An Un-Naturally Born Non-Controversy

Conservative Review ^ | January 8th, 2016 | Hans von Spakovsky

[Isara]

Some have questioned the eligibility of one of the candidates seeking the Republican presidential nomination—Sen. Ted Cruz (R-TX)—to be President.   Although this issue has never been tested in court, there seems little doubt that he meets the requirements of the Constitution.

Article II, Sec. 1 of the Constitution sets out three qualifications to be president.  You must be 35 years of age; have been a resident of the U.S. for 14 years; and be a “natural born Citizen.”  The reason such questions are being raised is because Senator Cruz was born in Canada, not the United States.  Ironically, one of those raising this question is Sen. John McCain (R-AZ), the Republican standard-bearer in the 2008 election, who was born on a U.S. military base in the Panama Canal Zone. 

Senator McCain was eligible to run for president for the same reason that Senator Cruz is: Each had at least one parent who was a U.S. citizen at the time of his birth—and that makes them both “natural born” citizens.  

This is neither novel nor controversial. Indeed, Senator McCain’s colleagues on both sides of the aisle unanimously passed a resolution in 2008, sponsored by Sen. Claire McCaskill (D-MO), stating that despite his birth in the Panama Canal Zone, McCain was a “natural born Citizen” as defined under Art. II, Sec. 1, of the Constitution and therefore “eligible to be President.”  This should also come as a relief to the sons and daughters of American citizens in the U.S. military who are born abroad—they are also all eligible to run for president, as are many other American citizens (including my wife) who happen to have been born abroad. 

The Constitution, federal law, and the historical understanding of the Framers, as well as prior British legal traditions and law, all support this view.  In a recent article in the Harvard Law Review, two former U.S. Solicitor Generals, Paul Clement (who served under President George W. Bush) and Neal Katyal (who served under President Barack Obama) stated:

All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

Thus, former California Gov. Arnold Schwarzenegger would not be eligible to run for president because the Austrian native had to go through the naturalization process to become a U.S. citizen.

Certainly the Framers of the Constitution held this view of “natural born” citizen. They had a deep understanding of British common law and applied its precepts, particularly as explained in Blackstone’s Commentaries, throughout the Constitution.  The U.S. Supreme Court in Smith v. Alabama (1888) recognized that “the interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

One of those precepts of British law was that children born to British citizens anywhere in the world, even outside the dominions of the British Empire, were “natural born” citizens of the Empire who owed their allegiance to the Crown.  This historical understanding is explained in great detail by the Supreme Court in a well-known 1898 case, U.S. v. Wong Kim Ark.

The First Congress, which included many of the Framers of the Constitution, codified this view of a natural born citizen. A mere three years after the Constitution was drafted, they passed the Naturalization Act of 1790, which specified that the children of U.S. citizens born “out of the limits of the United States, shall be considered as natural born Citizens.”  The modern version of this Act is found at 8 U.S.C. §1401. It contains a list of all individuals who are considered “nationals and citizens of the United States at birth.”  Paragraph (g) includes:

A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years. 

Ted Cruz was born in Canada in 1970; his mother, who was a U.S. citizen by birth from Delaware, was in her 30s at the time.  She met Cruz’s father, who was born in Cuba, as a student at Rice University.  These facts show that Cruz’s family background clearly meets the standard set out in the federal statute for being a natural born citizen who did not have to go through any naturalization process to become a citizen.  That was also the case for Senator Barry Goldwater, who was born in Arizona before it became a state, and Governor George Romney, who was born in Mexico.

The bottom line is that Senator Cruz meets all three qualifications in the Constitution to be the president of the United States if the American people make that choice.  The same is true of my wife, who was born in Manila. Her father, whose family had been in America since shortly after the Pilgrims got to Massachusetts, was temporarily working abroad for an American company—just like Ted Cruz’s father.

My wife is not likely to run for president, but there is no question that she—like Ted Cruz, Barry Goldwater, George Romney, and John McCain—is eligible to be president and to swear an oath to “preserve, protect and defend the Constitution of the United States.” 

Hans A. von Spakovsky is a a former commissioner on the Federal Election Commission and Justice Department lawyer.  He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter 2012) and  “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).

