New Jersey Judge Rules Ted Cruz Is A “Natural Born Citizen”

A New Jersey judge, along with a Judge in Pennsylvania, is among the first to rule on the meaning of the 'natural born citizen' clause.

Ted Cruz Speaking

In what may be one of the first judicial rulings to directly get to the merits of an argument regarding the Constitution’s requirement that the President be a “natural born citizen,” an Administrative Law Judge in New Jersey has ruled that Texas Senator Ted Cruz is indeed a “natural born citizen” and rejected efforts to have him removed from the ballot:

Republican presidential candidate Ted Cruz is a “natural-born citizen” under the U.S. Constitution and therefore can run in the June 7 New Jersey primary, a state administrative law judge said Tuesday.

“The more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a ‘natural born citizen’ within the contemplation of the Constitution,” Administrative Law Judge Jeff Masin wrote.

A group of New Jersey residents and a Catholic University of America law professor insisted that Cruz, born in Canada to an American mother and a Cuban father, did not meet the constitutional requirements to be president

The issue now goes to New Jersey Secretary of State Kim Guadagno, who will make a ruling that can be appealed in state court. Guadagno is also lieutenant governor.

Masin wrote in a 26-page decision that the issue of whether a child born outside the U.S. to an American citizen is eligible to be president ”can never be entirely free of doubt, at least barring a definitive ruling” of the U.S. Supreme Court.

“Absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue” even after “having weighed the arguments as they are presented by those trying to understand the framers’ intent,” the judge wrote.

Similar arguments have been rejected in Pennsylvania, where Cruz — a U.S. senator representing Texas — will appear on the state’s primary ballot on April 26.

Tuesday’s decision could be key for Cruz. New Jersey’s Republican primary is often an afterthought in presidential races, because it falls so late on the election calendar.

But the Garden State — which awards all 51 delegates to the winner of the GOP primary — could be crucial this year. Republican front-runner Donald Trump is aiming to accumulate 1,237 delegates and assure a first-ballot nomination at the Republican National Convention in Cleveland in July.

Trump currently has 743 delegates, followed by Cruz with 545.

Trump — who was a top figure in the “birther movement” questioning whether Hawaii-born Barack Obama was eligible to be president — has been one of the leading voices questioning Cruz’s citizenship.

“There’s a big question mark on your head,” the billionaire businessman and former Atlantic City casino mogul said at the January GOP debate in South Carolina. ”You can’t do that to the party.”

Ilya Somin discusses the ruling here:

Judge Masin relied considerably on legal scholar Michael Ramsey’s excellent recent article on this subject. Prof. Ramsey has put up a thoughtful post about the decision at the Originalism Blog (a blog which is also cited in the opinion).

While Judge Masin relies almost entirely on originalist arguments, living constitutionalists have every reason to support his conclusion. Quite simply, there is no good living constitutionalist reason to interpret the “natural born citizen” requirement in a narrow way that would exclude people who have been American citizens since birth, but happen to have been born abroad. Even nonoriginalist critics of Cruz’s eligiblity generally rely on on originalist arguments rather than trying to justify their position based on living constitutionalism. That is likely because there is no plausible reason to conclude that barring this category of citizens from running for the presidency benefits the nation in any way. Some of them are likely to be bad candidates, unfit for office. But the same thing can be said of numerous candidates born within the US. A least in the absence of an unequivocal textual requirement to the contrary (such as the rule that the president must be at least thirty-five years old), living constitutionalists should not interpret the Constitution in a way that categorically excludes large categories of citizens from eligibility for our highest office.

This ruling is the second decision on Cruz’s eligibility. It follows in the footsteps of an an earlier Pennsylvania ruling that reached the same conclusion. But the New Jersey decision includes a more thorough analysis of the arguments on both sides.

Along with the Pennsylvania ruling, this is one of the first rulings on the meaning of this part of the Constitution by any American court. When the issue was brought up previously, especially during the height of the ‘birther’ controversy that followed President Obama until he finally definitively settled the matter by providing a Certified Copy of his birth certificate back in 2011. For the most part, those cases were dismissed either because the Plaintiffs bringing the action lacked standing, because the courts to whom the claim was made held that they lacked jurisdiction for one reason or another, or because the attorneys who had drafted the pleadings were so incompetent that they were unable to frame the argument in a manner that would get past the initial defenses that the party bringing the action lacked standing or that the Complaint failed to state a claim on which relief can be granted. In the case of this New Jersey ruling, though, and the Pennsylvania ruling from last month, the courts were dealing with direct challenges to Cruz’s eligibility to appear on the ballot filed by someone who is, at least in name, a candidate for the same office as Cruz, which may have been the only way to get past the standing question at all. In any case, while an Administrative Law Judge in New Jersey and a trial court Judge in Pennsylvania are hardly the last legal word in any Constitutional case, the fact that this is seemingly the first time anyone has reached the merits of the argument.

