Thursday, January 14, 2016

Questions have been raised about Cruz's eligibility :

Mary Brigid McManamon is a constitutional law professor at Widener University’s Delaware Law School.
Donald Trump is actually right about something: Sen. Ted Cruz (R-Tex.) is not a natural-born citizen and therefore is not eligible to be president or vice president of the United States.

The Constitution provides that "No person except a natural born citizen ... shall be eligible to the office of President."

The concept of "natural born" comes from the common law, and it is that law the Supreme Court has said we must turn to for the concept's definition.

On this subject, the common law is clear and unambiguous.

The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are "such as are born within the dominions of the crown of England," while aliens are "such as are born out of it."

The key to this division is the assumption of allegiance to one's country of birth. The Americans who drafted the Constitution adopted this principle for the United States. James Madison, known as the "father of the Constitution," stated, "It is an established maxim that birth is a criterion of allegiance. [And] place is the most certain criterion; it is what applies in the United States."

Cruz is, of course, a US citizen. As he was born in Canada, he is not natural born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens.

Because of the senator's parentage, he did not have to follow the lengthy naturalization process that aliens without American parents must undergo. Instead, Cruz was naturalized at birth.

This provision has not always been available. For example, there were several decades in the 19th century when children of Americans born abroad were not given automatic naturalization.

Ted Cruz Donald TrumpAPTed Cruz and Donald Trump.

Article I of the Constitution grants Congress the power to naturalize an alien. That is, Congress may remove an alien's legal disabilities, such as not being allowed to vote. But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status.

However we feel about allowing naturalized immigrants to reach for the stars, the Constitution must be amended before one of them can attain the office of president. Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.

Let me be clear: I am not a so-called birther. I am a legal historian. President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference.

In this election cycle, numerous pundits have declared that Cruz is eligible to be president. They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former solicitors general Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law.

harvard law school langdell

The Harvard Law Review Forum says Cruz is eligible, but he may not be.

First, although Katyal and Clement correctly declare that the Supreme Court has recognized that the common law is useful to explain constitutional terms, they ignore that law. Instead, they rely on three radical 18th-century British statutes. While it is understandable for a layperson to make such a mistake, it is unforgivable for two lawyers of such experience to equate the common law with statutory law. The common law was unequivocal: Natural-born subjects had to be born in English territory. The then-new statutes were a revolutionary departure from that law.

Second, the authors appropriately ask the question whether the Constitution includes the common-law definition or the statutory approach. But they fail to examine any US sources for the answer. Instead, Katyal and Clement refer to the brand-new British statutes as part of a "longstanding tradition" and conclude that the framers followed that law because they "would have been intimately familiar with these statutes."

But when one reviews all the relevant American writings of the early period, including congressional debates, well-respected treatises and Supreme Court precedent, it becomes clear that the common-law definition was accepted in the United States, not the newfangled British statutory approach.

Third, Katyal and Clement put much weight on the first US naturalization statute, enacted in 1790. Because it contains the phrase "natural born," they infer that such citizens must include children born abroad to American parents. The first Congress, however, had no such intent. The debates on the matter reveal that the congressmen were aware that such children were not citizens and had to be naturalized; hence, Congress enacted a statute to provide for them.
U.S. Republican presidential candidate Ted Cruz speaks at a Pizza Ranch restaurant while campaigning in Pocahontas, Iowa January 7, 2016. REUTERS/Mark Kauzlarich Thomson Reuters
Moreover, that statute did not say the children were natural born, but only that they should "be considered as" such. Finally, as soon as Madison, then a member of Congress, was assigned to redraft the statute in 1795, he deleted the phrase "natural born," and it has never reappeared in a naturalization statute.

When discussing the meaning of a constitutional term, it is important to go beyond secondary sources and look to the law itself. And on this issue, the law is clear: The framers of the Constitution required the president of the United States to be born in the United States.

Some answers to questions about the constitutional requirements to be president, and Cruz's situation:

Q: What does the Constitution say?

A: Article II sets out just three qualifications: The president must be at least 35 years old, a resident of the United States for 14 years and "a natural born citizen." This last phrase has periodically spawned questions about presidential candidates who were born, or rumored to have been born, outside the United States.

Q: Where was Cruz born?

A: He was born in Calgary, Alberta, Canada, in 1970, and has released his birth certificate to prove it. His parents were then working in the oil business. His mother, Eleanor, is from Delaware, while his father, Rafael, is a Cuban who became a U.S. citizen in 2005.

Q: Does that make him a citizen?

A: Yes, Cruz is a U.S. citizen. He also was a Canadian citizen until he renounced that in 2014.

Q: Shouldn't that be the end of the story?

A: The Constitution's phrase, "natural born citizen" isn't used elsewhere in the document or otherwise explained. It suggests to some people that only people born in the United States qualify as natural born, though many scholars reject that reading. It was speculation that Obama was born outside the country, even though his mother was American, that fueled the so-called birther movement.

Q: So what does "natural born citizen" mean?

A: It's hard to answer definitively because the issue has never been resolved by U.S. courts or by the political process. The most common explanation is that someone who is a U.S. citizen at birth — with no need to go through the process of becoming a naturalized citizen — is a natural born citizen. That's the case made last year by a pair of former top Justice Department officials, Republican Paul Clement and Democrat Neal Katyal, in the online Harvard Law Review Forum.

Under a law dating from the first Congress, which included men who drafted the Constitution, Cruz is a natural born citizen, regardless of where he was born, because his mother is an American, Clement and Katyal wrote. That understanding of the constitutional phrase is consistent with the framers' intent "to prevent someone who did not have a lifetime attachment to the United States from becoming president," said University of San Diego law professor Michael Ramsey.

Q: Then why is there any uncertainty about the phrase's meaning?

A: On Wednesday, Trump called on Cruz to seek a "declaratory judgment" from a federal court to determine his eligibility once and for all.

But because the Supreme Court has never weighed in on the question and is unlikely to, "it's the kind of question that the courts are almost allergic to and will stay away from if they can," said Temple University law professor Peter Spiro.

He said the issue falls into the category of political questions that courts prefer to let Congress and the president answer.

The consensus among legal elites makes court intervention even less likely, he said. One practical problem for challengers is the difficulty of showing they have been harmed, without which they have no right to be in court in the first place.
Q: Have the political branches addressed this issue?

A: When questions arose in 2008 about Republican nominee John McCain's eligibility to serve because he was born in the Panama Canal Zone, the Senate unanimously passed a resolution stating that McCain was a natural born citizen. Among the resolution's sponsors were then-Sens. Hillary Clinton and Barack Obama.

Also might Like : 

March 11 article by Neal Katyal and Paul Clement.

There's 'the tiniest sliver of uncertainty' about whether Ted Cruz is eligible to be president

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