[Mr Rogers]

“It’s not a negative. It would be supported in Canada by some office showing up with paperwork.”

It IS a negative. If you asked me to provide proof that I had never become a citizen of Canada, I’d be hard pressed to PROVE it. I’ve never been to Canada, but how could I prove it?

In the case of Cruz, his mother did go to Canada. What evidence could she give that would prove she did NOT do something there?

Do YOU have tax forms going back 40 years? Does the IRS keep individual returns that long? And would it prove anything? Depending on income, they might not have been required to file a return while living in Canada...not sure of the exact rules, but people don’t ALWAYS file returns that they should, if it involves a questionable situation.

If someone wants to accuse her of changing her citizenship, don’t THEY need to offer some evidence?

[Mr Rogers]

“Please note that the founders made the distinction between “Natural Born Citizens” and “Citizens”.”

True. They distinguished between NB citizens and naturalized citizens. There ARE two types.

“(quote) No person except a natural born citizen [born of two parents who were themselves citizens],”

That is dishonest. There is no “born of two citizen parents” clause in the US Constitution.

[xzins]

Nope, asking for proof that steps were taken toward Canadian citizenship. FWIW, every adult in the US is required to file a tax form every year whether they have income or not.

That’s the point. Want to see evidence.

[Mr Rogers]

“Nope, asking for proof that steps were taken toward Canadian citizenship. FWIW, every adult in the US is required to file a tax form every year whether they have income or not.”

Wrong on both counts.

If she did not take steps to acquire Canadian citizenship, then there is only the ABSENCE of paperwork. If you do not seek X, you do not have paperwork showing you did not.

Nor are all adults required to file a tax form every year. If you have no taxable income (or are below certain limits), you do not. Foreign income is still considered income, but it is not always considered taxable income. I don’t remember the rules.

If you rent your house out, you have rental income. I’ve met people who did not report it because they did not realize the rent was considered “income”. They thought they only paid on W-2 type income.

[xzins]

They ran a business, so they had income and had to file.

How long records are kept is a matter of policy, but it’s amazing how far back archives go and it’s also amazing who has access to them.

Lois Lerner.

[Mr Rogers]

“They ran a business, so they had income and had to file.”

Depends. The rules can allow for an exclusion of over $90K in current dollars. MY reading of the law is that one is supposed to file for the exclusion. However, I met a guy last year who had lived in Korea for a number of years, and his employer had told him he did not need to file.

Since I’m not a lawyer, I recommended he talk to one. Or at least contact the IRS. Penalties are normally based on a percentage of tax owed, so someone who was supposed to file but who would not have owed tax if they did might not have any penalty to pay. That all goes well above any experience I have with taxes and filing - but it is NOT correct that an absence of US tax returns would prove anything about her citizenship. It would only prove she & her husband believed they did not need to file a US return.

And yes, I’ve met people within the last year who worked overseas and who honestly believed they were not required to file a return, and who had been told that by the company they worked for.

[xzins]

But that doesn’t mean that lack of filing isn’t a mistake. It also sends a message, and especially if there are various ways to sign off on Canadian taxes.

[House Atreides]

...there’s a lot of doubt, and even the theory proffered (that he because a citizen at birth through his mother) has not been documented in any way.
******************************************************************************
I see you are still “blowing smoke”. It’s not a “theory proffered”, as you put it, it’s THE LAW:

The current governing law is Title 8 section 1401. https://www.law.cornell.edu/uscode/text/8/1401

And here is the applicable law for those who cannot follow links and read themselves (such as yourself).

“...The following shall be nationals and citizens of the United States AT BIRTH:...

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years...”

[Mr Rogers]

The point is that someone who believes Mrs Cruz was not an American citizen ought to offer some evidence. If she had renounced her US citizenship, then Ted was a Canadian citizen who required naturalization to become a US citizen. But as I understand the Canadian rules, she could have become a Canadian citizen while remaining a US citizen. In that case, she would remain a US citizen abroad...for the purposes of US law.

[CaptainKip]

Mr Rog... No, please re-read Section 2 again... it lists natural born citizens (possibility 1) or citizens at the time of the adoption of the document (possibility 2).