For the most part, both the Pennsylvania ruling and the New Jersey ruling adopt many of the arguments in favor of the proposition that Cruz is indeed a “natural born citizen” that I made when I discussed this issue more than a year ago, and which were raised in Harvard Law Review article by noted Supreme Court litigators Neal Kaytal and Paul Clement several months before that. Namely, the Constitution made plain that there are essentially two methods of becoming an American citizen, either one is a citizen from birth or one becomes a citizen by going through the naturalization process. In its original form, the Constitution did not define citizenship at all, and instead left that to Congress to do through its powers under Article I, Section 8 of the Constitution.  The very first citizenship law passed by Congress in 1790 provided a number of circumstances under which someone was deemed to be a citizen at birth, one of  them being a situation where someone was born outside the United States to parents at least one of whom was a U.S. citizen. This was the state of the law until 1868 when the 14th Amendment was ratified and made clear that, with limited exceptions, every person born in the territorial United States was a citizen from birth, but still left to Congress the option of defining citizenship beyond that. By 1970, when Cruz was born, the applicable law provided that a child born outside the United States was considered a citizen from birth as long as one parent was an American citizen who had  lived in the United States for at least 14 years after her 14th birthday. Cruz was born in the Canada in December 1970, but his mother is an American citizen who had resided in the United States continuously until well after she had turned 28. Therefore, Cruz was clearly a citizen from the moment he was born or, as the Constitution calls is a “natural born citizen.”

These two decisions are unlikely to silence the birthers and the wingnuts, but they are clearly correct.

Here’s the opinion in Elliott v. Cruz, the Pennsylvania case:

Elliott v. Cruz by Doug Mataconis

And here’s the opinion in Williams v. Cruz, the New Jersey case:

Williams v Cruz by Doug Mataconis

FILED UNDER: Campaign 2016, Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Paul Hooson says:

    I’m not a fan of Ted Cruz, but I support this decision to open up the presidency to those that become American citizens, where this judge views the Constitution as a living and evolving document. Strangely, the founding fathers all come from immigrant families of some sort since none of them were Native Americans.

    Now, the big question is who wins the primary in Canada.(My family comes from a Canadian, Irish, Jewish background, so I’m allowed to make this joke).

  2. How soon till all the Trumpbots show up attacking Doug personally for daring to post this ruling?

  3. Pch101 says:

    Along with the Pennsylvania ruling, this is one of the first rulings on the meaning of this part of the Constitution by any American court

    Au contraire. From Wong Kim Ark:

    The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.

    Ted Cruz is a citizen because of a statute, not because of common law tradition or the 14th amendment. Wong Kim Ark casts the origins of citizenship as an either/or situation — there is no third way between natural born and naturalized — and Cruz’s citizenship is obviously not “incident to birth in the country” but comes from statute. So of course he is a citizen, but that’s due to naturalization, not because of an entitlement.

    There is a fair question whether Congress has the authority to define “natural born” as it sees fit. (Ramsay says that it could; Mary Brigid McManamon argues that it would violate Article 5.) But otherwise, this is a pile of revisionism. This should be fixed by the Congress, not by the courts.

  4. David Farrar says:

    “…a child born outside the U.S. to an American citizen is eligible to be president ”can never be entirely free of doubt, at least barring a definitive ruling” of the U.S. Supreme Court.”…ALJ Masin.

    If we abandon the natural born citizenship clause now, it will be exploited by others who come after Sen Cruz who may not share his political convictions, and expose us all to the greatest threat to the Republic the founders and framers of the US Const. knew well, feared most, and warned us all against: the loss of our freedoms and liberties not from an external military threat but from political subversion from within our own political system.

    When you stop and realize virtually all executive power in this country is held by one person as the commander in chief of all of this nation’s armed forces and also take into account the vast increase in speed and destructive firepower modern weapons now have over their 18th Century counterparts, you begin to realize just how important this requirement has become in today’s turbulently shrinking world, and how important it is to apply the narrowest of definitions to the “natural born citizen” requirement rather than standing on the threshold of abandoning it altogether — forever.

    There is no absolute, fail-safe, clause or provision that will protect the Republic from just such a fate, but if we weaken this provision now that fate will come sooner rather than later and future generations of Americans will look back at this time and call out our names, giving us the blame.

  5. al-Ameda says:

    I wonder what Orly Taitz has to say about this?

  6. MikeSJ says:

    I think the obvious problem with Cruz is the unacceptably high ratio of Lizard DNA vs. Human.

  7. Jen says:

    @Paul Hooson:

    I’m not a fan of Ted Cruz, but I support this decision to open up the presidency to those that become American citizens

    I don’t believe this ruling does that. It appears to cover those who (like me) are born US citizens because our parents are US citizens, even though we were born outside of the US. It does not appear to go as far as suggesting that those who go through the naturalization process are “natural born.”

  8. James Pearce says:

    Trump — who was a top figure in the “birther movement” questioning whether Hawaii-born Barack Obama was eligible to be president — has been one of the leading voices questioning Cruz’s citizenship.

    This might be one of the reasons why his “the game is rigged” crap is ringing hollow.

    In Trumpland, this is “rigging the game:” winning delegates after campaigning for them.

    In Trumpland, this is not “rigging the game:” Trying to get your opponent yanked off the ballot for completely specious reasons.

    Sad!

  9. gVOR08 says:

    @MikeSJ: Excellent point. Is a lizard person born in the US to lizard person parents a citizen? Is a lizard person born outside the US with one human US citizen parent a citizen? Was she even a parent? Are lizard people cloned anywhere citizens? I demand a DNA test to determine whether or not Cruz is human.There seem to be cause for reasonable doubt. Trump too, for that matter.

  10. @Pch101: ]

    First, Wong Kim Ark did not directly with the natural born citizen provision of Article II.

    Second,

    Ted Cruz is a citizen because of a statute, not because of common law tradition or the 14th amendment.

    Given that Article I Section 8 gives Congress the authority to define citizenship and how one becomes a citizen, the fact that Cruz’s citizenship from birth is defined by statute is irrelevant. Additionally, the common law in effect in England at the time of the Revolution provided that someone borne abroad could still be a citizen from birth if at least one of their parents was a citizen. Third, the citizenship law passed by the First Congress — which was made up of many of the same men who had debated and ratified the Constitution in Philadelphia — provided that someone born abroad to at least one citizen parent was a citizen from birth. This is discussed in the law review article I cited and the authorities cited in both the New Jersey and Pennnsylvania opinions. Finally, as I noted, the law in effect at the time Cruz was born clearly established that he was a citizen of the United States from the moment he was born.

