Seems as if some people, like a certain state Supreme Court Justice are having a bit of a problem with the concept of “settled law.” Just like a certain Harvard Law School graduate and Presidential candidate
.
[His advice on “Obergefell:] Ignore it.
“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday.
Silly me, I thought that Supreme Court Constitutional decisions were the “law of the land” and “settled law” unless or until the other branches of government amend the Constitution or SCOTUS reverses the decision through a subsequent lawsuit (for reason good enough not to honor stare decisis).
Mr. Cruz doesn’t stop with denying actual “settled law,” but also seems to invent “settled law” (that just happens to benefit him).
“Look as a legal matter, the question is quite straightforward in settled law that the child of a U.S. citizen born abroad is a natural born citizen,” Ted Cruz said. “People will continue to make political noise about it. But as a legal matter it is quite straightforward. I would note that it has occurred many times in history. John McCain was born in Panama but he was a natural born citizen because his parents were U.S. citizens. George Romney, Mitt’s dad, was born in Mexico when his parents were Mormon missionaries. But he was a natural born citizen because his parents were citizens. And actually Barry Goldwater was born in Arizona before Arizona was a state. And yet he was a natural born citizen because his parents were citizens. As a legal matter the question is quite straightforward.”
Settled by whom, Mr. Cruz? Care to cite a statute or court decision for your opinion? No, the question regarding the Constitutional “natural born Citizen” requirement for a POTUS hasn’t “occurred many times in history.” Wasn’t even questioned during the first hundred years of this country’s existence. When it was, it was quickly dismissed as the potential cases concerned men that had been born in a US state. That, Jus soli, and not the citizenship status of their parents at the time of their birth, was viewed as controlling for the status of “natural born Citizen.”
It was a minor issue in 1964, but that had nothing to do with the citizenship of Goldwater’s parents when he was born (both of whom were “natural born Citizens”), but whether or not the Arizona Territory was US soil at that time. Apparently nobody could make a credible case that it wasn’t.
It surfaced again in 1968 because candidate George Romney had been born in Mexico where his US born parents had been taken by their parents when they were children (as migrants, not missionaries) and from which they fled back to the US during the Mexican Revolution when George was but a five year old. The question had barely been raised before Romney dropped out; so, the issue died without any legal resolution.
John McCain’s situation was similar to that of Goldwater’s as McCain pointed out a few days ago, …I was born in the Canal Zone which is a territory. Barry Goldwater was born in Arizona when it was territory when he ran in 1964,”… Legally correct or not, McCain asserted that jus soli is a component of being a “natural born Citizen.” McCain’s complication was that the Canal Zone was less well defined as a US Territory than Arizona had been when Goldwater was born. A 2008 NYTimes article pointed out that it wasn’t a slam dunk . Thus, in 2008 we saw:
The resolution was passed in a vote in the Senate. A simple resolution is not voted on in the other chamber and does not have the force law.
A courtesy of McCain’s Senate colleagues. Not legally binding, but again absent any credible challenge, it was accepted that McCain was a “natural born Citizen.” (His mother was in the Canal Zone on orders from the USG-Navy which can hardly not have been considered a factor in his case.) IOW, they kicked the can down the road and the public didn’t object.
Thus, in the handful of historical cases, jus soli came to be viewed as controlling but without any of them submitted to federal courts for adjudication.
Tres amusing that in 2012 Ted Cruz said,
“Obama’s mother’s citizenship is irrelevant since his father wasn’t American and he wasn’t born in America. He can’t be president.”
Cruz was rejecting jus soli (or maybe he doesn’t know that Hawaii is a US state) in favor of paternal Jus Sanguinis because even if Obama had been born in Kenya, which he wasn’t, there would have been no need for Cruz to mention the citizenship of Obama’s father. Jus sanguinis has never been the controlling criteria in the US or most (all?) countries in the western hemisphere. In fact, under US law, a US citizen mother carries more weight in determining US birthright citizenship for her children born outside the US than the father does. By Cruz’s little rule, he would have been born a citizen of Cuba (or Canada if his father had been naturalized in Canada before he was born). And he damn well knew that in 2012 when he latched onto the con-grifter “birther” gravytrain.
Many have looked at the issue of Ted Cruz’s birth and declared that he is a “natural born Citizen.” However, as Timeaus at dKos has said,
I’ve been a U.S. immigration lawyer for 30 years. There is indeed some doubt as to whether Cruz was a U.S. citizen at birth, because he has not produced documents to prove that. Birth to a U.S. citizen abroad is NOT enough!
