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Is Ted Cruz eligible to become President?

Contrary to popular opinion, Ted Cruz was born a US citizen abroad. Are people like him eligible to be president of the United States? I laid out my case for the affirmative side in my article “Natural born, a Dicey proposition: the blogger who came in from the cold” last May. In this article I will consider some objections to my conclusion, not ones from birthers, but my own reservations:

  1. While the status of persons born in the United States is well-settled for over 100 years thanks to the US Supreme Court decision in United States v. Wong Kim Ark, that case may not be precedent for Cruz. I think that the ratio decidendi in Wong supports my definition of “natural born citizen” and by implication the eligibility of Cruz, but the Wong case is about someone born in the United States, not abroad. There is not, to my knowledge, much case law to rely on.
  2. Courts have looked to the English Common Law for definitions of terms in the US Constitution, and certainly the Court looked to the English Common Law to figure out the citizenship of Wong Kim Ark. Under English Common Law someone analogous to Ted Cruz would not have been a natural born English subject (although there are statutes that would make him one). The question remains whether the Constitution uses “natural born citizen” to indicate that only persons analogously citizens by the Common Law rule are eligible, or whether it intends a common usage definition of the term for which anyone under the English Common Law rule would qualify (but not exclusively so) as well as any other citizen at birth.
  3. When the Constitution was ratified, the children of US Citizens born abroad were arguably not citizens at all. So could the Framers and the ratifying conventions have had foreign-born citizens in mind as potential presidents? Still this is tempered by the fact that one of the first things Congress did was to make such persons citizens.
  4. At least one Framer expressed a concern about someone who was “foreign born and educated” in the context of eligibility for Congress. Such a person, at that time, would probably not have been a citizen at birth.

For me the key point of contention is whether the English Common Law defines the term “natural born citizen” or whether it defines one class of persons who qualify as natural born citizens. The Naturalization Act of 1790 tipped the scales in favor of the latter in my mind. Here’s the section:

And the children of citizens of the United States that may be born beyond the 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 …

Obviously such persons cannot be citizens by the English Common Law, demonstrating that this is not what Congress meant by the term. Members of the First Congress, many of whom were the framers of the Constitution, thought this language appropriate. While five years later the 1790 Act was repealed and replaced by the Act of 1795 that does not use the “natural born citizen,” there is nothing in the historical record to suggest that anyone in Congress thought the wording in the 1790 Act a mistake. (The 1795 Act just says “citizens,” not even “citizens at birth.”)

As for all of the Vattel nonsense, I don’t consider that worth discussing. The United States is not a country whose laws derive from Vattel and his Law of Nations. Our system is English in origin.

So I have shared my reservations, and the reason it took me so long to come to a decision on this question.

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39 Responses to Is Ted Cruz eligible to become President?

  1. avatar
    Nancy R Owens November 19, 2015 at 7:51 pm #

    No.

  2. avatar
    CRJ November 19, 2015 at 10:18 pm #

    @Doc [there is nothing in the historical record to suggest that anyone in Congress thought the wording in the 1790 Act a mistake. (The 1795 Act just says “citizens,” not even “citizens at birth.”]

    Minus all those who voted for passage of 1795 of course. That seems quite a deer-in-the-headlight statement @Doc

    The passage of 1795.. Not the failure of 1795. Akin to the failure of 8 attempts to change “natural born Citizen” to mean something different.. that failed also since 2003?

    We’re not talking long division here.. They Failed.

    What is the hope here? To retrofit good ideas as purly partisan when once in a good while we actually did come up with a good idea 2/3rds of Congress could agree on?

    It’s almost like a defeated attitude. Instead of running the hundred meters faster we say there’s just no way to pass a good idea with all of our improvements in technology and communication.. We just can’t come together on a good idea?

    That seems beligerant for the sake of it.

    I do believe when it comes to good ideas they are hard pressed to be let go. Why not spend your time on releasing prisoners costing tax payers 55K a year in pot charges?

    I really see the D Party in a cheating card under the table on one hand trying to get so many on the dole for Government that it’s impossible for the other side to win.

    And then when bankruptcy hits.. What? What exactly have you won the elected office of? The Sheriff of Nottingham? Greece?

    It really seems to me that evan stupid people catch on sooner or later.. And say, wait-a- minute. Diluting my position to the point there is no flavor is dumb.

    That’s what Cruz is., punch with no flavor. He’s got to where he has got on the back of being a minority. The 🐎 horse he’s rode in on is dead.

    Running for President and not being qualified is beating the dead horse. I’m not evan sure he pulls the horse out of the quagmire he rode it into one way, out another.

    He’s like a good hunting dog that becomes unwelcome in the holy of holies. If Donald Trump is stupid enough to consider Cruz for V.P. he better have a long list of harbors to expand and he better pray Hillary’s not the nominee.

