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.