    There are two kinds of citizens under American law. One group consists of people who were not originally citizens but become such by following a process set forth according to immigration law. The second, much larger, group consists of people who became citizens the moment they were born, or “natural born citizens.” Ted Cruz clearly falls in the second group and is therefore clearly legally eligible to serve as President.

  11. gVOR08 says:

    @Paul Hooson:

    Strangely, the founding fathers all come from immigrant families of some sort since none of them were Native Americans.

    I have a conservative friend who vehemently argues that George Washington was a natural born citizen. You can make all the obvious points about history, geography, and the law; doesn’t make a dent.

    Partly it’s the conservative problem with words having shifting meanings. The best example is Lincoln freed the slaves so Republicans are the party that supports black people. Because in their minds “Republican” can have only one meaning, now and forever. Virginia is in the United States. Which is immutable.

    Mostly it’s that “America” is, to him, a bright warm fuzzy in his head and Washington is a part of it. You can view it as tribalism. Of course Washington was a member of my tribe.

    People know Obama was born in Hawaii, and that Hawaii is, and was at the time, a part of the US. They know he had a US citizen mother. They sort of know the law. But Obama is not a member of their tribe, he’s “other”, therefore he’s not a citizen. And their Conservative Common Sense says that somewhere, somehow, there’s an explanation. And knowing it must be there is sufficient to relieve the cognitive dissonance.

  12. Pch101 says:

    @Doug Mataconis:

    The second, much larger, group consists of people who became citizens the moment they were born, or “natural born citizens.”

    Congress has the authority to naturalize those who would not be citizens were it not for a statute. It has no authority to decide whether or not those who are born on US soil are Americans (with just a few exceptions, such as those who are the children of foreign diplomats.)

    If all of the citizenship statutes were repealed today, kids born tomorrow in Memphis or Miami would be US citizens while those born to a US parent in Montreal or Munich would not be. The difference is that first group is natural born (their citizenship is not determined by statute), while the second group is naturalized. Naturalization does not necessarily have to include paperwork or review, it only involves the use of a statute vs. an entitlement.

  13. @Pch101:

    Your analysis assumes that being born on U.S. soil was the only way the Founders intended for citizenship a birth to be conferred. Given the fact that (1) it does not say this in the Constitution, (2) this would not be in compliance with the common law as it existed at the time the Constitution was drafted, (3) ignores the action of the First Congress, which was made up of many of the same men who drafted the Constitution, and (4) ignores the fact that there was no definition of citizenship in the Constitution until the 14th Amendment was ratified in 1868, meaning that it was up to Congress, there is no reason to believe this is true..

  14. Mario Apuzzo says:

    At the time of the Framing, there was only one definition of a natural born citizen. That definition existed under the law of nations and was a child born in a country to parents who were its citizens. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797). According to the teachings of the unanimous U.S. Supreme Court in Minor v. Happersett (1875), this definition was incorporated into the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution. According to Minor, this was the only definition of a natural born citizen incorporated by Article II, Section 1, Clause 5.

    Minor also explained that under that same common law, all persons who were not born in the country to parents who were its citizens were “aliens or foreigners,” who could be naturalized by naturalization Acts of Congress or maybe of those born in the country to alien parents could even become “citizens” under the Fourteenth Amendment. Since Virginia Minor was a natural born citizen and therefore ipso facto a citizen of the United States, Minor did not need to reach the Fourteenth Amendment “citizen” question and so left it to be decided another day. It later turned out under U.S. v. Wong Kim Ark (1898) that children born in the United States to qualifying alien parents could also be citizens of the United States from the moment of birth (not to be conflated, confounded, and confused with an Article II natural born citizen) without the aid of a naturalization Act of Congress.

    The Constitution in matters of citizenship gave to Congress only the power to “establish an uniform Rule of Naturalization . . . throughout the United States.” Art. 1, sec. 8, cl. 4. This power did not include any express or implied power to define a natural born citizen any differently than how the Framers defined one at the Framing, for to read such additional power into the grant would be tantamount to allowing Congress to set the eligibility requirements for the Office of President and thereby amend the Constitution without a duly ratified constitutional amendment.

    Cruz was not born in the United States. Hence, he could not look to either the common law or the Fourteenth Amendment to be a citizen of the United States when he was born. Rather, Cruz had to look to a naturalization Act of Congress for aid in becoming a citizen of the United States. Lucky for Cruz (Winston Churchill did not have the same luck), Congress put in place just such a naturalization Act in 1934 which allowed a child born under Cruz’s birth circumstances, i.e., born in a foreign nation to an alien father and presumably to a U.S. citizen mother, to be a citizen of the United States from the moment of birth. No matter how ALJ Masin and the professors and commentators upon whom he relies want to twist and turn it, Ted Cruz is a Congressional statutory “naturalized” born citizen, not a Constitutional Article II common law “natural” born citizen. He is therefore not constitutionally eligible to the Office of President and Commander in Chief.

    Mario Apuzzo, Esq.
    Jamesburg, NJ
    Attorney for Objectors Fernando Powers, Donna Ward, and Bruce Stom
    in the New Jersey Ballot Challenge Case

  15. Pch101 says:

    @Doug Mataconis:

    Your analysis assumes that being born on U.S. soil was the only way the Founders intended for citizenship a birth to be conferred.