    I really think she would pull Cruz’s Cork.

  3. avatar
    Rickey November 19, 2015 at 11:15 pm #

    CRJ:

    Akin to the failure of 8 attempts to change “natural born Citizen” to mean something different.. that failed also since 2003?

    Nobody has ever attempted to change the meaning of “natural born citizen.” There have been attempts to change the requirement to be president, but that is different than changing the meaning of “natural born citizen.” Those attempts to change the requirement have never gone anywhere because they never had any significant support in Congress.

    I really see the D Party in a cheating card under the table on one hand trying to get so many on the dole for Government that it’s impossible for the other side to win.

    Are you on the dole? Is that why you won’t let us see your in forma paupers motion?

  4. avatar
    RanTalbott November 19, 2015 at 11:24 pm #

    Well, I haven’t done serious research, but Rogers v Bellei says the citizenship of foreign-born Americans can be taken away if they don’t jump through the hoops prescribed by Congress.

    But a native-born who joins al Qaeda and sets off a nuke in Washington during the State of the Union speech can be executed, but not deported. Because he’s still a citizen, and that can’t be taken away from him, no matter what he does.

    That says to me that Cruz would be considered “naturalized at birth”, not “natural-born”.

    There’s a difficult question because English law in the Framers’ time said British citizens couldn’t lose, or choose to give up, their natural-born citizenship, so there wasn’t the distinction between jus soli and jus sanguinis that we have.

  5. avatar
    Smirk 4 Food November 19, 2015 at 11:49 pm #

    Mr. Judy,

    I’ve read your comment several times. It reminded me of the wisdom of the great philosopher, Steve Martin:

    “When you’re telling these stories, here’s an idea: have a point. It makes it so much more interesting for the listener.”

    Now to the issue at hand…

    Cruz is eligible for the presidency. Citizens come in two flavors: natural born citizens, and naturalized citizens. Naturalized citizens begin life as aliens, and complete a process dictated by federal law.

    Naturalization laws also convey citizenship on children born outside the US who meet the qualifications dictated by federal law at the time of their birth. But these children do not have to go through any process to change their status from alien to citizen. They are citizens from birth, and therefore are natural born citizens.

  6. avatar
    Joey November 20, 2015 at 12:09 am #

    RanTalbott:
    Well, I haven’t done serious research, but Rogers v Bellei says the citizenship of foreign-born Americans can be taken away if they don’t jump through the hoops prescribed by Congress.

    But a native-born who joins al Qaeda and sets off a nuke in Washington during the State of the Union speech can be executed, but not deported. Because he’s still a citizen, and that can’t be taken away from him, no matter what he does.

    That says to me that Cruz would be considered “naturalized at birth”, not “natural-born”.

    There’s a difficult question because English law in the Framers’ time said British citizens couldn’t lose, or choose to give up, their natural-born citizenship, so there wasn’t the distinction between jus soli and jus sanguinis that we have.

    I don’t think that there is any such thing as “naturalized a birth.” Naturalization is a process that takes place after birth.
    In my humble opinion Ted Cruz is a natural born citizen because he qualifies under federal law 8 U.S.C. § 1401 as a “Citizen of the United States At Birth” and there has never been a judicial determination that there is a distinction between a Citizen of the United States At Birth and a Natural Born Citizen. The terms are synonymous.

  7. avatar
    Dr. Conspiracy November 20, 2015 at 12:57 am #

    There are court decisions that say that there are two kinds of citizens: natural born and naturalized, and the two derive from the Constitution: the presidential eligibility clause in the first case, and from the power of Congress to establish a uniform system or naturalization. While one is tempted to say that these are mutually exclusive classes, I can’t produce an argument that justifies it.

    In Minor v. Happersett, the court does “distinguish” two types of citizens at birth: “natives or natural born citizens” and “aliens or foreigners.” In this case, the words “distinguished from” suggests that these are mutually exclusive classes.

    Some commenters, including a Supreme Court justice use the phrase “needs no naturalization process” with natural born citizen. Those persons born citizens overseas do not have to through a naturalization process–they are citizens at birth. You might call them naturalized at birth because the statute that makes them a citizen derives from the naturalization power of Congress. That said, I do not see why a person “naturalized at birth” is necessarily not a natural born citizen also.

    RanTalbott: That says to me that Cruz would be considered “naturalized at birth”, not “natural-born”.

  8. avatar
    RanTalbott November 20, 2015 at 2:10 am #

    Joey: and there has never been a judicial determination that there is a distinction between a Citizen of the United States At Birth and a Natural Born Citizen.

    Obviously, Signore Bellei, no longer a U.S. citizen, would disagree.

    Dr. Conspiracy: That said, I do not see why a person “naturalized at birth” is necessarily not a natural born citizen also.

