Sunday, January 10, 2016

Citizen Cruz

One thing that Donald Trump does better than any politician in my lifetime is being able to stir the pot in order to gain attention.

He is at again with his questions surrounding the fact that Ted Cruz was born in Canada to an American mother and a Cuban father (who had previously resided in the United States).

This is what Trump had to say on the subject in order to stir the pot.

“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump said when asked about the topic. “It’d be a very precarious one for Republicans because he’d be running and the courts may take a long time to make a decision. You don’t want to be running and have that kind of thing over your head.”

Barack Obama's Eligibility

I spent a considerable amount of time researching the question of Presidential eligibility when there were those that claimed Barack Obama was born in Kenya. Obama's birth in Kenya never made sense to me simply because of the timeline involved and the underlying facts of the relationship between Barack Obama, Sr. and Stanley Ann Dunham. (For example, despite the Obama narrative in his book that his father had left him mother, his mother actually left Obama, Sr. and moved to Seattle, Washington when Obama was only two weeks old.)

First, it seems inconceivable that an 8-month pregnant woman would get on an airplane and fly from Hawaii to Kenya. This would seem even more questionable in the year 1961. Would the airline even let her fly?

A birth in Kenya seems even more far-fetched when it is considered that President Obama was born on August 4, 1961. There is documentary evidence that Obama's mother enrolled in two classes at the University of Washington in Seattle in August, 1961. Those classes began on August 19, 1961---a mere 15 days after the birth. A copy of Ann Dunham's transcript is in the linked article.

It is even more ridiculous to think that she would have the birth half way around the world and be enrolling in college classes two weeks later. And why we she go to Kenya with her husband if she planned to go to college in Seattle and be separated from Barack, Sr. by over 3,000 miles within one month of the trip? It does not add up.

Of course, the "birther" controversy persisted for four years until Donald Trump (sound familiar?) kept talking about the issue with the mainstream media and Obama was forced to produce the long form birth certificate that he had previously refused to release. As a result,  this finally seemed to settle the issue once and for all.

Why is all of this important?

The Constitution 

Article Two of Section 1 of the U.S Constitution states in relevant part,

No Person except a natural born Citizen, ...shall be eligible to the Office of President;  neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Note the reference to "natural born citizen".  It thereby excludes anyone from eligibility to be President that is a naturalized citizen such as Arnold Schwarzenegger who was born in Austria of Austrian parents and became a citizen through the naturalization process in 1983 when he was 36 years of age.

This leaves open the question of what about someone who is born to a United States citizen but is born outside the borders of the country. Are they a natural born citizen?

This National Review article by Andrew McCarthy provides the best summary explanation of the law and legal background of the issue and as it applies to Cruz. It is worth reading.

There is a statute that defines who are considered "nationals and citizens of the United States at birth". However, it is true that its constitutionality has never been definitely and definitively decided by the Supreme Court.

The legal requirement between 1952-1986 (link to statute in effect for both Cruz and Obama who were born in this period) was that for someone born outside of the United States to be considered "a citizen of the United States at birth" at least one of the parents had to be an American citizen. Further, the American citizen parent had to have resided in the U.S. for ten years, including five years after the age of fourteen.

Ted Cruz's Eligibility

McCarthy points out that Ted Cruz easily meets those requirements.

His mother, Eleanor Elizabeth Darragh Wilson, is an American citizen born in Delaware; his native-Cuban father, Rafael Bienvenido Cruz, was a legal resident of the U.S. for many years before Ted was born. (Rafael came to the U.S. on a student visa in 1957, attended the University of Texas, and received political asylum and obtained a green card once the visa expired. He ultimately became a naturalized American citizen in 2005.)

Cruz's mother also met the ten year residency rule, including five years after the age of fourteen.

Cruz’s mother, Eleanor, easily met that requirement: she was in her mid-thirties when Ted was born and had spent most of her life in the U.S., including graduating from Rice University with a math degree that led to employment in Houston as a computer programmer at Shell Oil.

