Guest post from Mark Field regarding Ted Cruz’s eligibility for the presidency
Mark Field summarizes the legal situation regarding Ted Cruz’s eligibility to become president. This is a long post, but whether you agree with his conclusion or not, this is the best discussion I’ve seen of the state of the law, doctrinally speaking. (As I’ve said elsewhere, I think the most interesting question regarding this matter, when it first arose, is why many legal scholars who are in no way sympathetic to Cruz were so quick to argue that there was no serious legal question regarding Cruz’s eligibility.)
Of course if it should come to that, we can as a practical matter be sure the SCOTUS would not be so reckless as to insert itself into the essentially political question of who Congress ought to certify as the winner of a presidential election.
When Donald Trump first raised the eligibility of Ted Cruz to be President, my initial reaction – uninformed by any actual knowledge of the subject – was to dismiss it out of hand. In fairness, that’s my reaction to pretty much everything Trump says. In this case, though, I’ve changed my mind and decided that Trump is actually right. I’m going to explain below why I think the case law supports a rule against Cruz.
While Trump has never stated his position directly, the argument is that the Constitution sets requirements for the President (Art. I, Sec. 1, cl. 5), including that the President must be a “natural born citizen”. The purpose of this post is to summarize the key cases in which the Supreme Court has defined “citizenship”, and how those definitions affect Ted Cruz.
I’m going to write this for non-lawyers. However, I’ll need to use 3 technical terms which I’ll explain right here and which you’ll need to keep in mind for the discussion below.
First, the law uses two Latin phrases to describe two different rules for determining citizenship. The first is jus soli, which means “right of soil”. That is, your citizenship is determined by where you were born. The second, jus sanguinis — literally, “right of blood” – means that your parents determine your citizenship.
The third term, “dicta”, is more nebulous. In the legal system, cases are only precedent for issues actually heard and decided. In the course of writing an opinion, courts will sometimes make statements which aren’t directly necessary to the ultimate ruling. We call such statements “dicta”, from the Latin phrase “obiter dictum” (said in passing). Whether a passage in an opinion constitutes “dicta” can be very controversial. The test is easy: was this essential to the ruling? In practice, it can be hard to tell. I’ll explain more when I get to the subject below.
It was a post at Balkinization by John Mikhail which triggered my re-evaluation of Cruz’ eligibility. He offered a simple suggestion: “I am puzzled by the fact that some commentators seem to think that Rogers v. Bellei (1971) is not a problem for Ted Cruz. It seems to me to be a significant problem for him.” I went to read Rogers v Bellei and realized immediately that Cruz did have a problem.
In order to explain why one case would have such an impact, I need to back up a bit. If this were a law review article, I’d start with English common law and work my up from there chronologically. I think it makes more sense for purposes of this post to begin with the first sentence of the 14th Amendment. It reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This sentence exists for one simple reason: Dred Scott. In that case, the Supreme Court held that no black person, free or slave, could be a citizen of the United States. The ratification of the 14th Amendment overruled that holding. This background provides the context for the next step in the analysis, so it’s important to keep it in mind.
The decision by the Supreme Court in US v Wong Kim Ark, 169 US 649 (1898) is the first of two critical Supreme Court opinions which, in my view, determine the question of Cruz’ eligibility. Simplifying the facts a bit, Wong Kim Ark was born in 1873 in San Francisco. His parents were both Chinese, and while residents of the US, were not citizens. His parents left the US in 1890. Wong Kim Ark himself, a laborer, left the US for a visit to China and returned in 1895, but was refused admittance on the ground that he wasn’t a citizen. At that point in time, the Chinese Exclusion Act was in effect, and it expressly barred Chinese laborers from the US. A related act, The Scott Act, barred re-entry for US residents of Chinese nationality who left the US and tried to re-enter. Wong Kim Ark challenged his exclusion on the ground that he was a US citizen.
By a vote of 6-2, Justices Fuller and Harlan dissenting, the Court held both that Wong Kim Ark was a citizen and that he could not be barred from the US. The opinion is very long, much of it consisting of a long review of English common law and statutes prior to the Revolution. The reason it conducted this review is that the Constitution uses the term “citizen” several times, including in the “natural born citizen” clause, but it doesn’t define the term “citizen”. The Court held that the term should be interpreted according to the definition of English common law. Under the common law, citizenship in England was determined by jus soli: if you were born there, regardless of how your parents got there or who you were, you were a citizen (technically, a subject, but that doesn’t matter to us now).
The Court then noted that the language of the 14th Amendment Constitutionalized the principle of jus soli because it makes citizens of “all persons born or naturalized in the United States”. That language, according to the Court, simply made plain that which had been the law in the US all along. This is where context becomes important. By reasoning this way, the Court was saying, without actually saying it, that Dred Scott was wrongly decided and the 14th Amendment restored the law to its original state.
The Court explained the holding and its consequences in one paragraph. I’ve added emphasis to make the importance of this language obvious:
“The Fourteenth Amendment of the Constitution, in the declaration that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” 169 US at 702-3.
It then went on to hold something equally important, and which I’ll discuss more below, namely that Congress, having made someone a citizen, can’t do anything to take that citizenship away.
“Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the constitution itself, without any aid of legislation. The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.” 169 US at 703.
It should be obvious to everyone that the language in bold creates a major problem for Ted Cruz. If all we had to go on were this language, he would be ineligible. It’s not quite that simple, and the lawyers reading this will be asking an important question: why isn’t this language, and the whole long discussion of the common law, dicta? After all, it seems like the only thing necessary to the Court’s holding is the language of the 14th Amendment itself, not the meaning of the term “citizen” in the original Constitution. The rest of the paragraph doesn’t have anything to do with Wong Kim Ark, who was born in the USA.
This is an important point, because it’s one of the objections to my argument against Cruz, so we need to understand why the Court included the extra commentary. The reason the majority considered the common law essential to the decision was the government’s brief and the dissent.
The dissent mostly adopted the argument of the government in its brief, available here (that brief, written by a former Confederate officer, is pretty remarkable on a number of grounds, including the argument that the 14th Amendment was improperly adopted and was therefore invalid). The dissent objected to both parts of the Court’s opinion and criticized the consequences:
“Thus, the fourteenth amendment is held [by the majority] to be merely declaratory, except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond the control of the legislative power. If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court, an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.” 169 US at 707.
The dissent argued that the common law not only did not provide any rule for interpreting the Constitution, but that the Revolution rejected the common law entirely. It argued that the Constitution should, instead, be interpreted according to the Law of Nations as it existed then. The Law of Nations, said the dissent, quoting Emmerich Vattel, was that citizenship should be determined by jus sanguinis. Wong Kim Ark could not be a citizen because his parents weren’t citizens.
The dissent further argued that the 14th Amendment likewise didn’t enact jus soli, but instead jus sanguinis. I won’t review that argument in detail, but it’s important because the majority needed to use the jus soli argument in order to respond to the government’s arguments and to avoid the objections of the dissent.
The dissent then went on to argue that the citizenship granted by the 14th Amendment didn’t apply to the children of aliens even if those children were born in the United States. The reason, said the dissent, was that aliens were “subject to the jurisdiction of a foreign power” by virtue of their permanent allegiance to, in this case, China, and therefore were not subject to the jurisdiction of the United States. The consequence, therefore, was:
“I am of opinion that the president and senate by treaty, and the congress by legislation, have the power, notwithstanding the fourteenth amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship upon children born to them while in this country under such consent, in spite of treaty and statute.” 169 US at 732.
Now let’s get to Rogers v Bellei, 401 US 815 (1971), the case that made me sit up and pay attention. Bellei was born in Italy of an American mother and an Italian father. Note that this is the same fact pattern as Ted Cruz. Because Bellei was born in Italy, the 14th Amendment didn’t apply to him. Instead, he relied for his citizenship on 8 USC Sec. 1401(a)(7), which provided that children of one American parent born abroad were “citizens at birth” provided certain conditions were met by his mother (and they were met in her case). As far as we know, those conditions were met by Ted Cruz’ mother also. Bellei’s problem, and what led to the lawsuit he eventually filed, was the fact that the next code section contained what the law calls a condition subsequent:
“Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.”
Bellei admittedly failed to meet this residency requirement. He argued that the requirement was unconstitutional under the principle adopted in the second half of Wong Kim Ark, that Congress could not deprive a citizen of his citizenship. Since the statute made him a “citizen at birth”, nothing after that could deprive him of his citizenship. In addition to the language in Wong Kim Ark, which I quoted above, Bellei relied on Afroyim v Rusk, 387 US 253 (1967). That case, involving a 14th Amendment citizen, held that when it came to such citizens, Congress had no “general power, express or implied, to take away an American citizen’s citizenship without his assent.”
The Court rejected Bellei’s arguments. It first noted that he did not meet the requirements of the 14th Amendment, so both Wong Kim Ark and Afroyim were distinguishable. Because the 14th Amendment didn’t apply, Bellei fell within the rule, stated in Wong Kim Ark and quoted above, that all other citizens were citizens by naturalization. After quoting that language, the Court stated that:
“Thus, at long last, there emerged [in Wong Kim Ark] an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.”
As to persons gaining citizenship by statute, the Court had long held, and now confirmed, that they must comply with the statute. The fact that the condition imposed here was a condition subsequent was unaffected by Afroyim, which was limited to those citizens who met the requirements of the 14th Amendment, i.e., “natural born” citizens as determined by Wong Kim Ark.
Suppose, though, that Bellei had met the condition subsequent. In that case he’d have been a “citizen at birth” according to the statute. Would that have made him eligible to become President? The Supreme Court has answered this question at least 3 times, and that answer is “no”. Bellei was still naturalized, and “the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.” Schneider v Rusk, 377 U.S. 163, 165-66 (1964). To the same effect see Baumgartner v. United States, 322 U.S. 665, 673 (1944) and Luria v. United States, 231 U.S. 9, 22 (1914) (“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.”) (Thanks to John Mikhail for these cites.)
These statements are admittedly dicta. But it’s pretty hard to see how the rule could be otherwise unless there simply is no distinction between “natural born” and “naturalized”, and they state what was also the rule at common law (Blackstone, Bk. 1, Ch. 10). Even the dissent in Bellei recognized this:
“Congress is empowered by the Constitution to ‘establish an uniform Rule of Naturalization,’ Art. I, 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled ‘An Act to establish an uniform Rule of Naturalization,’ was passed in 1790 at the Second Session of the First Congress. It provided in part:
“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.” 1 Stat. 103, 104.
This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a ‘Rule of Naturalization’ shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization.” 401 US at 840.
That’s the crux of the argument against Cruz’ eligibility. By the combination of Wong Kim Ark and Bellei, “natural born” citizens are those who, and only who, meet the requirements of the 14th Amendment. Everyone else is naturalized, even if the law calls them “citizens at birth”. Congress can treat the two categories differently. More importantly, the Constitution treats them differently: only the “natural born” can become President.
Now we need to consider the arguments in favor of Cruz. The first two come from my discussion here and at Balkinization with Joe_jp. The third argument I came up with on my own.
Joe suggests that the key language in Wong Kim Ark – those meeting the 14th Amendment are “natural born”, everyone else is “naturalized” – is dicta. I disagree for two reasons. One is the reason I gave above, namely that the majority had to argue as it did in order to get around the jus sanguinis argument of the government’s brief and the dissent. The second is that Bellei adopted that distinction and used it expressly for the holding there.
Another line of attack suggests that two recent cases, Miller v Albright, 523 US 420 (1998) and Tuan Anh Nguyen v INS, 533 US 53 (2001) contain language inconsistent with both Wong Kim Ark and Bellei.
It’s hard for me to see Miller as affecting Bellei or Wong Kim Ark. The opening sentence of the Miller opinion rather confirms them:
“There are ‘two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.” 523 US at 423.
In dissent, Justices Breyer, Souter and Ginsburg questioned the distinction between “natural born” and “naturalized”. The fact that they did so in dissent reinforces the conclusion that the Court majority still considers the distinction good law.
Tuan Anh Nguyen raised an interesting issue which will be relevant not just here, but in the discussion below too. The would-be citizen in that case was born in Vietnam as the illegitimate child of an American father. The Court ruled that he failed to meet the requirements for establishing paternity, and therefore ruled against his citizenship claim. However, part of the discussion included the more favorable statutory treatment for those born illegitimately of American mothers compared to American fathers. The Court approved the different standards against an equal protection claim, but along the way said the following:
“First, a citizen mother expecting a child and living abroad has the right to re-enter the United States so the child can be born here and be a 14th Amendment citizen. From one perspective, then, the statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.” 533 US at 61.
This appears to collapse the distinction between “natural born” and “naturalized”. Here are the issues with giving any controlling effect to that language:
1. It’s dicta. The Court mentioned this point about mothers, but Tuan Anh Nguyen was the child of a US father. Thus, the law applicable to the children of US mothers didn’t apply to his case.
2. The language is inconsistent with Wong Kim Ark and the cases which cited it approvingly. If the Court were disapproving that line of cases, we’d expect much more than an offhand comment.