    Because that citizenship is alienable, and subject to conditions that can’t be imposed on birthright citizens.

    Even the Wong Kim Ark Court said such people are “naturalized”:

    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. 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.

    If you want to argue that it’s unfair that Premature Patricia loses the right to become President Pat because Mom thought she had plenty of time to hop over to Vancouver for a visit with her cousin, I’d agree. But that does appear to be the law.

  9. avatar
    Keith November 20, 2015 at 2:11 am #

    In Minor v. Happersett, the court does “distinguish” two types of citizens at birth: “natives or natural born citizens” and “aliens or foreigners.”

    I hope this is a typographical error.

    Two type of citizens at birth? No. just one.

    Two types of citizens? Yes. (1) “natives or natural born citizens” i.e. citizens at birth and (2) “aliens or foreigners.” who become naturalized sometime after birth.

  10. avatar
    Dave November 20, 2015 at 7:53 am #

    I would remind those who are certain that Cruz is ineligible that Congress unquestionably has the right to decide his eligibility — so feel free to take it up with them.

  11. avatar
    Reality Check November 20, 2015 at 8:11 am #

    While it may never actually be decided it is my belief that if SCOTUS ever decided to take up the question of the eligibility of citizens born abroad they would rule them to be natural born citizens. I think it can be based on the following arguments.

    1. In general usage the term “natural born” is use to describe a characteristic that is innate and not acquired later in life.
    2. Neither the Constitution nor any statute specifically prohibits a foreign born US citizen at birth from serving. (The question of whether Congress could pass a law making them ineligible while still retaining citizenship is a separate question).
    3. The Constitution does not forbid Congress from making natural born citizens. Apparently the first Congress thought they could. Parliament passed an act made foreign born children of subjects to be natural born subjects. The 1790 act was not challenged it was just replaced. You can read what you want to into the the change in wording since there was apparently no debate over it. .
    4. If one looks at the Constitution as a whole the time of citizenship is progressively increased for representative, then senator, then president. Both those born abroad and those born in the US have one thing in common, life long citizenship. The Founders certainly didn’t prohibit those who lived part of their lives abroad from serving. They only required that 14 years be spent in the US. From the standpoint of “foreign influence” the life long citizenship of the domestic born and foreign born US citizens is functionally equivalent.

  12. avatar
    The Magic M (not logged in) November 20, 2015 at 10:15 am #

    That however underestimates the creativity of conservative SCOTUS judges to twist words into their opposite, or base their rulings on “intent over wording” today and “wording over intent” tomorrow, depending on the desired outcome.

  13. avatar
    Rickey November 20, 2015 at 1:09 pm #

    The Magic M (not logged in):
    That however underestimates the creativity of conservative SCOTUS judges to twist words into their opposite, or base their rulings on “intent over wording” today and “wording over intent” tomorrow, depending on the desired outcome.

    It’s a long shot that SCOTUS will ever hear an eligibility case. I see just one scenario under which the issue could come before SCOTUS:

    1, Someone files a successful ballot challenge against Cruz (or anyone else, but Cruz is the only candidate whose eligibility is really in question).

    and

    2. The Court of Appeals upholds the disqualification of Cruz.

    If the Court of Appeals reversed the disqualification, it might be appealed but SCOTUS would deny cert.

    No post-election eligibility case is ever going to make it to SCOTUS because of standing, because it would be a political question, and because Congress is the only body authorized by the Constitution to determine if the president-elect is qualified to hold the office.

    If anyone can think of another scenario under which an eligibility case might reach SCOTUS, I would like to consider it.

  14. avatar
    Joey November 20, 2015 at 1:27 pm #

    RanTalbott: Obviously, Signore Bellei, no longer a U.S. citizen, would disagree.

    Because that citizenship is alienable, and subject to conditions that can’t be imposed on birthright citizens.

    Even the Wong Kim Ark Court said such people are “naturalized”:

    If you want to argue that it’s unfair that Premature Patricia loses the right to become President Pat because Mom thought she had plenty of time to hop over to Vancouver for a visit with her cousin, I’d agree. But that does appear to be the law.

    Ted Cruz has had to meet no residency requirement over the course of hs life and the statute under which Bellei was stripped of his U.S. Citizenship was repealed in 1978.
    Ted Cruz’s birth circumstance falls under the statutory defnition of a Citizen of the United States At Birth.

  15. avatar
    y_p_w November 20, 2015 at 2:17 pm #

    RanTalbott: Joey: and there has never been a judicial determination that there is a distinction between a Citizen of the United States At Birth and a Natural Born Citizen.

    Obviously, Signore Bellei, no longer a U.S. citizen, would disagree.

