Balkinization: Kamala Harris and Marco Rubio

Comments:

Is Trump eligible under Eastman's lunatic theory?

# posted by

You can argue over whether, as a matter of ideal policy, birthright citizenship should be available to the children of people who are only here illegally or as tourists. But present law on the matter is pretty clear, and Harris easily clears the bar.

The only Presidential candidate in my life who had a genuine "natural born citizen" problem was John McCain.

# posted by

Brett : 9:39 AM

Important issue. But, the constitution, makes distinction. As hell it does. I quote relevant part of the 14th amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof......."

End of quotation:

So, not enough to be born in the US, but also being subjected to the jurisdiction thereof. Now, one diplomat or one tourist, residing temporarily, are also subject to jurisdiction of the US, yet, not fully. They have double loyalty or allegiance. On one hand to the forum state ( the US) on the other, to the state of origin, or sending state. As such, if a child is born, to one diplomat, residing in the US, like his parents, he is subjected to both jurisdiction, or having, allegiance to both states.

I quote Justice Fuller in the case of Wong Kim Ark:

".....it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power,' of the act."

End of quotation:

That doesn't yet exclude Kamala, but, the constitution itself, and the history of legislation, suggest clearly such distinction.

Here to the ruling:

https://www.law.cornell.edu/supremecourt/text/169/649

Thanks

# posted by

el roam : 9:50 AM

Just clarification to my comment:

Justice Fuller, gave dissenting opinion there. Yet, very recommended.

Thanks

# posted by

el roam : 9:53 AM

Just link to the ruling I have left, in more authentic and coherent format(PDF)here:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep169/usrep169649/usrep169649.pdf

# posted by

el roam : 10:36 AM

Ah. Ted Cruz. Fun times.

# posted by

Joe : 11:18 AM

Trump says his father was born in Germany and his mother in Scotland makes trump ineligible. I know all of this is nonsense, however just saying this is a non-issue

# posted by

Jim Keating : 2:10 PM

"Trump says his father was born in Germany and his mother in Scotland makes trump ineligible."

You've made an obvious error. Germany and Scotland are white countries, not shithole countries.

# posted by

Henry : 2:17 PM

Nikki Haley, too. Neither of her parents were citizens when she was born in South Carolina in 1972.

# posted by

Unknown : 2:48 PM

This comment has been removed by the author.

# posted by

Joe : 4:22 PM

The good faith of the claim is reasonably doubted but the whole affair is legalistic parsing of something that as a basic rule should be applied to determine people are eligible unless it is crystal clear that they are not. It's a basic democratic rule that people get to pick their leaders. The whole thing is likely a "political question." But, it should be applied strictly at any rate.

The Cruz bit was a bit of a joker since he was born in Canada so parsing of the citizenship of his parents etc. had to be done. Maybe, that is why -- or because he saw him as a more serious competitor -- Trump latched on to "people say." But, I argued at the time he was a natural born citizen even though a supporter and someone not so much one was open to him not being one.

Harris, Rubio, Obama and Trump (his father was born in the Bronx & his mother in Scotland) were all born in the United States though a few fabulists tried to cast doubt to the third. There, a 1898 case settled it if one was born on U.S. soil, though I see Prof. Volokh goes further in a "here's another view" follow-up linked at Newsweek. Various jokers like the Panama Canal Zone might come up, but again, natural born citizenship should be assumed unless otherwise clearly not.

McCain's citizenship was clearly enough argued to meet that test even if there was so academic argument to be made. Kamala Harris? Not really any reasonable ground of doubt even.

# posted by

Joe : 4:24 PM

The interesting one isn't even Cruz. It's Tammy Duckworth.

Duckworth was born overseas to a foreign mother and a US father. Babies born in that configuration do not get automatic citizenship. Instead, additional requirements have to be met- either the parents have to be married, or there has to be some acknowledgment of paternity during a specific period of time. This scheme only applies where the mother is foreign- where the father is foreign (i.e., Cruz), citizenship is automatic. The scheme was upheld in 2001 in Nguyen v. United States.

It was reported that Biden's lawyers put the kibosh on any consideration of Duckworth, for this reason. There's at least a not crazy argument that a person born to a foreign mother overseas is not a "natural born citizen".

Of course all of this proves what a stupid requirement "natural born citizen" is. The entire premise is wrong; essentially, the framers apparently were so xenophobic that they thought that someone like Arnold Schwarzenegger would be loyal to Austria instead of America.

# posted by

Dilan : 5:52 PM

Nguyen v. INS sounds like the case in question.

# posted by

Joe : 6:54 PM

Yes. For whatever reason I always seem to mistype it.

# posted by

Dilan : 6:55 PM

"someone not so much one was open to him not being one."

