Posted on 03/20/2016 11:46:56 AM PDT by conservativejoy
With all of the non-stop coverage of the 2016 presidential election, have you noticed as of late that Donald Trump has not said a peep about Ted Cruz not being eligible for the presidency? Earlier this year, Trump questioned whether Cruz was a natural born citizen because he was born in Calgary, Canada (to a U.S. citizen mother). Trump asserted this very question would be caught up in the court for years. Much editorial space was spent on major newspaper and TV networks discussing this issue. Many legal scholars even agreed that Trump may have a case against Cruz.
This weekend, it occurred to me, this issue has faded from the public eye. The major media outlets stopped talking about it (maybe because Trump has moved on to other things.) But, it remains an important and largely unresolved question. So, I decided to look through some of the filings in the lawsuits filed against Cruz, and discovered an opinion from a Pennsylvania Senior Judge Dan Pellegrini that gives an absolute smack down to all of these Ted Cruz birther claims. Judge Pellegrini in his 22 page memorandum opinion found that Ted Cruz was a natural born citizen thereby ruling that Cruz’s name can appear on the Republican primary ballot in Pennsylvania on April 26, 2016. Why this particular opinion piqued my interest is that it is the first I have seen anywhere that actually tackles the Constitutional questions surrounding Cruz’s eligibility. For example, cases in Utah and Florida, were recently dismissed on procedural technicalities (like standing). What is even more shocking - the opinion was issued last week - and I couldn't find any major network or newspaper covering it. (WSJ had a short blog post, and a few local newspapers covered it in PA). You would think that on the heels of such extensive coverage of the issue earlier this year, that the media would jump all over the first major opinion to addresses these important Constitutional questions that Trump brought up during the campaign. I guess, that's wishful thinking, but I will go through the opinion, anyway, as I think its illustrative of what will be found if/when this question is appealed to an even higher court, perhaps even the U.S. Supreme Court.
The heart of the question stems from Article II, Section I, of the U.S. Constitution which requires that a President be a "natural born" citizen. The challenge was filed by Carmon Elliot, a registered Republican in Pennsylvania. Elliot claimed Cruz should not be allowed to appear in the ballot because he is not a "natural born citizen."
Firstly, Cruz's attorneys argued that the Court should not address this issue at all because it is a "political question" that should not be addressed by the Judiciary. The judge found "no Constitutional provision places such power in Congress to determine Presidential eligibility." Bottom line (and this is important), the judge found that the courts can move forward with deciding the case.
So how did Judge Pellegrino of the Commonwealth Court of Pennsylvania arrive at his decision that Cruz was eligible?
The judge relies on several pieces on legal scholarship. First, a memo produced in 1968 by Charles Gordon, then the General Counsel of the United States Immigration and Naturalization Service, which says: "The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries." He also points out a 2011 Congressional Research Service Memo entitled the "Qualification for President and the ‘Natural Born’ Citizenship Eligibility Requirement." The document concludes:
"The weight of legal and historical authority indicated that the term 'natural born' citizen would mean a person, who is entitled to U.S. citizenship 'by birth' or 'at birth' either by being born 'in' the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents."
Then the judge spends four pages quoting from the recent work of Paul Clement & Neal Katyal in the Harvard Law Review, in which the two Constitutional scholars (from different sides of the political aisle) conclude that "as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase 'natural born citizen' in the Constitution encompasses all such citizens from birth."
In his conclusion, the Judge states:
Having extensively reviewed all articles cited in the opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a "natural born citizen" included any person who is a United States citizen from birth.Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States..
The judge's decision is ripe for a higher court review, but it is significant nonetheless. As election law expert Dan Tokaji points out in the Election Law Blog this case could ultimately be headed for the U.S. Supreme Court.
"A state court ruling would be helpful, but only a Supreme Court ruling could dispel the uncertainty surrounding its meaning. The good news is that review of a state court decision on Cruz's eligibility could be sought in the U.S. Supreme Court. The Supreme Court’s jurisdiction to review federal law questions is broader than that of lower federal courts," he wrote.
So perhaps, one thing Trump said is correct that this question could end being caught up in the courts for some time. The petitioner, Mr. Elliot, already said he plans to appeal the Judge’s decision.