    I don’t know where you’re getting that, when I’m clearly not saying any such thing.

    There are two possible sources of citizenship. One can either be (a) natural born or (b) naturalized.

    Ted Cruz was naturalized. We know this because his citizenship came from a statute passed by Congress.

    If there had not been a statute at the time of his birth that determined that his American mother could pass her citizenship to him, then he would not be a citizen.

    Those who are born on US soil do not need a law to be citizens — citizenship is a birthright, an entitlement, to those who are born on US soil. Citizenship was not an entitlement for Ted Cruz, he just benefited from the laws that were in effect on his birthday.

    Kids who were born on December 22, 1970 in Kansas or Kentucky did not need an act of Congress to be citizens; they are citizens naturally. Ted Cruz did need a US law in order to have that citizenship because he was born in Calgary on that date. Jus sanguinis citizenship exists in the US, but it is not an entitlement.

  16. @Pch101:

    Ted Cruz was not naturalized. He was a citizen from birth.

  17. @Mario Apuzzo:

    Much like the argument that you and your fellow birther from California, the incompetent and seemingly insane Orly Taitz, made about President Obama, there isn’t a Court in this country that wouldn’t laugh your arguments out of the courtroom.

    But, you know, good luck with that.

  18. Pch101 says:

    @Doug Mataconis:

    He was a citizen at birth because of a statute. By default, that makes him naturalized.

    Congress has the power to “establish an uniform Rule of Naturalization,” not a “Rule of Citizenship” for everyone.

    Congress doesn’t have any authority to decide whether a kid who is born on US soil is or isn’t a citizen. It can only decide whether those who would not be citizens naturally can be citizens.

  19. @Pch101:

    By your logic, there were no natural born citizens before 1868 then. This is simply not consistent with the law, the Constitution, or reality.

    Continue living in your birther fantasy world, I’ll be here in reality if you need me.

  20. harvardLaw92 says:

    @Doug Mataconis:

    Agreed. It’s best to not even dignify this silliness.

  21. Pch101 says:

    @Doug Mataconis:

    By your logic, there were no natural born citizens before 1868 then

    If you followed Wong Kim Ark, then you would know that one of the central points of the case is that jus soli citizenship in the US predates the 14th amendment. So no, your point is off the mark.

  22. Pch101 says:

    As for your “birther” snark, there is no one who disputes the fact that Cruz was born in Canada, including Cruz himself.

    There is absolutely no comparison between this and false claims that our current president has a fake American birth certificate and was born in Kenya. If anything, it’s ironic that right wingers who threw a conniption fit over the president’s alleged foreign birth is suddenly OK with a different guy who was undoubtedly born abroad.

  23. James Pearce says:

    @Pch101:

    Ted Cruz was naturalized.

    Naturalization is a process. Do you have any evidence that shows Cruz went through this process? If he did not go through this process, you have no basis to say he was “naturalized.”

    Anyone who wants to claim Ted Cruz is a natural born citizen need only point to this ruling.

  24. harvardLaw92 says:

    @Pch101:

    So, according to your theory, every child ever born to US military personnel on foreign military bases is ineligible to serve as president?

    (No, before you go there – they are not sovereign US territory. They’re leased …)

  25. Pch101 says:

    Naturalization is a process

    No, it isn’t. Naturalization is citizenship that comes from statute. One can be naturalized without filling any forms or applying for it.

    One real-world example: When the US annexed the Hawaii territory, it gave American citizenship to those who were Hawaiian citizens. (“That all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.”) That was an act of naturalization granted en masse; they received US citizenship simply because they had citizenship to a country that was annexed into the United States.

  26. PJ says:

    Ted Cruz has yet to produce a parternity test proving that Rafael Cruz (and not Fidel Castro) is his father. Without proving that, and with an American mother giving birth to him in Canada, he’s not a natural born citizen.

    Is anyone able to contact Orly Taitz???!!!???

  27. steve s says:

    I hope Cruz gets the nomination. Only the biggest cram-the-bible-down-your-throat-A-holes support him.

    Sadly, he probly won’t get it, because he’s such a terrible person.

  28. Gustopher says:

    It amuses me that this will slowly and surely work its way up through the courts if Ted Cruz is the nominee or President. The tea party milked racial resentment of a black man in the a White House, and now it is stalking their candidate.

    And, I have no idea if a child born to an American parent in a foreign country is a natural born citizen, or naturalized at birth, and I question anyone who claims to know. It’s an issue that has affected basically no one in our country’s history up to now, other than Alexander Hamilton. I do know that Ted Cruz, at least until recently, had dual citizenship, and I suspect that this is exactly the type of thing that the founding fathers were worried about — divided loyalties.

    Americans should be able to elect whoever they want for President — foreign born, American born, whatever. But, that’s not what the constitution says.

    And, not to go all Trumpy on immigrants from Canada, but are we really getting their best? William Shatner, Justin Beiber and Ted Cruz?

  29. @Gustopher:

    Hey come on now, Shatner doesn’t belong in the same list with Beiber and Cruz.

  30. Just 'nutha ig'rant cracker says:

    @gVOR08: From Wikipedia:

    The first child of Augustine Washington (1694–1743) and his second wife, Mary Ball Washington (1708–1789), George Washington was born on their Pope’s Creek Estate near present-day Colonial Beach in Westmoreland County, Virginia.

    You guys can quit any time now. It’s settled! George Washington meets the Constitutional requirements to be President of the United States. It’s a historical fact! Hooson’s error comes from not realizing that most of the colonies had been in existence for roughly a century before the authorship of the Declaration of Independence.