    However, the SCOTUS ruling that you reference didn’t specifically state that Bellei wasn’t a natural born citizen.

    https://supreme.justia.com/cases/federal/us/401/815/case.html

    Additionally, the law has been repealed, although there is that tricky detail about retroactivity. There might have been some possibility that someone could have been adjudicated to not meet the requirement before the requirement was removed in 1978. A US citizen born overseas could have had that citizenship revoked at age 24 just like Bellei, but I suppose the revised statute would have restored it.

    http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter3.html

    Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship.​

  16. avatar
    Dave B. November 20, 2015 at 3:25 pm #

    This guy weighs in on it:

    http://sago.com/nelson-hultberg/2015/11/19/birthers-beware-ted-cruz-is-eligible-to-be-president/

    “The major point made by the “anti-eligible birthers” regarding Ted Cruz is that the Founders subscribed to the famous Vattel definition of “natural born citizen” from The Law of Nations.”

    Yeah, “famous,” as in everybody heard of it before 2008.

  17. avatar
    Rickey November 20, 2015 at 5:39 pm #

    y_p_w:

    Additionally, the law has been repealed, although there is that tricky detail about retroactivity.There might have been some possibility that someone could have been adjudicated to not meet the requirement before the requirement was removed in 1978.A US citizen born overseas could have had that citizenship revoked at age 24 just like Bellei, but I suppose the revised statute would have restored it.

    Yes, you have to be mindful of dates. On Twitter “Alex Hamilton” (who sounds a lot like Sven Magnussen) is citing Montana v. Kennedy (1961). Montana was born in Italy in 1906 to an American mother and an Italian father. Later that year his mother brought him to America, where he lived for the next 60 years. The Supreme Court that he was not a U.S. citizen because the law which was in effect at the time of his birth provided that only an American father could transmit U.S. citizenship to a child born abroad. “Alex Hamilton” is claiming that this proves that Cruz is not eligible.

    However, the law which was in effect in 1906 was repealed in 1934, when Congress granted citizenship to foreign-born children of citizen mothers, as SCOTUS pointed out. Unfortunately it did not help Montana because the law had no retroactive effect.

  18. avatar
    Nancy R Owens November 20, 2015 at 5:54 pm #

    I don’t know how true this is but, someone on my FaceBook page says that less than an hour ago Cruz run for president was found to be ineligible.

  19. avatar
    y_p_w November 20, 2015 at 6:21 pm #

    Rickey: However, the law which was in effect in 1906 was repealed in 1934, when Congress granted citizenship to foreign-born children of citizen mothers, as SCOTUS pointed out. Unfortunately it did not help Montana because the law had no retroactive effect.

    I don’t know if “repealed” is necessarily the operating word. I think “replaced” might be a more descriptive term, since it may or may not have retroactive effect (ex post facto).

    In any case, I read over the case, and I’m wondering if it would have been better argued as an equal protection case.

  20. avatar
    RanTalbott November 20, 2015 at 7:06 pm #

    y_p_w: However, the SCOTUS ruling that you reference didn’t specifically state that Bellei wasn’t a natural born citizen.

    The Court had previously ruled that natural born citizenship can’t be taken away. They ruled that Bellei’s could. That’s not explicit, but that ruling says he cannot possibly be an NBC.

    The subsequent repeal of the law doesn’t matter, because the Court ruled it was Constitutional, and that it, not the Constitution and/or common law, was the source of his citizenship.

    I don’t know whether there was a subsequent decision that redrew the line between “natural born” and “naturalized” laid down in WKA. I suspect not, because we’d be hearing the birfoons misquoting it like they do Minor. But that line clearly put Bellei, and Cruz, on the “naturalized” side of the division.

  21. avatar
    CRJ November 20, 2015 at 7:06 pm #

    @Doc [There are court decisions that say that there are two kinds of citizens: natural born and naturalized, and the two derive from the Constitution: the presidential eligibility clause in the first case, and from the power of Congress to establish a uniform system or naturalization. While one is tempted to say that these are mutually exclusive classes, I can’t produce an argument that justifies it.

    In Minor v. Happersett, the court does “distinguish” two types of citizens at birth: “natives or natural born citizens” and “aliens or foreigners.” In this case, the words “distinguished from” suggests that these are mutually exclusive classes.

    Some commenters, including a Supreme Court justice use the phrase “needs no naturalization process” with natural born citizen. Those persons born citizens overseas do not have to through a naturalization process–they are citizens at birth. You might call them naturalized at birth because the statute that makes them a citizen derives from the naturalization power of Congress. ]
    Then to the Query:
    [That said, I do not see why a person “naturalized at birth” is necessarily not a natural born citizen also.]

    I sincerely enjoyed that whole comment. My humble thought is: Because the definition was articulated by Congress in an ACT of Congress. Title 8 SECTION (?)Aliens and Nationals (a-h) defines for us an articulation of naturalization.

    The only prescription not mentioned in the ACT is [ Born in the U.S. to Citizen Parents ] Reason?

