a birth abroad. . The statute can't be then purporting to make the mother be physically present in the U.S. for a period ending the date of the birth. Is the mother supposed to have magically crossed the border when she goes into labor? Your reading makes the statute a nullity -- in the case where the citizen parent is the mother it would never apply."

There are any number of reasons US citizen women are temporarily out of the US and may give birth during that time. What matters, and SCOTUS makes this very clear in the the Wong Kim Ark ruling, is one's legal permanent domicile. Since Subsection 7 does not permit ten years, etc., physical presence "at any time" prior to the birth, Cruz's mother would have had to have been a US resident prior to Cruz's birth. She was not. She was a resident of Canada for 3 years prior to Cruz's birth.

Read the closing paragraph of the Wong Kim Ark ruling for reference.

[2pets]

Furthermore, of a US citizen father and alien mother couple who reside in the US, it would be entirely feasible that the alien mother would choose to temporarily return to her native country to be with her family to give birth and then afterwards return to the US with her baby.

I find it odd that so many of you want to cherry pick which terms contained within a single Section do or do not apply to suit your agenda.

Quite simply, "at any time prior to" and "prior to" are not the same.

This is similar to what many people are correctly asserting: "born citizen" and "natural born citizen" are not the same.

[Yosemitest]

WRONG !

[Yosemitest]

You can't educate an IDIOT who will not listen to FACTS.
But thanks for trying.

"Did Cruz's mother meet the 10-year requirement?
I don't know if that's been established. "

Yes, she did.

Exclusive: Birth Certificate for Ted Cruz's Mother

... The Cruz campaign was responding to inquiries from Breitbart News about a document showing that both of Cruz's parents had been named on a list of voters in Calgary for the 1974 Canadian federal election.

Only Canadian citizens were (and are) able to vote in federal elections.
The lists were compiled through a door-to-door process of "enumeration" by registrars, and were publicized partly so that mistakes could be corrected.

According to Elections Canada–the independent, non-partisan agency that runs Canadian elections- - "voters were sent a copy of the list showing the name, address and occupation of all voters in the relevant poll."

Mistakes were frequent (i.e. "Raphael" instead of "Rafael"), and voters were given the opportunity to fix errors.

Ezra Levant, a Canadian conservative journalist who was born and raised in Calgary, recalled the process of enumeration.

"It was like a census ... they were very quick and non-obtrusive visits, someone standing in your doorstep," he told Breitbart News via e-mail.
"They certainly didn't ask for ID."

"It is not surprising to me that there may be a spelling error in someone's name.
A name appearing on the list would not necessarily indicate that they were a citizen, or that they themselves had even spoken to the enumerator- -
someone else in the household may have spoken for them," Levant added.

The Cruz campaign told Breitbart News on Friday that Cruz's mother had never become a Canadian citizen.

"She was in Canada on a work permit and never became a permanent resident, let alone a citizen," said Jason Johnson, chief strategist for the Cruz campaign.

"She never registered to vote and never applied for Canadian citizenship."

In a subsequent statement to Breitbart News, Johnson added:
"Eleanor was never a citizen of Canada, and she could not have been under the facts or the law.
In short, she did not live in Canada long enough to be a Canadian citizen by the time Cruz was born in 1970:
Canadian law required 5 years of permanent residence, and she moved to Canada in December 1967 - - only 3 years before Senator Cruz's birth."

The campaign could not provide her Canadian work permit.

Canadian immigration authorities could not provide Breitbart News with additional documents, citing Canadian privacy laws.

[Yosemitest]

"... the Wong Kim Ark ruling... "

So you're another Mario Apuzzo believing IDIOT !

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.“

The THEORY that "natural born means both parents " has been DENIED by the courts !

[CpnHook]

That only works if Subsections 7, like Subsection 5, required "at any time prior to." It doesn't.

It doesn't have to say "at any time prior to" when the statute expressly allows the requisite physical presence to occur over multiple periods. The statute can't thus be read to require the physical presence to have occurred in one continuous period immediately preceding the birth.