3. Art. I, Sec. 8 gives Congress the power to “naturalize”, but not the power to make someone “natural born”. It could only do the latter if “naturalization” were deemed equivalent to “natural born”. That’s both inconsistent with the Wong Kim Ark line of cases and seems to undercut the whole idea of “natural born”.
What Congress generally does in the naturalization statutes is to declare certain persons “citizens at birth”. Sometimes that happens with no other conditions (e.g., both parents are US citizens). Sometimes there are conditions precedent or subsequent which must be satisfied for the “at birth” language to have effect (that was the issue in Rogers v Bellei). The power to impose such conditions seems inconsistent with the concept of “natural born”. It’s hard to argue that Congress can impose conditions, whether precedent or subsequent, on those born in the US. That would be inconsistent with the flat declaration in the 14th Amendment granting citizenship on that basis. It’s also seemingly inconsistent with the decision in Afroyim v Rusk, in which the Court held that Congress can’t abrogate the citizenship of someone who meets the 14th Amendment criteria.
I don’t see any good reason to doubt the validity of Wong Kim Ark or Bellei. They’re good precedent. That, however, doesn’t make them right. We need to consider how they might be wrong. I can’t possibly come up with all the potential alternative theories, and probably couldn’t evaluate them all in a blog post even if I could. What I can do is recognize that several Justices claim to be originalists, and I can propose at least one plausible originalist argument which would change the law in Cruz’ favor.
The usual argument these days for originalist interpretation is that terms used in the Constitution should have their “original public meaning”. That’s the meaning which would have been generally understood by the public in 1787-8. Under this theory, it could be argued that the phrase “natural born” should have the commonly accepted public meaning it held in 1787-8. This would include the common law meaning – that’s an originalist argument as well – but it might also include long-standing English statutes which modified the common law. For example, “the children of the king’s ambassadors born abroad were always held to be natural subjects”. Blackstone, Bk. 1, Ch. 10. (Whether this was the common law or due to statute was debated in Wong Kim Ark, but I’m assuming it was statutory.)
Much more relevant to our discussion here than the status of ambassadors’ children is a statute passed in 1730, my emphasis:
“That all Children born out of the Ligeance of the Crown … of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown … of Great Britain, at the Time of the Birth of such Children respectively, shall and may, …. be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.” (h/t Mista Whiskas for the quote)
This sounds very promising for Ted Cruz. The statute declares the foreign born to be “natural-born” for all purposes. Parliament enacted this law before George Washington was born, so it’s plausible to think that it had become included in the common understanding of the phrase “natural born” as of 1787-8. There are, however, some problems with this interpretation. I’m not going to say those problems are insurmountable, but they’re pretty significant. I’ll run through them.
The first problem is one that applies to all originalist explanations for the meaning of the “natural born” clause, whether this one, the jus soli holding of Wong Kim Ark, the jus sanguinis argument of the Wong Kim Ark government brief and dissent, or any other possibility: lack of evidence. There is, literally, not a single word of discussion during the Convention or the ratification debates about the meaning of the phrase “natural born”. While it’s plausible to suggest that the standard meaning could have included the statutory supplements to the common law, we have no way to know this one way or the other. Any claim of certainty on this point would qualify as “making shit up”.
More problems with this interpretation arise from the first naturalization law Congress ever passed. In 1790 it passed a statute which I quoted above in the discussion of Bellei and will repeat here:
“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.”
This statute is a somewhat simplified version of the British law of 1730. If the phrase “natural born” was commonly understood to include the British law, then it’s hard to explain why Congress immediately passed a statute to say the same thing. The dissent in Wong Kim Ark recognized this as a problem and suggested that Congress simply re-stated the law so as to leave no doubts. This is not terribly persuasive, because we ordinarily assume that new laws aren’t redundant of existing law. In addition, the sole power given to Congress in Art. I, Sec. 8 is to establish a uniform rule of naturalization. Unless one is willing to treat “naturalized” as equivalent to “natural born”, in which case “natural born” doesn’t appear to have any particular constraint on eligibility, Congress lacked the power to declare the foreign born to be “natural born”. It also lacked the power to impose the condition on the residency of fathers, which was not found in the British statute and would have been binding under originalist theory.
If Congress did have the power to declare the foreign born as “natural born”, then the Court would have to disapprove the language in Schneider v Rusk, Baumgartner, and Luria, in addition to that in Wong Kim Ark and Bellei. That’s a lot of disavowing. But it gets worse.
1n 1795, Congress repealed the 1790 statute and replaced it with one which changed the wording from “natural born” to “citizen at birth”. Every statute since 1795 has used that revised phrase. If Congress has the power to declare naturalized citizens to be “natural born”, then it’s hard to explain why it stopped using that phrase so quickly and never returned to it.
Then, in 1802 Congress passed yet another naturalization statute which, without getting into the details, effectively eliminated the provision that foreign born children of American fathers were “citizens at birth”. From 1802 until 1855, such children weren’t citizens at all unless they went through an individual naturalization process. This gap would have to be unconstitutional if the phrase “natural born” incorporated the British statute, but the Court in Bellei specifically approved the gap as within Congress’ power of naturalization.
The 14th Amendment itself also poses a problem for the argument that originalism demands inclusion of the foreign born children of American parents as “natural born”. That Amendment conspicuously fails to include them. I’m not saying it’s impossible, but it would certainly be difficult to reconcile the 14th Amendment language with an originalist interpretation which included the foreign born.
The specific language of the British statute raises another difficulty for Cruz: it was limited to those born of British fathers. Cruz’ father was Cuban, not American; he claims through his mother. One might say that this problem is easy to solve via the equal protection right which the Court has applied to the federal government under the due process clause of the 5th Amendment. However, if the Court applied this logic, it would almost certainly need to overrule Tuan Anh Nguyen. That decision upheld the distinction between mothers and fathers of illegitimate children born abroad, but the British statute made no distinction between legitimate and illegitimate children, providing only that the child be born to a British father. If this rule became fixed in 1787-8, then Congress can’t discriminate against fathers now. It would be somewhat embarrassing for the Court to overrule Tuan Anh Nguyen, because Kennedy, Scalia, and Thomas joined the majority there and the latter two would be the most likely to adopt an originalist reading of the “natural born” clause.
In summary, adopting the theoretical reading of “natural born” which accommodates the British statute creates a number of difficult problems: the need to overrule at least one case; the need to disapprove language in at least 5 more; the difficulty of explaining the statutory sequence and the language of the 14th Amendment. In contrast, the rule adopted in Wong Kim Ark and affirmed in Bellei fits the whole sequence very well. It explains the distinction between “natural born” and “naturalized”. It accommodates the various statutes, with only the need to explain the 1790 law as a mistake which was quickly corrected. It makes the 14th Amendment consistent with the original Constitution. And it leaves intact all the subsequent cases without any need to disapprove or overrule them. It appears to me much the more persuasive reading.
The Court explained the holding and its consequences in one paragraph. I’ve added emphasis to make the importance of this language obvious:
The emphasis (“the language in bold”) is not showing up in the blockquotes.
Fixed
First paragraph: “uniformed” should be “uninformed”
I give Mark credit for actually researching the cases. Most of the Cruz birthers are just doing law office history or talking out of their butts.
But I really don’t believe that this gets decided based on immigration cases having nothing to do with presidential eligibility. It’s just a completely different issue.
Right. One thing, and one thing only, argues against Cruz being eligible: Backpfeifengesicht.
“But I really don’t believe that this gets decided based on immigration cases having nothing to do with presidential eligibility. It’s just a completely different issue.”
From the post above, and from the Supreme Court itself:
“the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.” Schneider v Rusk, 377 U.S. 163, 165-66 (1964).
The Supreme Court has said that the distinction between the “rights of citizenship of the native born and of the naturalized person” is dispositive of the question of who may be President. The entire post above is about the difference between native born and naturalized person, meaning it is directly relevant to the question of presidential eligibility. Rogers v. Bellei directly stated that a child born abroad of an American mother and non-American father (just like Cruz) could only acquire citizenship through act of Congress and thus was not a citizen under the terms of the Constitution. Under Rogers, Cruz is not a natural born citizen. The cases above are on point.
Unless you mean that the Court may disregard the above cases and craft new, ad hoc standards for presidential eligibility in order to find for Cruz, in which case that may well be true.
That’s dictum. And not persuasive dictum. It’s one thing to draw those distinctions where they don’t invalidate a presidential election and another to draw them when they do.
But “this case is too important for us to rule on” is not a very persuasive standard for SCOTUS to apply, either. If the Constitution requires Cruz to be born here to be eligible, then it should hold that Cruz is ineligible, no matter who the people vote for.
No it shouldn’t. It’s up to the political branches to enforce the NBC Clause.
Obviously any such ruling should happen before the election.
Advisory opinions are prohibited by Article III. It’s not ripe.
Wouldn’t it be ripe if a state refused to put Ted Cruz on the ballot on the grounds that he was ineligible?
No, the issue is whether he is a “natural born citizen” as that term would have been understood by the framers of the Constitution. If Cruz is a citizen based on naturalization laws passed by Congress, he won’t be a “natural born citizen.” The immigration cases are the best indicia of how the Supreme Court has addressed the issue of “natural born” versus “naturalized.” It seems the Framers did not want to countenance the possibility of a president who was a naturalized citizen. No other office under the Constitution has this requirement.
I really don’t give a crap about the framers’ understanding. That’s a stupid judicial philosophy.
Not into role playing, are you?
rp with cosplay. I have the wig and everything.
“Wherefore doth the text of ye grande constitution useth the phrase ‘natural born citizen’ if not to distinguisheth between classes of citizens, Solicitor Meow?”
“Alex, what are you doing in there with the cat? And where’s the whiskey?”
“I believeth it be time to adjourn.”
A very interesting read, thanks to both of you for this. We can point to this post whenever someone suggests that the question of eligibility is a simple one.
Realistically there is probably zero possibility that the SCOTUS would declare Cruz ineligible late in the game – such as after he’d taken the lead after several primaries or even went on to win the nomination. Given this SCOTUS majority’s ability to overlook obvious text – such as the entire 15th amendment – when deciding cases in a manner that yielded the preferred outcome for their party there is no doubt that they could find a line of reasoning to support his eligibility.
OTOH, if the power figures of the GOP really don’t want Cruz – as many are indicating – I could definitely see a challenge to his eligibility upheld early in the primary process.
In other words, the law on this point as written is, in aggregate, ambiguous enough to support whatever ruling supports the current political expediency.
You make that sound like a bad thing.
Personally I don’t want the Supreme Court declaring anyone elected President to be ineligible. That would be Bush v. Gore on steroids.
I think you mean Bush v. Gore, with some actual constitutional basis.
No, I mean on steroids.
Bush v. Gore was terrible but it was also a very close election where the Supreme Court played tiebreaker.
Invalidating a more definitive popular vote would be worse, and there is actually zero constitutional basis for the Supreme Court doing so. None of Mark’s cases say this is a justiciable controversy.
and there is actually zero constitutional basis for the Supreme Court doing so.
This is silly. I agree that the Supreme Court should out of prudence not hear the case (barring the extremely unlikely possibility that the circuit court ruled against Cruz) and if it decided on the merits it should rule that Cruz is eligible, but the case is squarely within the Court’s Article III jurisdiction, either ex ante or ex post an election. The problem with Bush v. Gore was not that the Court didn’t have the jurisdiction to hear the case, but that the holding was unprincipled and the remedy lawless.
Even if you think that the Court should rest on political questions doctrine, this is a prudential judicially-created rule, not a constitutional requirement. If the Court decided to overrule Luther v. Borden and starting hearing guaranty clause cases this would not exceed the Court’s Article III jurisdiction.
Justuciability is required by Article III, Scott. You would have failed federal courts class.
Re-read Baker v Carr and tell me it is not a constitutional holding.
I’d like to understand better why you think it’s not justiciable other than the political question doctrine, which is prudential. I don’t think it’s hard to come up with a set of facts (as several people have below) where all of the other requirements for justiciability are met. And, for that matter, if someone denied Cruz access to the ballot on the ground that he wasn’t a natural born citizen – not that I think that would happen – it seems to me that the courts might find that they need to decide, rather than deferring to Congress.
The Constitution expressly designates two bodies to certify Presidential election results
Neither one is the federal courts.
And stop saying that the political question doctrine, which asks whether the Constitution delegates a particular issue to a different branch of government, is prudential. It isn’t. Justiciability is a constitutional requirement.
Let me put this in the context of a specific hypothetical:
The relevant official in some state were to refuse to put Cruz on the ballot because the state’s law says candidates can appear only if they meet the legal qualifications to be on the ballot and the official thinks Cruz is not qualified.
Cruz sues said state official in state court and loses all the way to the state supreme court. He asks for cert.
