Saturday, August 24, 2013
Ted Cruz's birth certificate distraction
[PLEASE READ UPDATES BELOW AS WELL]
This past week and next week I am in the doldrums, not just because I have entered my 84th year [please respect my "no present's" rule, thank you] but because both the Daily Show and the Colbert Report on on hiatus until after Labor Day. [Push, push, push ....]
By the time Jon and Stephen are back all the humor of this Cruz-uncontrolled will have been drained. Note that Donald Trump was asked about Cruz's situation and The Donald perhaps concerned with being consistent on birther issues suggested Cruz might not be a legitimate presidential candidate. Oh, the horns of the birther dilemma can be sharp - perhaps hair-raising for The Donald.
But Cruz is obviously uncontrolled and will not be on the GOP's 2016 presidential ticket. I had earlier predicted the GOP's a-PAUL-ing ticket:
PAUL R-AYN/RAND PAUL 2016
with a half-Atlas Shrug.
Sandy, I feel a little wind with this post that may indeed get me out of the doldrums, a little tack here, a little tack there. Thanks. You've made my weekend.
Regarding Orrin Hatch's 2003 proposal, consider if it had been enacted and Arnold did run for President and was elected, following which certain personal events were revealed. The problem with Hatch's proposal was that it was motivated by the anticipated electability of a former movie actor, a Republican, not the wisdom that a natural born person may not be more qualified than a foreign born who is naturalized. Hatch's move was political, in recognition of the GOP vacuum in 2003, a vacuum that became demonstrably vacuous in 2012.
" as, for that matter, Barack Obama would have been had he in fact been born in Kenya"
Um, no, not actually. When Obama was born, it was "five years after one's 16th birthday", and Obama's mom was only 18 at the time he was born, so it certainly DID legally matter where he was born, as she couldn't satisfy the years in the US requirement. See the <a href="http://www.snopes.com/politics/obama/citizen.asp>Snopes page</a>.
You are, however, quite right that the birth certificate alone doesn't prove it in Cruz' case.
What I think is the real irony of all the "Birther" arguments, on both sides, is that there WAS a Presidential candidate in 2008 who wasn't a natural born citizen: John McCain! He rather unambiguously did NOT satisfy the requirements of the law at the time he was born, and although they were changed "retroactively" a couple years later, the whole point of natural born citizenship is that you were a citizen at birth, rather than naturalized.
Silly that I must point it out, but I guess I must: No, Shag, I was never a "Birther".
To be a presidential candidate, does one have to be a Natural Born Citizen? Or does this provision come into play only if the candidate is actually elected? Perhaps Brett is suggesting that Obama won by default in 2008 because of McCain's status, who was Natural Born at a canal distant from US shores.
I should make it clear that I have not accused Brett of being a birther or confused him with The Donald of combover coif fame.
I get a lot of complaints that I'm "Birther" just because I thought that they were entitled to be proven wrong in a court of law, after production of the relevant evidence, instead of being shut down by a "standing" argument which would have rendered the clause unenforceable. Whether you think the clause a good idea, bad, or merely obsolete, until repealed it's part of the Constitution, and ought to be enforced.
I suppose there's an argument that the requirements for being President don't preclude running for the office even if you don't qualify. Interesting question who'd end up President if the winner of the election were constitutionally ineligible.
Damn straight you shouldn't confuse me with anyone having a combover. Though I might update the pic, some of my hair did come back after the chemo was over.
I forget. Did you make a similar inquiry of Obama or are you a born again "birther?" ;^)
In any case, Cruz himself better know the answer to this question before running because the Clinton oppo research trolls will most certainly be looking.
Hope Cruz is a citizen because he will most certainly liven up the race.
The alleged "unambiguous" nature of McCain violating the standards is open to reasonable doubt:
The term 'birther' is usually applied to those who doubt the details of birth of the President. The details of McCain's birth is not to my knowledge in doubt. The question would be what the undisputed (no certificate necessary) facts provide us.
The Snopes article aside, I don't think it is fully clear that a person born to a a citizen parent abroad is constitutionally not "natural born" if statutory law says otherwise. Was this EVER tested? The OP is a bit too firm in his statement at best.
Finally, trusting enforcement of the "natural born" rule to Congress or the Chief Justice of the U.S. would not "render it unenforceable." Since there is no actual sane evidence that Obama was not born in Hawaii, the fact Congress didn't hold a hearing or some sort before counting the electoral votes doesn't lead me to think it wasn't honored.