What matters, and SCOTUS makes this very clear in the the Wong Kim Ark ruling, is one's legal permanent domicile.

Under subsection (a)(7) domicile is IRRELEVANT: that subsection makes no reference to domicile.

(And in WKA, domicile is mentioned as part of the recitation of facts (as is the fact that Wong's parents were Chinese), but it's a dubious argument to assert the opinion makes that a requirement. But that case involved a domestic birth, when here we're talking about a foreign birth, so I have no idea why you're bringing that up. The case does have potential relevance to Cruz, but not for the reasons you're saying.)

She was a resident of Canada for 3 years prior to Cruz's birth.

Under subsection (a)(7) residence at the time of birth is IRRELEVANT: that subsection makes no mention of residence at all.

The operative term used in that subsection is "physical presence." One can be physically present in a place without that place being the person's residence or domicile. You're reading terms into the statute that aren't there.

Read the closing paragraph of the Wong Kim Ark ruling for reference.

I know and understand that opinion better than you do, thank you kindly.

[CpnHook]

I find it odd that so many of you want to cherry pick which terms contained within a single Section do or do not apply to suit your agenda.

Well, two terms that one can't pick out of subsection (a)(7) are "residence" and "domicile," since those terms don't exist there. Though you nonetheless seem to think they are.

Do you ever stop and wonder why no one else in the many discussions about Cruz (not just here, but in media articles, etc.) raises the point that Cruz's mother was a resident of Canada before and at the time of birth? Could one reason be that you are reading the statute in a way no other lawyer out there anywhere is reading it?

You are much like the people who jump up and down about how Obama's birth certificate shows BHO, Sr. as father and he wasn't a U.S. citizen. ("Pssst. Hey, no kidding. Let me know when you discover your navel.") There, too, there's a reason why this was all well-known and no (competent) lawyers, legal scholars or judges were saying that creates an issue. (It's because 'citizen parents' has never been a requirement.)

There is a reason why no one out there is mentioning the mother's Canadian residence: it's because the statute doesn't preclude that.

[CpnHook]

You can't educate an IDIOT who will not listen to FACTS.

Many people adopt pet arguments and cling to them well past the time they should rightly have been euthanized. This may be another example.

Yes, she did.

U.S. residence from 1934 to 1967 would indeed be 10 years of "physical presence."

[2pets]

Actually, not wrong. Words matter. Ask all of those who correctly assert “born citizen” is not the same as “natural born citizen,” which would include the Constitutional Convention. The Constitutional Convention rejected Alexander Hamilton’s draft of “born a citizen” and adopted John Jay’s “natural born citizen” for Constitutional eligibility for POTUS.

[2pets]

Oh, please... Wong Kim Ark was ruled a US citizen (note: NOT a natural born citizen) because in part his parents, though aliens, were legally permanently domiciled in the US:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Order affirmed.

[CpnHook]

The Constitutional Convention rejected Alexander Hamilton’s draft of “born a citizen”

There is no proof that Hamilton's language "born a Citizen" was ever submitted to the Convention. The Convention couldn't reject what it never read.

[Yosemitest]

" a US citizen (note: NOT a natural born citizen) "

WRONG !

Another article well worth anyone's time is

On the Meaning of "Natural Born Citizen",
MAR 11, 2015, Commentary by Neal Katyal & Paul Clement