I haven't changed my mind, either. If anyone's interested, they can read more on it at the following: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2915556 and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3100411 and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3154894

# posted by

Mark Field : 8:17 AM

I haven't changed my mind either and those articles if anything reaffirm my belief this was a rather misguided affair on his part.

Those who wish to read more can also go here:

https://www.lawyersgunsmoneyblog.com/2016/01/guest-post-from-mark-field-regarding-ted-cruzs-eligibility-for-the-presidency [I'm referenced; I replied in the comments; he who shall not be named agreed with my response.]

Also on this blog:

https://balkin.blogspot.com/2016/01/our-second-class-citizenship-claues.html

Back/forth. To me, far from strong enough ground to limit citizenship or ability to vote someone for POTUS. I agree with Sandy Levison that if it was "absolutely necessary" to determine Cruz (or Duckworth) are not a natural born citizen, it is appropriate to grant it is a result of a stupid (less so in 1787 where fear of foreign control in a new nation was more understandable) provision. The rule also will lead to some strategic political avoidance rules especially when choosing among multiple reasonable candidates.

Anyway, the best approach is to get rid of the provision, there being some united sentiment on the issue since it blocks people of more than one ideological persuasion. Birthism does make it harder but even there it can be seen as a sign of sanity while some of the supporters still have some bad nativist policies. The House and Senate citizenship provisions are sane models. Purists might find even them too much, but if someone had to be a citizen for ten years (one proposal said 20) or whatever, that's fine enough. Some experience as a citizen -- not birth as one -- is a reasonable rule.

# posted by

Joe : 9:36 AM

How much of the suddenly recent relevance of this 'angels on a head of a pin' theorizing are because of a growing xenophobic 'minority threat?'

# posted by

Mista Whiskas : 10:03 AM

"the best approach is to get rid of the provision"

Agreed.

# posted by

Mark Field : 10:11 AM

And to add, I'm skeptical of the whole "originalist" reasoning that the Courts have used. I wouldn't use it, but they do so....

# posted by

Mark Field : 10:13 AM

One may find great interest in this regard, in that article(National Interest) about Chapman University law professor John Eastman and his legal theory, concerning the ineligibility of Kamal to the VP office:

https://nationalinterest.org/blog/reboot/law-professor-claims-kamala-harris-not-american-citizen-166982

# posted by

el roam : 11:08 AM

I see that Newsweek has now "apologized" for the article. Scare quotes because I see no reason to believe the apology is sincere. We know that Eastman believes this shit, and the Right has long had the strategy of throwing out an outrageous charge and letting it circulate before issuing some "apology".

# posted by

Mark Field : 11:33 AM

Eastman being a former political opponent of Kamala Harris is a nice little wrinkle.

https://www.lawyersgunsmoneyblog.com/2020/08/birtherism-too

# posted by

Joe : 12:56 PM

John Eastman has been trying to overturn Wong Kim Ark since at least 2003, when he argued in the LA Daily Journal that SCOTUS should take the Hamdi case to do it.

(I actually wrote the piece the LADJ commissioned to refute him.)

Chapman is a very right wing local law school with some very right wing funders. Eastman is a hack.

# posted by

Dilan : 1:50 PM

By the way, I re-read that LGM thread. I stand by what I said. The arguments in favor of a narrow construction of natural born citizen are crazy and dangerous. We m should hope we NEVER confront a situation where an unelected federal court purports to reverse the will of the people based on this sort of theory. Bush v. Gore was bad enough.

This is a debating society point. And the glee in which some people in that thread endorsed judicial supremacy is scary. The political question doctrine is an important, needed safety valve.

# posted by

Dilan : 2:04 PM

Another bit from a Talking Points Memo piece on the apology:

"Hammer joined Newsweek’s opinion team in May, after working as editor-at-large at Ben Shapiro’s conservative outfit, The Daily Wire. He was also a fellow at the Claremont Institute — the conservative organization where Eastman is a senior fellow and founding director of its Center for Constitutional Jurisprudence."

More and more unsurprising.

# posted by

Joe : 7:44 PM

Joe, Eastman is a clear example of the sort of intellectual rot that is common on the right, where a lot of people do not hold themselves to any sort of reasonable standards of intellectual honesty.

He's basically Dinesh D'Souza if you put him in charge of a law school.

And honestly he has always offended me for that reason. I really do want academics to act like academics, not retained counsel. If Larry Klayman wants to argue a crazy theory in court, fine. The public understands he is an advocate. But people with scholarly titles, even though they surely have political opinions, have an obligation not to act that way. At the VERY least, Eastman has an obligation to inform his readers that he is just stating an opinion as to what he wishes the law was and that his claims are inconsistent with the caselaw and the scholarly consensus about the nature of American citizenship.

Damned right Newsweek owed its readers an apology.

# posted by

Dilan : 11:51 PM