What do you think happens next? It seems unlikely that the court grants cert and declares the question is not justiciable. Given that declaring it a political question would leave the original official’s decision in place, that result would Cruz access to the ballot without a decision having been made on the meaning of natural born citizen, and potentially with no opportunity for Congress to rule on it, either. For instance, if the decision is made in the primaries, and Cruz doesn’t get the nomination, there’s very little likelihood that there would be a challenge to the Electoral College total at the end.
The Constitution expressly designates two bodies to certify Presidential election results
Neither one is the federal courts.
Again, this is a non-sequitur, reminiscent of Rehnquist’s idiotic concurrence in Bush v. Gore. The federal courts would not be exercising the power to “certify presidential election results” by interpreting the qualifications clause.
Really, this is an embarrassing argument. Rick Scott declares that the votes of predominantly African-American districts will be disqualified after the election, and nobody could bring a suit under the 14th Amendment? This is just nonsense. Federal courts can absolutely interpret constitutional provisions relevant to a federal election, before or after the fact, and they don’t interfere with the power to certify election results by doing so.
Justuciability is required by Article III, Scott. You would have failed federal courts class.
This is just an empty tautology. Nothing in Article III says that cases involving elections (or, for that matter, the guaranty clause) aren’t justiciable. These are judicially-created rules that can be modified or abandoned at any time.
Also, I’ve been teaching con law for 15 years. I don’t disagree with you because I’m unaware of the cases and controversies clause. (Longtime readers will recognize your condescension as the foolproof sign of a losing argument, though.)
By the way, can you cite the case law holding that the presidential qualifications clause isn’t justiciable?
Provided you have an injury, e.g., a determination by a third party to keep Cruz off a ballot based on reasoning similar to that above on Cruz’s citizen status, and Cruz’s campaign files suit to have a writ of mandamus issued to that party to put him on the ballot, e.g., an actual controversy ripe for decision — how does a court duck this on justiciability grounds?
First, who else would resolve this question but a court? Would a state election board have the authority to hear evidence and rule on Cruz’s citizen status? Second, can it be said that there are no judicially discoverable standards for whether one is a natural born citizen, when there is in fact a lot of applicable precedent about that very question?
Might this question be most likely to come up by a Secretary of State refusing to place Cruz on the ballot for President because he doesn’t meet the eligibility requirement for the office? In a general election it would probably be inviting political backlash for a swing-state Democrat (as in Pennsylvania or Virginia) to do that, but I’m half-surprised that it hasn’t happened during the primary process, given the number of Republicans who appear to hate and want to stop Cruz.
Are all the primary filing/candidate certification dates already past?
ETA – I see this point was already made below.
The Electoral College and the house should decide it.
In practice, the Electoral College doesn’t have a say, since it casts votes as directed by the states. It’s Congress as a whole that decides on whether the EC votes will be accepted. There’s even a procedure in place for an objection to electors that involves both houses. Some D House member invoked the procedure after the 2001 election, but was turned down.
Correct. But the Constitution empowers both the electors and Congress. A state law that requires an elector to vote for an unqualified candidate is unconstitutional.
Of course, in practice, these days the electors are politically reliable people who never will do anything but vote the candidate they said they will support. (Yes, there have been a few faithless electors, but it’s been a while, and never enough to make a difference.) You’re not going to find one who suddenly decides that Ted Cruz is not qualified.
Then why even have requirements, if you don’t want the courts to ever rule on them?
This is taking judicial supremacy a bit too far, what? It can be a requirement that’s enforced by Congress, and that seems like the better view here.
Right.
I’m not unsympathetic to this viewpoint, but do you have anything backing it up beyond “I don’t want the court enforcing this particular legal requirement?”
Because that seems fraught as a legal principle.
I think the Constitution permits capital punishment, but as a realist I don’t think it should be imposed. Sometimes following the letter of the law does more damage to civil society than going around it.
Well, the term is “cruel and unusual”. The word “unusual” is interesting in that it allows for changing mores and norms over time, unless you hold to the odd notion that they meant that the prohibition was meant to apply to “cruel and unusual” for all time based on the standards of 1789.
Today, the list of nations which still use capital punishment is dwindling, and within the nations US is most often associated with the US stands alone in our practices. I think it is fair to say that in 2016 capital punishment in the first world is very much “cruel and unusual”.
https://en.wikipedia.org/wiki/Capital_punishment_by_country
Sure, but can you really say that something is cruel and unusual when a majority of the adult population supports it? These terms have definitions that society creates for them, and the definition in most countries is clearly not the same as the one we use here in the US.*
But I think the larger point is that, even if you can convince yourself that capital punishment is fine, are you okay with murdering a nonzero and possibly quite large number of innocent prisoners due to human imperfection? And if you can assemble a colorable case to disqualify a popular presidential candidate, should you convince a nonzero and possibly quite large portion of the population of them that electoral politics is not the way to get what they want?
*I think it is cruel and unusual, but I’m out of the American mainstream here
Yes. Indeed, the majority of the population may support applying a particular punishment to an individual (e.g., hanging, drawing, and quartering) simply because it is “cruel and unusual”. Think of all the various potential punishments people (not all of whom were unserious) proposed for Osama Bin Laden.
The fact that people support a punishment for a particular crime does not mean they regard it as not “cruel and unusual”.
Finally, as a hypothetical, imagine that some decades from now, after the death penalty has been abandoned by every state, one state, in response to the demands of its voters, sought to bring it back for particularly heinous crimes, and this was challenged as “cruel and unusual”.
The Constitution provides the specific process for certifying a Presidential election. The courts are not involved.
The courts become involved if there’s a dispute that the proper legal procedures are being followed, as they become involved in any dispute over proper legal procedures. Why do the courts get to rule if things violate one part of the Constitution but not others? I mean, the courts rule on fundamental rights like speech, assembly, due process of law, etc. Electoral procedures seem humdrum compared to that.
At what point does Cruz’s status become open for challenge and who has standing to challenge it?
I don’t know the answer to this but I’ve seen at least one argument that until we actually get to the day that the electoral college begins counting that the issue of qualification isn’t ripe. This seems wrong as I would think that at least some states would have incorporated the Constitutional qualifications into their procedures for ballot access.
At least as interesting as the questions of Cruz’s status are the questions about how a challenge could be mounted and play out.
All this and no discussion of standing?
Nobody can stand Cruz.
The best case scenario there would be a state official not putting his name on the ballot & him challenging it. Or, perhaps, a competitor challenging his name being included.
Two minor candidates have been denied a chance to be on the ballot (one was too young; the other was in fact a naturalized citizen, no dispute on the point) in recent years and a lower court upheld it.
The two lawsuits so far that I know of seeking declaratory judgements regarding Cruz should easily be tossed on standing grounds.
One nitpick – I don’t know if it is important, but I suspect the drafters of the constitution did.
The term used in English law until very recently for what we now call “citizenship” was “subject,” as in a “subject of the crown.” However, there have been changes in British nationality law, largely to limit immigration from the former British Empire. Still, even the new rules reflect the idea that there is a difference between being subject and a citizen. I think it unwise to assume that when the Constitution was drafted meant the same thing as citizen.
The BBC also has an interesting discussion of this issue from a decade ago:
http://news.bbc.co.uk/2/hi/uk_news/magazine/4191613.stm
Hmm…looking at this, it seems to me very likely that Ted Cruz (and George Romney) should not be considered eligible for the presidency. I fail, however, to see the mechanism whereby this would be enforced. If Ted Cruz wins the election, he’ll become president, regardless of the legal argument against his eligibility.
A challenge in a primary state to his eligibility to be on the ballot.
But a challenge by whom? It is hard for me to see how anyone would have legal standing to bring suit to strike him from the ballot. I think you would need a state or local government to refuse to place his name on the ballot (and to have the legal authority to make that determination). In that case, Cruz would certainly have standing to challenge their determination in court.
If Cruz were really certain of the outcome he may want to arrange a test case now, but based on this discussion perhaps he is not so certain.
Anyone trailing him in the polls?
Anyone who can plausible claim that they’d have a shot at beating Trump but for the siphoning of their votes by Cruz?
Voters who would have voted for someone else but were deceived into voting for someone ineligible?
(Just guessing!)
I suspect the last one of those far more likely than the first two (though I’m not ruling those out!).
I think political question, and not standing, is the barrier here.
The Constitution provides that the Electoral College and the House enforce eligibility. The courts are not competent to deal with this.
“Anyone trailing him in the polls” according to the precedent of Bush v. Gore where George W. was permitted to sue under Equal Protection clause? Or is it true what we nonlawyers believe that Bush v. Gore is written in invisible ink and can never be used as a precedent for anything?
Yes. Well, not the invisible ink part, but the part about not using it as precedent, at least according to what the decision itself says. (As an aside, it’s not terribly uncommon for a court to say that a decision isn’t precedential, but that pretty much only happens when the result is obvious and the case isn’t important; what happened Bush v. Gore was, uh, unprecedented.)
On the question of standing, obviously Cruz has standing if he’s denied access to the ballot somewhere, and there are sufficient cases in which one candidate has sued about the outcome of an election to think that a losing candidate also would have standing. A regular voter might have more trouble.
In my state at least, those challenges can be filed by any registered voter (though it’s usually done at the behest of another candidate). (They usually involve the number of valid signatures collected on nominating petitions.)
Yes – that’s exactly how it would play out. A state election official with the authority to do so would have to refuse to put him on the ballot because he was ineligible, then Cruz would have to sue, it would get fast-tracked up to the SCOTUS, and I’d be willing to bet currency that the current SCOTUS would either decide that he’s eligible, or punt it over to Congress as a political question that they don’t want to get in the middle of – either way they’re not going to care about the impact this has on prior precedent or citizenship rules.
This was, in fact, the path that people were suggesting that George Romney take to clear up his eligibility – have a sympathetic state official block him, file a suit against the state, and get it all cleared up quickly. He dropped out before it became more than a theoretical talking point though so it didn’t matter.
Except there’s no reason to think this is going to happen, is there?
“But a challenge by whom? It is hard for me to see how anyone would have legal standing to bring suit to strike him from the ballot.”
Wasn’t part of Bush v. Gore allegedly based on the idea that counting all of the votes would cause injury to those whose votes had already been counted?
You mean like someone could challenge a state giving its electoral votes to a presidential candidate AND VP candidate from the same state as themselves?
(12th Amendment, TX: Bush + Cheney, 2000)
Problem is, those old founders were negligent and left out a “death by citizen firing squad” enforcement provision.
Just LOOK at the trouble it caused!
Cheney changed his residence to Wyoming to avoid the 12th Amendment problem: http://abcnews.go.com/Politics/story?id=122289&page=1
Yeah, he bought some property and pretended to have roots somewhere he didn’t. I don’t really care about this particular qualification for pres/vp, but Cheney’s attempt at a fig leaf shouldn’t be posted uncritically.
He also had lived in Wyoming for much of his life and represented the state in Congress, so it’s not much more of a fig leaf than Al Franken moving back to Minnesota to run for Senate.
IANAL; I’ve made no great study of the issue; and I have a strong bias on all this natural born stuff and other distinctions of citizenship.
However, I want to push back on this part. Art.1, Sec. 8 gives Congress the power “To establish an uniform Rule of Naturalization”, but doesn’t say what this means. One could easily imagine that Congress can help define the contours of who needs to be naturalised rather than that all they can do is affect naturalisation.
I’m not sure why identifying conditions of natural bornness, esp. when ambiguous, is inconsistent with the very concept of natural born. Is someone born on an airplane over US territory born on US soil? How about someone in orbit above the US? Isn’t “subject to jurisdiction” dependent on Congressional determinations of jurisdiction?
It’s unclear to me that that clause restricts Congress’s (or the State’s) ability to determine who was natural born, or just enforce the uniformity. I mean the full clause is “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”. That is a WEIRD juxtaposition…citizenship and bankruptcy? I would say that the uniformity is what’s key.
(Interesting post, fwiw!)
Indeed, it doesn’t say what this means, which is why Field went back to what the actual case law says.
Except here he’s making a conceptual argument (in part), e.g.,
I don’t see why that’s the case.
So, there’s an appeal to cases but also appeal to conceptual reasoning. I don’t find the latter remotely plausible given the absence of definitions. It seems just as reasonable to allow “set uniform rule of naturalisation” to encompass the boundary between naturalised and natural born. There’s some potentially bad outcomes, like Congress trying to restrict citizenship contra the 14th, but again, we can regard the 14th as a floor, not a ceiling. I don’t see anything conceptual barring that.
The conceptual distinction isn’t really mine. It’s intrinsic to the common law. Blackstone, Bk. 1, Ch. 10:
“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. ***
Naturalization cannot be performed but by act of parliament; for by this an alien is put into exactly the same state as if he had been born in the king’s ligeance; except only that he is incapable … of being a member of the privy council, or parliament, etc.”
This is what the Court said in Schneider, Baumgartner, and Luria.
Sure.
Hmm.
But… from that very chapter:
So, I agree that there is the distinction, but I disagree with your interpretation of the conceptual shape. There’s some fluidity even given the grounding in “natural allegiance”.
