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Authorities wade in on Cruz eligibility

I am reminded of 2008 and the issue of John McCain’s eligibility. The unanimous resolution of the Senate, the memorandum of Laurence Tribe and Theodore Olson, and most of the writers in a Michigan Law Review publication came out in support of McCain’s qualifications to be president of the United States, even though he was not born in an incorporated US territory, and he may not even been a citizen at birth but only retroactively. The notable holdout was Gabriel Chin.

This time around we read statements in the news media, such as this March (2015) story at NPR saying Cruz is eligible:

And most legal scholars agree. In fact, two of the best-known Supreme Court lawyers — who are not normally on the same side — make the case that Cruz, as were John McCain, George Romney and Barry Goldwater, is eligible to run.

Neal Katyal, who served as acting solicitor general in the Obama administration, and Paul Clement, who was solicitor general under George W. Bush, wrote earlier this month in the Harvard Law Review that “there is no question” Cruz is eligible.

Despite repeated claims of a near consensus, it seems that we find no shortage of law professors who beg to differ, and the eligibility argument is much more prominent in the media than it was 8 years ago.

Opposed to Cruz eligibility

Clinton

The most recent to come to my attention is a piece by Robert N. Clinton who is the Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. He teaches constitutional law, federal Indian law, cyberspace law and copyrights. His opinion piece appears in US News and World Report in the article titled “Ted Cruz Isn’t a ‘Natural Born” Citizen.” Clinton begins:

Let me join the chorus of opinions by saying that based on the original framework of the Constitution and the 14th Amendment, Sen. Ted Cruz does not appear to be constitutionally eligible to hold the office of the president.

Clinton goes on to say that “Until after the Civil War, it was widely assumed that one was a citizen of the United States if one was a citizen of any state, leaving state law to define national, as well as state, citizenship.” Such may have been assumed, but it was not a universal position. Vice-chancellor Sandford writing in his decision in Lynch v. Clarke held that at the moment the Constitution went into effect, the states lost their role in defining citizenship.

I was pleased to see that Clinton emphasizes something that I said about the two definitions of “naturalization”; however, he claims that the definition involving the operation of a statute is an early definition, and the one defining it as making someone who was once an alien a citizen is recent. I take exception to that. For example Bouvier’s Law Dictionary from 1856 defined the term:

The act by which an alien is made a citizen of the United States of America.

A New and Complete Law Dictionary from 1783 states:

Naturalization is an adoption of one to be intitled by birth to what an Englishman may claim; and where naturalization is, it takes effect from the birth of the party.

A New Law Dictionary and Glossary from 1850:

The act of investing an alien with the rights and privileges of a native or natural-born subject or citizen.

Certainly the First Congress considered the citizens at birth it created “natural born,” and the Supreme Court in 1969 in Rogers v. Bellei called them naturalized.

McManamon

Another earlier opinion against Cruz eligibility is Mary Brigid McManamon who wrote a law review article and a companion piece for general readership.

Einer Elhauge

Harvard law professor Einer Elhauge says in an article at Salon.com, a site with extensive coverage of the issue, that Cruz isn’t eligible. Elhauge writing January 20, 2016, asserts a change in the tide of opinion:

The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain.  But closer examination shows it is surprisingly weak.

Posner

Eric Posner of the University of Chicago Law School continues the trend at Salon.com with an argument titled: “Ted Cruz is not Eligible to be President: At least according to the most plausible constitutional interpretation.”

In favor of Cruz eligibility

Garner

A third entry is a memorandum by legal scholar Bryan A. Garner that appeared this month in The Atlantic. Garner has been editor in chief of Black’s Law Dictionary since 1994. He presents an engaging essay, that includes these words (footnotes omitted):

So the question boils down to whether blood rights are encompassed in the common-law meaning of natural-born citizen. The 1790 federal statute cannot affect the meaning of the constitutional words in Article II, which took effect in 1789. In fact, the enactment of the 1790 statute suggests that the common-law meaning was explicitly being changed.

Under a well-accepted canon of construction, constitutional or statutory words and phrases with an accepted common-law meaning are presumed to bear their common-law meaning—unless explicitly redefined.

