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Arpaio endorses Trump

Well, he would, wouldn’t he?

imageWith a monumental yawn of non-surprise, I report that the birther Sheriff of Maricopa County, the man who left rape cases uninvestigated to focus on rounding up undocumented day laborers, has endorsed fellow birther Donald Trump for president in an appearance in Iowa yesterday.

Listen to this interview by CNN where Arpaio is grilled over his birther connections with Trump.

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 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 McCain, George Romney and 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


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.

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Ted Cruz eligibility lawsuit in Utah

Fox 13 News in Salt Lake City reports that Walter Wagner has filed a lawsuit in U.S. District Court in SLC claiming Ted Cruz is a not natural born citizen. Read the complaint here. It is styled a “Complaint for declaratory relief.”

This one has a novel definition of “natural born citizen.” According to the complaint, a child born abroad to one US citizen parent is only a natural born citizen if the US Citizen parent had an intent to reside in the US soon afterwards and not in the foreign country. This suit alleges that Cruz’ parents were seeking permanent residence in Canada when Ted Cruz was born.

As authority, Wagner cites the recent article by Mary Brigid McManamon, Minor v. Happersett and the statutory authority for declarative judgments.

From the Minor decision Wagner notes its tangential application in that the two conditions for natural born citizenship given in the case (born in the country to citizen parents for certain, and born in the country to alien parents maybe) state birth in the country as a common factor.

The complaint is well ordered, literate and succinct. That said, there appear to be two insurmountable problems with the case: 1) lack of standing, 2) the lack of any statutory authority supporting the contention that the US Citizen parent must have the intent to reside in the United States. McManamon makes no such argument, and neither does Wagner. This case is

Graphic of the word "Doomed"

Cruz eligibility lawsuits and ballot challenges

Back in the day, I started the Obama Docket Project to keep track of all the birther lawsuits against Barack Obama. That list became outdated and Tes did an excellent job of tracking them all over time (link in under the site Reference menu).

To make the Cruz eligibility lawsuits a little easier to find, I went back and tagged my articles “Cruz eligibility lawsuits.” In going through the articles, I noticed that all of the references to the Voeltz lawsuit in Florida against Cruz (and Rubio) on this site are in comments. So I will put a reference to those in this article and add ones below that don’t have their own article.

Selected comments:

Republicans not very worried about Cruz eligibility

A Fox News telephone poll of registered voters conducted January 18-21 found that Cruz’ Canadian birthplace wasn’t much of a factor. To the question:

imageTed Cruz was born to an American citizen mother, while the family was temporarily working and living in Canada.15. [ASK GOP PRIMARY VOTERS, N=405] Does this make you less likely to vote for him as the Republican nominee?

10% said yes and 88% said no. Now what got me is the next question:

The U.S. Constitution requires that the president be a natural-born citizen.  Knowing this, do you think Ted Cruz is eligible to be president of the United States, or not?

To this 61% said yes, 27% said no, and 11% didn’t know. That says that 17% of Republican voters who think he is ineligible say it doesn’t make them less likely to vote for him.

I note that there is a huge ambiguity in the first question. A voter might think that they wouldn’t vote for Ted Cruz under any circumstances, and hence nothing that could be said would make their vote for him less likely. I wonder if they made that question ambiguous intentionally. And is the respondent supposed to think that the word “temporarily” has legal significance?

Detail results here.

Who is Pinckney McElwee and why should I care?

I was following a Google alert and ended up on the “low immigration” activism web site, the Center for Immigration Studies. Their article takes the Washington Post to task for one of its articles about Cruz eligibility, and its suggestion that one option to resolve the controversy over the meaning of “natural born citizen” is to just pass a constitutional amendment removing the words “natural born.”

My article, despite it’s irrelevant opening paragraph, is not about what the CIS or WaPo said, but rather about a comment on that article left by Charles Kerchner:


pointing to a 2014 article at the Liberty Born blog: NEW EVIDENCE: Intent of 1790 Naturalization Act by T. J. McCann. There are two things that I would take issue with in that article, summarized in the words “NEW” and “EVIDENCE.”