  31. Moosebreath says:

    @gVOR08:

    You are focusing on the wrong requirement. Whether or not he is a citizen, a mixture of human and lizard DNA means he was not natural born.

  32. James Pearce says:

    @Pch101:

    No, it isn’t.

    You say that, but…

    The DHS disagrees. From their website:

    Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act

    The Immigration and Nationality Act of 1965, by the way.

    So, please, cite some ancient example that has been superseded by more recent law, and then continue to tell me that no, naturalization isn’t actually a process. (Even though…it is.) Don’t mistake your argument for a fact.

    Here’s a fact: Despite the “controversial” nature of his birth, Ted Cruz is, and always has been, a natural born citizen.

  33. harvardLaw92 says:

    @James Pearce:

    So, please, cite some ancient example

    Oh no, now you’ve done it. Queue up an incoming 10,000 word jeremiad about the common law in 3 … 2 …

  34. Pch101 says:

    @James Pearce:

    Under current law, being the child of an American citizen fulfills the requirements. If Congress wanted to scrap that provision, it could.

    This is not that difficult to understand: Give some thought to what would happen if the statutes were repealed and we had no immigration laws at all.

    The answer is straightforward: Those who were born on US soil thereafter would be citizens, while everyone who as born outside of the US would not be. Congress can’t deny citizenship to those who are born on US soil, but it has the discretion with everyone else.

  35. James Pearce says:

    @harvardLaw92: Looks like we dodged that bullet…

    @Pch101:

    Give some thought to what would happen if the statutes were repealed and we had no immigration laws at all.

    The statutes wouldn’t be repealed so much as they would be replaced by other statutes, and even then, there is this concept called “grandfathering.”

    Don’t worry about whatever nightmare scenario you have in mind. The only time it matters whether you’re a “natural born” citizen or a “naturalized” citizen is when you’re running for president.

    Precedent will account for the rest.

  36. Pch101 says:

    The statutes wouldn’t be repealed so much as they would be replaced by other statutes, and even then, there is this concept called “grandfathering.”

    Argh, you completely missed the point.

    The issue isn’t whether immigration laws will be repealed. No one is suggesting that the laws will be repealed.

    Rather, I am trying to walk you through a logical exercise that addresses the underlying legal issue, which is the difference between how those who are born outside of the US obtain their citizenship vs. those who are born in the US. And the answer is what I have provided above.

    A person who is born outside the United States needs a federal law in order to have citizenship. This is not true for those who are born in the US. And that is the basic difference between naturalization and natural born.

  37. DrDaveT says:

    @Pch101:

    Argh, you completely missed the point.

    Don’t worry, Pch101 — some of us are keeping up.

    As I read this, the crux of the debate is this:

    1) You say that the difference between “natural born” and “naturalized” is, precisely, the difference between being a citizen by virtue things the Constitution says that would require a constitutional amendment to alter, and things that the Constitution explicitly gives Congress the authority to decide by legislation.

    2) You cite language in the Constitution to support this interpretation of the meaning of the terms.

    3) Doug and harvardLaw92 disagree that this is what the terms “natural born” and “naturalized” refer to. So far as I can tell, they have not proposed alternative definitions, nor citations to a source for alternative definitions, but I may have simply missed them.

    4) harvardLaw92 is correct that, if your interpretation is correct, someone born on a US military base (and possibly John McCain) would not be legally eligible to be President.

    Have I got that right? Doug or HL92, can the peanut gallery here get your take on what “natural born” meant to the Framers?

  38. Mario Apuzzo says:

    @Doug Mataconis:
    I do not know if anyone would laugh at my arguments. But I do know that I am laughing at you.

  39. Tony W says:

    Of all the reasons to reject Ted Cruz, this is hardly the biggest issue.

  40. Jenos Idanian says:

    This is a good move. Since Hillary was the one who started the whole birther thing against Obama, and she is the presumptive nominee, this takes away one possible avenue of attack she could use.

  41. HarvardLaw92 says:

    @Mario Apuzzo:

    Rest assured you have at least two attorneys on here laughing at your arguments

  42. Franklin says:

    I’m happy with the ruling. What I’m not happy with is calling every doubter in this case a “birther”. I have seen legitimate arguments from interested constitutional scholars (there was one in WaPo, for example) on the meaning of these terms at the time the Constitution was written. Judge Masin acknowledges this debate.

    So enough with the name calling.

  43. Eric Florack says:

    @James Pearce: the ringing the game nonsense makes the trumpster sound an awful lot like Al Gore’s people

  44. Mario Apuzzo says:

    @HarvardLaw92: Rest assured that now I am even laughing harder at you.

  45. James Pearce says:

    @Pch101:

    Argh, you completely missed the point.

    I think I did something else to your point.

    @Mario Apuzzo:

    Rest assured that now I am even laughing harder at you.

    An author of your quality should have been able to come up with something better.

    PS. Loved The Godfather, but I also have a soft spot for The Last Don. (Ba-doomp-boomp-peesh.)

  46. HarvardLaw92 says:

    @DrDaveT:

    Doug and harvardLaw92 disagree that this is what the terms “natural born” and “naturalized” refer to. So far as I can tell, they have not proposed alternative definitions, nor citations to a source for alternative definitions, but I may have simply missed them.

    We’ve had this discussion before. Responding to it involved lengthy explanations of precedent & rebuttals of specious arguments which accomplished exactly zero. People who latch on to fantastical theories of the law tend to cling (often obstinately and desperately) to those theories, so it seemed pointless to reinvent the wheel here (yet again …).