Unlike some commenters, Garner says that the acts of Parliament are relevant:

A further question arises: to what extent was a 1708 or 1731 statute incorporated into American law? The answer is that they are entirely applicable. According to the U.S. Supreme Court in 1831: “These statutes being passed before the emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law.” [‘Doe ex. dem. Patterson v. Winn, 30 U.S. 233, 241–42 (1831).] In his 1828 Commentaries on American Law, James Kent had used virtually the same words.2

Were these statutes “applicable to our situation”? Apparently. After all, the 1790 federal statute had likewise restricted blood rights to those born of father-citizens, just as the British statute had restricted them to father-subjects. But the federal statute had a further restriction: only father-citizens who had been resident in the United States could confer blood rights.

In the end, Garner concludes that the Supreme Court would find Cruz eligible.

Chin

Interestingly, Gabriel Chin, who wrote against the eligibility of John McCain says Cruz is probably eligible in a 2013 article published by CNN. Chin believes that the word “natural” in “natural born subject” refers to natural law, rather than from the Latin root meaning “from birth.”

Katyal and Clement

Writing in the Harvard Law review conclude Cruz is definitely eligible.

Maskell

Legislative attorney Jack Maskell of the Congressional Research Service renewed his opinion that Cruz is likely eligible in his recently-updated CRS report.

Tribe

Writing for the Boston Globe, noted defender of McCain’s eligibility Laurence H. Tribe comes out in support of eligibility for his former student, Ted Cruz. Tribe says that for an originalist judge, Cruz is toast, but not under our evolving constitution. Tribe wrote:

… the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.

Amar

Akhil Reed Amar, author and professor of constitutional law at Yale University, says in a CNN opinion piece that it is the Congress, not the judiciary, who is the final arbiter of presidential qualifications under the 12 Amendment.

Ordinary courts should butt out … the issue is a “nonjusdiciable political question.”

He says the “right answer” is found by asking whether Cruz is “born a citizen” because that’s what “natural born citizen” means and uses my two favorite words to clarify:

The 14th Amendment says that birth on American soil is sufficient to be a birth citizen. But it is not necessary.

Amar’s piece is short on legal reasoning, but he does touch on the import of the word “natural”

That word confirms the analysis. First, the word itself derives from Latin and French roots that are about birth. The word is arguably redundant (in the way that much of language is). In effect, the Constitution says that a president must be a “birth-born citizen.” But the word “natural” does add a key clarification: Congress is empowered by statute to define birthright citizenship under its Article I, section 8 power to pass a “Rule of Naturalization.”

Perl-Rosenthal and Erman

These two, professors of history and law, conclude that perhaps the Framers were not trying to write precisely about citizenship in the Constitution and that they may have had differing ideas of what “natural born citizen” meant, just as we do today, and particularly about whether the English provisions for subjects born abroad were so deeply enshrined in English law as to be considered part of the common law. Their article is “Ted Cruz: Is He or Isn’t He Eligible to be President?” at History News Network. They conclude that Cruz is eligible.

Ramsey

Michael Ramsey of the University of San Diego Law School joins the pro-eligibility side in this academic paper, “The original meaning of ‘natural born citizen.”

In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.

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20 Responses to Authorities wade in on Cruz eligibility

  1. avatar
    JGLaw January 27, 2016 at 3:46 pm #

    I think “natural-born” means that one is not adopted. Natural-born sister, Natural-born son, etc. Naturalization would be the adoption procedure.

  2. avatar
    CRJ January 28, 2016 at 2:40 pm #

    JGLaw: I think “natural-born” means that one is not adopted. Natural-born sister, Natural-born son, etc. Naturalization would be the adoption procedure.

    I agree with you. The Powers of Congress granted in Article 1, Section 8, Clause 4 were of establishing “Varying Kinds of qualified Adoption”, not in Standardizing the Laws of Nature.

    This was indeed a very intereating Post Doc. Although I had thought Trump asserted in the Debate Lawrence Tribe who was Cruz’s Professor was apposed to Cruz’s eligibility

    https://m.youtube.com/watch?v=fPY_Iw9wvPQ&feature=youtu.be

    Astounding to me to see how cavalier Cruz was about the Qualifications for the Office of President in the U.S. Constitution now in affect near 240 years asserting it unimportant wildly applauded by Republicans!