Plus, those opinions make a leap that US birthright citizenship based on parental US citizenship equals “natural born Citizen.” Had George Romney’s situation been addressed legislatively or in federal court in his favor, then opinions wrt Cruz would have some terra firma under them. But had such a decision in favor of Romney been based on having two US citizen parents, Cruz wouldn’t have been out of the weeds.
There remain too many unaddressed and undocumented questions about Cruz along with the fact that “natural born Citizen” remains undefined for the question of him meeting the Constitutional requirement to be answered.
After all the years of crap that US born Barack Obama was put through about the circumstances of his birth, should Democrats/liberals give Ted Cruz a pass in order not to appear unseemly? Unseemly would be questioning Marco Rubio’s “natural born (jus soli) Citizen” qualification. (Not that GOP candidates have been respecting the rights of other US jus soli citizens.) If Cruz gets a pass on being a US “natural born Citizen,” are Republicans willing to stipulate that Maya Soetoro-Ng is also a US “natural born Citizen?” (Not that Maya is known to have any presidential ambitions.) How many have even thought about the potential and easily identifiable scenarios this slippery slope can lead to? Are the children of Sally Kennedy eligible? Something to think about.
Note:
The 1967 SCOTUS decision in Afroyim v. Rusk added (likely unintended) complicatons to the issue of “natural born Citizen.” Made it possible for someone like Mrs. Cruz to get US-Canadian dual citizenship and more difficult to lose her US citizenship. For a related discussion, see The Hill when dual citizenship becomes a conflict of interest
Updatte
TPM – McConnell: Senate Won’t Weigh In On Cruz’s Birther Debacle. No Senatorial courtesy for Cruz. Who could have predicted that?
A couple of matters concerning Ted Cruz that some will use to cloud or muddy up the question that should be dismissed.
Slate – Ted Cruz Campaign Releases Mother’s Birth Certificate to Satisfy Unsatisfiable Crazy People.
This is how a legitimate question can get buried by release of documents that are extraneous to the actual question. Grayson and others were fools to question Eleanor Cruz’s status as a US citizen at birth. Census records can contain errors, but at least through the 1940 census people had little to fear by honestly reporting their actual birthplace, and therefore, it was an extremely remote possibility that Eleanor Cruz AND her parents had not been born in Wilmington, DE as shown in the 1940 census.
Release of her birth certificate now gives the Cruz campaign an easier argument to dismiss requests for documents that are relevant.
The plot thickens: Talking Points Memo – Ted Cruz’s Mother Was On Official List Of Canadian Citizens Eligible To Vote
A few points. This is an “eligible voter list in 1974. While it would appear to be a valid list of Canadian citizens eligible to vote, errors are possible. It would also not mean that Mrs. Cruz didn’t hold dual US-Canada citizenship. Finally, this is from 1974 and Ted was born in 1970.
The Cruz campaign is hanging their hat on that last point:
The problem there is that when the Cruzes left the US and settled in Canada isn’t exactly clear. Various years from 1967 through 1969 have been cited. If any of those are correct, then neither Cruz could have gained Canadian citizenship by 1970. OTOH, it’s possible that they moved there as early as 1965 — so …
Not sure how clear the law is wrt extending US birthright citizenship for children born outside the US on the basis of the dual citizenship of a parent. If that’s okay, it still begs the question if that is equal to “natural born Citizen.”
To that point, didn’t Ted’s dad during that same time frame become a naturalized Canadian citizen before they wandered south and he applied for US citizenship? If Ted’s dad was naturalized in Canada would add to argument that his mom may have been as well.
Ted’s father has acknowledged that he was a naturalized Canadian citizen, but (conveniently?) can’t recall when he did that. According to him, he became a US citizen in 2005 and has claimed that he renounced his Canadian citizenship at that time. While irrelevant, do wonder if he went through the formal process with Canada to renounce his citizenship because it’s not automatic when gaining naturalized citizenship in another country and it’s possible that he also remains a citizen of Cuba.
I would say that Cruz Sr’s disclosure of having been a Canadian citizen without being able to state when tripped a “spiny sense” for some. Couples very often do things like this together and it indicated that Cruz Sr. intended to remain in Canada and it wasn’t merely a temporary business opportunity.