... While the field of candidates for the next presidential election is still taking shape,
at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother.^15×
15. See Monica Langley, Ted Cruz, Invoking Reagan, Angers GOP Colleagues But Wins Fans Elsewhere, Wall St. J. (Apr. 18, 2014, 11:36 PM), http://www.wsj.com/articles/SB10001424052702303873604579494001552603692.
Despite the happenstance of a birth across the border, 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.
Indeed, because his father had also been resident in the United States, Senator Cruz would have been a "natural born Citizen" even under the Naturalization Act of 1790.
Similarly, in 2008, one of the two major party candidates for President, Senator John McCain, was born outside the United States on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent.^16×
16. See Michael Dobbs, John McCain's Birthplace, Wash. Post: Fact Checker (May 20, 2008, 6:00 AM), http://voices.washingtonpost.com/fact-checker/2008/05/john_mccains_birthplace.html [http://perma.cc/5DKV-C7VE].
Despite a few spurious suggestions to the contrary, there is no serious question that Senator McCain was fully eligible to serve as President,
wholly apart from any murky debate about the precise sovereign status of the Panama Canal Zone at the time of Senator McCain's birth.^17×
17. See, e.g., Laurence H. Tribe & Theodore B. Olson, Opinion Letter, Presidents and Citizenship, 2 J.L. 509 (2012).
Indeed, this aspect of Senator McCain's candidacy was a source of bipartisan accord.
The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency,
resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was "inconsistent with the purpose and intent of the 'natural born Citizen' clause of the Constitution of the United States,
as evidenced by the First Congress's own statute defining the term 'natural born Citizen.' "^18×
18. S. Res. 511, 110th Cong. (2008).
And for the same reasons, both Senator Barry Goldwater and Governor George Romney were eligible to serve as President although neither was born within a state.
Senator Goldwater was born in Arizona before its statehood and was the Republican Party's presidential nominee in 1964,^19×
19. See Bart Barnes, Barry Goldwater, GOP Hero, Dies, Wash. Post, May 30, 1998, http://www.washingtonpost.com/wp-srv/politics/daily/may98/goldwater30.htm [http://perma.cc/K2MG-3PZL].
and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968.^20×
20. See David E. Rosenbaum, George Romney Dies at 88; A Leading G.O.P. Figure, N.Y. Times, July 27, 1995, http://www.nytimes.com/1995/07/27/obituaries/george-romney-dies-at-88-a-leading-gop-figure.html.

There are plenty of serious issues to debate in the upcoming presidential election cycle.
The less time spent dealing with specious objections to candidate eligibility, the better.
Fortunately, the Constitution is refreshingly clear on these eligibility issues.
To serve, an individual must be at least thirty-five years old and a "natural born Citizen."
Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve.
But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization.
And the phrase "natural born Citizen" in the Constitution encompasses all such citizens from birth.
Thus, an individual born to a U.S. citizen parent - - whether in California or Canada or the Canal Zone - - is a U.S. citizen from birth
and is fully eligible to serve as President if the people so choose.



---



* Paul and Patricia Saunders Professor of Law, Georgetown University.
** Distinguished Lecturer in Law, Georgetown University; Partner, Bancroft PLLC.

[CpnHook]

Oh, please... Wong Kim Ark was ruled a US citizen.

Right. And we know that citizenship is classified two-fold: natural born and naturalized. Since Wong wasn't naturalized (he couldn't be under the Chinese Exclusion Act), he was unquestionably a natural born citizen.

(note: NOT a natural born citizen)

So you're saying he was naturalized? Where does the SCOTUS say that?

He couldn't be naturalized. Wong was a natural born citizen.

[Cboldt]

You are no doubt familiar with the case of Kawakita v. United States, 343 U.S. 717 (1952).

I cite it just as a counterpoint to "we know that citizenship is classified two-fold: natural born and naturalized. Since Wong wasn't naturalized (he couldn't be under the Chinese Exclusion Act), he was unquestionably a natural born citizen." While courts often say things like "there are only two categories," the existence and definition of those categories is a judicial construct that usually fits the pivot point of decision in the case in hand. But setting up a two-slot system is nowhere compelled.

One could just as easily say that a person is either born a dual citizen, or not; or is naturalized into dual citizenship, or not.

Quick sideways leap - sometimes the court makes a more complex structure, as it did in the Steel Seizure case. Sometimes the issue is more complex and is analyzed on some sort of sliding scale or multiple prong framework.