I put aside the general concept of "political question" that trusts various constitutional provisions at times to the the political process, not some lone litigant with no individualized standing. I would have a small bit of respect if a secretary of state of one of the fifty states brought a case, but am not aware of any.
Brett has also got some ribbing for not thinking the evidence patently so that Obama was born in Hawaii, for thinking there is some doubt. That at least is how I read some of the comments, of which he didn't refute. If so, that sort of sounds "birth-y."
As to the OP, the whole thing is silly, except as a tweaking to birthers, for whom sadly there are enough out there to matter, and hyper-nationalists of all sorts.
Cruz's felt need to renounce his Canadian citizenship doesn't make him look that good in my opinion, but then, I don't have too high of an opinion of the man anyway.
SL's support of Hatch's Amendment is appropriately cited:
A person who is a citizen of the United States, who has been for
20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.
Maybe, we can combine it with something to deal with the people of D.C. -- not statehood, but rescission to Maryland with an amendment to fix the terms of the 23A so some small rump population won't have three electoral votes.
something to deal with the people of D.C. -- not statehood, but rescission to Maryland with an amendment to fix the terms of the 23A so some small rump population won't have three electoral votes.
Begging your pardon, but the population of DC is about 65,000 more than the population of Wyoming and about 6,000 more than Vermont's.
Do we need any solutions for these small rump populations with two Senators each? (Aside from our own political inclinations, of course.) If not, then I would maintain that DC should have the same rights of representation, so as not to disenfranchise its residents.
If possible, I very well would try to fix the Senate (e.g., by amending away the Article V provision regarding the equal suffrage requirement and then setting up a new rule -- this two step approach done in a somewhat comparable situation to address the House of Lords) and do not want to bury the hole deeper there.
I still find Wyoming and Vermont different than D.C., which is in effect a city, not a thinly populated large land mass (Wyoming particularly). The two also have precedent on its side as states. Dubious precedent doesn't require adding to it for consistency.
By rescission, the residents would not be "disenfranchised" but represented by a (at least) voting member of the House. The move might result in a few thousand (not anywhere close to the population of those two states) remaining outside of Maryland, though even that perhaps can be avoided.
I don't think it's at all clear what "natural born citizen" means. My guess is that the purpose of the provision was to prohibit foreign-born citizens from being president. If that interpretation were deemed correct, no statute could make Ted Cruz eligible to serve.
The Professor notes that "...truly enquiring minds--including professional journalists--should at least ask where Eleanor Elizabeth Wilson was following her 14th birthday."
Actually, there is quite a bit of chatter on the web. For example, at the site "Outside the Beltway," the poster states "Cruz’s mother was in her 30s when her son was born in 1970, so she had lived in the United States as a U.S. citizen for the required number of years to confer U.S. citizenship on her son regardless of where his birth took place."
There is also attention to the problem at National Review Online and at numerous other sites.
The problem encountered by Obama's mother arose from in a truly oppressive provision of the notorious McCarron-Walter Immigration and Nationalization Act of 1952. It required five years of residence after age 14. The citizen parent had to be "physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years."
As a result, any one 18 or younger could not possibly pass on her citizenship if she gave birth to a child with an alien father while outside the U.S., even if only for vacation. So a mother who was a natural born citizen, with natural born parents, was denied a right granted to almost all other citizens, including all naturalized citizens. This was corrected, but not retroactively. So if Ann Dunham had given birth in Kenya (which she did not), or in Canada or Mexico (which she did not), then she would not have conveyed citizenship at birth. But that is only an issue in an alternate time track. In our time-stream, Obama was born in the U.S.A.
By contrast, Cruz's mother was in her 30's, and had graduated from college in the U.S. She obviously had to have had the necessary five years. She had the five years at age 19, and, if for any reason she did not, she had four years in college to accumulate them.
So the real question is whether Mrs. Cruz had five years of residence at any time up until she gave birth in her 30s. And she did.
I admit it's overwhelmingly likely that Ted Cruz is a citizen, but it's still fun to write a post about Cruz describing him & his views in an uncharitable manner.
How very academic of you.
(It's a vice that pales when placed beside Levinson's virtues, e.g., getting the ball rolling re the scholarly treatment of the 2nd Amendment.)