    But since you asked:

    The constitution at it existed prior to 1868 does not speak to what constitutes a “natural born” citizen. It simply stipulates that Congress has the power to establish a uniform rule of naturalization. Our learned opponents (and with respect to one of them I use that term loosely) assert that, because of this, the common law determines what constitutes natural born, and any statute passed by Congress extending citizenship must therefore only extend naturalized (i.e. acquired after birth) status.

    We disagree about that. We see the clause as extending to Congress the power to enact legislation which governs what set of circumstances determine who is and is not a citizen, what citizenship status status they enjoy, and under what conditions that citizenship may be taken from them.

    When we turn to history, we find that under British law as it existed during the colonial period which preceded the revolution, children of British subjects born extraterritorial to Britain generally enjoyed the same subject status as someone born in, for example, Liverpool or London. Indeed, the colonists themselves were largely born in America, not Britain, but were held to equally be subjects of the crown. As for citations to that effect:

    Foreign Protestants Naturalization Act 1708:

    The children of all natural born subjects born out of the ligeance of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever.

    British Nationality Act of 1730:

    Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively … are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever

    Plantation Act of 1740:

    persons born out of the legience of His Majesty, His Heirs, or Successors, who have . . . or shall inhabit or reside for . . . seven years or more in any of His Majesty’s colonies in America . . . shall be deemed, adjudged, and taken to be His Majesty’s natural-born subjects of this Kingdom.

    Speaking in Calvin’s Case in 1608 (Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377), Sir Edward Coke observed that :

    if any of the King’s ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King’s dominions.

    Blackstone himself said the same thing:

    But by several more modern statutes … all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain

    Thus, we observe that the premise of natural born subject status was not solely a matter of WHERE a subject was born so much as a matter of a combination of factors all hinging on the concept of allegiance. For example, a person born to a Spanish diplomat in London at the time would not have been a British subject because his/her father owed no allegiance to the British crown, and by association the child also owed no allegiance. The very common law concept of a person born within the king’s dominions being a subject hinges not on the fact that he/she popped out on this piece of earth or that one, but instead the general presumption that all persons within the king’s dominions owed allegiance to the king. If your parents did, then you do too. If your parents never did, regardless of where you were born, you don’t owe it either, and you’re not a subject of the crown. So we’ve established that allegiance was the core factor in determining natural born subject status in the British law under which the framers lived much of their lives and which heavily influenced their own attitudes about the law.

    Indeed, prior to the ratification of the Constitution, Maryland conferred natural born citizen status on the Marquis de Lafayette AND HIS DESCENDANTS in perpetuity, despite his having been born in the dominions of, and his owing allegiance to, the King of France.

    Be it enacted by the General Assembly of Maryland—that the Marquiss de la Fayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof…

    That having been said, the constitution is vague on many subjects primarily because the paramount goal was to get it ratified in the first place, so the framers left some questions unanswered, IMO with the intention that once the Congress specified in the document had been assembled, they could and would be answered in greater specificity. To that end, the enactments of the first Congress (due both to it being the closest in temporal terms to the Constitution itself and being heavily comprised of the same founders who produced that Constitution in the first place) are regarded as being exceptionally informative, even authoritatively informative, with respect to the unspoken intent of the framers in those vague sections.

    Thus we turn to the first statute dealing with citizenship ever enacted in this country, which was formulated by the first Congress in 1790. It contains this provision:

    the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States

    Thus we see the heritage of British law being reflected in the enactments of the first Congress. They did NOT condition natural born status on place of birth; instead they conditioned it on the presumed allegiance of the father. In shorter terms, if your father was a citizen, he was presumed to owe allegiance to the United States, and therefore you were a natural born citizen also due to the presumption that his allegiance extended to you as well at birth – unless he had never lived in America, in which case his allegiance was subject to question and because of that uncertainty they opted not to include the child either. This is a central point to the entire thing which must be understood: the allegiance of the parent was presumed to extend to the child, and that allegiance served as the primary determinant of whether a person was born a citizen (natural born, i.e. citizen by virtue of birth) or not.

    So we are left with these tenets:

    Allegiance, not place of birth, was the primary determinant of natural born status

    A long history of enactments, both in Britain and in the colonies themselves, establish that the legislature historically had the power to determine not only what constituted natural born, but also to whom that status applied.

    The bulk of the framers themselves, speaking in the first Congress, expressly indicated their intent that children born abroad to US citizens who were presumed to owe allegiance to the United States would and should enjoy the same natural born status as someone born in Philadelphia or New York.

    That enough? 🙂

  47. HarvardLaw92 says:

    @Mario Apuzzo:

    I’ve seen your “office”. Rest assured that I’m unconcerned about your opinion 🙂

  48. Mario Apuzzo says:

    @HarvardLaw92: You call yourself HarvardLaw92, but you are such a lightweight and embarrassment to the name

  49. HarvardLaw92 says:

    @Mario Apuzzo:

    That was easy enough … 🙂

    You’re a toiler and a crank. Seek joy elsewhere.

  50. Mario Apuzzo says:

    @HarvardLaw92: Boy do you squirm easily.

  51. HarvardLaw92 says:

    @Mario Apuzzo:

    Nah, I just enjoy poking crazies with a stick.

    I know who you are, Mario. I’m well acquainted with your CV. You’re the nimrod who thinks Obama is Kenyan, tried suing not only Obama, but also Congress itself, Dick Cheney and Nancy Pelosi in Kerchner and got slapped with a show cause order for filing a frivolous appeal.

