Perkins case not applicable to Cruz
Pinckney G. McElwee
Back in the day, we had a discussion about an unpublished opinion piece by otherwise unknown attorney Pinckney G. McElwee read into the Congressional Record upon the occasion of George Romney’s candidacy for president in 1967-68. Romney was born in Mexico and his candidacy raised questions about whether a foreign-born citizen at birth was a “natural born citizen” for presidential eligibility purposes.1
McElwee concluded that the foreign born could not become president. His argument is applicable to the present candidacy of Ted Cruz, himself foreign born.
What has appeared on the Internet is a mangled version of the Congressional Record in a YouTube video by Bill Still. In Still’s version McElwee is promoted to a federal judge, and what appears in the Record is his decision in the case of United States v. Perkins, 17 F S 117 (sic), a lawsuit Still says was filed by Michael Perkins challenging the eligibility of George Romney. Still posted his text at Mad World News. David Farrar talks about this case as precedent for Cruz in his comment at Creative Loafing, and it appears in various Google searches related to Cruz eligibility.
McElwee gives the Syllabus from Perkins and an excerpt from the decision, and one might be led to think that the case, in which the foreign-born petitioner was ruled not a natural born citizen, is applicable to George Romney and Ted Cruz; however, McElwee doesn’t give all the relevant information. I was hindered by the mistaken case citation from finding the case in previous tries. The corrected citation is United States v. Perkins, 17 F. Supp. 177 (D.D.C. 1936), and the decision is available at Justia.com.
The Facts of the Case
To start, the Perkins case is not a lawsuit by Michael Perkins challenging the eligibility of George Romney. The “Perkins” of the case was the defendant, Frances Perkins, US Secretary of Labor (1933-1945). The Syllabus cited by McElwee states that the petitioner was born in England of a mother born in the United States, and an English father. What it fails to state, but it clear in the decision, is that petitioner Winston Guest’s mother had lost her US citizenship upon her marriage by operation of a treaty between the US and England and various statutes in force when the marriage took place. That is, Mr. Guest was the child of two English subjects born in England, and hence not a natural born citizen of the United States, even though his mother subsequently resumed her American citizenship under the Cable Act.
I’ve left a few comments around correcting the case citation.
1One scholarly work on that that came out of the debate was George Gordon’s paper, Who can be President Of The United States: The Unresolved Enigma, 28 MD L. Rev. 1,1 (1968).