Main Menu

Ted Cruz defends his eligibility to be president

Confronts head on claims he’s not a natural born citizen

imageThe New Hampshire Ballot Law Commission will consider arguments today from petitioners seeking to prevent Cruz from appearing on the state’s Republican Primary Ballot.1 Two petitioners, Carmon Elliott and Chris Booth, challenge his eligibility based on the fact that Cruz was born in Canada, and their interpretation of the meaning of “natural born citizen” in the US Constitution’s list of requirements to become president. Ted Cruz responds through his attorney, arguing that he is eligible.

The Elliott Challenge

In the challenge filed, Carmon Elliott reports an intervention in Federal Court in 2008, challenging the candidacy of Senator John McCain, born in the Panama Canal Zone. Elliott argues that Ted Cruz is not eligible to become president because he was born outside the jurisdiction of the United States, in Canada. Citing the Black Law Dictionary (9th ed) Elliott defines “natural born citizen” as “a person born within the jurisdiction of a natural government.” In addition Elliott cites Rogers v. Bellei and Perkins v. Elg noting that under the Constitution, foreign-born US citizens at birth do not stand under the same footing as the native born. Also appearing are Lynch v. Clarke, Shanks v. Dupont, The Venus, Dred Scott v Sandford, US v. Wong Kim Ark and Minor v. Happersett. Emmerich de Vattel and The Law of Nations gets a shout out too. The argument largely focuses on the distinction between the two sources of citizenship: birth and naturalization, arguing that Cruz must be a naturalized US Citizen. Elliott concludes by citing from an essay at The Free Republic:

So those born outside the United States to parents who are US citizens at the time of the person’s birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress, and b) effective from the instant of their birth, based on the fact that the person’s parents were US citizens at that moment.

The Booth Challenge

The Challenge of Christopher Booth covers some of the same ground as Elliott, citing the same Free Republic essay, but also cites a definition of natural-born citizen from a web site, The Federalist Blog, which is not an authority and expresses ideas that I have disagreed with in the past. He cites the more authoritative St. George Tucker who wrote that those naturalized according to acts of Congress are “incapable of being chosen to the office of president….”2  He cites the familiar speech of James Madison before Congress where he says that place of birth is what matters for Citizenship in the United States.

Neither challenger argues that a US President must have two citizen parents.

The Cruz Response

imageIt seems likely to this writer that the weighty arguments of the two challengers will not amount to much because Cruz attorney Bryan K. Gould, who will appear before the Commission today to defend Cruz’s eligibility, argues rather convincingly that the Ballot Law Commission does not have any discretion in the matter, and that as a matter of law, Cruz must appear on the ballot because the New Hampshire Secretary of State has already ruled that is a “regular” candidate.

In the Cruz response, attorney Gould follows his argument that the law requires Cruz to be on the ballot and that the challengers lack standing, with a head-on rebuttal of the arguments of the challengers that foreign-born persons like Cruz cannot become president. Gould begins:

The Constitution does not explicitly define the phrase “natural born Citizen.” But its meaning is not difficult to determine, evidenced by the fact that every single reliable authority is in agreement on what it means: a “natural born Citizen” is anyone who was a citizen at the moment they were “born”—as opposed to becoming a citizen later, through the naturalization process at some point after their birth.

Gould, rather than beginning with court decisions, cites various authorities. He cites the Naturalization of 1790 which calls the foreign-born children of US fathers “natural born citizens,” and cites authority for considering the acts of the First Congress significant in the interpretation of the Constitution. He also cites Robinson v. Bowen that found it “highly probable … that Senator McCain is a natural born citizen” due to his birth to at least one U.S. citizen parent. He also cites Hollander v. McCain and Ankeny v. Governor of State of Indiana. George Romney eligibility material appears, and Jack Maskell’s report for the Congressional Research Service is cited as authority.

If I had to summarize Gould’s approach, it is an appeal to modern authority and their interpretation of the historical sources. It does not attempt to argue from the historical sources themselves, except for the 1790 Act.

My prediction: Cruz wins on a dismissal.

Update:

All candidates allowed on the ballot.


1In addition to the two challenges discussed in this article to the eligibility of Senator Cruz, there are also challenges to Sanders from Andy Martin, and challenges against Cruz, Jindal, Rubio and Santorum by Robert C Laity.  News reports say that Martin has challenged Ted Cruz as well, but I found no indication of such a complaint from Martin at the Ballot Law Commission web site.

Documents for these include:

2Mario Apuzzo used the same citation at John Woodman’s blog. The lengthy footnote from which the St. George Tucker quote comes deals exclusively with individuals who naturalize after birth, and there is nothing in the footnote that suggests that it was also intended to apply to persons who become citizens at birth.