    Cruz’s assertion does go so far as to include any and all American’s are qualified for the Office of President when he states at 2:29 “In regards to Citizenship Donald, Your American as is everyone on this stage”

    This would include it seems Foreigners who naturalized in any manner including for example Gov. Schwarzenegger.

    Trump missed the Rebuttle and reminder it is not Citizenship, but natural born Citizenship which is the requirement of the questing. It takes a really quick ear to stop the muddeling of the terms and to separate them as in Rep, Sen, and Pres.
    Ted furthers the importance of
    “Concentrating on whose prepared to be the next Commander-in-Chief ” is nearly a backflip on his own head because the job oath requires, “preserving, protecting and defending the Constitution of the United States” , something near impossible if you’re a walking talking violation of the Qualification.

    It is however revealing of Cruz’s own reference of [Commander-in-Chief] that he views the position much more Militaristic than Civil as if he’s referred to the position as President.

    @3:34 is where Trump mentions Lawrence Tribe.

    Referring to McCain’s circumstances in contrast to Cruz , Tribe offered:
    On Sunday, he wrote: “That situation differed greatly from the one Sen[ator] Cruz finds himself in.”

    Asked if he was surprised by Trump’s use of his name, Tribe wrote: “What I find surreal isn’t that a Republican presidential candidate would favorably cite my legal conclusions, but that anyone should find that phenomenon so shocking.

    “The fact that I’m a lifelong liberal and a registered Democrat who taught constitutional law to President Obama (and, by the way, to Chief Justice Roberts and Senator Cruz) makes my citation by a likely Republican nominee for president surprising only because our political divisions have become so profound and so paralyzing that people no longer believe in the possibility of disinterested legal research.

    “That’s really sad.”

    http://www.theguardian.com/us-news/2016/jan/11/laurence-tribe-ted-cruz-donald-trump-citizen-president

  3. avatar
    Scientist January 28, 2016 at 3:03 pm #

    CRJ: Standardizing the Laws of Nature.

    CRJ: This would include it seems Foreigners who naturalized in any manner including for example Gov. Schwarzenegger.

    Under the “Laws of Nature” the strongest male rules and gets to mate with all the females. So, Ahhhnold, at least as younger man, would definitely have been President. As for mating with the females, I think he already took care of that.

  4. avatar
    aarrgghh January 28, 2016 at 4:32 pm #

    some rare birther clarity …

    Cboldt: “GOPe or RNC don’t need a court order to disqualify Cruz. They can do that on their own. If Cruz doesn’t like it, he can sue them. Just saying, the party is its own competent “judge” of eligibility.”

    Right-wing Librarian: “So, if the GOPe just wanted to appoint their own choice, they have the authority to just disqualify anybody at any point in time without being accountable to anybody?”

    Cboldt: “They are accountable, that comes with having the power. But they don’t have to run a person who is not qualified. They wouldn’t run with a 30 year old, for example. The person who is denied the opportunity can seek relief in court on some civil law claim, breach of promise or something like that.”

    … pointing out the folks bearing the real burden. still not gonna happen.

  5. avatar
    Dr. Conspiracy January 28, 2016 at 6:30 pm #

    Name dropper.

    CRJ: {Quoting Laurence Tribe]The fact that I’m a lifelong liberal and a registered Democrat who taught constitutional law to President Obama (and, by the way, to Chief Justice Roberts and Senator Cruz) makes my citation by a likely Republican nominee for president surprising only because our political divisions have become so profound and so paralyzing that people no longer believe in the possibility of disinterested legal research.

  6. avatar
    Dr. Conspiracy January 28, 2016 at 6:55 pm #

    I really liked Garner’s essay.

  7. avatar
    gorefan January 28, 2016 at 6:55 pm #

    Dr. Conspiracy: Name dropper.

    Another article with names:.