While I think it is clear Mr. Levinson does not care much for Cruz it seems to me the post is largely using Cruz's situation in poking fun at the obsessiveness of many conservatives about citizenship issues.
"the Clinton oppo research trolls will most certainly be looking"
This is a common retort of conservatives when birtherism is pointed out. True, I guess, but of course it was with the right, not the left, that birtherism got so much traction.
I am sincerely grateful to Mr. Treacy for the valuable information he has provided about the biography of Ted Cruz's mother. There appears to be no basis for an iota of doubt that he is a "natural-born" citizen, even if necessarily relies on a statute rather than on the Fourteenth Amendment. For me, as noted, that is an absolutely irrelevant difference.
I am still mystified by Sen. Cruz's profession of surprise that he was in fact a birthright citizen of Canada as well. I wonder how charitable he would be of some poor schnook charged with some federal crime in which the defendant claimed ignorance of the law.
The history of the Natural Born Citizen Clause shows that the framers were concerned about foreign influence in the nation's governing councils. For example, one worry was that some citizens might seek a king, prince or general from abroad if the Republic began to flounder. There were rumors that a son of King George III might be asked to come to America to rule. If Congress had naturalized him in wave of desperation, he could then have sweep into the Presidency. European royalty in those days was like an officer corps or senior civil service, used to supplying heads of state to various and sundry countries. For example, the European powers installed a German Prince as King of Greece in the 1800s.
So the Clause excluded naturalized citizens. It left nothing open to political manipulation. Under this interpretation, it allows any person who, in Hamilton's words, may be "born a Citizen of the United States" to be President. (Hamilton's view was not before the Convention, but his opinions have carried some weight down through the years, cf. The Federalist Papers, passim.) Since Cruz was born a citizen, he is eligible.
That is why the majority legal consensus today is that persons who become citizens at birth qualify as natural born. Since this is a legal blog, the best analysis of the cases and authorities is in the CRS Report: Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, by Jack Maskell, Nov. 14, 2011:
This interpretation complies with the founders purpose, and provides a bright-line test. It prevented foreign generals or princes from trying to sweep into power and stopped various Napoleons from placing their relatives in power.
It is, of course, now obsolete, like a lot of other things in the 1787 document, such as mandatory return of fugitives bound to service, the three-fifths rule, state legislative election of Senators, unequal Senate representation, lack of legislative representation for the District, and denial of the vote to blacks, women, and 18-year olds. See also the Territory Clause in Article IV, section 3 which grants Congress the status of permanent colonial overseer of the biggest colonial empire in the world today. They all were, or should be, junked.
I am still mystified by Sen. Cruz's profession of surprise that he was in fact a birthright citizen of Canada as well. I wonder how charitable he would be of some poor schnook charged with some federal crime in which the defendant claimed ignorance of the law.
Why should American citizen and resident Ted Cruz have any knowledge of Canadian citizenship law?
I have a friend who was born in Australia of a Australian father and an American mother and whose American citizenship was questioned for the first time when she tried to renew her US passport after 9/11. In reestablishing her US citizenship, she found out for the first time that she was also a dual Australian citizen under their law.
Interesting, but to my friend and Cruz, a meaningless item of trivia.
There's always a chance that foreign influence will be a concern, so unlike the 3/5 Clause, don't think the broader issue is totally obsolete. Even Hatch's Amendment has that "twenty years a citizen" kicker.
Prof. Levinson might be a bit charitable about Sen. Cruz's "profession of surprise." Then again, maybe it was surprising. Canada, unlike Mexico or Africa or the like, isn't supposed to be an issue. Also, such stringent controls are not for "us" but "them."
It is sometimes surprising when things turn personal like that.
I don't think even the 3/5ths clause ought, properly, be regarded as obsolete. Strictly speaking, it should reduce a state's representation as a consequence of prison population, too; Prisoners aren't exactly "free".
I would think that knowing that we bestow citizenship to those born in our country and knowing he was born in Canada might make him look into or be curious about it.
Also, perhaps it might be good to know for his role on the Senate Judiciary Subcommittee on Immigration, Refugees, and Border Security.
That is a very interesting point. There has been some controversy about the fact that many rural areas in states have prisons full of people (often from urban areas) who cannot vote but count for districting purposes.