ETA: It also says:
This says that naturalisation can only be done by statue, not that statue can’t extend the scope of who is natural born.
In England, Parliament is sovereign and can change the law on what it means to be “natural born”. Once you constitutionalize the difference — and that was what Wong Kim Ark said about the original Constitution and the 14th Amendment — then Congress loses the power to change it. That’s why Congress can’t deprive any “14th Amendment citizen” of citizenship under Afroyim v Rusk.
Well, first, then this isn’t inherent in the concept of natural born citizen as you’ve originally claimed. There are two concepts, sure, but their precise boundaries and natural and what can control them is fuzzier. So your arguments that something is “intrinsic to the concept” are rather weak.
Second, while the Blackstone goes around and about quite a bit, the primary nature of natural born citizenry is the fealty relation to the king, not Parliament. And furthermore, you can’t renounce it:
“Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature.13 An Englishman who removes to France, or to China, owes the same allegiance to the king to England there as at home, and twenty years hence as well as now. For it is a principle of universal law,14 that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.”
So, it’s impossible for anyone to renounce US citizenship? That’s bizarre.
Third, I don’t see that anyone has constituitonalised a particular form of the difference. The easy way to have done that was to have defined it. It recognises the difference, it uses the difference (as a criterion of eligibility, and it constrains one form of the difference (naturalisation must be by a uniform rule), but I don’t see that it enshrines a particular form of the actual line of the difference. If we go by the common law as this chapter of Blackstone puts it, it seems straightforward that Congress can determine which foreign births count as the same as on the soil births.
It may seem straightforward to you, but not to Wong Kim Ark. To put it syllogistically, the Court said (a) the common law was jus soli, and jus soli only (there was a very long discussion of this point in the opinion); (b) the Constitution has to be understood in light of the common law, not the English statutes which modified it; (c) the 14th Amendment made this express; (d) because the rule is embedded in the Constitution, Congress can’t change it.
I think it’s important to keep in mind the context of Wong Kim Ark. Let’s suppose Congress did have the power to define the foreign born as “natural born”. Does that power now permit Congress to declare that some persons born in the US are NOT “natural born”? Because that’s what the dissent wanted to do: let Congress decide that certain races couldn’t be citizens.
Granting “natural born” citizenship to the foreign born grafts jus sanguinis onto jus soli. The dissent in Wong Kim Ark showed how easy it would be to turn that around in a way that would be very unfortunate, in my view. The majority precluded that result with its reliance on jus soli.
Well, again, if you see being native born as a floor, then this problem doesn’t arise.
Maybe it’s overall sensible to stick with jus soli. That’s certainly a central aspect of the Blackstone chapter. But I still doesn’t see how we avoid the extensions that that very chapter gave.
Maybe I’m cherry picking, but these sort of consideration seem to say you can’t strip natural born status from the native born, not that you can’t extend natural born status to some non-native born.
If “natural born” were a floor, that wouldn’t be as much of a problem. The legal issue is, how do you get there? If you say that Congress has power to extend the privileges of “natural born” — perhaps under the naturalization clause — then that’s an exercise of jus sanguinis. What text or doctrine would disallow a move in the other direction, i.e., using jus sanguinis to limit the “natural born”?
I’m not saying there’s no way to do that. I am saying that there needs to be a convincing way to do it in order to avoid the really awful consequences of the Wong Kim Ark dissent.
I totally agree on avoiding the awful consequences. But why doesn’t Blackstone do this? Jus soli is absolute, but congress can extend natural born to some degree?
I mean, this seems conceptually straightforward. I’m not sure why the majority in Kim felt the need to add a lock down.
Heck, just appeal to the 14th as establishing a floor.
Forgot to add a point about the conceptual issue. As Blackstone says, the common law was “absolutely so”. He notes an exception for the children of ambassadors. The majority in Wong Kim Ark went through a lengthy analysis of that exception and concluded it was statutory, thereby leaving the common law “absolute” in its commitment to jus soli.
I mean, it seems clear enough. There are restrictions on the requirement of jus soli. Among those restrictions are the children of ambassadors. Among others are those recognised by statue such that to all intents and purposes, without any exception they are natural born citizens.
But as I said above, those statutory revisions were exactly what the Court rejected in Wong Kim Ark. Maybe that’s right, maybe it’s wrong, but it’s not my conceptual distinction, it’s theirs. Or the common law’s, if you agree with the majority’s assessment of the common law.
At some point I’ll have to read Wong Kim Ark. But it still feels rather strained in light of the restrictions and all intents and purposes bits. Did not the common law rule thus? Cousy children of ambassadors serve on the privy council? How about overseas children of citizens who were deemed natural born by statue? If so, that seems dispositive wrt the common law concept.
According to Wong Kim Ark — and its conclusion on this point is debatable — the extension to the children of ambassadors was statutory, not common law.
In the view of the WKA majority, once the common law principle of jus soli came into the Constitution, Congress could no longer do anything but “naturalize” others, and that meant those others were not “native born”.
Even if statutory, so what?
Let’s say there are two ways of becoming a natural born citizen: under common law via jus soli and by statue if jus soli doesn’t apply?
I mean that just seems to be the situation in Blackstone.
ETA: BTW I appreciate you sticking with it with me. I’ll try not to belabour this further.
Under Wong Kim Ark, the constitution incorporated the common law, which was jus soli only. Statutes extending the common law, which were based on jus sanguinis, were NOT incorporated. The 14th Amendment then made this explicit with its use of jus soli language. Because jus soli was now written into the Constitution, Congress could no longer add (or detract) from that, just as it lacks the ability to modify any other provision of the Constitution.
But this I don’t understand. You can read the “incorporation” in at least two ways:
1) As a floor.
2) As exact.
And I don’t see why 2 dominates 1, given that historically extensions and restrictions on who is natural born existed. It’s not like they thought at the time of the 14th amendment “ooo! we really want to make sure that congress can’t let foreigners be president”. Indeed, I sincerely doubt anyone was thinking about presidential eligibility at all.
I don’t see that the text forces us to exact as opposed to floor, logically speaking.
Because that’s what Constitutionalizing a requirement does. For example, Congress can’t say that the 35 year old requirement is good, let’s make it 40. Nor can it reduce that limit to 30. It’s fixed. That’s what the 14th A did, and, says, WKA, it’s what the Founders meant to do originally by incorporating jus soli and JUST jus soli.
Constiutinalising a requirement fixes the requirement but it doesn’t tell us how to read the requirement.
For example, if we adopted an amendment, “All those born on territory recognised as belonging to the United States are natural born citizens.” it would be ambiguous between “and no others are” and “as are those foreign born people who, at the time of their birth, are automatically citizens by US statues”. The “no others” is as much an extension as the “and others”.
Oh please. This wasn’t what I was arguing at all.
Right, but it explicitly says “35 and older”: “neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years”.
Well, no, it says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It doesn’t say that only those are, which it easily could have done. It establishes two sufficient conditions. It also doesn’t say which of these conditions makes you eligible.
That doesn’t seem clearly established.
At the very least, there’s wiggle room. It seems straightforward to say:
1) 14th say that all those born in and naturalised are equally citizens. So a) congress can’t deny citizenship to the native born and b) naturalisation can’t establish multiple sorts of citizenship.
2) Congress has the power to establish a uniform rule of naturalisation. This could include drawing the boundary between those who need naturalisation and those who do not.
3) Blackstone establishes that naturalisation is restrictive of certain offices. (Silly, but ok, we can do that.)
(I know this isn’t the reading in Ark.)
This at least seems to be a possible reading. It means congress could exclude born to two citizen parents the status of citizen (which they already do!). It means that congress, by statue, can establish strict jus soli for natural born.
I have one related question and also a somewhat different thought.
The related question: For Cruz’s USA citizen mother to establish Cruz as an American citizen when he was born in Canada, would she not have had to go to the USA consulate/embassy and secure a Consular Record of Birth Abroad at the time? Has anyone asked Cruz to produce this?
Different thought: Cruz has said that he was surprised when he found out that he was a canadian citizen. I believe this was when he was running for Senate. I recall going through a questionnaire and background check, including an interview by an FBI agent, when I was appointed to a federal position. It’s about 40 years ago so memory is hazy but I seem to recall questions about nationality and family relations. Cruz was appointed to a fairly senior position in the Bush Administration, so presumably he had to go through something similar. Is there any record of his answers to the questions? Moreover, given that he is an attorney and he factthat he was bornin Canada where his father was a Canadian citizen, wouldn’t it have been natural for him to check the facts surroundingg his birth and citizenship?
The second point is not relevant to the constitutional question does go very much to Cruz’s honesty, and some possible answers could suggest that he might have committed perjury when completing the questionnaire and interview. Even if not the latter, I think it would have very negative consequences if he lied when stating that he was surprised to find out that he was a Canadian citizen.
Given the press shitstorm of publicity regarding the bogus Obama birth certificate claims, would it be too much to ask some of the esteemed members of the Fifth Estate to get off their asses and start to investigate these questions.
It’s just convenient, not a precondition.
“Cruz was appointed to a fairly senior position in the Bush Administration, so presumably he had to go through something similar. ”
Wait, you’re accusing the Dubya administration of competency?1??
Moreover, given that he is an attorney and he factthat he was bornin Canada where his father was a Canadian citizen, wouldn’t it have been natural for him to check the facts surroundingg his birth and citizenship?
So, my mother was born in what was then the Belgian Congo to two missionaries, one Swedish and one American. She didn’t move here until age 4. Her entire life, she has assumed she was a citizen, but I don’t think she ever officially checked.
This whole argument hinges on the idea that Congress cannot clarify the meaning of Natural Born Citizen. Given that it seems the term was purposely left ambiguous, it stands to reason the Constitution expected future governments to establish what qualified as a Natural Born Citizen.
It’s hard to see any textual basis for such power in Congress. The N&P clause won’t work because it grants to Congress the power to carry into execution “all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” But the NBC clause isn’t a “power”. It’s a requirement, like being 35 years old. I assume nobody thinks Congress has the power to change that age requirement.
The naturalization power could work, but to get there you’d need to show that there was no distinction between “naturalized” and “natural born”. If you can do that, you don’t need Congress to act at all.
The Congress has the power to “count” electoral votes and this can include determining if the candidates are eligible. “Natural born” being a qualification there, one necessity would be to determine the definition.
Them “changing” it is somewhat question begging. Finally, there might be a general power to recognize natural born citizens in the first place. The eligibility as President isn’t the only possible time it might matter.
Age is likely easier to determine here but might be tricky in special cases such as if one doesn’t know the person’s age or defining when exactly birth occurred if the person was born at around midnight at the dividing line.
I don’t think the last part is necessary – it would turn on just what the naturalization power entailed, which turns on a whole lot of assumptions and debate.
Agreed — Congress could refuse to count Cruz’ votes or to certify his election.
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It now occurs to me that this creates the potential for a truly awesome scenario: all those Members of Congress who hate Ted Cruz could refuse to certify his election, leaving the vice-presidential candidate, whom they do certify, as the president. Better yet, they could refuse to certify the VP and let Paul Ryan take over.
Maybe, Tom James will get an electoral vote & he will become President. Eagerly awaiting Veep.
The link to the government brief in Wong Kim Ark has also gone missing.
Thanks for this. I know not everybody loves this wonky kind of thing, but I appreciate it.
Added
That’s a persuasive argument. But who has standing to challenge Cruz’s eligibility?
A couple people suggested it above: have a state official leave Cruz off the ballot as ineligible. Cruz could then sue to restore his name.
I suppose that his opponent in the general election could have standing too, though I doubt anyone would sue for that.
I keep seeing people say this and it baffles me.
Ruling on questions of law is the courts entire raison d’etre. “Does this person meet the legal requirements to become President of the United States” is certainly a legal question, and thus the court deciding to rule on it is not reckless, but them doing their goddamn jobs.
Doesn’t this happen… not a lot, but somewhat commonly? I seem to recall a number of circumstances where states have passed laws that basically are instructions to potential future court cases, i.e “we’re pretty sure this is already the case, but we’re making extra double super sure just because we’re sort of worried what a judge might do.”
I keep seeing people say this and it baffles me.
It’s Bush v. Gore snark.
I’m sure that John “lawless” Roberts could craft a special rule that Calgary is actually US territory.
For this one case only, no backsies.
Er… is it?
There are a lot of people in this thread alone who are basically saying “there’s no way the court declares anyone who actually wins a Presidential election ineligible after the fact.” That doesn’t seem like snark, and it isn’t just here.
I don’t really think the Court would even do Bush v. Gore again at this point. They realize they took a huge hit.
Question: is your issue with Bush vs. Gore that they took the case at all, or with the legal hackery that was the majority holding?
Because mine has always been the latter. They absolutely should have taken the case. It’s what happened next that was appalling.
Murc is correct. I mean, they didn’t have to take the case — refusing to grant cert would have been fine, and certainly much better than what they did — but they were entirely within their constitutional authority to do so.
i accept that under McPherson v. Blacker they could take Bush v. Gore.