    University of Chicago law professor Eric Posner
    Chapman University’s Ronald Rotunda
    Catholic University law professor Sarah Helene Duggin
    Northwestern University law professor Steven Lubet

    http://townhall.com/columnists/stevechapman/2016/01/28/could-ted-cruz-be-disqualified-n2110855/page/full

  8. avatar
    Paper January 30, 2016 at 12:25 am #

    I have been away from here for awhile. Family health issues took over my life. But I just want to take a moment to add Akhil Amar to your list in favor of eligibility. See two recent articles in particular:

    CNN
    Why Ted Cruz is eligible to be president

    http://www.cnn.com/2016/01/13/opinions/amar-cruz-trump-natural-born-citizen/

    Reuters
    Cruz citizenship case should be tried in court of public opinion

    http://blogs.reuters.com/great-debate/2016/01/19/why-american-voters-must-decide-if-cruz-is-eligible/

  9. avatar
    Dr. Conspiracy January 30, 2016 at 7:19 am #

    Good to hear from you, and thanks. I’ve added Amar to the article. Amar says that pretty much a consensus think Cruz is eligible.

    Paper: I have been away from here for awhile. Family health issues took over my life. But I just want to take a moment to add Akhil Amar to your list in favor of eligibility. See two recent articles in particular:

  10. avatar
    Jacko January 30, 2016 at 4:04 pm #

    As the opinions of courts constantly state that the court looks at all of the words in the relevant law, then it seems that posters also so look at all of the words of the dispute.

    Citizen is general term. As soon as you modify it by the term “natural-born” or “natural born” the word describes a subset of citizens to be considered for the required position.

    Any usage of the word ‘citizen’ without the modifier referred to above includes everyone except the subset defined as “natural born”
    .
    It is fairly useless to describe the problem without clarification of what the adjective really means

    It is also fair to declare that there is a significant difference as the Constitutional writer made a deliberate effort to show the difference by limiting “citizens” to positions in government lower than the President

  11. avatar
    Arthur B. January 30, 2016 at 4:14 pm #

    Jacko: Citizen is general term. As soon as you modify it by the term “natural-born” or “natural born” the word describes a subset of citizens to be considered for the required position.

    Any usage of the word ‘citizen’ without the modifier referred to above includes everyone except the subset defined as “natural born”

    A set does not include its subsets? How do you figure that?

  12. avatar
    Dr. Conspiracy January 30, 2016 at 4:27 pm #

    Indeed that is the difficulty. Natural has many meanings, among which are:

    1) From the application of natural law. That is, a natural born citizen is someone born a citizen by natural law. Some writers on natural law that a child follows the citizenship of their father.

    2) Of or by birth, from the Latin natus. There a natural born citizen is anyone who becomes a citizen according to the circumstances of their birth, and becomes so at birth.

    3) Natural born references English Common Law (natural born subject) and natural born citizens are those would be natural born subjects under English common law, that is, pretty much everyone born in the country, even of alien parents.

    4) Natural born references English Common Law (natural born subjects) and statutes in effect when the Constitution was ratified, and those would include persons born overseas to citizens, and persons born in the country to alien parents.

    My personal opinion is closest to number 4, and this is also the majority opinion of the writers cited in my article, and reported the majority opinion of authorities in general. That is, those born citizens who meet the other requirements are eligible to become president. Members of the House and Senate clearly may be persons who were not born citizens, as the Constitution makes plain through its term of citizenship requirement for those offices.

    There is a presumption of eligibility in this country, and it would take, in my opinion, a profoundly persuasive argument to convince a court to exclude Ted Cruz. As Prof. Amar said in his article cited above: if you don’t think Ted Cruz is eligible, don’t vote for him.

    Jacko: It is fairly useless to describe the problem without clarification of what the adjective really means

  13. avatar
    Scientist January 30, 2016 at 4:43 pm #

    Dr. Conspiracy: My personal opinion is closest to number 4,

    The issue with 4 for Cruz is that the English statutes covered those born outside England to English fathers. not mothers, so you would have to incorporate subsequent gender equality laws. Number 2 follows the law at the time of birth, so any modifications are automatically included. I prefer that for simplicity’s sake

    Dr. Conspiracy: There is a presumption of eligibility in this country, and it would take, in my opinion, a profoundly persuasive argument to convince a court to exclude Ted Cruz. As Prof. Amar said in his article cited above: if you don’t think Ted Cruz is eligible, don’t vote for him.