    You have a long and, frankly, hilarious history of jousting at windmills. You tried again in 2012, and got shot down. Now you’ve tried for a third time and been handed your ass on a platter.

    Frankly, I’m toying with you for the amusement value that it provides.

  52. Mario Apuzzo says:

    @HarvardLaw92: It appears as though you can do some things, but it does not appear as though you know how to make a legal argument.

  53. HarvardLaw92 says:

    @Mario Apuzzo:

    Says the “attorney” from Filene’s Basement who’s been laughed out of multiple courtrooms and sanctioned over his legal arguments.

    Now you’ve grown boring. Question – who do you propose to convert to your cause here, when you’ve clearly been met with ridicule? Of course you’re probably accustomed to that by now, but sheesh man, know enough to know when you’ve stayed past your expiration date.

    🙄

  54. Kylopod says:

    @Jenos Idanian:

    Since Hillary was the one who started the whole birther thing against Obama

    That claim has been debunked by both Factcheck.org and Politifact. But you know it’s true because it says so at Breitbart. Nice to see you reveal your true colors.

  55. Mario Apuzzo says:

    @HarvardLaw92: Are you trying to convince us that I have not trounced you here?

  56. grumpy realist says:

    @Pch101: No. No. No. You, and those who follow you down this particular rabbit hole, fail to understand what is going on:

    Congress has the authority to decide who is considered a Natural Born Citizen. (eligible to become POTUS)

    Congress has the authority to decide who gets to become a citizen by naturalization procedures. (Not eligible to become POTUS)

    The fact that Congress has to define who is considered a Natural Born Citizen by statute is because, well, that’s the way the cookie crumbles.

    What evidence do you have that Congress CANNOT define who is consider a NBC?

    (And don’t bring Vattel into it. First of all, he wasn’t American and didn’t have any authority to state any law. Second, the stuff he wrote was AFTER the Constitution was written, so how in the hell can you use the argument that the Founding Fathers had Vattel’s definitions in mind when they wrote the Constitution?)

  57. grumpy realist says:

    @Mario Apuzzo: Ah, another genius in the confines of his own mind….

    Y’know, if every single law court you bring your argument in shoots it down, at some point you might want to consider the possibility that you are simply WRONG.

  58. Jenos Idanian says:

    @Kylopod: Apparently you missed the part where the Breitbart article showed exactly why those two specific articles were bogus.

    Also, by the Mitt Romney standard, Hillary didn’t act sufficiently to denounce her aides and supporters who pushed it, so she is liable.

  59. Mario Apuzzo says:

    @grumpy realist: Let me break it down real easy for you. There is natural and there is naturalization.

  60. Mario Apuzzo says:

    @grumpy realist: Is there a legal argument that you would like to make?

  61. An Interested Party says:

    Since Hillary was the one who started the whole birther thing against Obama…

    Umm, yeah, this will get about as far as the alleged indictment coming down on Hillary, which is to say, nowhere…

  62. Scott says:

    @Moosebreath: I think the Constitution is silent on whether a natural born citizen is required to be fully human. Or human at all.

  63. Kylopod says:

    @Jenos Idanian:

    Apparently you missed the part where the Breitbart article showed exactly why those two specific articles were bogus.

    I read the entire article and it did no such thing. The Factcheck and Politifact article go unmentioned in the entire piece. Here is Factcheck:

    But none of those stories suggests any link between the Clinton campaign, let alone Clinton herself, and the advocacy of theories questioning Obama’s birth in Hawaii.

    One of the authors of the Politico story, Byron Tau, now a reporter for the Wall Street Journal, told FactCheck.org via email that “we never found any links between the Clinton campaign and the rumors in 2008.”

    The other coauthor of the Politico story, Ben Smith, now the editor-in-chief of BuzzFeed, said in a May 2013 interview on MSNBC that the conspiracy theories traced back to “some of [Hillary Clinton’s] passionate supporters,” during the final throes of Clinton’s 2008 campaign. But he said they did not come from “Clinton herself or her staff.”

    None of this is addressed at all by Breitbart. The Breitbart piece mentions the Politico piece in passing, claiming that it “already traced the Birther movement back to Democrats and Ms. Clinton.” That characterization of the Politico piece is, quite simply, a lie.

    The rest of the Breitbart article is just a load of second-hand innuendo and guilt-by-association, with a nice helping of “if Republicans did this, Dems would accuse the candidate of being responsible” whining.

  64. HarvardLaw92 says:

    @Mario Apuzzo:

    I think you’re trying to spin around having been debunked and exposed as the lunatic that you are.

    Mental illness can be such an ugly condition … 🙂

  65. Pch101 says:

    @grumpy realist:

    Congress has the authority to decide who is considered a Natural Born Citizen. (eligible to become POTUS)

    Well, Mary McManamon would disagree with you: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444766 And she has a point, as it could be argued that this would be an end-run around Article 5, which specifies that the constitution can only be changed via amendment.

    I’m inclined to disagree with her and believe that Congress can define natural born to include the foreign-born if it wants to. But Congress hasn’t done that since 1795. And nobody can possibly reasonably argue that a provision that was repealed by Congress 221 years ago is still in effect.

  66. Grumpy Realist says:

    @Mario Apuzzo: why should I? The law courts listening to your theories have already done it for me.

    How many judges have ruled against you? You know what that means, no? That you are WRONG wrong wrong wrong. Which means, according to Common Law, that your theories are nothing more than bovine by-products and not, in fact, to be considered law.

    WRONG. Have you gotten that through your head yet?