But the better interpretation of Article I is that the courts have no jurisdiction over the results of a presidential election.
Are you suggesting that if Congress declared a non-citizen President, then the courts would have no jurisdiction over that issue? That everyone would simply have to accept the blatant breaking of the law?
Nothing in Article I or Article III suggests anything of the sort.
You kidding? The current court literally did not mention the 15th amendment in a ruling that Congress had no power to regulate whether people’s right to vote was being discriminated against on the basis of race.
They would definitely do round 2 – Cruz v. Clinton as you will – in a heart beat if they had a chance. The US media would just accept it, as they did in 2000, and conspire to hide the massive protests afterwards.
I also agree with this. I am certain that all four remaining members of the Bush v. Gore are convinced that they did the right thing, and nor did they take any “hits” that affected their authority in any material way.
You could tell a sorta-kinda plausible story that Roberts switched in NFIB because he was concerned about another Bush v. Gore.
How I wish that the fear of a retaliatory Democratic junta that would pack the Court with screaming Marxists were founded.
Four? Scalia, Thomas, Kennedy, and who?
Maybe he meant Scalia’s clone, Scalito. :)
Seriously though, he’s referring to the 4 surviving members of the SCOTUS majority in Bush v. Gore.
Just because they don’t admit it publicly doesn’t mean they didn’t take a hit.
FWIW some people in the know tell me that the conservatives were actually quite upset at the reaction to it. I really don’t think they would be up for a second round.
Dilan Esper says:
“Just because they don’t admit it publicly doesn’t mean they didn’t take a hit.”
Your word that they took a hit isn’t good enough.
“FWIW” Nothing.
” some people in the know tell me that the conservatives were actually quite upset at the reaction to it. I really don’t think they would be up for a second round.”
The initial right-wing reaction to that decision was to support it 100%.
The second wave was to support it 100% and to loot and pillage the country.
The third wave was to take it as a starting point for a list of odious decisions.
Now, do you have a single thing which is not your unsupported and unreliable word?
Just because they don’t admit it publicly doesn’t mean they didn’t take a hit.
What kind of hit, exactly? Angry law review articles?
“I don’t really think the Court would even do Bush v. Gore again at this point. They realize they took a huge hit.”
Roberts and Alito are on the Court because of that. Scalia and Thomas don’t know what repentance means.
So, a very, very invisible hit.
Paul isn’t the one making that argument, though, and it’s his snark.
(I read it as the snarkiest of snark. Because not being snark would suggest that Paul has forgotten Bush v. Gore which, frankly, I find improbable in the extreme.)
However this:
My argument is that there’s no way that this SCOTUS declares Republican Ted Cruz ineligible after the fact. Period. If the circumstances were different – if someone with Cruz’s story were running as a Democrat, or if we didn’t have 5 Republican hacks on the court, or any number of other combinations then it might be an actual question.
But it isn’t. The only possible way that the court decides after the fact that Cruz is ineligible is if Ted Cruz picks a VP that the 5 hacks on the court prefer to Cruz and they can figure out a way to argue themselves into invalidating Cruz and passing the presidency to the VP. But that’s a longshot – if Cruz wins the nomination he’s going to go out of his way to find himself a nice human shield as VP to make his removal from office less palatable to his enemies. Much like Bush the Elder and George W Bush both did.
From an originalist posting perspective, my comment was intended as pure snark. As a living LGM post however, the interpretive situation is more fluid. Perhaps reading it un-ironically would make my comment “the best it could be,” cf. Dworkin, Ronald.
I like Mark Tushnet’s aspirational reading of Bush v. Gore. I.e. pretending that the decision was actually constitutional law, because if actually applied the holding would be salutary.
Yes, it does happen that statutes “gild the lily”. If that were what Congress meant in 1790, though, then they shouldn’t have changed the language just 5 years later, and they shouldn’t have left out foreign born children between 1802 and 1855.
That’s fair.
The statute never applied to eligibility to be President, as everyone who was eligible by age in 1790 was subject to the grandfather clause in Article I, Section 1, “or a citizen of the United States, at the time of the adoption of this Constitution”, and no one would be otherwise for another 35 years. The statute didn’t last that long, and it’s extremely unlikely the First Congress was worried about what would happen in 35 years. The Articles of Confederation didn’t last that long, and states were shedding their constitutions after much shorter periods, too. We think of the Constitution as this timeless document but it’s hardly likely anyone in 1790 felt that way.
If I’m following this correctly, this sentence (By the combination of Wong Kim Ark and Bellei, “natural born” citizens are those who, and only who, meet the requirements of the 14th Amendment.) is inartfully phrased, at best. 14th A citizens are those who are either a) natural born; or b) naturalized in the U.S. The latter, however, are not natural born, and are therefore not eligible.
I find the discussion “interesting” but as with most long discussions of this sort that rests a lot on history and a few cases, not very useful to settle the question. There has to be a very strong case here to deny someone a basic right and others the basic right to vote for them. It cannot simply be credible or even reasonable. It has to be compelling. It.is.not.
The discussion is long; I will only respond to parts of it & will go on too long even then. The whole thing is after all academic. And, simply put, we really should not rely on this to defeat Ted Cruz. It might even bite us to use a mixture of originalism and a few old cases to define such basic questions in other legal contexts.
An opinion in 1898 does not “determine” things for me in 2016, including every part of the argument set forth there. Cites later don’t change that — it is quoted in small portions of it and at times in places that Mark Field noted clashed with the original.
Also, Mark Field notes he isn’t an originalist. But, he relies a lot on a case that is a longgggg originalist discussion that has been much debated by scholars et al. He also repeatedly cites history like Blackstone. So what is it? He has his cake and eats it too by noting it now is precedent and relying on doctrine. But, doctrine changes over time, and has here. It is selectively cited and he himself suggests a key later opinion seems to cite it inconsistently.
Case in point — if we didn’t go here first, we could have seen earlier cases in between the two where Congress repeatedly had the power — even for natural born citizens — to involuntarily deprive citizenship. But, a few years before Rogers (in a case Mark Field more than once cited to advance his argument), the law CHANGED there in a fundamental way.
Understandings change over time and a couple opinions here do not “determine” something as fundamental as Cruz’s eligibility today. This is especially the case as Dilan Esper notes when the cases simply do not cover the same ground. Natural born citizenship is nearly never even relevant.
Naturalization will for nearly everyone get you basically the same thing. There are various cases where it doesn’t but even there it repeatedly involved people who were born abroad but never really had much of a connection to this country. Denying someone the presidency of course was nearly never even relevant. Judges as much as average people look at things differently when things suddenly mean a lot more than before.
A 1898 opinion does not “determine” the meaning of the 14A, which to be clear only says “born.” The 14A can very well set forth a floor of whom has a right to citizenship. “Natural born” quite reasonably — remember my test at the beginning — can be broader than those (in the words of Rogers v. Bellei) “14A citizens.”
In fact, the government during oral argument in that case noted that the enumerated naturalization power of Art. I only speaks of “uniform” rules of naturalization. It noted that the government various times also provided SPECIAL naturalization protection in singular cases, so apparently had a general right to do that beyond the naturalization clause. Power to define “natural born” can also go beyond that clause too.
(It is noted that “natural born” isn’t a power, it is a limitation. I covered this in a separate comment & the citation seems to overall suggest the term has meaning. Its source has to come from somewhere and need not just be judicially determined, especially when judicial review was in its infancy.)
A case from 1898 and a 5-4 ruling whose reasoning contained assumptions that wouldn’t have been good law a few years before including things that help Mark Field build his case. Reference is made to my comment as to dicta which I can debate – we went back and forth and didn’t convince each other – but it’s not really essential one way or the other. The matter doesn’t settle anything except maybe the case being reasonable. Not enough.
Rejoinders. (1) Dicta. Dicta is used by Mark Field too. The case directly deals with the matter at hand. (2) Precedent. Seems, and this is the current common understanding as discussed in a Congressional Research Service report a mere five years ago and other places, the eligibility of people like Ted Cruz fits into current understanding of precedent. (3) Power. “Natural born” is not defined in the Constitution. The power can come from various places such as a general power over national sovereignty [if precedent matters, long-held precedent holds Congress has such a freestanding power] or Necessary and Proper Clause.
The opinion says naturalization was not being done. It expressly said that applies AFTER BIRTH as the law was applied.
The Supreme Court upheld conditions in various opinions. The cases are older than Rogers v. Bellei, but a lot more recent than 1898. So, as with 2001 “dicta,” we are left with an argument on what is “consistent.” The common understanding is that “natural born” includes obtaining a certain form of citizenship at birth as a result of one’s parent’s citizenship even if you were born abroad. Congress, as stated by the Supreme Court, says this isn’t “naturalization.”
In the past, such as those who were AWOL in wartime, one could lose citizenship “subsequent” to birth if certain “conditions” were not met. This was seen, including by the Supreme Court, as reasonable. Conditions also were placed on children of those with dual citizenship, even natural born children. Rogers v. Bellei itself cited such a case; Mark Field thinks current law makes such a condition unconstitutional. Rogers v. Bellei to me seems to have cited the dual citizens case a bit too blithely if current law made the citation stale, but either way, it shows what might be consistent all the same with “natural born.”
=====
Congress in 1790 passed a law that considered those born abroad citizens. This was later changed but that seems pretty notable even if a few years after Plessy v. Ferguson the Supreme Court held such a power didn’t exist. Antebellum practice wasn’t fixed there. It doesn’t “determine” what is true today. It does show a quite possible way to include Ted Cruz as part of the “natural born.”
The problem of coverture (Ted Cruz’s mom in 1790 would have lost her American citizenship by marriage to a foreigner) is addressed by later equal protection developments. Not being an originalist, this is acceptable, but I can still point to the past to help my case — maybe, Congress on a limited point was right the first time.
Let me add here as well that national citizenship in antebellum times was thought by many to usually arise from state citizenship. But, there were “conditions” to that, ones that were open to change. The most obvious would be racial. Who was citizen depended on the state’s open to change racial qualifications.
The 14A is said to clash with this. “That Amendment conspicuously fails to include them.” The text:
Rogers v. Bellei speaks of “14A citizens.” There are other types of citizens apparently. A person born abroad — not “in” the United States — could be naturalized. The dissent in that case argued that “in” should include those naturalized abroad too for purposes of our law. If so, I would think one can be “born” there too — an American citizen parent provides U.S. “jurisdiction” over the child when “born” as well. At any rate, we are just left with determining some means to give Congress the power to recognize natural born citizens and naturalized citizens born abroad. I suggested a way.
Also, “natural born” could be understood by definition, especially if we don’t rely on 1898 or 1791 or 14th Century law, those born naturally to American citizens, providing the necessary connection to the country deemed necessary by the rule. Congress could retain the “necessary and proper” power to define that like it was defined by changing British common law, a law that was not fixed, but changed the meaning of basic terms over time. The 14A provides a clear floor, but Congress has some discretion. Another case would be those found as young children and their birthplace is unknown. They need not be deemed “naturalized” even if conditions are set (e.g., found before five or if evidence is found within ten years, the person can be deemed not natural born).
===
Anyway, we have to determine this question today, not based on old case law, and there are reasonable ways to do so without depriving Ted Cruz natural born citizenship or the people the wrongheaded right to vote for him for President. That is the bottom line.
Plus 1,000.
From Jack Maskell’s Congressional Research Service report in 2011:
Completely unconvincing to me. A lot of discussion without citations or quotes that Mf brought to the argument.
This example:
Seems to overlook the fact that the 14th Amendment came between 1790 and the 1898 ruling. Also ignores that by statute Congress ruled from 1802-1855 that citizenship is not automatic for those born abroad.
Sorry you are unconvinced, for whatever reason, but did provide citations (e.g., a reply excerpts from the CRS Report I “cited”) etc. and even the little portion you quote says the law “was later changed” so I did not really “ignore” the later statutes. I said upfront that I was not going to answer MF in full, though as he himself alludes to, I have debated with him on this point multiple times by now. I said in a portion skipped over that maybe they were right the first time.
“There has to be a very strong case here to deny someone a basic right and others the basic right to vote for them. ”
What part of Bush v. Gore and Shelby County/Roberts Court v. 13th – 15th Amendments do you not understand?
Or, to be snarkily sympathetic, you are right – however, money and power make a very strong case.
If Congress can define ‘natural born’ to include citizens born outside the U.S., does that mean it could define ‘arms’ in the Second Amendment to not include handguns?
No, if Congress can define one thing in a certain way, it does not necessarily mean it can define another thing in another way. Each subject matter can have its own nuances especially when one is a right, the other a power/qualification.
As applied to the case at hand, it is partially a matter of reasonable application. Your phrasing goes beyond the Cruz situation — “citizens born outside the U.S.” goes beyond someone born of citizen parents, e.g., to possibly anyone under the sun. It is possible “natural born” has some constitutional floor but I think Cruz fits within it.