Cruz Sr. claims to have entered the US in 1957 to study at UT-Austin. He married a US born citizen in 1959. Current law would have allowed him to apply for US citizenship three years after marrying which would have been in 1962. (His daughters were born in 1961 and 1962.) What’s a bit odd is that he claims to have been granted US asylum in 1961 when he (allegedly) graduated from UT and his student visa expired. So there may be a few more wrinkles to his story than what has been told.
Undefined when he and his first wife separated. Current non-spousal, applications require a five year residency. From the date he was allegedly granted asylum, he could have applied in 1966.
Sometime after 1961, he moved to New Orleans which is reported to have been in 1969 and where he met the woman who became his second wife. Sometime after he and Eleanor Cruz met they moved to Canada. A tidy story that makes it impossible for Eleanor to have been a Canadian citizen when Ted was born in 1970.
The most obvious wrinkle is that Canada, which never broke relations with Cuba, was a place that the Cruzes could stay until they worked out how to gain citizenship for Cruz Sr., who was not a resident of Cuba seeking asylum as other Cubans later Cuban-Americans were.
But I think this is a case for which Trump might say, “Let’s make this simple. Deport the whole lot of them.”
Lots of wrinkles. Have no idea how Canada’s continuing relationship with Cuba would have factored into a citizenship application from a Cuban national or if that allowed him to obtain dual Canadian-Cuban citizenship. Or if dual US-Cuban citizenship were allowed after 1967.
Where would they be deported to? Ted and his dad could technically be stateless.
HuffPo
First, it is not good parenting to spank children. It primarily teaches children that it’s okay for big people to hit little people, particularly for young children such as 5 year olds.
Second, it’s outrageous to imply that HRC should be “spanked.” (A not unknown recommendation for men to deal with their wives.)
Third, there was absolutely nothing wrong with what HRC did or didn’t do wrt Benghazi. It’s been a fake scandal since day one. (And if I, who is strongly opposed to the election of HRC, can recognize and state this fact, anybody that suggests otherwise is a flaming jackass.)
Thus, while I refrained from including personal bits about the Cruzes in this diary, even though they did figure into why I’ve long had a spidey sense about his citizenship, one too many loathsome comments have spewed out of his mouth for me. So, here goes:
Papa and Mama Cruz were both married and had children before they met. When and where they each divorced their first spouses has not been reported. All that’s known is that when they decamped to Canada, they left their children behind in the US.
The Cruz daughters with their mother, (Dr. Julia G Cruz, who became an admired linguistics professor. Ted has some limited relationship with his Cruz sisters. One had a difficult life and has since died, and one who is today a practicing physician and has had no involvement in Ted’s political career and refuses to comment on it.
Nothing is known about Mama Cruz’s two daughters and they are fully entitled to their privacy and no reporter or researcher should make any attempt to interfere with their private lives.
There is, however, the matter of child support. Were either of the Cruzes under legal obligation to provide financial support for their children and if so, did they pay? Or did they manage to avoid that by being out of the country?
Regardless if Mrs. Cruz remained a US Citizen or became a dual citizen of Canada, she was still liable for US income taxes. Did she file and pay those taxes? (If she became a Canadian citizen and renounced her US citizenship, she would not have owed any US income tax.) How clean were the books of the Cruzes business in Canada? IOW did they cheat to avoid paying income taxes in Canada and also the US?
Did Papa Cruz become a preacher as a way to avoid federal tax obligations (the rules for ministers was changed sometime in the ’70s or early ’80s).
” It primarily teaches children that it’s okay for big people to hit little people, particularly for young children such as 5 year olds.”
No, it teaches them that if you break the rules, you will get hurt.” it is an open question whether this is a good thing to teach.
The mind of a five year old is not that of an adult. You’re buying into the idea that a little kid abstracts, “I did X and got hurt; but not do X again.” They may not even understand what X is. But if they do, they are likely to test it out again. Perhaps not seen by an adult the second time and they don’t get hurt for doing it. “Aha — X is okay if a big person doesn’t see it.” Now what has the child learned?
There are plenty of way to teach whatever that don’t involve violence. More effective and more direct as to the specific behavior that isn’t acceptable, not just to parental figures but everyone.
“The mind of a five year old is not that of an adult. You’re buying into the idea that a little kid abstracts, “I did X and got hurt; but not do X again.” “
Even a puppy does that.
The following appears to be in error wrt Mrs. Cruz:
.
