Judge Smacks Down Trump's Ted Cruz Birther Claims, and Hardly Anyone Covers It

Law News ^ | 3/20/2016 | Rachel Stockman

[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.

[FredZarguna]

Read what I posted, in answer to someone who claimed the "fact" that Cruz was the first person born in a foreign nation. There were no states at the time any of those men were born.

You stand corrected. Period.

[Yashcheritsiy]

Yes, it is defined in the legal theory of the day, and specifically in the Naturalization Act of 1790.

No, it was defined in English common law prior to the adoption of the Constitution. The reading in the law of 1790 was actually an aberrant definition, and one which Madison succeeded in removing a mere five years later.

[douginthearmy]

I support Trump but this birther nonsense is ludicrous. Birthers simply repeat their mantra. No legal authority at any level agrees with them. They don’t care. I doubt this will make it to the Supreme Court, but if it does it will be shot down. And even then, birthers will simply proclaim that the court got it wrong. They will never capitulate. I have never seen a birther on any thread respond to any of the thousands of reasonably crafted logical arguments against them.

[Sasparilla]

..Why hasn’t Cruz brought this up?...

When is the last time Ted demanded Trumps tax returns? That ended when when it came to light that Ted only provided summaries of his tax returns and only sumaries too. Its DC beltway politics as usual from Cruz.

[FreeReign]

Even he said he wasn’t not too long ago.

No he didn't.

[Yashcheritsiy]

You stand corrected. Period.

Yes, he stands corrected. But in a totally meaningless way that does nothing to really support the Cruzers' arguments.

[Aria]

So it’s ok to violate the constitution of it suits your purposes?

[SmokingJoe]

When did he say that?

[Dr. Sivana]

Thanks for the link, but there is nothing in there where Cruz states he is not a Natural Born Citizen.

[FredZarguna]

but to date, no judge has decided. Every case is tossed out. Hmmmm?

Apparently, you have a reading comprehension problem. Judge Pellegrino has indeed rendered a decision: Cruz is a natural born citizen as far as the Commonwealth of Pennsylvania is concerned.

[AFret.]

If Raphael’s pedigree is not in question..then why the lawsuits?

We desperately need an honest judge, to give an honest opinion, based on facts after discovery..and the law.

[SamAdams76]

Maybe this is what Trump wanted all along. To validate Cruz before the Democrats could make an issue of this. Also, Cruz being declared eligible for president would put him back in the running to be Trump's VP.

Remember that Donald Trump and Ted Cruz had an intimate meeting at the Trump Tower last summer, the content of which was never revealed. I don't think they were just exchanging pleasantries. And Cruz appears to have borrowed one of Trump's suit jackets for the photo-op.

This whole "Trump vs Cruz" slugfest could just be a distraction.

In case people haven't noticed, Trump and Cruz already have 1101 delegates between them. After Tuesday, they should have about 1200 delegates between them.

The two of them are going to control the convention this summer - not the GOPe. Bank on it.

[gwjack]

Actually it is binding, at the moment, in Pennsylvania. That was the only issue dealt with by this Pennsylvania Judge.

And, by every other judge in other jurisdictions that suits have been actually filed.

[Lurkinanloomin]

Born here of citizen parents.
Naturally a US citizen because there is no other possibility.
Solely a US citizen.

[FredZarguna]

Excuse me. He laid claim to an affirmative fact that Cruz would somehow be "singular" when indeed nothing could be further from the truth. None of the Founders were born in the US nor in any US State.

I know "facts" are "meaningless" to Trumpanzees, but they matter in the world of reality.

[FR_addict]

He sure did! And I agree! Ted needs to unseal his records.

[ChessExpert]

Sometimes judges rule on matters that are not legal, for example the merits of evolution and intelligent design. However this is a legal question, so I am interested in what the judge has to say. This seems pertinent:

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.”

Frankly, I might prefer a requirement that both parents be American. But neither my preferences, nor anyone else’s, is law. Also, there is the word “generally” which begs the question “what are the exceptions?”

If this gets to the Supreme Court, will it be decided on a “party line” vote? Will Scalia be replaced in time to affect the outcome?

[deport]

Why hasn’t Cruz brought this up?

***************

Maybe no has told him yet.....

[r_barton]

Well that’s all settled then. No one else will ever bring it up again. /S

[Lurkinanloomin]

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.
********************************************************

The part after the first comma exempted all those you listed because they knew it would be at least 35 years until there could be citizens born here of citizen parents, natural born citizens.