A handgun as understood by the Supreme Court is an “arm” but Congress can determine something else that is a weapon does not fit into that term that doesn’t fit into the definition found in D.C. v. Heller. Also, a particularly dangerous and unusual handgun, going by language in that opinion, might also be banned by Congress, determined like obscenity is not protected “speech” be held not to be protected “arms.”
or beyond—e.g., Kal-El!
…So Bruce Wayne has a bug in his ear about natural-born citizens, huh? Explains a lot.
If Cruz is the Republican nominee, and the issue makes its way to the Supreme Court, I would expect all 5 Republican justices to vote with Cruz.
With the same fact set and a Democratic nominee I would expect many if not all of the Republican justices to vote the other way. (Note all the controversy created by rightwing nuts about Obama, who was born in the U.S. to a mother who was a U.S. citizen.)
A sad commentary on the state of the Supreme Court, rather than on this excellent article.
The SCOTUS refused to hear any cases on Obama’s right to eligibility – which stunningly, shows that there still are a few limits to how badly the majority will twist written law for their cause. What we don’t know, however, is whether any of the sitting justices voted to hear the case. It would not shock me at all to learn that Scalia, Alito, and Thomas voted to grant cert and only Kennedy and Roberts prevented the subsequent insanity. I don’t THINK they’d have done this, but given their track records I can’t be 100% sure they didn’t.
If Scalia, Alito, and/or Thomas were eager to grant cert, why wouldn’t they issue a dissent to the denial of cert? Thomas and Scalia have both done that in the past. See, e.g., http://www.supremecourt.gov/opinions/14pdf/14-271_o758.pdf
Understand that was mostly snark. As I said, I don’t think they did vote for cert.
“If Scalia, Alito, and/or Thomas were eager to grant cert, why wouldn’t they issue a dissent to the denial of cert? Thomas and Scalia have both done that in the past. See, e.g., http://www.supremecourt.gov/opinions/14pdf/14-271_o758.pdf”
Because (a) the fact that they’ve done it a few times doesn’t mean that they would do it lightly, and (b) it might well have been that some people pointed out that that would not accomplish anything, while possible pushing things over the edge.
This is a good article. I do have a question. Puerto Ricans are citizens because of legislation passed by Congress. Is there a way to distinguish between the reasoning you’ve laid out here and Puerto Ricans with respect to the “natural born” requirement?
I don’t know enough about the Puerto Rico situation to have an informed comment. Sorry.
It seems, unsurprisingly, as if the matter is up in the air.
http://www.cbsnews.com/news/can-a-puerto-rican-be-president-justice-breyer-speculates/
Interesting. I suppose we could distinguish between incorporated and unincorporated territories, and say that people born in incorporated territories are NBC, whereas people born in unincorporated territories aren’t. PR is usually listed as an unincorporated territory, but I vaguely recall a court case out there stating that a territory can evolve into an incorporated territory (not an SC ruling).
But, let’s say that we treat PR as an incorporated territory. Then we could distinguish between them and Ted Cruz’s situation, I think. If it is the case, though, that Puerto Ricans aren’t NBC, that seems like an odd result to me. And I’m wondering if the reasoning laid out in this post could apply to Puerto Ricans as well as Ted Cruz.
And I believe Goldwater was the only person ever nominated by a major party for the Presidency who was born in a territory, so we never had to reach the issue (much as the flaming out of George Romney’s candidacy in 1968 avoided the question, and John McCain’s failure in 2008).
Goldwater was born in the Arizona Territory, which was definitely an incorporated territory, so we can possibly make a distinction between him and Ted Cruz. But George Romney and John McCain would be similar indeed to Ted Cruz, since they were “citizens at birth” by operation of law. So these arguments against Cruz’s NBC status would seem to apply to them as well.
Now that I think about this some more, Congress granted US citizenship to Native Americans in 1924, so we have another category of people who are possibly “citizens at birth” only by operation of law. So then would Native Americans not be NBCs? That would seem like an odd result to me too. I tend to think of Native American law as a thing unto itself, though, so if Native Americans are NBCs, that doesn’t necessarily mean anything about Cruz’s case.
This is an interesting issue.
You can argue that McCain, being born in the Panama Canal Territory, was born ‘under the jurisdiction of the U.S.’ and thus a natural-born citizen under the 14th Amendment.
Except the Panama Canal Territory is usually listed as an unincorporated territory as well. And since Puerto Ricans weren’t US citizens until an act of Congress in 1900, then under the 14th Amendment as it was interpreted in 1900, people born in unincorporated territories aren’t 14th Amendment citizens.
Of course, if there’s subsequent case law that makes it clear that people born in unincorporated territories are 14th Amendment citizens, then that changes things. I’m not familiar with the case law in this area, so there may well be. But if there’s no case law, then what we have is the fact that 14th Amendment citizenship did not automatically extend to people born in unincorporated territories (like the Panama Canal Zone) in the past (ETA – also see the Philippines).
Here’s another wrinkle. We have one (I think it’s just one) VP who was born in an incorporated territory — Charles Curtis who was born in the Kansas Territory. This was before the 14A, so he couldn’t have been a 14A citizen. But, if he was VP, he must have been an NBC. So, where did his NBC status come from? If it came from the Kansas-Nebraska Act (which I’ll have to go read), then we have a case of an NBC arising through operation of law. If it comes from someplace else, where did it come from?
Duh, I’m silly. He took office after the 14A passed, so even if he wasn’t a 14A citizen at birth, he was a 14A citizen when he took office. Please ignore the preceding.
Seems to me the question of whether or not the SCOTUS would rule in his favor is not really the point. FWIW, I could easily imagine Cruz winning with a 5-4 decision, the 5 being the libs plus Kennedy. To me the real utility of this type of analysis, which, btw, I very much enjoyed, is to continue to confound the GOP nominating process. This is birther bait plan and simple.
The delicious irony of this issue arising on the heels of the Obama birther nonsense is almost beyond comprehension. Parody lies gasping a ditch somewhere.
I concur with mbxxxxxx in his discussion of Voting for Cruz v Obama Birthers
Yes, this! I am utterly unwilling to make any high-minded statements that obviously Cruz is eligible, and it is disingenuous nativism to argue otherwise. Because ultimately it’s not really up to me. Let Republican primary voters make the decision!
I see a good argument here that anyone born outside the United States is technically a naturalized citizen, even if they became a citizen at the moment of their birth. I don’t see any argument at all, though, other than bare assertion, that someone naturalized at the moment of their birth is not a “natural born citizen”. The 1790 statute seems to contemplate that someone in that position is a natural born citizen. (Or, at least, that Congress can so define them.)
The definition of a “natural born citizen” as “someone who is a citizen by right of birth” seems straightforward, and consistent with every court decision and statute cited here. (Bellei wasn’t a citizen by right of birth; at best, he could have been a citizen by right of birth and subsequent actions.)
I don’t think we can assume that “naturalized” includes those who do not go through the statutorily-defined naturalization process. This power was expressly given to Congress, not the courts, and i believe that some case law does distinguish between being born a citizen and being naturalized, implying that one could not be naturalized at birth. I don’t have a cite handy, of course, but I can dig.
Of course, if the “good argument” that someone receiving citizenship at birth is technically naturalized is wrong, then we don’t even have to reach the question of whether someone naturalized at birth counts as a natural born citizen.
Except for the period 1802-1855 when they were NOT citizens by birth. The fact that the legislature could make this law – and have it not be struck down – means that it is the legislature that determines citizenship if born abroad. And the only citizenship that the legislature has control of is naturalized citizenship – not natural born citizenship.
Do you have any argument, other than assertion or repetitive assertion, that someone naturalized by statute at the moment of their birth is not a natural born citizen? It’s obviously true, and equally obviously beside the point, that Congress can change the laws governing citizenship.
Do you have any argument, other than assertion or repetitive assertion, that someone naturalized by statute at the moment of their birth is a natural born citizen?
No, just an argument that it’s a reasonable interpretation of the phrase. I personally think it’s the most reasonable interpretation, but I can certainly see how someone might think the definition “a non-naturalized citizen” is more reasonable.
See my comment above.
I don’t see why the power to set a uniform rule of naturalisation necessary excludes the power to define the boundary between some naturalised and natural born triggering conditions. “If you are born overseas to two non citizen parents you aren’t a citizen unless you go through naturalisation process XYZ” seems analogous to “If you are born overseas to two citizen parents meeting conditions ABC, then you are a citizen and do not need to be naturalised”.
Now is there any boundary here? Well, I think the 14th prevents Congress from denying citizen status to native born people (mostly). Could congress grant to all the citizens of Japan natural born status? Maybe? What if we annexed Japan as the 51st state? Could Congress then grandfather in all native born Japanese citizens? I don’t see why not.
So, you read a long article that provides a bunch of legal cases that in fact suggest that someone naturalized at the moment of birth is not a “natural born citizen”, and your conclusion is that Field has nothing but assertion backing him?
There is a very strong legal argument that Cruz isn’t eligible. This case is unlikely to have any actual effect, and it’s certainly not inarguable, but I don’t see how you can read Field’s analysis and then argue that there’s nothing backing the eligibility case but pure assertion. The main Supreme Court opinion defining how citizenship works says
I guess that’s an assertion, but it’s an assertion by, you know, Justices Gray, Peckham, Brown, Brewer, Shiras, and White.
None of that is an argument that someone naturalized at the moment of birth is not a natural born citizen. It’s an argument that someone granted citizenship at birth only by means of a statute is naturalized. The definition of “natural born citizen” isn’t addressed in the language you cite: you make no argument whatsoever, other than bare assertion, that “natural born citizen” means “someone who gains citizenship through the 14th Amendment” (or, to be generous, since that’s obviously absurd, “someone who gains citizenship through the mechanism which would eventually be specified and guaranteed through the 14th Amendment”) rather than “someone who is a citizen by right of birth”.
Granted, if you assume your conclusion as a premise, you can deduce your conclusion from your premise. But, other than chasing your tail in a circle, do you have an argument that the proposed definition of “natural born citizen” as “someone who is a citizen by right of birth” is invalid?
So what would you call a “person born in the United States, and subject to the jurisdiction thereof, becom[ing] at once a citizen of the United States, and need[ing] no naturalization” by way of distinguishing them from those needing naturalization?
A non-naturalized citizen.
Or a US-born citizen. It’s hard to imagine a context, aside from a debate over whether someone’s a natural born citizen, in which such a distinction is important, and I would be loath to assume my conclusion.
In most cases, of course, I would simply refer to them as a natural born citizen, since I wouldn’t need to distinguish them from natural born citizens born abroad.
But you are in fact doing the same thing. You are asserting as a premise that someone who was naturalized at birth IS a natural born citizen by nothing other than mere assertion.
Don’t claim what you’re doing is any different.
But what I’m doing is different. The other side in this argument is saying their interpretation of the phrase “natural born citizen” is the only reasonable one, and I’m saying that there are at least two reasonable interpretations.
The idea that a natural-born citizen is to be distinguished from a naturalized citizen certainly seems like the plainest reading here.
To you. To me, the plainest reading is that a “natural born citizen” is to be distinguished from someone who acquires citizenship after birth. The Supreme Court doesn’t seem to have addressed the question. So why shouldn’t I point out that Mark Field is pulling a fast one in simply assuming that “naturalized citizen” and “natural born citizen” are mutually exclusive categories?
The language from Wong Kim Ark which I put in bold expressly says that
“Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, … or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens….”
The naturalization statute read then as it had read ever since 1795, namely that foreign born citizens were citizens “at birth”. The dissent in Wong Kim Ark protested this conclusion, but the majority stuck to it.
In addition, Rogers v Bellei involved someone born overseas to an American parent, and therefore a citizen “at birth”, yet the Court there held that he was not a 14th Amendment citizen, that is, not natural born.
The interpolation “that is, not natural born” is your interpretation, not any court’s, as far as I can tell. I stand by my contention that this is a fast one: you’ve provided a detailed argument for the contention that someone who becomes a citizen at birth, but not through the application of the 14th Amendment, is considered to be a naturalized citizen by Supreme Court precedent; you’ve provided no argument whatsoever that the terms “natural born citizen” and “naturalized citizen” are completely exclusive. Why shouldn’t someone who was born a citizen be considered a natural born citizen? It seems like you’ve fallen so much in love with your research, and what it can prove, that you’re eager to assert that it can prove enough to answer a particularly important question. But there’s still a big gap in the chain of logic, which needs more of a link than “A, that is, Z”.
Again, Wong Kim Ark states that (a) the common law used a rule of jus soli, and that’s what “natural born” means; (b) the 14th Amendment constitutionalized that rule expressly; and (c) everyone else is naturalized.
If that’s true, you ought to be able to provide one fucking sentence from the Wong Kim Ark opinion in support of the proposition that it not only drew a distinction between jus soli citizenship and statutory naturalization, but that it defined the term “natural born citizen” in a way that incorporates this distinction.