I don't believe that the rule "native born is natural born citizen" is correct; or even the WKA conclusion that Ark was a "native born citizen" results in Ark also being a NBC. Not the point of discussion, but I also don't think that "native born is always (diplomat exception aside) a citizen" is compelled by the cases, although that is the way WKA and Plyler have been applied.

There are other important variables in the citizenship analysis besides location of birth, including whether the parent is a legal resident of the US, and whether the child obtains citizenship from another country, even though born in the US.

I think the "two category" system that gets to the eligibility of a dual citizen to hold the office, would focus on "dual citizen or not dual citizen," not "naturalized or native born." While it is tempting to think that this the "native born or not" framework is comprehensive of defining NBC, I would say that at least we don't know if the Supreme Court would see it that way.

[2pets]

If that's true, why didn't SCOTUS rule Ark a natural born citizen?

Again, words matter.

[2pets]

SCOTUS did NOT rule WKA a natural born citizen. He was ruled a citizen only. Read the ruling, specifically the last paragraph which by Gray's own statement explicitly limits the effect of the ruling.

Too many of you are reading much more into the WKA ruling than is really there. Words matter.

[CpnHook]

I cite it just as a counterpoint to "we know that citizenship is classified two-fold: natural born and naturalized.

OK. You cite it as counter-example, but you don't explain how it serves as that. My contention (supported by the unanimous opinion of the scholarly articles and judicial options over the past 75 years speaking on the point) is that "native born" equates to "natural born." Where in the Kawakita is there a suggestion that he was not a natural born citizen?

In fact, there is language in the opinion that runs counter to your supposed counterpoint:

" The court further charged that, if the jury should find beyond a reasonable doubt that, during the period in question, petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen." 343 U.S. at 722

If Kawakita, who is termed a "native-born citizen" (in the syllabus), is born with the same duty of allegiance as all other citizens (which would include all "natural born citizen"), then on what principle do you establish this case to suggest there can be a "native-born, but not natural-born" category? I'm not seeing it, and you don't explain it.

Further, the Court states explicitly "He was thus a citizen of the United States by birth, Amendment XIV." We know from U.S. v. Wong Kim Ark that "subject to the jurisdiction of the U.S." takes its meaning from the common law meaning of "natural born citizen." (I explicated this at length in one of my initial posts to you.) So Kawakita's noted citizenship from birth under the 14th Amendment ipso facto means he was also a natural born citizen.

One could just as easily say that a person is either born a dual citizen, or not; or is naturalized into dual citizenship, or not.

The first part is true, but still begs the question as to the NBC point at issue. The second point is possibly true if it's a born-abroad, citizen-at-birth case. But both points are non-sequiturs -- the two-fold classification I posit isn't negated simply because one can state similar dichotomies on other points.

I don't believe that the rule "native born is natural born citizen" is correct; or even the WKA conclusion that Ark was a "native born citizen" results in Ark also being a NBC.

Again, you make the assertion without offering any support. By contrast, I've shown how J. Gray in WKA explores the meaning of "natural born" in the English and American common law to inform the meaning of "born . . .in the U.S., and subject to the jurisdiction thereof." And I've backed up my contention with a host of scholarly articles all supporting my contention that per WKA "native-born equals natural born."

Not the point of discussion,

It is, whenever in your posts you make the "native born doesn't necessarily mean natural born" remark. You open the door to discussion when you do that.

There are other important variables in the citizenship analysis besides location of birth, including whether the parent is a legal resident of the US, and whether the child obtains citizenship from another country, even though born in the US.

And why are these important, given that no case or scholarly article I've found mentions them as important in the NBC discussion? They may be important to you. But in the absence of any support, you should really preface your remarks with "this is just my opinion, and I admit they don't find support within the scholarly community or caselaw."

I think the "two category" system that gets to the eligibility of a dual citizen to hold the office, would focus on "dual citizen or not dual citizen," not "naturalized or native born."

You act like this is a question or point of nomenclature that has yet to be addressed.

Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Luria v. U.S., 231 U.S. 9 (1913)

The questions has already be framed as "naturalized versus native-born."

You're just being a denialist at this point.