    It needs no form of naturalization.. Not even articulation because as Minor v. Happersett stated there was never a doubt.

    Many have used the words.. But the Constitution doesn’t say what [natural born Citizen] means., which forgiving my light satire also applied to pirates but we know what they are.

    Thus, it is not a weakness that [ natural born Citizen] is not defined but it was a prescription of strength that by God it couldn’t be denied. . because of it’s purity in formatted understanding and clarity.

    It’s very hard to mis understand ACT of Congress. It’s an action.

    Therefore, just because someone isn’t directed to Report or file a paper in an instance governed by the ACT doesn’t preclude it from being articulated in an ACT PRESCRIBED as [naturalization] Wholly inadmissible in the Office of Pres.

    Thus, the declaration [ Citizens] at the time of the Adoption of this Constitution was absolutely necessary.

    No [natural born Citizens] of [The United States] existed.

    The argument betwixt the two rest in the prohibition of excluding terms or constructions prohibited case law, unless strictly Amended by process.

  22. avatar
    Dr. Conspiracy November 20, 2015 at 7:22 pm #

    Look at Minor v. Happersett to see where they went to find out who were natural born citizens: the English Common Law. Not only is “natural born citizen” not defined “in words” in the Constitution, nor piracy, “ex post facto law, ” “bill of attainder,” “corruption of blood,” and “letters of Marque and Reprisal” aren’t either.Such definitions are unnecessary because of the Common Law that was in effect in all of the colonies.

    The absence of a definition of a term in the Constitution is not a license to make one up, to assert one’s personal bias, or to pick one’s favorite Swiss philosopher for it.

    CRJ: The only prescription not mentioned in the ACT is [ Born in the U.S. to Citizen Parents ] Reason?

    It needs no form of naturalization.. Not even articulation because as Minor v. Happersett stated there was never a doubt.

    Many have used the words.. But the Constitution doesn’t say what [natural born Citizen] means., which forgiving my light satire also applied to pirates but we know what they are.

  23. avatar
    Dr. Conspiracy November 20, 2015 at 7:33 pm #

    Bellei’s citizenship could be taken away from him because he was neither born in the United States nor naturalized in the United States, making him ineligible for the equal protection under the 14th Amendment.

    I would be more interested to look at the case where it was said that natural born citizenship could not be taken away, and what the ratio decidendi was on that.

    RanTalbott: The Court had previously ruled that natural born citizenship can’t be taken away. They ruled that Bellei’s could. That’s not explicit, but that ruling says he cannot possibly be an NBC.

  24. avatar
    Dave B. November 20, 2015 at 7:35 pm #

    I’ve developed a certain fascination with Mauro John Montana’s case– he had a very interesting family history. People usually called him Joe Montana Jr., for his father, who was a notorious bootlegger in Chicago during Prohibition.

    https://news.google.com/newspapers?nid=2209&dat=19300308&id=_hlAAAAAIBAJ&sjid=h6QMAAAAIBAJ&pg=660,4744089&hl=en

    http://archives.chicagotribune.com/1929/01/17/page/8/article/thirty-one-more-plead-guilty-in-melrose-park-rum-ring-trial

    Joe Sr., “king of bootleggers,” made the news once for ordering an icebox:

    http://content.time.com/time/magazine/article/0,9171,731914,00.html

    The younger Montana was involved in all sorts of hooliganism– a 1931 murder:

    http://archives.chicagotribune.com/1931/06/21/page/4/article/movie-operator-shot-to-death-in-mystery-attack

    In 1941 he was convicted of a botched murder attempt and sentenced to ten to fourteen years:

    http://archives.chicagotribune.com/1941/10/22/page/1/article/montana-convicted-speedily-10-to-14-years-for-shooting

    http://archives.chicagotribune.com/1941/10/23/page/18/article/unfinished-business

    by Judge John A. Sbarbaro, a notoriously corrupt judge who was also undertaker of choice for much of the underworld:

    http://chicagocrimescenes.blogspot.com/2008/09/sbarbaros-funeral-parlor.html

    Montana’s 1941 sentence was set aside by the Illinois Supreme Court in 1942, ruling that the sentencing law was unconstitutional:

    https://casetext.com/case/the-people-v-montana

    http://archives.chicagotribune.com/1942/11/21/page/22/article/bail-provision-lacking-place-montana-in-jail

    Montana’s attorney in that case was William Scott Stewart, who had previously defended Beulah Annan, real-life inspiration for the Roxie Hart character in the play “Chicago” and its stage and screen successors:

    http://www.clydefitchreport.com/2010/10/the-girls-of-murder-city-the-women-who-inspired-roxie-hart-and-velma-kelly/