Otherwise, all you’ve got is the argument, “Wong Kim Ark and Bellei support the conclusion that Ted Cruz was naturalized at birth. If a natural born citizen means someone who wasn’t naturalized, then Ted Cruz is not a natural born citizen. On the other hand, if a natural born citizen means someone who was born a citizen (and not someone who acquired citizenship later in life), then Ted Cruz is clearly a natural born citizen.” An interesting argument, but if you want to get to an actual conclusion about whether or not Ted Cruz is a natural born citizen, then you have to make an actual argument over what the term natural born citizen means, and so far you haven’t given us jack shit in terms of support for your position there.
Who is Mark Field? I see that he posts comments around the web (of high caliber) and has a website about Buffy.
Since this post provides expert legal analysis (clear and convincingly, IMO), that seems relevant — in a nice to have but not necessary sense.
Larry Kummer
Website about Buffy???
Link please?
Yes, he links it to his name on blogger posts.
https://www.blogger.com/profile/16661801011668244109
He even has an ebook.
http://www.amazon.com/dp/B00BKPAJI2
Did you stop blogging at your old location? The link to your name says Thus Blogged Anderson was removed.
http://unpaidsophistry.blogspot.com/
Thanks! I knew Mark Field was awesome, but I didn’t know he was *that* awesome.
(Just watched Buffy for 1st time in 2015 & was blown away.)
.. yah, blog is toast. I need to fix profile.
If I say so myself, the stuff I wrote on Buffy is better than this post. Buy the book (I’ll reimburse you the .99 if you want). I’ve made revisions since the original blog posts and the book is now much better.
Mark,
I have never found anyone with such a high profile on the internet — even an ebook — so unconnected to any biographical info. It’s evidence of the quality of your writing that your comments stand by themselves.
Even the journal with the only publication I’ve found for you appears to have had all traces of its online existence erased.
I have found an attorney who might be you (not a professor, however), but have no way to verify it without actual effort.
Larry
I don’t make it a particular secret, but I guess I don’t disclose much either. I am an attorney, though I just this month took inactive status because I’m calling myself retired.
And thanks.
Mark,
Thank for that info, to confirm my guess — you do Corporate and International Law, plus IP.
I admire your comments; they’re informative and clearly written (both too rare on the internet).
If you have the time in retirement, you might start a blog — or join one. You are welcome to post at the Fabius Maximus website.
Must be a different me. I do (did) business litigation.
I appreciate the invite. I’ll have to see how busy my wife manages to keep me.
Will buy the book, even if 99 cents is awfully steep!
I’m on season one of Angel now (and just finished “season 8” of the comics – I had Buffy withdrawal bad).
If there is a finer TV series than Buffy, someone tell me, not that I’ll believe you.
No worries, there isn’t. The Wire is damn good though.
I thought Mark Field was the Deep Throat source for wooodward and bernstein.
I thought that was Sally Field.
It was Mark Trail.
Very interesting and persuasive analysis.
I do have one little quibble. You see Congress’ 1790 Immigration statute as evidence that Congress originally thought that natural born citizens were the same as naturalized citizens. You note that Congress declared that the foreign born children of US citizens would be “considered as natural born citizens” which seems to equate “naturalized” and “natural born”, and would serve as evidence that originalists would have considered the two the same. I don’t draw that conclusion: I think the qualifier “considered as” preceding NBC is just a slightly inartful or ambiguous way of saying that Congress would confer what citizenship benefits it could to those born on foreign soil, but not that it intended to repeal the Constitution’s requirement to be a natural born citizen to be president. In other words, “considered as” means “is not actually the same as, but for this purpose we will pretend it is.” The proviso in the 1790 law confirms this understanding because it includes a distinction from “natural born” citizens’ rights based on what the person’s father did. Subsequent wording of this statute declaring the person to be a “citizen at birth” clarifies this same concept, not necessarily repeals it.
To me the most critical problems for Cruz are the Schneider, Luria and Baumgartner cases, drawing the distinction between natural born and other citizenship as it relates to becoming president. I suppose he could argue that none of those persons were running for president, and so arguably the cases are dicta as to Ted Cruz.
That’s a plausible way to read it, and seems consistent with the later change to “citizen at birth”.
The use of the phrase “considered as” is merely stylistic with no particular significance. For example, in the same 1790 act we see that people who go through the naturalization process “shall be considered as Citizens of the United States” and their minor children also “shall also be considered as Citizens of the United States”. In the 1795 Act we see that children born abroad “shall be considered as citizens of the United States”.
I don’t think that anyone would say that naturalized persons are sorta, kinda citizens but rather they are in fact citizens.
FYI, here is another example of the use of “considered as” from Zephaniah Swift’s 1795 “A System of the Law of the State of Connecticut, in Six Books”
“THE people are considered as aliens, born in some foreign country, as inhabitants of some neighbouring state in the union, or natural born subjects, born within the state.”
“[C]onsidered as” has no impact on the the quality of the different kinds of people.
It would be nice to have the case heard and ruled on just to establish a clear definition for the future. There was similar uncertainty around McCain, so much so that his campaign funded research into the issue in 2007. The conclusion there was that the special case of the US Canal Zone, where he was born, qualified him – obviously not a precedent that will apply to many people. Throughout US history the number of people for whom this was as issue was very small. People just didn’t travel internationally or live abroad as ex-pats to anywhere near the extent they do now. In modern times it’s going to become a more-and-more frequent issue.
One theme I’ve read from a number of people is that the courts shouldn’t get involved in this, just let the electoral process proceed. The problem with this is where you draw the line, and if the line isn’t drawn at all that creates a lot of uncertainty. About 10 years ago there was a movement within the GOP to push for an amendment that removed the natural born citizen requirement in exchange for a requirement that they had to have lived in the U.S. for at least – oh, say, 40 years and been a citizen for at least, oh, say, 25 years (these numbers are what they would have been for Arnold Schwarzenegger in 2008). (Ironic, to say the least, given how 3 years later so many of the same GOPers suddenly adopted the view that the natural born citizen requirement was sacrosanct.) The benefit of such an amendment, though, is that it would eliminate the uncertainty. In the absence of that, a court ruling would be a good second choice.
For McCain, though, there wasn’t really a conclusion in that the SCOTUS ruled on the matter (did any lower court rule on it? I don’t remember).
Part of the problem was that he said he wasn’t born in the canal zone in his biography, said his BC said he was born in the canal zone, but never released it. There was a congressional statute that made the children of canal zone workers American citizens if their parents were American, but, looking at the legal argument above, it appears that an act of Congress isn’t enough to be natural-born.
We’re not going to get a clear court ruling on this until a Democrat born abroad runs for president. Republicans would have no problems challenging Hillary’s eligibility if she were born in Canada to American parents and came back to the US right after being born. Dems, on the other hand….
IIRC, the argument actually was that the statute didn’t automatically grant citizenship to children of American parents born in the canal zone. The way the statute was drafted, if he’d been born outside the jurisdiction of the United States entirely, he would have been granted citizenship because of his parents; and if he’d been inside the United States, he obviously would have had citizenship on that basis; but the statute didn’t clearly cover the case of people born outside the United States but in territory controlled by the US. The law was fixed, with retroactive effect, a few years after McCain was born.
There was a long, acrimonious comment thread on LGM at the time between people who thought the case against McCain was wrong, but non-frivolous, and those who thought anyone arguing that the argument was non-frivolous was an insane conspiracy theorist. I don’t think anyone took the position that McCain was actually ineligible.
I think it would be a disaster for the Supreme Court to ever interpret this clause. If anything is a pure political question, in both the Article III sense and the colloquial sense, it’s this.
I don’t see how it makes any sense to call the qualifications for president a “political question.”
The doctrine says that the Court won’t trespass on matters exclusively within the scope of the other branches.
Congress has no power to define “natural-born citizen.” The Court is the expositor of the Constitution.
The president is not the sole judge of his own qualifications.
Ergo, it’s not a political question. As Mark says, a 30-year-old can’t be president, and it’s not a “political question” whether he’s 35 or not.
Dilan appears to be treating “political question” as if it meant “politically controversial,” which it does not.
“Dilan appears to be treating “political question” as if it meant “politically controversial,” which it does not.”
That’s giving him a lot of credit.
It’s not the President who judges his own qualifications, it’s Congress. The 20th Amendment reads as follows:
“Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified;”
The task of determining whether the President elect is qualified falls to Congress when they assemble on January 3 to open and count the Electoral College vote. There are statutes guiding how those votes can be challenged-it requires a written challenge signed by at least one Representative and one Senator. The 2 houses then retire separately to consider the challenge-the House deals with the President and the Senate with the VP. There actually was such a challenge in 2004 over the controversies around the Ohio votes for Bush. given that the House was Republican, it was quickly squelched and Bush was certified. Some Reps also tried to challenge Florida in 2000, but no Senator signed on.
So, in the very unlikely event that Cruz were elected it would be up to Congress to hear and decide a challenge to his qualifications. It should be noted that were they to decide that he were not a natural born citizen, it wouldn’t be the Democrat installed in office, but Cruz’s running mate.
Two points I haven’t seen addressed:
1. It seems to me that laws, even constitutional provisions, need a purpose, a rationale. The 35 year old requirement for president has a rationale-maturity. The 14 years residency has a rationale-familiarity with the country. What is the rationale for the natural born citizen restriction? As best we can tell from history it was fear that a junior European royal would come to the US, naturalize and then get elected president and rule as a King. Well, Cruz is not a royal. Does anyone think he is a secret Mountie who will take his marching orders from Justin Trudeau and force Americans to consume poutine and Tim Horton’s donuts until their arteries give out?
The truth is, he has no attachment to Canada simply for being born there, certainly no more than if he had been born in the US and taken to Canada as an infant. Nor, for that matter does Jennifer Granholm. Babies form attachment to parents. To countries, not so much. So to exclude on that basis may meet some narrow legal parsing of cases (or not), but lacks a real purpose or rationale.
2. All legal disputes have a presumption- innocent in criminal law unless proven guilty beyond a reasonable doubt, not liable unless proven liable in a civil tort by a preponderance of the evidence or by clear`and convincing proof. What should be the presumption here? It seems to me that a fundamental principle of elections in a democracy is maximum choice for voters. So the presumption in election law is or ought to be eligible unless proven otherwise. And while Mr. Field makes a reasonable argument, others make reasonable arguments the other way, so I think we have to find Mr. Cruz “not ineligible”, which, like not guilty, doesn’t mean definitely eligible, but means the voters get to decide.
I’d think the presumption would depend on whether someone is suing to remove Cruz from the ballot, or whether Cruz is suing to be put back on the ballot after a state official removes him for being eligible. But either way it’s probably preponderance of the evidence, so it shouldn’t make much difference, no?
The second is a fictional scenario, because no Secretary of State is going to leave Cruz off the ballot. Standing is an issue in the first scenario. But, regardless, I think democracy comes with the presumption of maximal electoral choice. My position is that a candidate should be on the ballot unless it’s pretty clear they are ineligible and I don’t see anyway that one can come to that conclusion here.
“The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility. The certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility of a person who is certified to be elected, must take the burthen of proving that he is not eligible.
–George W. McCrary
—A Treatise on the American Law of Elections
IMO opinion that burthen has not been met and likely cannot be met, because, ultimately, there was no debate or direct discussion of what natural born citizen meant in terms of the presidency of the US and so the various arguments are by indirect inference, and thus, of necessity cannot be definitive.
Given that Ted Cruz is wildly hated by most of his own party, it’s certainly conceivable that a state secretary of state would leave him off the ballot, either as a genuine attempt to remove him or as a test case.
Kim Guadagno is concurrently the lieutenant governor of New Jersey, having run on a ticket with Chris Christie, and the secretary of state, which puts her in charge of the state’s Division of Elections. Aside from Christie’s willingness to abuse power for purely partisan reasons, there’s the small issue of Cruz’s voting against the Hurricane Sandy aid package.
The primary is June 7th. Wouldn’t it be a real shame if Cruz’s name weren’t on that ballot?
As I said in the article, there’s no actual evidence as to why the “natural born” language got included. My best guess is this:
Note that the NBC clause is worded oddly. Someone must be either (a) born in the US, or (b) a citizen at the time of adoption of the Constitution. Why say it this way? Well, lots of Tories fled the US during and after the Revolution, and they and their children were living in Canada and England. The Framers may have wanted to exclude those people as well as foreigners (read British).
However, once they put in the NBC clause, they had a problem. The US didn’t exist before 1776, so people born before then weren’t “natural born” citizens of the US. Nobody born after that date had reached the age of 35. They just disqualified everyone. So they had to add the second clause to make sure Washington was eligible, and this had the benefit of excluding all those Tories in Canada and England.
As for actual evidence, there’s only 1 real item. John Jay wrote Washington a letter which suggested that the commander in chief be natural born in order to avoid foreign influence on the army. But nobody mentioned that in the debates, so there’s no direct evidence that this was the reason that NBC got added.
Mr Field: That’s a reasonable guess, though so is mine that it was to prevent a junior royal from coming over and appealing to people who might wish for a King, since the US was one of only a few republics in a world of monarchies. The bottom line is we are both guessing. The other bottom line is that neither applies today.