    This is the bottom line.

  14. avatar
    Notorial Dissent January 31, 2016 at 4:38 am #

    Jacko, I am goign to rpesume tha tyou mis-spoke when you said,

    Jacko:
    Anyusage of the word ‘citizen’ without the modifier referred to above includes everyone except the subset defined as “natural born”
    .

    If not, then you are quite simply, and completely WRONG. The master set is citizen, of which natural born and naturalized are subsets of the whole. The term “citizen” refers to BOTH.

    US law requires that you be a “citizen” to hold office, and that you must be a “natural born” citizen to be president.

  15. avatar
    Jacko January 31, 2016 at 8:24 pm #

    any citizen can be elected to Congress
    only Natural born citizen can be elected to president.

    If the founder had thought that all citizens could qualify for president there would be no need to use the adjective “natural-born”.

    An Irish man is different than a Greek Man, although the are both men.

    The courts hold that adjectives must be considered when reading law, and the Constitution is considered to be law, by some.

    An American citizen and a Mexican citizen are both different types of citizens.

    It surprises me that we think we can determine,correctly, what the law means when the supreme court is split in most decisions most of the time, so even it is not sure what the difference should be

  16. avatar
    Arthur B. January 31, 2016 at 8:49 pm #

    Jacko: any citizen can be elected to Congress
    only Natural born citizen can be elected to president.

    If the founder had thought that all citizens could qualify for president there would be no need to use the adjective “natural-born”.

    I agree with you about citizenship, though you’ve omitted various qualifications involving age and residency.

    I also think you’re right about the haziness of Supreme Court precedent on this issue. While it’s clear, for example, that a case like Barack Obama’s falls well within settled law, more complex cases, like Cruz’s, are difficult to evaluate given some of the confusing precedent on the issue.

  17. avatar
    Notorial Dissent February 1, 2016 at 2:34 am #

    Jacko, is there some point you are attempting to make and failing miserably at, or are we to simply assume that you like repeating the obvious and already known to no point?

  18. avatar
    Lupin February 1, 2016 at 3:46 am #

    Jacko: any citizen can be elected to Congress
    only Natural born citizen can be elected to president.

    Yes; natural-born means, excluding naturalized citizens (e.g.: Schwarzenegger). That is, to quote Monty Python, the bleeding obvious.

  19. avatar
    bovril February 1, 2016 at 4:58 am #

    Now, whilst my PERSONAL opinion is that Cruz is arguably not an NBC, I, like most believe this is a fundamentally a personal and political question.

    Personal in that there is personal choice within the GOP by the various members of the GOP as promulgated by the various caucus’s, primaries etc. to chose Cruz as their standard bearer or not

    Personal in that it then becomes a personal choice by the electorate as a whole to either vote for or not vote for Cruz

    Political in that the only real mechanism for disqualification would and should lie with Congress during the Electoral College vote process.

    Now it is POSSIBLE that the SC could get dragged into this if Trumpenstein doesn’t get the nomination and actually as opposed to bombastically threatens to sue.

    He would arguably have standing, real injury, concrete and particularized, happened or imminent that a court COULD remedy.

    I personally think he would have no better then a 50:50 chance of the suit being accepted as the court could say “Political question, up to Congress” or that they have no rights to interfere in the private goings on of a political party’s interval workings and decision making process.

    I would like to see a court take it up and then punt to the SC if only to hopefully get some hopefully final clarity on this question and hopefully see the Bellei stain wiped…..Oh and for the lulz as well when we see the GOP and various nutjobs twist in the wind……

  20. avatar
    Dr. Conspiracy February 5, 2016 at 4:58 pm #

    Is Ted Cruz a ‘Natural Born’ Citizen? Founding Fathers Wouldn’t Think So

    Read more: http://www.ctlawtribune.com/id=1202748773860/Is-Ted-Cruz-a-Natural-Born-Citizen-Founding-Fathers-Wouldnt-Think-So#ixzz3zKjD81Lo

    I was not impressed.