    What finally brought Montana to be deported was abuse of union welfare funds of the Chicago Motion Picture Operators Union, at about the same time his brother James, an assistant probate judge, was in hot water over an estate fraud case:

    https://news.google.com/newspapers?nid=888&dat=19570921&id=I_9RAAAAIBAJ&sjid=PHYDAAAAIBAJ&pg=4663,2139093&hl=en

    I’ve often wondered what became of Joe Jr. The Immigration and Nationality Technical Corrections Act of 1994 made transmission of US citizenship through a US citizen mother retroactive from 1934, so I wondered if he’d lived long enough to be made a US citizen after all. But then I read the act more carefully:
    “Sec. 101(c)(2)
    The retroactive application of the amendment made by subsection (a), and subsection (b), shall not confer citizenship on, or affect the validity of any denaturalization, deportation, or exclusion action against, any person who is or was excludable from the United States under section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) (or predecessor provision) or who was excluded from, or who would not have been eligible for admission to, the United States under the Displaced Perso ns Act of 1948 or under section 14 of the Refugee Relief Act of 1953.”

    Montana was deported for a crime involving moral turpitude, and so was inadmissible and ineligible for retroactive application of the provision that would’ve made him a citizen.
    His nephew James S. Montana, Jr. is an attorney in Chicago who to the best of my knowledge has carried the family name into entirely different territory.

    Rickey: Yes, you have to be mindful of dates. On Twitter “Alex Hamilton” (who sounds a lot like Sven Magnussen) is citing Montana v. Kennedy (1961). Montana was born in Italy in 1906 to an American mother and an Italian father. Later that year his mother brought him to America, where he lived for the next 60 years. The Supreme Court that he was not a U.S. citizen because the law which was in effect at the time of his birth provided that only an American father could transmit U.S. citizenship to a child born abroad. “Alex Hamilton” is claiming that this proves that Cruz is not eligible.

    However, the law which was in effect in 1906 was repealed in 1934, when Congress granted citizenship to foreign-born children of citizen mothers, as SCOTUS pointed out. Unfortunately it did not help Montana because the law had no retroactive effect.

  25. avatar
    Dave B. November 20, 2015 at 7:49 pm #

    The minority was incensed over that interpretation. I think it’s bad law, passed by a 5-4 decision, that persons born citizens outside the United States would lack the same protection the 14th Amendment gives persons born aliens and later made citizens– that, as Justice Black put it, “the Fourteenth Amendment protects the citizenship of some Americans and not others”; but good or bad, as long as the decision stands it IS the law.
    It’s worth noting that by this standard, Arnold Schwarzenegger’s citizenship is protected by the 14th Amendment, while John McCain’s is not.

    Dr. Conspiracy:
    Bellei’s citizenship could be taken away from him because he was neither born in the United States nor naturalized in the United States, making him ineligible for the equal protection under the 14th Amendment.

    I would be more interested to look at the case where it was said that natural born citizenship could not be taken away, and what the ratio decidendi was on that.

  26. avatar
    Sam the Centipede November 20, 2015 at 7:50 pm #

    Reality Check:
    While it may never actually be decided it is my belief that if SCOTUS ever decided to take up the question of the eligibility of citizens born abroad they would rule them to be natural born citizens. I think it can be based on the following arguments.

    1. In general usage the term “natural born” is use to describe a characteristic that is innate and not acquired later in life.
    2. Neither the Constitution nor any statute specifically prohibits a foreign born US citizen at birth from serving. (The question of whether Congress could pass a law making them ineligible while still retaining citizenship is a separate question).
    3. The Constitution does not forbid Congress from making natural born citizens. Apparently the first Congress thought they could. Parliament passed an act made foreign born children of subjects to be natural born subjects. The 1790 act was not challenged it was just replaced. You can read what you want to into the the change in wording since there was apparently no debate over it. .
    4. If one looks at the Constitution as a whole the time of citizenship is progressively increased for representative, then senator, then president. Both those born abroad and those born in the US have one thing in common, life long citizenship. The Founders certainly didn’t prohibit those who lived part of their lives abroad from serving. They only required that 14 years be spent in the US. From the standpoint of “foreign influence” the life long citizenship of the domestic born and foreign born US citizens is functionally equivalent.

    Your point 1 is the crux of the issue; “natural born” is used as an English phrase with its plain meaning and so far I have never seen anybody with sny even half-plausible argument as to why an alternative meaning should be assumed – unless the color of the President’s skin is such an argument!

    “Naturalization at birth” has been mentioned; that’s either an oxymoron or a tautology depending on how one uses the term “naturalize”. It is usually used in colloquial speech to indicate a person who has gone through a formal process of natualization (filling in forms, swearing oaths, etc.) but it is also occasionally and correctly applied to any process of acquiring citizenship – including being born in the U.S. or having citizen parents capable of passing on citizenship. So in that sense all those who are citizens when they draw their first breath are naturalized at birth AND natural born citizens.