Someone may have run with a recollection by someone in Calgary about there having been two Darragh-Wilson daughters that was repeated as it was here:
Thus, it did seem strange when Mrs. Cruz said:
A lesson not to rely on the forty year old memories of a neighbor. It is most likely that the summer vacation visits were the daughters of Mr. Cruz.
In his book, this is what Ted Cruz said about his mother:
This is apparently a mix of fact and fiction as Centre Daily Times after tracking down Mrs. Cruz’s first husband in London where he has been a long-time resident and US ex-pat.
The birth and death of Michael Wilson was in 1966. Alan Wilson married twice more after his divorce from Eleanor and he never had children of his own.
The above should have included, “to the best of Wilson’s knowledge” because it doesn’t appear that they had much contact with each other after divorcing (and that could have been after some period of separation).
This information eliminates any possibility that Mrs. Cruz could have become a Canadian citizen by December 1970 from a status as a landed immigrant. It does leave open the possibility of obtaining citizenship as the spouse of a Canadian. (Not that Mr. Cruz availed himself of that legal provision for US citizenship during either of his marriages.)
PS About Ted Cruz, and that from a party that wanted to bend the rules in favor of Arnold Schwarzenegger.
I only focused on the real instances of an individual running for POTUS where the question of “natural born Citizen” was questioned and how it was handled. None were submitted to a court for a ruling. Of those where the questioned was resolved in the “court of public opinion,” jus soli prevailed with no appeal to the citizenship status of the parents at the time of birth. The earliest situations concerned candidates that were born in a US state but the parents weren’t citizens. There was a question as to where Chester Arthur was born – Vermont or Canada — even though his mother was a native of Vermont. It became a non-issue once his place of birth was resolved. I found it interesting that place and not parental citizenship status prevailed in Goldwater’s situation and McCain is under the impression that it was the same for him even though in these two situations both parents were US citizens by birth.
British common law by the late 18th century was complicated by the fact that it had colonies and settlements throughout the world. The intent of citizenship was to maintain sovereignty over persons the UK considered “theirs” (generally white); so, a mix of jus soli and jus sanguinis came into being. We don’t know what the framers of the Constitution were thinking, but they sure as hell didn’t confer citizenship on slaves born in the US. Native Americans weren’t US citizens until 1924. Important or not, dual citizenship (except for Native Americans) was not legal for US citizens until 1967. Much of the modern immigration law was designed to exclude birth citizenship for those fathered by US Service members outside the US and out of wedlock with a foreign national mother. Thus, if Cruz’s father been a US citizen and his mother a Canadian and they weren’t married, Ted Cruz would have had to have gone through a naturalization process to gain US citizenship. And even in Cruz’s situation, there was a formal procedure in place to claim US birthright citizenship and so far there is no documentation that this was done.
Where were all these legal beagles shutting down the “birthers” since 2008? Sure they existed, but it didn’t squelch the media reporting this faux issue over the years. If not for Trump raising the matter wrt Cruz, it wouldn’t have been covered at all, and the media does seem to be rushing in to declare that Cruz is a “natural born Citizen” when his situation is far from being as straightforward as Obama’s is. They don’t even seem to be pointing out that historically, for Presidential candidates, Cruz’s situation is unique, never happened before.
Do you seriously think that had Cruz been born in India to a white US citizen mother and black man from S. Africa and running as a Democrat that the legal beagles and media would be so quick to declare that the candidate is a “natural born Citizen?”
Foreign-born children of US citizens are granted citizenship on receipt of appropriate local documents (mostly a local birth certificate):
Am I missing something?
Only that no CRBA seems ever to have been filed for Cruz. And it’s not rational to assume that only his birth certificate would have been required to complete the process because then what would stop anyone in a foreign country from registering their child’s birth with a US consulate?
The registering parent proves US citizenship by presenting their US passport.
That works. The problem remains that Cruz’s mother seems not to have registered his birth at a consulate office. Questions as to his status, even though it is historically unprecedented for Presidential candidate, would mostly disappear if he produced that document.
What makes his situation particularly difficult is that several changes in immigration and naturalization laws were changed in the US and Canada in the years from 1967 to 1977 by statutes and Supreme Courts decisions. For example, dual citizenship in Canada wasn’t allowed before 1973. And the 1967 Afroyim v. Rusk decision that permitted dual citizenship was modified in a later decision wrt to voluntary intent to surrender US citizenship.
