Confronts head on claims he’s not a natural born citizen
The 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
It 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 he 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 Act of 1790 that 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.
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:
- Andy Martin Complaint against Bernie Sanders
- Sanders reply by attorney Volinsky
- Laity challenge to Rubio, Cruz, Jindal and Santorum
- Response by attorney MacDonald on behalf of Rubio
- Complaint against Donald Trump by Fergus Cullen
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.