    And while judges speak and write carefully in their opinions and rulings; it is wrong to try to nitpick a piece of old text down to a sub-atomic level. The notion of precedent does not penetrate down to the microscopic level! A judge is answering the question in front of him, not every possible question in the future about tangentially related matters.

    I don’t know what Judy’s arguments are; his record in these matters shows his birfoonery is best ignored. Owens is simply a fantasist, so also best ignored.

    The best guide surely is the will of the electorate – but birthers don’t like democracy!

  27. avatar
    Dave B. November 20, 2015 at 7:59 pm #

    By the way, it was Charles Gordon who represented the government in Montana v. Kennedy.

  28. avatar
    y_p_w November 20, 2015 at 8:34 pm #

    RanTalbott: The Court had previously ruled that natural born citizenship can’t be taken away. They ruled that Bellei’s could. That’s not explicit, but that ruling says he cannot possibly be an NBC.

    Are you referring to Perkins v. Elg? The decision uses the term “native”. I know a lot of summaries on the decision claim that it meant a natural born citizen couldn’t have her citizenship revoked, but I couldn’t find that in the decision.

    http://caselaw.findlaw.com/us-supreme-court/307/325.html

  29. avatar
    y_p_w November 20, 2015 at 10:24 pm #

    Dave B.:
    The minority was incensed over that interpretation.I think it’s bad law, passed by a 5-4 decision, that persons born citizens outside the United States would lack the same protection the 14th Amendment gives persons born aliens and later made citizens– that, as Justice Black put it, “the Fourteenth Amendment protects the citizenship of some Americans and not others”; but good or bad, as long as the decision stands it IS the law.

    I’ve been following the case of an Indian foreign service worker married to a US citizen (or at least a US citizen at the time of the main controversy). It’s become rather a mess because of the maid she brought over from India, but that’s another matter.

    Her two daughters were born in India but were US citizens at birth by way of their father. They had obtained US passports for those two daughters, but apparently India doesn’t allow for dual-nationality save someone with jus soli nationality in another country. The Indian government is trying to get them to renounce their US citizenship. So if they make some sort of formal disclaiming of their US citizenship, I’m not sure if the State Dept will recognize it. They will likely visit the US (not likely their mom with a warrant for her arrest) where their father’s family currently lives. I guess part of the problem is the the US doesn’t allow a US citizen to enter the US on a foreign passport, and they wouldn’t recognize that they could renounce their US citizenship until they are adults.

    http://www.thehindu.com/news/national/no-indian-passports-to-khobragades-kids-mha/article7452486.ece

  30. avatar
    Keith November 21, 2015 at 12:28 am #

    Nancy R Owens:
    I don’t know how true this is but, someone on my FaceBook page says that less than an hour ago Cruz run for president was found to be ineligible.

    OFFS.

    Well, think about it. Don’t you think something as ‘momentous’ as that would be all over main stream media immediately if it was true? Don’t you think Faux News would go into hyperspace meltdown?

    What exactly does it take for your BS meter to go off? Don’t you ever change its batteries? Perhaps you should get into the habit of changing its batteries every time you change the clocks for Daylight Savings Time entry or exit.

    You of all people should understand about people who post crap on the internet just to see their name in pixels.

  31. avatar
    Rickey November 21, 2015 at 12:49 am #

    y_p_w: I don’t know if “repealed” is necessarily the operating word.I think “replaced” might be a more descriptive term, since it may or may not have retroactive effect (ex post facto).

    I wouldn’t argue with that. SCOTUS called is a “reversal or prior law.”

    In any case, I read over the case, and I’m wondering if it would have been better argued as an equal protection case.

    Yes, that occurred to me. It certainly would if it were argued today.

  32. avatar
    Dave B. November 21, 2015 at 2:31 am #

    That didn’t work in US v. Flores-Villar.

    Rickey: In any case, I read over the case, and I’m wondering if it would have been better argued as an equal protection case.

    Yes, that occurred to me. It certainly would if it were argued today.

  33. avatar
    Pete November 21, 2015 at 11:36 am #

    Nancy R Owens:
    I don’t know how true this is but, someone on my FaceBook page says that less than an hour ago Cruz run for president was found to be ineligible.

    Nancy, there are reliable sources of information, and there are unreliable sources of information.

    “Someone on my Facebook page,” about 99% of the time, is not going to know what the *#@&! he’s talking about.

    If anyone (say, an election commission in New Hampshire where someone has filed a challenge) had issued any kind of ruling that Cruz is ineligible – and that’s probably about as likely as leprechauns setting up a coffee shop on Broadway – then believe me, it would be all over the news. It would be “breaking news” on every station.

    But, I guess you did the right thing, which was to ask here.