, , , , , , , , , , , , , , , , , , , , , , , , ,

26 Responses to Ted Cruz defends his eligibility to be president

  1. avatar
    Dr. Conspiracy November 24, 2015 at 3:14 pm #

    Similar to the arguments on behalf of Senator Cruz, attorney MacDonald for Marco Rubio challenges the Commission’s discretion to exclude him from the ballot, and challenges Mr. Laity’s standing. Laity is not a New Hampshire resident.

    In addressing the merits, MacDonald cites Ex Parte Grossman as authority for his contention that the English Common Law should be referenced for understanding the term “natural born citizen” and then US v. Wong for the citizenship of the children of aliens based on the English Common Law.

    For further support, MacDonald cites the example of President Andrew Jackson, born of Irish immigrants. That doesn’t work very well, as Jackson was born in 1767 before the ratification of the Constitution and so was a citizen of the United States at the time of its adoption, excusing him from the natural born citizen requirement.

  2. avatar
    Sterngard Friegen November 24, 2015 at 3:37 pm #

    Rubio’s is much more succinctly written than Cruz’s opposition which borders on the prolix. Both oppositions cite to a recent comment on the Harvard Law Review Forum — Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen”, 128 Harv. L. Rev. F. 161, 161 (2015) which, in my view, does short shrift to the issue.

    I continue to believe that a significant — and politically embarrassing — challenge could be mounted as to Cruz. His lawyers don’t say his mother was living in Canada, more like she was accidentally passing through: “It is undisputed that Senator Cruz was born to a U.S. citizen who happened to be in Canada at the time she gave birth to Senator Cruz.” Opposition, p. 3. And therein lies the rub. Rafael, Sr. had apparently moved to Canada to become a citizen there.

    The most likely GOP candidate to challenge Cruz would be John Kasich. Imagine the publicity he’d get. And the thanks from all those U.S. Senators and other Republicans who hate Cruz with the last fiber of their political beings.

    With a team of Fogbowzers and $250,000 from the GOP or Kasich or any one else who wants to challenge Cruz, I’d bring a sophisticated challenge which could not be ignored or written off. (I wouldn’t use even one word from anything Mario Apuzzo has written, I promise!)

  3. avatar
    Rickey November 25, 2015 at 1:17 am #

    I was a bit surprised to learn that ballot challenger Carmon (not Carmen) Elliott is a self-identified progressive. He is the only Carmon Elliott on Facebook and his Twitter account shows the same user name (Wizdym4) as his e-mail address on the ballot challenge.

  4. avatar
    Lupin November 25, 2015 at 4:24 am #

    If one is to believe GerbilReport, Meretricious Mario is growing increasingly hysterical about being b*tchslapped once again about his ridiculous theories.

    He is now screaming “treason!” as if that was even relevant. Somehow he reminds me of some of the more ridiculous characters in the old strip POGO, running around mindlessly in panic shouting nonsense.

  5. avatar
    Keith November 25, 2015 at 5:16 am #

    Lupin: He is now screaming “treason!” as if that was even relevant. Somehow he reminds me of some of the more ridiculous characters in the old strip POGO, running around mindlessly in panic shouting nonsense.

    You do realize that Friday the 13th actually came on a Friday this month? Man-O-Man, I bet ‘ol Albert really went “Croc” at the thought.

  6. avatar
    The Magic M (not logged in) November 25, 2015 at 5:38 am #

    Rickey: I was a bit surprised to learn that ballot challenger Carmon (not Carmen) Elliott is a self-identified progressive.

    Probably as much as Andy Martin or Crazy Racist Judy were Democrats.
    When challenging Obama, RW’s posed as liberals to cover up the partisanship nature of their claims.
    When challenging Cruz et al., RW’s pose as liberals to lay the blame for birtherism against GOP candidates on liberals, too.

  7. avatar
    Lupin November 25, 2015 at 5:39 am #

    Keith: You do realize that Friday the 13th actually came on a Friday this month? Man-O-Man, I bet ‘ol Albert really went “Croc” at the thought.

    Oop—I is tripped.

  8. avatar
    CRJ November 25, 2015 at 8:12 am #

    @Magic M [Crazy Racist Judy]

    Please elaborate on what you mean by Crazy Racist would you please?

    If you mean a kind of racist that really isn’t based in any kind of reality, I understand.

