Ted Cruz - can he be president?

What do you really know about United States government and constitution?

What I hear suggests that there's a lot of misinformation and ignorance among Americans. In my family I have coached new immigrants for their citizenship interviews and exams. I've also been fighting for my rights since high school - for over half a century. That meant researching the Constitution, the JAG manual when I was in the Navy, various laws and regulations, and issues of rights and freedoms, including immigration, international treaties, etc.

People seem to know that there are three branches, and some can even name them, but their knowledge of branch authority and function seems vague.  Limited powers were delegated in the Constitution by the states to the legislature, the administration, and the judiciary. The legislature writes laws, the administration implements and enforces laws and rules, and the judiciary resolves disputes, including questions of constitutionality, through cases. Many people haven't a clue.

The salient elements are:

The Constitution can only be changed by amendment or constitutional convention; neither Congress nor the Administration has the power or authority to change it. The Supreme Court has the duty to resolve cases, particularly when the case involves interpreting the Constitution.  In that regard, the Supreme court has consistently held that congress can not write legislation that conflicts with or alters the provisions of the constitution.

The Constitution itself, as amended, explicitly includes common law.  In the absence of provisions in the Constitution, legislated law, subsequent case law, and state law, common law prior to the constitution holds, at least until such time as legislation or amendment changes it.  Common law goes back to the Magna Carta and other subsequent common law inherited by the colonies. Jus soli (where you were born) and jus sanguinis (who your parents were) determining nationality are part of that common law.

Title 8 U.S.C. § 1409 paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.  This is a legislated application of jus sanguinis, citizenship by birth through inheritance of the mother's nationality.

However, this is legislation by congress duly passed under the authority of the constitution.  But this provision has no effect on the requirements written into the Constitution. Congress can not alter the interpretation of the Constitution by legislation.  Only an amendment can do that.

Consequently, we must look to the Constitution, as amended, for the requirements for office:

This wording is beyond the power of Congress, the Administration, or the Supreme Court to change.  Only an amendment can.

The above provisions in the original Constitution requires that a Representative or a Senator be a citizen, however that citizenship is acquired, (with additional age and residency requirements).  However, the Constitution requires a President to meet a stronger condition. It requires, in addition to being a citizen, that the candidate be "natural born" (or, if not that, be a citizen from the moment the Constitution was ratified - establishing the "birth" of the United States.)   In other words, a citizen from the very beginning of his life or the country itself, both of which require the connection to the soil at the time of the birth of the country or, after that, of the birth of the candidate - jus soli.  Representatives and Senators may be naturalized by birth or by naturalization, but a President must be born in the country or have been a citizen when the country was born. 

At the creation of the country with the Ratification of the Constitution, it was not possible for a candidate for the Presidency to have been born a citizen of the country, so an exception to "natural born" (born on the soil of the country) was needed.  If that was not the intent of the founding fathers, then there would have been no need for the "natural born" qualifier, as the exception wording would not be needed.  The requirement to be President would have merely needed to have been be a citizen for a time, presumably longer than that of a Senator.  Such was not the case. The founding fathers explicitly required that the President be Natural Born - not 7 years, not 9 years, not 12 years, not 15 years, but their entire life from birth.  Had we a king, the phrase would have been "natural born subject", but, in the absence of royalty, becoming a federal democracy required changing the word 'subject' to 'citizen'.

Moreover, the country was not starting devoid of laws.  We inherited the English common law, which would remain in force except as displaced by the constitution and the constitutions of the states until such time as legislators of the United States or of the states explicitly revised the common law or new cases otherwise changed it through court decisions.

This requirement was made explicit in the Bill of Rights

The Founding Fathers wanted nothing to do with Royalty. Some talked of making George Washington King, but it was solidly rejected. As a result,  "natural born subjects" became "natural born citizens".

What does all this mean fort Ted Cruz?

1. Ted Cruz was born in Canada, so he was born a "natural born Canadian Citizen", because Canada recognizes jus soli.   He was born to an American citizen mother not married to his Cuban Father. No one can be a "natural born" citizen or subject of two different places.  Jus soli applies only to the place of physical birth.  Any other dual citizenship accrues only through jus sanguinis.

Ted Cruz's birth came under US legislation passed in 1952 automatically granting jus sanguinis nationality and citizenship, which gave him automatic status of naturalized by birth citizenship of the U.S.

Because he had an American citizen mother, he is a naturalized American citizen, not a 'natural born' American citizen. The issue of naturalized birth American citizenship was settled by Congress a long time ago. The issue of naturalized by birth to an American citizen mother citizenship, not natural born citizenship, is so settled in law and culture that no one questions it. It's been settled by law since December 23, 1952.

"In general, a Child Born Outside the U.S. is a Citizen at Birth when the Child’s Parents Are Not Married to each other at the Time of Birth...

AND...

IF... The genetic or non-genetic gestational legal mother is a U.S. citizen at the time of birth, and the birth date is after December 23, 1952

AND... The mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of at least one year."

INA: ACT 301 - NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling ...

INA: ACT 309 - CHILDREN BORN OUT OF WEDLOCK

Sec. 309. [8 U.S.C. 1409]

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 301, and of paragraph (2) of section 308, shall apply as of the date of birth to a person born out of wedlock if ...

(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

The United States legal system recognizes dual citizenship for any country that also recognizes dual citizenship on a reciprocal basis, which Canada does.

His place of birth gave Ted Cruz natural born Canadian Citizenship under jus soli and his mother's citizenship gave him automatically nationalized United States citizenship by birth under jus sanguinis by right of that 1952 legislation, which legislation did not have the power to change the constitutional requirement for Presidency of natural born United States Citizenship.

At this time, the only way to change the Constitutional presidential eligibility criteria is to amend the Constitution or through a Supreme Court decision in a case brought by someone with standing before the court.  That generally means someone who would stand to lose something should an ineligible person seek or win the Presidency, presumably any eligible candidate.

The Constitution is the supreme law of the land.
The Constitution can not be amended by legislation.
Only the Supreme Court can decide cases involving the constitution.
The Constitution has weaker criteria for senators and representatives, to wit citizenship whether jus soli or jus sanguinis, and a far stronger criteria for President, to wit natural-born citizenship specifically jus soli.
Ted Cruz is not a natural born American Citizen.  He was a natural born Canadian Citizen.
Ted Cruz is a naturalized by birth American Citizen under 1952 legislation.
Ted Cruz is ineligible to be president under the Constitution.

Less detail here.


This page was updated by Ralph Kenyon on 2017/02/09 at 01:20 and has been accessed 148 times at 25 hits per month.