  34. avatar
    Rickey November 21, 2015 at 2:19 pm #

    Dave B.:
    That didn’t work in US v. Flores-Villar.

    Yes, but the facts were different. Flores-Villar’s father was a U.S. citizen but had not lived in the United States continuously for at least five years after reaching the age of 14. Flores-Villar was born in Mexico to a non-U.S. citizen (presumably she was a citizen of Mexico). The parents were not married.

    The law at the time stated that in the event of a non-marital birth outside of the U.S. to one citizen and one non-citizen, there were different residency requirements for the child to be a U.S. citizen depending upon whether the father or the mother was a U.S. citizen. A U.S. citizen father had to have five years of residence in the U.S., whereas a U.S. citizen mother had to have only one year of residence in the U.S. That difference was the basis for the equal protection claim.

    In response the United States argues that unwed fathers and unwed mothers are differently situated, and Sections 1401 and 1409 impose permissible differential treatment of mothers and fathers to prevent the occurrence of stateless children. First, the United States contends that the residency requirements Congress promulgated were aimed at preventing citizenship from being transmitted through generations of United States citizens living abroad. The United States notes that many countries base transmission of citizenship by parental blood relation—a system known as jus sanguinis—while the United States bases citizenship on location of birth, or jus soli. Statelessness, the United States claims, arises when a child is born in a jus sanguinis country but is unable to acquire the citizenship of either of his parents. Moreover, the United States argues that Sections 1401 and 1409 are the permissible products of Congress’s balancing a policy of preventing statelessness with the interest of ensuring that citizenship is sufficiently connected to presence in the United States. Thus, the United States concludes that the differential residency requirements are not discriminatory but merely recognize the legal reality facing unwed United States citizen mothers giving birth abroad in jus sanguinis countries, and the biological reality that mothers and fathers are not similarly situated in the determination of transmission of citizenship.

    https://www.law.cornell.edu/supct/cert/09-5801

    On the other hand, the law which controlled in Montana v. Kennedy clearly was discriminatory because a father could transmit citizenship to a child born abroad but a woman could not.

  35. avatar
    Dave B. November 21, 2015 at 2:42 pm #

    Discrimination has been the hallmark of US nationality law since its inception.

    Rickey: On the other hand, the law which controlled in Montana v. Kennedy clearly was discriminatory because a father could transmit citizenship to a child born abroad but a woman could not.

  36. avatar
    Slartibartfast November 21, 2015 at 5:09 pm #

    CRJ,

    On the contrary, everyone who has served as POTUS has been a natural born citizen of the United States. The grandfather clause was unnecessary and never used (although it likely would have been if Alexander Hamilton had lived to run). The native born Founders and Framers considered themselves natural born citizens of the state of their birth and the United States.

    Would you have the gall to tell President Washington that he wasn’t a natural born citizen of the United States? Are you stupid enough to do it knowing that President Washington was indisputably considered a RESIDENT of the United States dating back to BEFORE July 4, 1776? The grandfather clause does not cover residency, so either George Washington was a resident before the United States existed in the minds of the Founders and Framers or he was ineligible in their minds.

    Assuming that they considered President Washington a resident since his birth, it is unreasonable to assume that they didn’t consider him a natural born citizen as well.

    As for your “Act of Congress” claim, that clearly makes President Obama a natural born citizen since his citizenship is ensured by the 14th Amendment, which, according to its Framers, merely defined the law that existed under the US Constitution as originally ratified. Certainly no acts of Congress were necessary to make President Obama a citizen.

    Are you willing to admit President Obama is eligible to pursue the unlikely proposition that Rafael Cruz isn’t? Because you can’t attack Cruz’s eligibility in court without implicitly admitting President Obama’s eligibility or making a completely frivolous argument.

    CRJ: Thus, the declaration [ Citizens] at the time of the Adoption of this Constitution was absolutely necessary.

    No [natural born Citizens] of [The United States] existed.

  37. avatar
    Dr. Conspiracy November 24, 2015 at 12:01 pm #

    The New Hampshire Ballot Law Commission meets today to consider challenges to the eligibility of Bernie Sanders and Ted Cruz. The challenges come from birther Andy Martin. See:

    http://nhpr.org/post/sanders-cruz-candidacies-spotlight-concord-tuesday

    I think the preceding is an informative article on the process and the issues to be considered.

    According to news host Rick Ganley: “Typically, the Commission hands down a decision the same day the case is heard, though a formal written opinion may come a bit later.”

  38. avatar
    bob November 24, 2015 at 12:20 pm #

    And tweets are reporting that most (if not all) of the various challenges are being rejected.

  39. avatar
    Rickey November 24, 2015 at 12:53 pm #

    Now Trump is facing a ballot challenger in New Hampshire.

    http://www.politico.com/story/2015/11/donald-trump-new-hampshire-ballot-216177