The three-fifths clause is as dead as a doornail, buried by the Thirteenth, Fourteenth and Fifteenth Amendments. Slavery no longer exists within the United States or its jurisdiction, no state may deny equal protection of the laws to any person within its jurisdiction, and the right to vote may not be denied or abridged on the basis of race, color, or previous condition of servitude.
It never ever applied to criminal prisoners. It only ever applied to "other Persons," a term of art referring to slaves, that is, "Persons held to Service or Labour" under the laws of a State. Such persons no longer exist in the United States by power of the Thirteenth Amendment.
Yeah, what Brian said. There are some interesting constitutional issues here, but Sandy's post does little to illuminate them. Instead, what it illustrates is the thrill of making nasty and personal insinuations against someone that you loathe politically. See how easy it would be to be a birthed?
That's a lot of material provided, including links and more by opening up comments, for it not to be illuminating.
Also, the easiness of being birthed, including as noted by those quite illuminating Salon articles* is a basic point. Prof. Levinson finds Cruz a lousy public servant, but it has "literally nothing to do with any doubts that might exist about the basis of his citizenship."
But, if one actually worried about that sort of thing, Cruz -- though some of his supporters are unlikely to be consistent about such things -- could be a target. Clear evidence won't stop such efforts.
But, since his ire, at a blog where he has for years provided personal feelings mixed in with his musings on the law, at Cruz does seem to have confused mls, so perhaps it was a bad idea.
* Since the post is not illuminating and the two are quite useful, I assume someone else wrote that update.
Should Cruz be identified as a "Canadian-American" or an "American-Canadian"? I understand that in Texas border towns he's described as a "Snowback." I can only imagine how regaled Cruz might have been while clerking for Rehnquist with the latter's stories of his advice when he was a clerk that Plessy was good law and of his shenanigans at polling stations in efforts to keep certain people from voting.
By the Bybee [expletives deleted], mls with this critique of Sandy:
"Instead, what it illustrates is the thrill of making nasty and personal insinuations against someone that you loathe politically."
describes well mls' own personal "thrills" over the years (dis)respecting American's first African-American President.
But let's enjoy this summer Cruz. With his expected renouncing of his Canadian citizenship, if he does succeed in 2016, let's start on a screenplay for "Canadian Bacon II." Chris Christie can star in the John Candy role.
The article suggests that McCain was not a citizen at birth and that the statute granting citizenship to those born in the Canal Zone was not retroactive.
Federal District Judge Alsup in the case of Robinson v. Bowen had a different view, saying:
"At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. 1 Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen."
Re the district court's opinion, Prof. Chin reads the existing statute (as of the time of McCain's birth) to require being born both our of the limit of the U.S. (which he was) and out of "the jurisdiction" of the US (which he was not). There's nothing stupid about such a reading; there are lots of cases of statutory interpretation that turn on such "technicalities" of what one might regard as badly drafted legislation (since it's hard to come up with a plausible theory by which we'd want to regard the "limit-jurisdiction" distinction as important), and a proud Scalian often claims to be a prisoner of the statutory language, period. Prof. Sachs provides a very good argument for reading the initial statute in a different way, based, at least in part, on "originalist" analysis of the terms as of 1795, when the language was initially adopted. And, as indicated in my post, there's a really interesting argument about the importance of McCain's father's military status.
But give credit to Sandy for his "stones" in providing his two (2) Updates (so far) with clarifications, concessions and links, rather than ducking/covering. A few panes may have been broken, but pain was taken to fix them.
There are a couple of differences in legal effect between the birth certificates of Ted Cruz and Barack Obama.
First, both of Obama's certificates were issued by the State of Hawaii and as such are public records of that State. Under Article IV, section 1, they shall be given "Full Faith and Credit" in each State. Cruz's certificate was issued by Canada and is not entitled to full faith and credit under Article IV.
Second, Congress established minimum standards that federal agencies must follow in accepting birth certificates, in section 7211 of Public Law 108-458, Dec. 17, 2004, 118 Stat. 3825, 5 U.S.C. 301 note. Under its definition, the term "birth certificate" means a certificate of birth:
(1) for an individual, regardless of where born, (A) who is a citizen or national of the United States at birth, and (B) whose birth is registered in the United States, and
(2) that (A) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record, or (B) is an authenticated copy, issued by a Federal, State, or local governmental agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.