    Judy v. McCain
    https://dockets.justia.com/docket/nevada/nvdce/2:2008cv01162/61642

    Judy v. Obama
    http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-9396.htm

    Notification to U.S. Supreme Court
    Cruz, Rubio, Jindal ineligibility
    https://www.scribd.com/doc/271844975/Application-for-Stay-on-Denial-Judy-v-Obama-14-9396

    If you mean the type of Racist which favors one Race over another irrespective of a equal Principle , I think my actions cited find your assertions disputed by Facts.

    This would further assist America and her General population of Citizens in seeing very clearly the [anti- birther] state of mind as both mean, hateful, delusional, and libelist in the propaganda of bigotry and anti-Americanism. In short a treason of American values in the high regard we have in multi- culturalism, and an assault upon minorities in America that are our strength.

    @Doc [That doesn’t work very well, as Jackson was born in 1767 before the ratification of the Constitution and so was a citizen of the United States at the time of its adoption, excusing him from the natural born citizen requirement.]

    Very nice to see these words from you my Friend

  9. avatar
    Dr. Conspiracy November 25, 2015 at 8:52 am #

    Apparently Andy Martin now lives in Manchester, NH. He ran for the US Senate from there last year.

  10. avatar
    CRJ November 25, 2015 at 11:19 am #

    New Hampshire Executive Branch Ballot Challenger Chairman Brad Cook said, the issues were not under the panel’s purview.

    “Our precedents say we don’t’ go there,” Cook said. “Personally, would I like the U.S. Supreme Court to decide these issues so we know what is, so it doesn’t keep coming up? Absolutely. Are we the vehicle to start that discussion? No, we’re not.”

    Like you can start at the U.S. Supreme Court.. lol

    It seems to me if there was an interest sincerely in his assertion the “safety net” would consider the Candidate ineligible.

    With the consideration of Proof, the Candidate with tens of Millions, I imagine could get to the U.S. Supreme Court much faster then the negative burden placed on Plaintiff’s in this matter.

    With half a quart of milk stating the U.S. Supreme Court cases in the consideration interest of the Office of President, the Executive Court cowering in fear makes about as much sense as not vetting 100,000 Refugees and waiting for the terroristic activity rather than erring on the safe side with a vetting process clearly outlined.

    The Fact he stated he wished the U.S. Supreme Court would rule on it is indicative of the Doubts he has in the Boards Decision.

    Better in that circumstance to error on the safety side rather than the fringe. Yes, I call it fringe.

    Their decision allows more steam and inflation into an illegal Candidates Campaign defrauding the People they are suppose to protect.

  11. avatar
    Pete November 25, 2015 at 11:39 am #

    Cody,

    You are making little sense.

    I really think you need to see a doctor.

    Logorrhea is a symptom of an underlying illness, and should be treated by a medical professional. Several possible causes of logorrhea respond well to medication.

  12. avatar
    gorefan November 25, 2015 at 12:22 pm #

    I’ve seen Andrew Jackson mentioned in other articles, in fact Teddy Roosevelt singled both Jackson and Arthur out as having dual British American citizenship. Jackson should have been covered by the Peace Treaty of 1783. My guess would be that he hadn’t reached the age of consent at the time the Constitution was ratified.

  13. avatar
    realist November 25, 2015 at 12:59 pm #

    CRJ: The Fact he stated he wished the U.S. Supreme Court would rule on it is indicative of the Doubts he has in the Boards Decision.

    Nonsense. He’s very confident in the commission’s decision. It was made based on applicable law. Period. Just as it was in 2011 with Orly’s nonsense challenge. Their laws have not changed.

  14. avatar
    Sam the Centipede November 25, 2015 at 1:11 pm #

    CRJ:
    [snip babble]

    Er, should you be getting some sleep? None of that stream of unconsciousness makes any sense.

    You clearly don’t know the meanings of the words “illegal” and “fraud”. The Ballot Commission ruled precisely correctly and wholly within the limit of their jurisdiction

    I wonder if Brad Cook’s comment – if he actually made that comment (you birthers are such liars!) – was really him expressing exasperation that idiots keep wasting his commission’s time with their stupid, racist nonsense so that’s why he’d like someone that they’d actually acknowledge to rule definitively. What he perhaps doesn’t appreciate is that birthers would only scream “treason! fraud! treachery! conspiracy! wwwaaaahhhhh!!!” if the Supreme Court were to rule (as it would definitely rule against them).

  15. avatar
    Rickey November 25, 2015 at 1:29 pm #

    Sam the Centipede:

    I wonder if Brad Cook’s comment – if he actually made that comment (you birthers are such liars!) – was really him expressing exasperation that idiots keep wasting his commission’s time with their stupid, racist nonsense so that’s why he’d like someone that they’d actually acknowledge to rule definitively. What he perhaps doesn’t appreciate is that birthers would only scream “treason! fraud! treachery! conspiracy! wwwaaaahhhhh!!!” if the Supreme Court were to rule (as it would definitely rule against them).

