Posted on 02/07/2016 6:49:10 AM PST by Robert DeLong
We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.
The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to "a natural born Citizen." 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.
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a "natural born Citizen" means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law.
As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used "natural born" to encompass such children. These statutes provided that children born abroad to subjects of the British Empire were "natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoever." The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like "natural born," since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone's Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.
No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were "natural born Citizens." The Naturalization Act of 1790 provided that "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 . . . ." The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen†that included persons born abroad to citizen parents.
The proviso in the Naturalization Act of 1790 underscores that while the concept of "natural born Citizen" has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth. The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are "natural born Citizens."
The original meaning of "natural born Citizen" also comports with what we know of the Framers' purpose in including this language in the Constitution. The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting:
[W]hether it would not be wise & seasonable to provide a . . . strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.
As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to "cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose a barrier against those corrupt interferences of foreign governments in executive elections." The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay's own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility.
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. 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. 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. 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.'" And for the same reasons, both Senator Barry Goldwater and Governor and Governor Romney was born in Mexico to U.S. citizen parents and unsuccessfully pursued the Republican nomination for President in 1968.
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.
Anchor babies should not be citizens.
BTW, I rescind my contention that Marco Rubio is deemed to be a "natural born" citizen since neither of his parents were citizens at the time of his birth. He became naturalized along with his parents.
I doubt that the Founders would have considered Cruz a natural born citizen.
And..If Cruz is a natural born citizen then so were the children of Princess Grace when they took their first breath. The children of a Mexican drug lord in Mexico would also be if his wife were an American citizen under the same circumstances and reasons. These are the very people that our Founders wanted to be excluded from the position of President and Commander in Chief.
Got a link?
I've not seen a direct quote from Cruz on this.
Apparently that is not true, otherwise we would not have had 8 years of Obama Birther Conspiracy Threads ... According to these guys, Obama is AOK, mother is a citizen and father had residency at some time prior to birth - regardless of his actual POB - so the whole Birth Certificate issue is moot. AND - any court could have, at any time, simply cited what you said and the controversy would be over.
Instead, they refused to make any decision at all, citing standing or any other reason to NOT make a decision.
Personally, I tend to think that the father needs to be a citizen and the birth must occur in such a manner that the US has jurisdiction over the child - meaning ambassadors and our military overseas - are natural born. But that is just my opinion.
As I mentioned in my post, there are reasonable arguments on both sides of the issue and a ruling from the court would be welcome here. They are more than willing to stick their nose where it does NOT belong, so I am really puzzled that they utterly refuse to get involved here.
This is legislation and has nothing to do with the constitutional requirement. That would take an amendment.
All this tripe does not dissuade me from voting “W.A.S.P.”, which neither dear ol’ Rafael Eduardo Cruz, or Marco Rubio, and for that matter, Dr. Carson, qualify.
Hold on, Robert, it may be too early for you to throw in the towel.
Neal Katyal was an O appointee to the OSG, so we should not be surprised to learn which side of the issue he is inclined to argue.
Paul Clement, who appears to have an excellent Republican history, was a Bush appointee - and held a top place on presidential candidate McCain's USSC appointment list. Clement is expected to also hold a top place on the Cruz and Rubio lists.
A quick read reveals the U.S. authority for much of the argument Katyal and Clement make is based on birth abroad to two parents. Most telling is that it does not address the constitutional status of either the child who happened to be born a few feet into our country to two illegal parents, or to one who holds a foreign birth certificate and a foreign parent.
Of course, it may just be Clement wishes to help save our nation from Hillary and, willing to overlook any critical legal analysis, supports Cruz or Rubio as an expedient.
On the other hand, the legal argument presented above could be considered as a show of loyalty to two of the top-tier candidates who have troublesome citizenship by an author who would welcome a USSC appointment.
P> The USSC early-on held that whatever one's view of NBC happens to be, its highest form would be birth within the country to two parents.
My question for Clement would be on what basis does he determine the founders intended by their express use of NBC - only in the case of the highest office in the land that of Commander-in-Chief - that foreign birth to a foreign parent would suffice?
Clement, with his fine legal abilities, would quickly recognize what controls is not the view of others then or now, but what usage the founders intended.
No, because he would have been considered to have renounced his (natural born) citizenship if he hadn’t come by age 23 and spent 5 consecutive years here after the age of 14 and before the age of 28.
What about living abroad with and adopted by a parent in a country that does not allow dual citizenship like Indonesia.
thanks, and my real reason for posting this was to see if this can actually put the issue to rest or not. I think the consensus tells me that it is not. Ted Cruz needs to get clarification and now. As far as I am concerned Marco Rubio needs to drop out immediately due to ineligibility.
Section 8 - The Text (abbreviated)
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Doesn’t change the requirements for President. If it did, it would have been written.
“He became naturalized along with his parents.”
That is incorrect. The U.S. Immigration and Naturalization Act of 1952 authorized a child born within the jurisdiction of the United States with alien parents to acquire naturalized at birth U.S. citizenship, provided the child complies with any additional conditions. Due to the citizenship being authorized by the statutory naturalization law, Marco Rubio is a naturalized citizen of the U.S.
United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. said “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized....”
That's what I said, Marco Rubio is a naturalized citizen, not a "natural born" citizen, and he became a naturalized citizen when his parents became naturalized citizen. He personally did not have to go through any process to obtain citizenship. That was granted when his parents were naturalized.
Sorry, but you did not understand the item that was incorrect. The incorrect statement was “he became a naturalized citizen when his parents became naturalized citizen.” It is incorrect because Marco Rubio was born and naturalized at birth on 27 May 1971, whereas his parents were naturalized years later in 1975. In other words, Marco Rubio was naturalized years before his parents and not “when his parents became naturalized.”
Of course not.
But then you are trying to twist it up into another ‘If a frog had wings’ thing.
If NBC had been paramount in their thinking they would have spelled out its meaning in ‘some’ detail.
My assumption is that following the Revolution, there were a significant number of British Loyalists who could have somehow gotten into POTUS and slid us right back to King George and the Founders were trying to insure that did not happen. That generation didn’t need NBC to be written out, they knew it by heart.
Sorry, I was away at my usual Sunday morning services at the Church of John Moses Browning (the range)
Looks like others have adequately answered the questions
However, see the post by Whisky-X Post # 39 According to what he has posted Ted Cruz is a naturalized, not a "natural born", citizen per the U.S. Immigration and Naturalization Act of 1952.
I still believe there is enough in question about what constitutes a "natural born" citizen for there to be a Supreme Court ruling. However, with the makeup of the Court I shudder to think how that will come out, for it might include anchor babies as being deemed "natural born" citizens. I wish this had happened before so many liberals were placed onto the court.
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