To provide further legal support that "a natural born citizen" includes someone born outside of the country to a parent who is a citizen, McCarthy also cites a Harvard Law Review article by Neal Katyal and Paul Clement (former Solicitors-General, respectively, for the Obama and George W. Bush administrations), where it is explained that British law specifically used the term “natural born” to describe children born outside the British empire to parents who were subjects of the Crown.

In that the Founders were most familiar with British law they simply used this term as a model in writing the U.S. Constitution.

Additional legal support for Cruz being a "natural born citizen" is the fact that the first Congress passed a statute defining "natural born" that was signed by none other than President George Washington. You may have heard of Washington---he also presided over the Constitutional Convention. Don't you think that if Washington believed that the statute defining "natural born citizen" was beyond the meaning of the Constitution he would have vetoed it?

The Constitution’s invocation of “natural born citizen” incorporates this principle of citizenship derived from parentage. That this is the original meaning is obvious from the Naturalization Act of 1790. It was enacted by the first Congress, which included several of the framers, and signed into law by President George Washington, who had presided over the constitutional convention. The Act provided that children born outside the United States to American citizens were “natural born” U.S. citizens at birth, “Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

McCarthy points out that even under the stricter test in the 1790 law that required that fathers had to have been a resident of the United States at one time (this is no longer required) Cruz would still easily pass the test as a "natural born citizen". Further, he has never undergone any naturalization process for his citizenship. He gained his citizenship "naturally by birth."

This should put to rest any questions about the eligibility of Ted Cruz to serve as President.

However, I doubt it will stop Donald Trump from trying to stir the pot.

If Obama Would Have Been Ineligible If Born In Kenya, Why Isn't Cruz?

After reading this you might ask why there was so much controversy about Barack Obama's eligibility as President if he was born in Kenya considering his situation was similar to Cruz? They both had an American citizen mother and a father who was a foreigner who had resided in the United States. Why all the hub-hub about it with Obama?

It has to do with the fact that Obama's mother was extremely young when she got pregnant. When she gave birth to Barack she was only 18 years of age. Note that the statute in effect in 1961 (as it was in 1970 for Cruz) required the American citizen parent to have resided in the United States for ten years, including five years after age 14. (emphasis added). Ann Obama did not meet that requirement. Therefore, if Obama had been born outside of the United States, unlike Cruz, he would not be a "natural born citizen".

The statute, as it was subsequently amended, (and is in effect today) now requires only two years (rather than five) of residence in the United States after the age of 14.

If Cruz continues to gain strength I have no doubt that you will hear even more about the "natural born citizen" issue from Trump, the other GOP candidates and, ultimately, the Democrats if Cruz looks like he will be the Republican candidate for President.

There will be talk about lawsuits and court challenges. However, it is all a distraction that Trump is using because he has become nervous as Cruz has risen in the polls.

Trump suggests that a Cruz presidency could result in "years of litigation over Cruz's eligibility". I have no doubt we will see some lawsuits if Cruz wins, just as we saw dozens filed against Barack Obama. However, none of these lawsuits went anywhere even though the facts with Obama were much more muddled than with Cruz. In fact, most got thrown out quickly for lack of standing. The electoral college process seems to suggest to the courts that a mere individual voter does not even have standing to litigate the eligibility question. And none caused Barack Obama to be distracted from his agenda or the legitimacy of his election with the vast majority of the American people.

There is no factual question about where Cruz was born. He has not hidden anything. As you see from the above, the law is also pretty clear even though it may never have been definitively decided by the Supreme Court.

If anything, the past Obama experience has made Citizen Cruz even stronger on this issue. If the courts would not even force Obama to produce a birth certificate, how could they question the eligibility of Cruz considering the legal basis explained above?

They can't and won't if he is on the general election ballot and wins. It is that simple.

If the Court found a way to find Obamacare constitutional, they certainly are not going to invalidate a Presidential election, considering the legal framework that exists supporting the status of Cruz as a "natural born citizen".

He is Citizen Cruz. Mr. Trump, accept it and move on. Don't try to beat him with innuendo, do it with ideas, intelligence and issues.

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