Since Canada is not a Federal, State or local government agency, its birth certificates may not be accepted by United States federal agencies. As Professor Lubet noted, Cruz necessarily had to produce more to establish U.S. citizenship than a mere Canadian birth certificate to obtain a passport and for any other legal purposes.
Obama, on the other hand, is a "first sentence of the Fourteenth Amendment" citizen by birth.
Ann Dunham, mother of President Obama was only 18 years old when she gave birth. Had he been born outside the US, he would not have acquired citizenship at birth.
When presented with plausible but conflicting arguments for the constitutionality of a proposition, choose the interpretation that best fulfills the stated or evident purpose of the constitutional provision.
The evident purpose of the natural born citizenship requirement was to bar naturalized
Citizens from the Presidency. The framers feared that grownup foreign royals or nobles might try to sweep into power at the call of desperate citizens. They might be installed by dint of military threats by foreign powers. A charismatic military leader might pose as a savior of the nation. These were all precluded by the Clause.
Could the foreign-born children of American citizens have fitted into this category of threats? Could the framers have rationally feared citizenship at birth as a foreign influence? The answer from history is clearly "No". The First Congress passed a law providing that children of citizens "that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens."
Many framers sat in that Congress. Supreme Court decisions have given weight to its constitutional interpretations. Its legislation was signed into law by George Washington himself, who had presided at the 1787 Convention. So we do not have to guess. The framers did not fear foreign born infants and expressly conferred natural born citizenship to them.
Congress in 1934 provided in express terms that persons born to an American citizen parent "out of the limits and jurisdiction" of the U. S. were citizens. The language is plain, and for a hundred years the terms "limits" and "jurisdiction" were synonymous, but Chin argues that an ambiguity arose, and that the Zone was outside the limits but not outside the jurisdiction. Because of this esoteric argument, infant McCain was arguably a citizen of no man's land.
In 1937, Congress spoke again and extended coverage to anyone born in the Zone after 1904 who had an American citizen parent. If McCain was born a citizen in 1936, says Professor Chin, "Congress in 1937 cannot reverse that, even by legislation." 37 Michigan Law Rev. 1,7 (2008). He gives no authority for the quoted limit on retroactive legislation by Congress, and there is none in the Constitution. The 1937 law was not ex post facto because it was not criminal, and it deprived no one of life, liberty or property without due process. It was a legitimate exercise by Congress of its power over citizenship.
One reason for Chin's reading is "the belief that it should be made as hard as possible for anyone not a 'natural-born' citizen by virtue of having been born within the territorial limits of the US, to become President," but Professor Levinson does not subscribe to this view. And rightly so. It is not a good reason. It is not founded on the Constitution's language or purpose. The Fourteenth Amendment makes access to natural born citizenship extremely easy, since mere birth, even in casual transit, may suffice. The best approach is the interpretation that achieves the purpose the framers actually adopted in the light of the problems they faced at the time. Their purpose was to exclude naturalized foreigners, no more, no less. Therefore, all citizens who are not naturalized are, and should be, eligible.
The natural born clause is obsolete, and its discriminatory reach should not be expanded except for compelling reasons.
The Cruz birth certificate is a distraction. He is a natural born citizen.
The scholarly contention about McCain's natural born citizenship is a detraction. He is a natural born citizen, as the court did in fact rule in Robinson v. Bowen.
Neither Schwarzenegger, Kissinger, Granholm, John Peter Altgeld, Carl Schurz, nor Baron Von Steuben were eligible for the presidency -- all because they were naturalized.
The Constitution contains an obsolete clause that mandates invidious discrimination against naturalized citizens for no good contemporary or future reason.
That is the important issue.
I am delighted once more to thank Mr. Treacy and to note that I agree with every single word of his probing analysis.
I am curious whether he also agrees that the constitutional bar to newly naturalized citizens running for the House and Senate should be repealed.
I agree that the citizenship requirements, seven years for Representatives and nine years for Senators, should be repealed. There should be equal treatment for all citizens, born and naturalized alike.
Naturalized citizens should be eligible for President if they are age 35 and have been a U.S. residents for 14 years.
"The Cruz birth certificate is a distraction. He is a natural born citizen."
If so, I would reckon the Obama birth certificate is a distraction. Even if he was born in Canada or Kenya or teh Grand Duchy of Fenwick.
Check out Jack Ohman's political cartoon "Birther of a Nation" at:Post a Comment
summarizing this post and comments.