The other argument is that it involves “attachment to the country”. But if Mrs. Cruz had popped over the border into Montana, had Ted and returned him to Calgary the next day, there would be no dispute, yet his attachment to the US and Canada would be the same. In fact, in that scenario, he could have stayed in Canada until he was 30, returned to the US and he would be eligible today.
When I was doing some reading on this last week I ran into some contemporaneous (well, same century) discussion in Britain around the concept of loyalty. There apparently was deep feeling that people are naturally loyal to their birthplace. Examples included how much of English people’s personal self-identities were built around their location of birth, say Lancaster.
At another point I ran into some more modern discussion that said there was strong feeling amongst the framers that they needed to avoid any possibility of divided loyalty by the President. But I recall that there was no reference to 1780s documents to support this.
The impression I came away with was that there probably was a different cultural attitude at the time towards the importance of one’s birthplace in terms of identity and loyalty than there is today. Someone born in England, say, would always have to have an emotional attachment and therefore couldn’t be trusted to be President of the U.S.
Now, keep in mind this is piecing together different stuff from different sources so isn’t certain, but it fits as a possible explanation for the clause.
The problem with the divided loyalty argument is that it would apply to those born here with dual citizenship through a parent, people who are indisputably eligible. Why not let such questions be decided by the voters?
Great question. I don’t know what they were thinking, I just gave some perspective from that time. As there is an absence of written justification from the framers on this topic they probably considered this point to be self-evident, which means it’s worth looking at the societal norms and beliefs. But you’ll never be 100% certain.
I had thought it was put in there to keep that son of a bitch Alexander Hamilton from ever being President.
No rlly, I think I read that somewhere.
I’m pretty sure Hamilton was a citizen of the US at the time of adoption. I’m not going to go research it, but it seems pretty likely.
This web site calls that a myth, saying he became a citizen of New York in 1787.
http://allthingshamilton.com/index.php/alexander-hamilton/false-myths-and-half-truths/71-myths-and-misconceptions/164-myths-presidency
so Hamilton was a citizen if the US at the time of the adoption of the Constitution like Mark says
Chernow’s biography of Hamilton discusses (page 238) the contention that Hamilton “slipped a clause into the Constitution allowing him to become eligible for the Presidency,” meaning, a citizen at the time of the adoption of this Constitution.
Chernow dismisses the possibility that the hand of Hamilton crafted the phrase, since Hamilton was away from Philadelphia while a committee created the language in question.
On 1, I would ask Cruz that very question. Why send kids back to countries that they don’t remember and have no attachment too?
Sure, that principle should be applied to Cruz even though he’s very much against it. But I would like to see him respond to that.
1. The Constitution is as written and amended.
Whether or not you see a rationale for the requirements to be elected president is totally irrelevant, expect in the context of a discussion of amending the Constitution.
“The Constitution is as written and amended.” Sure, but what the phrase “natural born citizen” MEANS involves the intent and the historical context as well as how society has evolved in the interim, court cases, etc. I might grant that 35 years old is self-evident and needs no interpretation, but “natural born citizen” clearly does or we wouldn’t be having this discussion.
Slightly OT, but a couple of other points to ponder regarding POTUS eligibility. The constitution states that:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
George Washington is an instructive case. He was NOT a natural born citizen of the United States but was a natural born British subject. However he was clearly “a Citizen of the United States, at the time of the Adoption of this Constitution” so qualified by the other phrase.
Now most people say that this clause has practically expired assuming “Adoption of this Constitution” meant June 21, 1788. But it could theoretically instead refer to being a citizen of some future territory that becomes part of the United States. So a person that becomes a citizen of the U.S. when THAT territory adopts the Constitution could be eligible and thus the clause is still operative (maybe).
The other point is being a 14 year resident “within the United States”. Washington took office on April 30, 1789. Fourteen years before that was April 30, 1775. Didn’t the U.S. only come into existence on July 4, 1776? If so, then literally speaking, no one could have become president before July 4, 1790 and from April 30 1789 to July 4, 1790 Washington illegally occupied the office if “resident within the United States” was meant to be taken literally rather than “resident within the U.S. or territories that would later become part of the U.S.”.
[…] Trump might lack the wit and skill to tap the wild energy of America populism, although he was the first to say that Ted Cruz might be constitutionally ineligible. That shows intelligence (or a good staff, equally valuable for a leader). See this by Paul Campos (professor of law, U CO-Boulder) that acknowledges this while mocking Trump), and a more detailed analysis by Mark Field. […]
Interesting article. 3 reactions:
1. One thing the right has made clear from the whole Obama birtherism thing is that it does not believe that people born abroad to Americans are natural born citizens. The divide on this subject that was discussed was that one side was willing to accept that Obama released his BC and the other was living in a fantasy world where it wasn’t real.
But whenever the left brought this up – “Why would Obama’s parents have gotten him a fake BC with a fake newspaper announcement?” – the right always responded “because it would be easier for him to become a citizen.” The idea that being born outside the US disqualifies someone for the presidency was an assumption I don’t remember many people (outside of lawyers, probably) actually discussing. The entire discussion was on where Obama was born.
I don’t know think this applies to the law, but a lot of people (some of whom were in Congress) up until a couple of years ago were adamantly convinced that anyone born outside of the US was not a citizen no matter whether their mother was from Kansas or not. I would like for them to be forced to respond to this.
(FWIW, at least Orly Taitz (sp?) and Trump are consistent here – both don’t think Cruz is eligible.)
2. It’s just wrong to disqualify Cruz for being born in Canada. I can think of many, better reasons for him not to be president.
3. That said, I would really, really, really love for a Canadian musician to say that they’re “ashamed” that Cruz is from Canada, purely to troll the right.
Is Alanis Morissette free? She has a sense of humor. Oh no wait: Celine Dion!
There are 2 “schools” of Obama birthers. The first believes he would be eligible if born in Hawaii, but believe he wasn’t and have idiotic theories about the birth certificate being a forgery. I think Trump fits in that group.
The second “school” concocted a bizarre legal theory that says you not only have to be born in the US, but must have 2 citizen parents at birth. They believe not only that Obama and Cruz are ineligible, but also Rubio, since his parents hadn’t naturalized when he was born. Jindal too, though it’s moot since he dropped out.
As for Canadians, why should they feel ashamed? Cruz’s parents lived only briefly in Canada and his values are all-American.
There are also varieties within the second school of thought. Yes, the primary focus of the birther movement was the birth certificate, of course. Under the law at the time he would not have been a citizen-at-birth if born abroad due to his citizen mother’s young age and the amount of time she’d spent abroad.
But the second school of thought naturally involves some extremely creative theories of law, since they are arguing that a person born of a US citizen mother in the US isn’t a natural born citizen as defined by the Constitution. Some argue that the natural born citizen trait can descend only from the father, not the mother – doing some very selective reading of 1700s UK parliamentary acts. Others argue that both parents must be citizens based on even more selective cherry picking of historical English writings. On some occasions they’ll openly descend into arguments based on race.
For obvious reasons, while the first school is flat-out wrong, they are somewhat mainstream in that a lot of GOP people believe it. The second school is definitely the fringe of the fringe.
Some argue that the natural born citizen trait can descend only from the father
That’s in line with orthodox belief.
As I understand it, the rules for who becomes an automatic citizen at birth when born outside the country changed between Obama’s birth in 1961 and Cruz’s in 1970. At the time of Obama’s birth, if you were born outside the US with only one citizen parent, you were a citizen at birth only if your citizen parent had lived seven years in the United States after the age of twelve, or something along those lines, and Obama’s mother did not meet this requirement because she was only eighteen when Obama was born.
By the time Cruz was born, this was no longer the case, and Cruz would have met this requirement anyway because his mother wasn’t a teenager.
So birthers were apparently right that Obama wouldn’t have been a citizen from birth if he’d been born in Kenya. It’s just that he wasn’t born in Kenya.
Cruz is a giant asshole, a holier-than-thou son of a bitch who doesn’t give a shit about anything in the world but his own personal power, and who would happily stab his best friend in the back if only he had one.
No way he’s a Canadian. He’s as American as Jerry Falwell or Karl Rove.
IMO I believe that if Cruz is considered ineligible due to the reasoning that an at-birth citizenship granted by statute is a form of Naturalization, that this reasoning also disqualifies Puerto Ricans.
The 14A only applies to people “born in the United States and subject to the jurisdiction thereof”. It does not apply to US territories like Puerto Rico which is why a 1917 statute was needed to grant Puerto Ricans citizenship. And thus if Cruz isn’t eligible because he is a “statute” citizen, neither are Puerto Ricans who are also “statute” citizens.
My reading of this is that it contradicts your argument. The court says that an Act of Congress may mean that a person has citizenship by birth, not merely at birth. That implies to me that the source of their citizenship is the fact (and circumstances) of their birth; if the source of their citizenship is their birth, then they are not naturalized citizens, as naturalization is a distinct source of citizenship from birth.
The dissent understood it the way I do. Here’s Justice Breyer protesting the majority for adopting such a reading:
“I recognize that, ever since the Civil War, the transmission of American citizenship from parent to child, jus sanguinis, has played a role secondary to that of the transmission of citizenship by birthplace, jus soli. See Rogers v. Bellei, 401 U. S., at 828; see also Weedin v. Chin Bow, 274 U. S. 657, 669-671 (1927) (citing United States v. Wong Kim Ark, 169 U. S. 649, 674 (1898), and id., at 714 (Fuller, C. J., dissenting)). That lesser role reflects the fact that the Fourteenth Amendment’s Citizenship Clause does not mention statutes that might confer citizenship “at birth” to children of Americans born abroad. U. S. Const., Arndt. 14, § 1 (stating that “[a]ll persons born or naturalized in the United States … are citizens”). But that omission, though it may give Congress the power to decide whether or not to extend citizenship to children born outside the United States, see Rogers v. Bellei, supra, at 835, does not justify more lenient “equal protection” review of statutes that embody a congressional decision to do so.
Nothing in the language of the Citizenship Clause argues for less close scrutiny of those laws conferring citizenship at birth that Congress decides to enact. Nor have I found any support for a lesser standard in either the history of the Clause or its purpose. To the contrary, those who wrote the Citizenship Clause hoped thereby to assure that courts would not exclude newly freed slaves-born within the United States-from the protections the Fourteenth Amendment provided, including “equal protection of the laws.” See, e. g., Afroyim v. Rusk, 387 U. S., at 262; id., at 283-284 (Harlan, J., dissenting); H. Flack, Adoption of the Fourteenth Amendment 83-97 (1908). They took special care, lest deprivation of citizenship undermine the Amendment’s guarantee of “equal protection of the laws.” Care is no less necessary when statutes, transferring citizenship between American parent and child, make the child a citizen “at birth.” How then could the Fourteenth Amendment itself provide support for a diminished standard of review?”
[…] […]
[…] as it may seem, it’s in fact true, and in a non-trivial sense, that “we don’t even know if Ted Cruz is legally eligible […]
Re: Wong Kim Ark —
“The dissent argued that the common law not only did not provide any rule for interpreting the Constitution, but that the Revolution rejected the common law entirely. It argued that the Constitution should, instead, be interpreted according to the Law of Nations as it existed then. The Law of Nations, said the dissent, quoting Emmerich Vattel, was that citizenship should be determined by jus sanguinis. Wong Kim Ark could not be a citizen because his parents weren’t citizens.”
Setting aside the overstatement re: common law in America, Is there any good reason to reject the dissent’s suggestion that the law of nations (Emer de Vattel) etc., at least in the area of citizenship and nationality, takes precedence over the common law, or at least Blackstone’s codification of it?
I mean, the founders relied on both. Is there are reason to assume they adopted the minority position on citizenship (common law) rather than the majority (law of nations) position?
It is the lack of evidence that argues against the law of nations being the foundation for the natural born citizen clause.
Prior to 7/4/1776 the Founders considered themselves to be natural born subjects. It was a Common Law concept they well understood. After July 4, the states of New York, New Jersey, Delaware, and Maryland expressly incorporated the English Common Law into this state constitutions. Virginia incorporated the English Common Law through a statute passed by the state legislature. Also in Virginia the first citizenship law drafted by Jefferson declared anyone born in Virginia was a citizen of Virginia (white persons only). In Connecticut the law was that the children of aliens born in the state were “natural born subjects”. In Massachusetts the legislature passed naturalization acts between 1785 and 1791 where the terms natural born subject and natural born citizen were used interchangeably. In 1795 Alexander Hamilton wrote that to understand the meaning of terms in the Constitution we should look to the English legal system.
Against all of that is the idea that without discussion or debate the Framers changed the definition of citizenship and chose not to mention it to anyone.
[…] As for Trump being stupid, he was the first to say that Ted Cruz might be constitutionally ineligible. That shows intelligence (or a good staff, equally valuable for a leader). See this by Paul Campos (professor of law, U CO-Boulder) that acknowledges this while mocking Trump), and a more detailed analysis by Mark Field. […]