  67. @Grumpy Realist: So you concede that you have nothing of substance to say Also, the New Jersey Administrative Court agreed with me that my clients had standing and that the Ted Cruz ballot challenge did not present a political question. ALJ Masin then came up with a revisionist definition of a natural born citizen which will be addressed. Clearly, you are way off your rocker.

  68. Steve V says:

    @Kylopod: If I recall correctly much of the nonsense originated with Larry Johnson.

  69. grumpy realist says:

    @Mario Apuzzo, Esq.: Do what you want; I’ve got a company to run…..talking with you is like talking to people who claim the Moon Landings were faked. There is no evidence that will ever convince you that you are wrong, no matter how many times you get shot down in the law courts.

    You’re going to go down in history as “batsh*t as Orly Taitz, the only woman to lose a case to an empty chair.” And that’s the only effect on history that you will ever have. Why don’t you do something more productive with your life?

  70. DrDaveT says:

    @HarvardLaw92: [Didn’t know this was old road; a link would have sufficed. But thanks for the reply.]

    Thus we turn to the first statute dealing with citizenship ever enacted in this country, which was formulated by the first Congress in 1790.

    So… Congress passed a law doing what Pch101 says Congress doesn’t have the Constitutional authority to do, and the Supreme Court never questioned it.

    Got it.

  71. @grumpy realist: That is a splendid idea, get lost.

  72. HarvardLaw92 says:

    @DrDaveT:

    If you closely examine his argument, you’ll find that it has perceptibly moved from “unless you were born on US soil, you’re naturalized and can never serve as president” to “Congress has passed laws to the effect that US citizens born abroad are considered to be natural born, but Congress could change its mind at any time”.

    I’m not sure what more needs to be said.

  73. HarvardLaw92 says:

    @grumpy realist:

    You’re dealing with a looney tune who works out of his living room. Give him the degree of consideration he’s due (which was surpassed about 35 comments ago).

  74. HarvardLaw92 says:

    @Mario Apuzzo:

    Are you trying to convince us that I have not trounced you here?

    I think you’re doing a fine job of convincing us that you have not trounced me here all on your own. You don’t need my help with that one 🙂

  75. Pch101 says:

    @DrDaveT:

    Congress passed a law doing what Pch101 says Congress doesn’t have the Constitutional authority to do, and the Supreme Court never questioned it.

    You misquoted me. As I noted above:

    I’m inclined to disagree with her (Mary Brigid McManamon) and believe that Congress can define natural born to include the foreign-born if it wants to. But Congress hasn’t done that since 1795. And nobody can possibly reasonably argue that a provision that was repealed by Congress 221 years ago is still in effect.

    Congress repealed its more generous definition of “natural born” more than 200 years ago. It hasn’t been in effect since George Washington’s presidency.

    In the absence of a statutory definition, then we have to go with the common law definition, since it is not been the US’ habit to simply incorporate every act of Parliament into American law.

    I can’t say that I recall a time that a group of people hung their legal arguments on a law that hasn’t been in effect for over 200 years. The fact that this law was repealed back during the founder’s day would be pretty clear indications that they decided to get rid of it and that they had the authority to get rid of it, which corresponds to what I am talking about.

    And the fact that they had to create a statute in the first place would hint that the common law definition that would have otherwise been in effect did not meet their needs for a five-year period but that it was acceptable thereafter. If the definition is as HL92 and others would have you believe, then that section of the 1790 law would have been completely unnecessary.

  76. Guarneri says:

    Yes, but is he a natural born lovers man?

  77. Grumpy Realist says:

    @Pch101: fail again. A lot of Common Law got turned into statutory law because having stuff defined in black and white made it a lot easier to apply the law and not have to quarrel about ambiguities. It wasn’t because the legislature was trying to overturn the existing law. It just made it easier to know where the metes and bounds were.

  78. Pch101 says:

    @Grumpy Realist:

    You didn’t even understand the implications of your own comment.

    This statute to which you are referring was repealed. It hasn’t been in place for 221 years.

    Nobody denies that this definition used to be part of the law. But it clearly isn’t now, and hasn’t been since George Washington was president.

  79. DrDaveT says:

    @Pch101: Y

    ou misquoted me.

    I did. My apologies; I should not have attributed that argument to you.

    Congress repealed its more generous definition of “natural born” more than 200 years ago.

    You’re making an additional claim here, that repealing a law that contradicts the common law automatically reverts you to the status quo ante. Is that a well-established principle?

  80. Pch101 says:

    @DrDaveT:

    Once again: The position that a natural-born citizen can be born abroad is NOT in the common law. That came from various acts of Parliament that were repealed and modified over time.

    Common law, as summarized by Blackstone and others, divided the world of two groups of people: those who were born in-country, on English ships, or abroad to ambassadors, etc. (“natural born”) and everyone else (“aliens”.)

    Parliament created a third group, which was those who did not naturally have citizenship due to birth in the realm but who were granted citizenship via acts of Parliament (“naturalization”).

    This is what we inherited from Britain. If you were a white person born on US soil, then you were naturally a citizen. If you were not born on US soil, then you might be able to become a citizen if Congress chose to make you one.

    The debate in the 1st Congress re: the 1790 nationality law references the idea of jus sanguinis citizenship being included in the law, and it is clear from that reference that Congress knew that this was not a matter of common law or something that it was obligated to do — rather, it was just regarded as being a good idea. And of course, the natural-born language that was included in 1790 disappeared shortly thereafter when the immigration laws were tightened in 1795.

    This goes back to my point: Ted Cruz needed a statute in order to be an American citizen. And there is really no ambiguity in the fact that he would not have been a citizen in the absence of that statute. Accordingly, he was naturalized, not natural born.