“...the definition of natural born citizen is still undefined.”
Why would the writers of the Constitution insert an undefined word? Yes, it is defined in the legal theory of the day, and specifically in the Naturalization Act of 1790.
The Constitution does not provide a glossary of its words; it depends on the generally accepted definitions of the English language at that time, and they really haven’t changed much. For example, does “infringe” still mean the same?
I read several discussions about it here long before Trump decided to run for President.
“I gather ted Cruz’s US Birth Certificate,”
Ted Cruz does not have a US birth certificate. And whatever documentation he has for being a US citizen, he keeps hidden away. Wonder why????
One reason Mr. Trump hasn’t mentioned it is that Mr. Cruz is circling the drain at the moment. There are wiser uses of time and energy.
The other is the soon-to-be President elect is lining up the foreign leaders who are all but breathing a sigh of relief that the American nightmare is almost over. Contrary to what the elites tell everyone, the world wants a strong and free America to lead the world.
That does seem odd. I'd also bet the Clinton's vaunted private detective squad has been to "Cuber" looking to see if Ted's father filed the papers to make Ted a Cuban citizen.
This PA judge’s opinion is about as binding as yours or mine beyond his restricted jurisdiction.
Every article on the planet is of less importance than a judge’s decision
but to date, no judge has decided. Every case is tossed out. Hmmmm?
They were citizens at the time of adoption.
“But by all means, don’t let facts get in the way of a discussion.”
The FACTS are that the Constitution mandated you have to be a natural born citizen to be president. The Naturalization Act of 1790 defined natural born as being born of citizen parents.
And the ones you mentioned were citizens of the various states, the states that banded together to form the nation.
The press figured that there were enough kooks running in the primaries that they could stop covering the Cruz birther kooks.
I gather ted Cruz’s US Birth Certificate, and his other US government docs, never went to the “discovery” phase.
Had there been discovery, Eduardo would have to unseal his US birth documents and his CRBA..Who was the lawyer for the plaintiff’s that allowed this to go to a decision without that due process?..
That's a shame. It is pretty widely agreed that Gordon's paper contained several basic errors both of fact and of reasoning, and is not actually very well respected. Clement and Katyal's paper is extremely shallow and barely touched the surface of what actually needs to be understood if one is to address the NBC issue. If these are the sources that this judge used, then his ruling is profoundly simplistic and unauthoritative.
This judge should have at least looked at this paper, which is probably the single most comprehensive work on the NBC subject to date: The Natural Born Citizen Clause as Originally Understood
As a further question along this line, if the ICE declares that children born abroad are NBCs, then why is it that a missionary family that I know of in Romania, whose three children were born there, are currently unable to get visas for their children, since their children are not even considered as having US citizenship, much less natural born citizenship? Their children are having to be naturalised just to be able to visit their mother in a hospital here in the States.
We are doing right by electing someone who makes gold our money again — and only Ted Cruz does that. After he leaves office, then we can restore the rest of the Constitution. These are emergency times and I have called for American Pinochet to take over the government as was done in Chile. Maybe with Ted Cruz we won’t have to do that.
PING
Trump may have gone silent on this - but he is shouting out now. Just this weekend going so far as to say Cruz is not eligible having been born in Canada. Until such time this should be decided - there is no reason to give Cruz the vote.
If the GOPe wish to give Cruz their recommendation, it is suggested they RUSH to settle this matter once and for all. Cruz will be unable to stop TRUMP having to fight two fronts simultaneously
Just a word to the wise (what the GOPe believes itself to be)
Because its meaningless until there is a SCOTUS ruling.
Precisely what I’ve been saying for months....birthright citizenship = natural born citizen.
Expected - the media is PROTECTING Cruz at this point. The fact that a judge has to rule on it, regardless of outcome, would bring doubt on whether Cruz is eligible, since the next judge, of course, could rule differently.
But rest assured, the media will TEAR INTO his eligibility the moment it looks like Cruz has a shot at the presidency. That’s how they operate.
Nothing matters until a legal challenge is filed, then all it will take is one federal judge...somewhere. Don’t doubt for an instant that it will happen.
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