I’m merely asking questions wrt to Ted Cruz and have no opinion one way or the other because certain information or documentation hasn’t been provided.
ABC News
Nice to know that Tribe agrees with me that it’s not “settled law.” Although in his opinion Cruz qualifies as a “natural born citizen” b/c the founders were all about being as inclusive as possible. Which in my opinion is rot and the “natural born Citizen” clause would have been left out if inclusiveness was their aim.
○ Sarah Helene Duggin, a professor at the Catholic University of America
○ Question Ted Cruz should ask: Can a foreign-born American be president?
A couple of points. Reading through Canadian citizenship laws, the term “natural born citizen” is used frequently and means born within the jurisdiction of Canada or the UK. Those that acquire Canadian/UK citizenship through parental citizenship and are born in a foreign country are not referred to as “natural born.”
In 1790 the states determined citizenship. One became a US citizen by being granted citizenship in one of the states. For women, citizenship meant practically nothing. Women and Naturalization. Few foreign born women bothered to become naturalized citizens and that’s why there are so few naturalization records for women.
Automatic and no record.
Not until the 1930s was it established that the foreign born children of US citizen mothers were eligible for birthright citizenship through their mother’s citizenship.
It wasn’t even until long after the 14th amendment was ratified that jus soli citizenship became operative as settled law for those born within the jurisdiction of the US and that only came about by a number of Supreme Court decisions and statutory changes. So, it’s difficult to hang one’s hat on a 1790 Act as defining “natural born Citizen,” which didn’t specifically refer back to that clause in the Constitution, for the children of US citizens born abroad. Did “citizens” mean both parents or just one parent, father or mother? Married or not? If I had to take a wild guess, they may have been thinking of married US citizens that were temporarily abroad when one or more of their children were born. Those would likely have been men of property and/or status and they wouldn’t have wanted to exclude the children of such men from a from “natural born Citizen” status.
Fair question. Ted Cruz’s problem is one parent was a US citizen AND he himself
had a dual Canadian-US citizenship. That seems to me problematic.
The last contender to Donald Trump falls along the wayside.
Go Donald Go! His nomination will destroy the Republican party.
What’s problematical is the absence of key information. In the “court of public opinion” due to 20th century immigration laws, the one US citizen parent should be sufficient to secure “natural born Citizen” for a child born abroad. Yet, the “court of public opinion” is political and I doubt it would easily accept the child of a US mother, S. African black father, and born and raised in India as a “natural born citizen,” assuming the child did secure his/her US birthright citizenship.
There are known and unknown wrinkles in Cruz’s case. Known is that in 1970 dual Canadian citizenship didn’t exist and barely existed in the US based on that ’67 SCOTUS decision (and we know it takes a while certain decisions to be implemented). Thus, being born in Canada automatically made him a Canadian citizen unless the state was otherwise informed. Had his mother filed his birth with the US consulate, he would have been a US citizen and not Canadian. (I’m assuming that citizenship paperwork flows between US consulates and whatever authority handles citizenship matters in a foreign country and any paperwork glitch between the two would be no more than a minor technicality.)
iirc, a ruling in a 1973 case to the high court in Canada, voided the oath of loyalty for Canadian naturalization and thus, permitted dual citizenship. The oath was junked immediately, but a few years for the legislation on dual citizenship to be passed.
If Eleanor Cruz never became a Canadian citizen, it will be easy to accept that she was simply negligent about filing paperwork and Ted is retroactively a US “natural born Citizen.” If she became a Canadian citizen before he was born, there’s not much wiggle room for Ted’s status. If done after he was born, it’s extremely complicated and there is too much missing information even to make a guess.
Being inclined to being somewhat suspicious, my guess is that Papa Cruz was skipping out on financial obligations to his first family. Given the times, more likely than not that Mrs. Cruz’s first husband agreed to raise the children without child support from her. Or maybe the two of them simply split and their respective spouses took no legal action. It’s not as if child support court orders were enforced back then anyway. Off in Canada and as Canadian citizens would have made it even more difficult to secure court ordered and enforced child support payments. If I’m close on this speculation, it goes a long way to demonstrating that Mrs. Cruz fully intended to renounce her US citizenship.
“The oath was junked immediately, “
It always amazes me that one can become a citizen of any country without swearing loyalty. It seems citizenship has privileges and not responsibilities.
WaPo OpEd by Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School. Ted Cruz is not eligible to be president.