Over in the Republican pie-fight Donald Trump has lost a little momentum in the polls this week to … Alberta native Ted Cruz. Though born in Canada, Cruz asserts he’s a “natural born” citizen of the US and thus qualified to become President of the United States:
“No Person except a natural born Citizen... shall be eligible to the Office of President” (Section 1 of Article 2 of the US Constitution),
Cruz asserts he is a “natural born” citizen since his mother was a US citizen when he was born and that US law at that time granted citizenship-at-birth to such children.
I personally don’t see it that way. But my crackpot theory can wait.
If Donald sues Ted. then what really matters is how the eight justices of the Supreme Court see the question. Justice Scalia’s death leaves the Supreme Court with just eight judges.
That’s the wrinkle. Because of Scalia’s passing, I think it gets harder for Trump to knock Cruz off the ballot.
Why — well it depnds on how the question unfolds. Presumably The Donald would demand the authorities of one state remove Ted from the ballot in that state. It seems unlikely that any State would agree to this demand outright. Most will know of Cruz’s Canadian birth. None have objected so far. So Donald (or another candidate — certainly no question of their “standing” or right to sue) would be forced to sue. Eventually the case will go to a Federal Appellate court, and then the Supreme Court.
The best case for Donald is if he wins at the Federal Appellate Court. Because at that point Cruz would be the one appealing to the Supreme Court, and he’d need to win of Five of Eight justices to overturn. (62.5%). If Donald pursues this course, look for him to do it in a more conservative Appellate Circuit.
But if the Cruz has won at the appellate level, then Donald will be the one battling the longer odds. Unless of course. the Republican Senators reverse their position and decide they do want to proceed with Obama’s nominee.
I kind of suspect that no one short of the Supreme Court will want to rule in Trump’s favor, just because its not clear and so political. So I think — because Trump would need a 5 to 3 majority to win. that Cruz can breathe a little easier on this question.
Below the fold for my reading of “natural born citizen”. I kind of think Scalia might have leaned towards my reading (gasp!), but…
Who knows — maybe the prospect of knocking Cruz out of the race is so juicy that Senators McConnell and Grassley will rush over to the White House and beg Obama to add another judge tomorrow. Then again, maybe they’d rather not help the Donald, at least not at this point.
The question of Cruz’s eligibility stems from this clause of the Constitution:
“No Person except a natural born Citizen... shall be eligible to the Office of President” (Section 1 of Article 2),
Cruz asserts he was born a citizen since his mother was a US citizen when he was born and that US law at that time granted citizenship-at-birth to such children. Lets assume all those facts are beyond doubt.
My reason for doubting Cruz’s claim to being “natural born” stems from the source of Cruz’s citizenship:
1. He was made-a-citizen-at-birth by a Congressional statute. Congress’ power to grant citizenship to such children derives from its power “To establish an uniform Rule of Naturalization” (Section 8 of Article 1). Congress has the right to grant these children ‘citizenship-at-birth’. There are sound public policy reasons for doing so, and any way, that part of the Constitution is clear enough.
But even if subsequent statutes describe these children as being “natural born” and not “naturalized” those portions of the law extending the definition of “natural born” are just invalid. Congress can’t change the meaning of the term. Congress’ power doesn’t extend to the dictionary.
2. At the time the Constitution was written, Blackstone was the respected authority on law. From the Washington Post:
The 18th-century English jurist William Blackstone, the preeminent authority on it, declared natural-born citizens are “such as are born within the dominions of the crown of England,” while aliens are “such as are born out of it.”
So at the time of the Constitution, ‘natural-born’ meant being born within the country.
3. The Constitution of 1787 didn’t explicitly define “citizen”. Defining citizenship of a state was implicitly left to each states. This omission was changed by the 14th Amendment. (Eighty years after the Constitution was ratified).
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. “
There are only two sets of citizens in the 14th amendment:
a. “All persons born .. in the United States”
b. “All persons ... naturalized in the United States”
There is no third set. People not born in the United States aren’t citizens unless they are duly “naturalized” (as we assume Cruz was) under Congress’s power “To establish an Uniform Rule of Naturalization”.
Assume all the facts are in order, Cruz was naturalized-at-birth. But I don’t think that means he’s natural born.
4. The Naturalization Act of 1790 illustrates all this (For text see here)
First, it is called “The Naturalization Act”. Congress is expressly naturalizing these children (among others mentioned in the Act).
Second, by the Act Congress extends citizenship to some children-of-citizens-born-abroad: “And the children of Citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens,”
Third, This the 1st Congress after the ratification of the Constitution. By passing this law, they are saying ‘born-abroad-children-of-US-Citizens are not automatically citizens — we needed to pass a law’ . The First Congress is saying — just three years after the Constitution was passed — that these kids aren’t “natural born” citizens.
So I think the part of the sentence describing these children as “natural born” is just not valid — Congress was (perhaps) attempting to change the commonly accepted meaning of the term “natural born” — not in its power.
More likely Congress was just quickly reaching for some term to apply to these children to distinguish them from adults who are naturalized as citizens.
It was certainly valid for Congress to use its “Naturalization Power” to grant these children citizenship-at-birth. The sentence could be read as: ‘And the children of Citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as citizens,’
Of course many eminent authorities see it the other way. Here are two in the Forum of The Harvard Law Review.
Whatever your thoughts are on this, you can see that its plausible that Scalia (who was a textualist, except when he wasn’t) might well have ruled against Cruz.
But now, with only eight justices, the plot thickens.