[Mr Rogers]

To become President, it is NBC or naturalized but under the grandfather clause. Since the grandfather clause is no longer a player, that leaves NBC as the only basis for becoming President. But there are only two forms of citizenship - birth, or naturalized. And Ted Cruz was not naturalized - defined under US law as becoming a citizen AFTER birth - so that leaves...NBC. Or he is not a citizen at all.

[xzins]

But, we always have to go back to the intent of the Framers of the Constitution and not what we can get by with legally.

For me, we never proved that Obama wasn’t legally eligible by current law.

Nonetheless, I think his foreign Islamic dads, and his formative years in Islamic schools in Indonesia gave him divided loyalties. As far as I’m concerned, he isn’t the same as a second generation American kid.

The truth is that Anwar al awlaki, islamofasist, was a US citizen by virtue of being born here when his parents attended school. He had kids here who are now us citizens who have been raised totally outside our culture, but depending on Awlaki’s residency years or theirs, they are now eligible for the presidency.

How far down that road to we want to go?

[CaptainKip]

I am not disputing Mr. Cruz’s qualifications (or lack).

I’m just pointing out that it seems we are no longer following what the Framers had in mind. The educated men of that day were familiar with Vattels’ writing as Emerich de Vattel was probably the premier legal scholar of the period. (I understand that on his death, George Washington had a copy of the Law of Nations on his desk...overdue from a library, as I recall)

Since it was written only a handful of years before the Constitution, this is where the Framers probably got the understanding of what a Natural Born Citizen was, as Vittel explained:

“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents [plural] who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. “

This is good stuff.

Unfortunately, you are correct that over the years, the understanding of the definition of what constituted a Natural Born Citizen has morphed by various means into simply meaning a non-naturalized citizen, a qualification now met by a single citizen parent.

We are currently suffering the consequences of this morphing.

[Boogieman]

He’s a sitting U.S. Senator, so he has to be a citizen, for one thing. His mother is a U.S. citizen, so he is also a citizen from birth, with no need for naturalization. Pretty simple stuff, really.

[Boogieman]

“please note what the language of the Constitution says”

I know what the language of the Constitution says, but what you posted is NOT the language of the Constitution. It has been injected with someone’s commentary (in the brackets) that is not actually in the document itself.

“Please note that the founders made the distinction between “Natural Born Citizens” and “Citizens”.

If there were not a distinction in their minds, then there would have been to reason to list both “types” in their list of qualifications.”

It’s very well known what the historical reason is why that distinction was made: if they hadn’t, then George Washington, nor any of the other founders, would have been eligible for the Presidency, since the United States did not exist at the time of their births, therefore they could not have been “natural born citizens” of that country. They were British subjects from birth, not natural born citizens of the United States. Thus an exception was allowed to make citizens of the colonies at the time they adopted the constitution eligible, even though they were not “natural born”.

[Yosemitest]

WHY feed the Piranha, WHEN all they're going to do is CONTINUE their baseless attacks ?

The Naturalization Act of 1790, let's read it , too ( even though it DOES NOT APPLY) !

United States Congress, "An act to establish an uniform Rule of Naturalization" (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled,

That any Alien being a free white person,
who shall have resided within the limits and under the jurisdiction of the United States for the term of two years,
may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States
wherein he shall have resided for the term of one year at least,
and making proof to the satisfaction of such Court  that
he is a person of good character,
and taking the oath or affirmation prescribed by law
to support the Constitution of the United States,
which Oath or Affirmation such Court shall administer,
and the Clerk of such Court shall record such Application, and the proceedings thereon;
and thereupon such person shall be considered as a Citizen of the United States. 


And the children of such person so naturalized,
dwelling within the United States,
being under the age of twenty one years at the time of such naturalization,
shall also be considered as citizens of the United States. 

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: 
Provided also, that
no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid,
except by an Act of the Legislature of the State in which such person was proscribed.

"Ohhhh noooooooooooooo..."!
Mr. Bill !
Listen to a REAL CONSTITUTIONAL LAWYER:

MARK LEVIN explains that Ted Cruz IS a natural born citizen ( 7:30 )
Published on Sep 17, 2013

Here's the supporting article from Ilya Shapiro, a senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review.
Like most immigrants, he does a job Americans won't: defending the Constitution.