Something from 1969 related to the abbreviated candidacy of George Romney for president hardly classifies as “new.” It’s also not new to readers of this blog who followed the discussion over Bob Gard’s 1722-page eBook on presidential eligibility the year before, or my own presentation of the information back in 2010, or when it appeared on NBC’s blog in 2009. The “NEW EVIDENCE” is from an unpublished  paper by an otherwise unknown DC attorney Pinckney McElwee, read into the Congressional record for the purpose of raising doubts over George Romney’s eligibility in 1969. One commenter here in 2010 described it as a “political hit piece” and I have compared its author to Mario Apuzzo because of their similarity of position, not the quality of their work. Here is the paper, from the Web Archive version of NBC’s Native and Natural  Born Citizenship Explored blog.

T. J. McCann at Liberty Born says that the McElwee paper provides insight into the thinking of Congress when they passed the Naturalization Act of 1790 and subsequently repealed it. The question at issue is whether the 1795 Act says the same thing as the 1790 Act just in different words, or that the concept of “natural born” was intentionally deleted for cause. Those who would argue against Cruz or Romney’s eligibility would find comfort in the latter. Here’s the relevant material:

Although it is not within the power of Congress to change or amend the Constitu­tion by means of definitions of languages used in the Constitution so as to mean some­thing different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Con­gress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution; and under this argument to attach importance to the Act of Congress of March 26, 1790 (1 stat 103).

This argument fades away when it is found that this act used the term “natural-born” through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773) ) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United Skates to extend citizenship to for­eign-born children of American parents. In the discussion on the floor of the House of Representatives in respect to the proposed naturalization bill of a committee composed of Thomas Hartley of Pennsylvania, Thomas Tudor Tucker of South Carolina and Andrew Moore of Virginia, Mr. Edamus Burke of South Carolina stated, “The case of the chil­dren of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of Wil­liam III.” (See pp 1121, Vol 1 (Feb. 4, 1790) of Annals of Congress.) The proposed bill was then recommitted to the Committee of Hartley, Tucker and Moore, and a new bill containing the provision in respect to foreign-born children of American parentage was included, using the Anglican phrase “shall be considered as natural born citi­zens.” Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain “citizen” came from copying the English Naturalization Act.

Mr. James Madison, who had been a mem­ber of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturaliza­tion act.

McElwee says “Here the false inference which such language might suggest with regard to the President was noted,” but no citation is provided, and hence no evidence is presented, and we find the additional misdirection stating Mr. James Madison was a member of the Committee of the House in 1795, while omitting the fact that the same Madison was a member of the House in 1790 as well. To buy McElwee’s argument, we must assume that the majority of Congress, many lawyers and some Framers of the Constitution would unthinkingly copy and paste something from an English statute, and we must take his word about the proceeding of a committee, without citation, asserting something no one else has found.

McCann writes:

If they were not intending to make them natural born citizens, as McElwee’s evidence from the 1795 House Commitee (sic) notes indicates, THEN the founders were using the reference to NBC in the original 1790 Naturalization Act in some other way than to actually confer NBC status.

There is nothing in the McElwee paper citing anything from the 1795 House Committee notes. He gives no EVIDENCE.

Just for reference, I wanted to point out an obvious error in McElwee’s paper, where he says:

In 1802, when Congress repealed entirely the law of 1790, it enacted that “the children of persons who now are, or have been citizens of the United States, shall, although born outside the limits and jurisdiction of the United States, be considered as citizens of the United States” (2 stat 153).

It would be difficult for Congress to have repealed the 1790 Act in 1802, when it had already repealed the act in its entirety in 1795.

Mr. McElwee provides little comfort to the Obama birthers, quoting Blackstone who said:

“Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligence, or, as it Is generally called, the allegiance of the king; and aliens, such as are born out of it.”

That quotation also appeared at Birther Report yesterday in a comment quoting Mary Brigid McManamon. It was not well received.