    That is how I read it. I believe that we all can agree that an unambiguous definition of “natural born citizen” would put an end to a lot of this nonsense.

    However, I doubt that the Supreme Court is ever going to do it, so I suggest amending the Constitution to include a definition. Given the fact that birtherism is now affecting Republicans as well as Obama, a bipartisan amendment might actually have a chance of getting through Congress.

    If anyone would like to propose wording for such an amendment, it would make for an interesting discussion.

  16. avatar
    bob November 25, 2015 at 1:42 pm #

    CRJ:
    It seems to me if there was an interest sincerely in his assertion the “safety net” would consider the Candidate ineligible.

    Except state law (as interpreted by the commission) doesn’t allow for that — the commission already explained this in 2011 in its denial of Taitz’s challenge. If Judy was sincere about his beliefs, he would have spent the last four years lobbying New Hampshire to change its law, instead of his current performance “art.”

    The Fact he stated he wished the U.S. Supreme Court would rule on it is indicative of the Doubts he has in the Boards Decision.

    Cook’s comments are actually indicative of someone exasperated by people wasting the commission’s time with futile grandstanding.

  17. avatar
    Dr. Conspiracy November 25, 2015 at 2:01 pm #

    Thanks. I got the misspelling from the Ballot Law Commission web site.

    I really didn’t get the “racist screed” feeling when reading that challenge.

    Rickey: I was a bit surprised to learn that ballot challenger Carmon (not Carmen) Elliott is a self-identified progressive.

  18. avatar
    Rickey November 25, 2015 at 4:10 pm #

    The Magic M (not logged in): Probably as much as Andy Martin or Crazy Racist Judy were Democrats.
    When challenging Obama, RW’s posed as liberals to cover up the partisanship nature of their claims.
    When challenging Cruz et al., RW’s pose as liberals to lay the blame for birtherism against GOP candidates on liberals, too.

    Take a look at his Facebook page. He is anti-torture, pro-gay rights, and says that he is bi-sexual. Not what you would expect from a Republican.

    He genuinely believes that Cruz is not a natural born citizen because he was born in Canada. I disagree with him, but it’s not an unreasonable position to take.

  19. avatar
    ellen November 25, 2015 at 9:05 pm #

    Paul Strauss tells me that he has been barred from replying to birthers on this site:

    https://www.youtube.com/watch?v=3Ib98zR01ys

    He’d appreciate if anyone could respond to bobby smith and other birthers—-since from now on he cannot.

  20. avatar
    ellen November 25, 2015 at 9:09 pm #

    Paul Strauss tells me that he has been blocked from posting on this site:

    https://www.youtube.com/watch?v=3Ib98zR01ys

    He appreciate anyone who wants to reply to Bobby Smith and other birthers to do so—since from now on he cannot.

  21. avatar
    CRJ November 26, 2015 at 12:59 am #

    @Pete I thought that is what we were all doing on [Dr.] Conspiracy’s site (lol)

  22. avatar
    Jim F November 26, 2015 at 5:08 am #

    When I was reading Cody’s post I began to fear that at the age of 70 I had somehow developed dyslexia. What a relief to see that later posters were just as confused. Does he do it deliberately?

  23. avatar
    Lupin November 26, 2015 at 11:18 am #

    Jim F: Does he do it deliberately?

    Sadly, no. (SATSQ)

  24. avatar
    Terry K. November 26, 2015 at 4:26 pm #

    Dr. Conspiracy:
    Apparently Andy Martin now lives in Manchester, NH. He ran for the US Senate from there last year.

    So Andy Martin’s back, eh? He tried to sue me (and Media Matters) back in ’08 for (accurately) pointing out that he’s anti-Semitic. It didn’t go far in court — turns out he’s prohibited from filing lawsuits without permission of a court who had previously shut down his nuisance suits. That’s probably why his complaint against Sanders is in the form of a letter to NH officials instead of a legal filing.

  25. avatar
    Dr. Conspiracy November 27, 2015 at 1:09 pm #

    I wonder if it is mere coincidence that WND used the same Ted Cruz image, from all of the Ted Cruz images on the Internet, in their new Cruz eligibility article as I did in this article. Hmmm.

    http://www.wnd.com/2015/11/alan-grayson-dem-pitbull-ill-sue-ted-cruz/

  26. avatar
    RanTalbott November 28, 2015 at 2:44 am #

    I’ve heard it said that New Hampshire leans to the right, but incorporating it into their state seal seems a bit over-the-top.