Yes, Ted Cruz Can be President
August 26, 2013., by Ilya Shapiro

As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas - - love him or hate him - - continues to stride across the national stage.
With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret:
Ted Cruz was born in Canada.

(Full disclosure: I'm Canadian myself, with a green card.
Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)

But does that mean that Cruz's presidential ambitions are gummed up with maple syrup
or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses?
Are the birthers now hoist on their own petards,
having been unable to find any proof that President Obama was born outside the United States
but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?

No, actually, and it's not even that complicated; you just have to look up the right law.
It boils down to whether Cruz is a "natural born citizen" of the United States,
the only class of people constitutionally eligible for the presidency.
(The Founding Fathers didn't want their newly independent nation to be taken over by foreigners on the sly.)

What's a "natural born citizen" ?
The Constitution doesn't say,
but the Framers' understanding, combined with statutes enacted by the First Congress, indicate that
the phrase means both birth abroad to American parents - - in a manner regulated by federal law - -
and birth within the nation's territory regardless of parental citizenship.
The Supreme Court has confirmed that definition on multiple occasions in various contexts.

There's no ideological debate here:
Harvard law professor Laurence Tribe and former solicitor general Ted Olson - -
who were on opposite sides in Bush v. Gore among other cases
- - co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain's eligibility.
Recall that McCain --
lately one of Cruz's chief antagonists
- - was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.

In other words, anyone who is a citizen at birth - -
as opposed to someone who becomes a citizen later ("naturalizes"
or who isn't a citizen at all
- - can be president.

So the one remaining question is
whether Ted Cruz was a citizen at birth.
That's an easy one.
The Nationality Act of 1940 outlines which children become "nationals and citizens of the United States at birth."
In addition to those who are born in the United States or born outside the country to parents who were both citizens - -
or, interestingly, found in the United States without parents and no proof of birth elsewhere - -
citizenship goes to babies born to one American parent who has spent a certain number of years here.

That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 - - Cruz was born in 1970 - -
someone must have a citizen parent who resided in the United States for at least 10 years,
including five after the age of 14, in order to be considered a natural-born citizen.
Cruz's mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.

So why all the brouhaha about where Obama was born, given that there's no dispute that his mother, Ann Dunham, was a citizen?
Because his mother was 18 when she gave birth to the future president in 1961
and so couldn't have met the 5-year-post-age-14 residency requirement.
Had Obama been born a year later, it wouldn't have mattered whether that birth took place in
Hawaii,
Kenya,
Indonesia,
or anywhere else.
(For those born since 1986, by the way,
the single citizen parent must have only resided here for five years,
at least two of which must be after the age of 14.)

In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House,
but his eligibility for that office shouldn't be in doubt.
As Tribe and Olson said about McCain - -
and could've said about
Obama,
or the Mexico-born George Romney,
or the Arizona-territory-born Barry Goldwater
- - Cruz "is certainly NOT the hypothetical 'foreigner'
who John Jay and George Washington were concerned might usurp the role of Commander in Chief."

[CaptainKip]

You are absolutely correct, but you sort of demonstrated my point. Back then, there were natural born citizens and “plain” citizens and the framers distinguished between the two for the reason you mentioned. Please see my post about Vittel above.

Also, please note that I placed my interjected comment inside brackets to separate it from the quote so that it would be more clear that the two citizen parents was not part of the original.

[Behind the Blue Wall]

No proof has been provided publicly that either he or his mother is/was a U.S. citizen.

[Boogieman]

“Back then, there were natural born citizens and “plain” citizens and the framers distinguished between the two for the reason you mentioned.”

There still are two types of today, natural born, and naturalized. The founders who were covered by this exception were the equivalent of naturalized citizens, except they were all naturalized in bulk by the provisions of the Constitution itself, rather than having to go through an individual process.

“Please see my post about Vittel above.”

Meh, Vattel doesn’t have any real bearing on US law.

[Boogieman]

His mother was born in Wilmington Delware for Pete’s sake. She’s a citizen.