Ted Cruz Misrepresents the Law and His Being a Natural Born Citizen at Town Hall Meeting

Ted Cruz Misrepresents the Law and His Being a Natural Born Citizen at Town Hall Meeting

By Mario Apuzzo, Esq.

February 18, 2016

During a CNN Republican presidential town hall in Greenville, South Carolina on Wednesday, February 17, 2016, a self-identified supporter of Sen. Ted Cruz asked him to explain why he believes that he is a natural born citizen under the Constitution even though he was born in Canada.  "In order to prevent future controversy and possible litigation will you please justify, constitutionally, your legal right to be president of the United States as it relates to your natural born status?" Julie Hershey asked Cruz. The full exchange can be seen on video at http://talkingpointsmemo.com/livewire/cruz-eligibility-cnn-town-hall 

Cruz, in a style and tone as if he were arguing his case before the U.S. Supreme Court, said that he was happy that Ms. Hershey (the Justice) asked him that question.  He then answered that “the law under the Constitution and federal law have been clear from the very first days of the Republic.  The child of a U.S. citizen born abroad is a natural born citizen.”  He continued that if two Americans travel overseas and have a child there, the child is “a U.S. citizen by virtue of birth.”  The child born to U.S. service members overseas is “a natural born citizen by virtue of the child’s parents.”   The child born to U.S. citizen missionaries overseas “are natural born citizens.”  John McCain, who was born in Panama to two U.S. citizen parents, “was a natural born citizen.”  George Romney, who was born in Mexico to two U.S. citizen parents “was a natural born citizen.” 

Then Cruz reached back to the early years of the Republic.  He said that the First Congress, which contained many Founders and Framers and who wrote the first naturalization Act, “explicitly defined the child of a U.S. citizen born abroad as a natural born citizen.”   

Cruz then admitted that he was born in Canada.  But he added that he was born there to a mother who was a U.S. citizen.  He concludes that therefore “I was a citizen by birth by virtue of my mother’s citizenship.  So, I have never been naturalized.  I’ve never breathed a breath of fresh air on this planet when I was not a U.S. citizen.  It was the act of being born that made me a U.S. citizen.” 

Cruz then concluded that “under the law the question is clear.  There will still be some who try to make political mischief on it, but as a legal matter this is clear and straightforward.”  He finalized by saying that any suit brought by Donald Trump against him would not be meritorious. 

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So is Cruz telling the truth about what the law provided historically and what it provides today regarding whether he is a natural born citizen and whether he is under the Constitution a natural born citizen?  The answer is “no.” 

A natural born citizen is a citizen by virtue of birth and birth alone.  But birth does not exist in a vacuum.  There are circumstances that exist at the time of birth.  Those circumstances are, among many, the parents to whom one is born and the place where one is born.  In order to have a valid definition of the natural born citizen, it is necessary that we take these birth circumstances and make them part of a definition. 

There does, indeed, exist a definition that contains the necessary and sufficient birth circumstances that must exist in order for one to be a natural born citizen.  The historical and legal record demonstrates that in order to be a citizen by virtue of birth alone, one must be born in the country to parents who were its citizen at the time of the child’s birth.  Indeed, a natural born citizen is a child born or reputed born in the country to parents who were its citizens at the time of the child’s birth.  See Emer de Vattel, The Law of Nations, Sections 212 to 217 (1758) (1797) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens"); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first”); accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898) ("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").  As we shall see, all other birth circumstances, i.e., either not being born in the country or not being born to citizen parents, do not produce citizenship by virtue of birth alone. 

Birth in the country while subject to its jurisdiction, when not born to two U.S. citizen parents, produces citizenship at birth but only by virtue of the Fourteenth Amendment.  That one satisfies the material elements of the Amendment does not make the very Amendment, the source of the citizenship, disappear. It is still by virtue of the Amendment itself, and not by virtue of birth alone, that one becomes a citizen of the United States at birth.   

Birth out of the country to one or two U.S. citizen parents produces citizenship at birth, but only by virtue of a naturalization Act of Congress.  That one satisfies the material elements of the Act does not make the very Act, the source of the citizenship, disappear.  It is still by virtue of the naturalization Act itself and not by virtue of birth alone that one becomes a citizen of the United States at birth.   

To make my point more clear, someone might be considered to be a good person by virtue of having a lot of money.  But that money does not exist in a vacuum, for it could have been acquired by various means.  It could have been acquired by hard and honest work, inheritance, lottery, gift, finding it on the ground, or even stealing it.  The same with being a natural born citizen.  One can be a citizen of the United States at birth by various means.  But the only means that was ever recognized by our history and our U.S. Supreme Court is the means of being born in the country to parents who were its citizens at the time of the child’s birth.  The recognition of that means for becoming a natural born citizen does not depend upon any positive law.  Becoming a citizen of the United States at birth by any other means, e.g., the Fourteenth Amendment or naturalization Act of Congress, makes one a citizen of the United States at birth, but, needing those laws in order to acquire the citizen-at-birth status that they bestow upon those who satisfy their conditions, it does not make one a natural born citizen. 

Cruz cites to and relies upon the First Congress and its Naturalization Act of 1790 to show that he is a natural born citizen.  But his reliance there is misplaced.  This Act does not help him.  If anything, this Act and the one that followed, that of 1795, when read in tandem confirm that the Framers did not view someone like Cruz, who was born out of the territory and jurisdiction of the United States, to be a natural born citizen. 

This naturalization Act did not nor could it make anyone a natural born citizen.  When the Constitution was adopted and ratified, it already contained a definition of a natural born citizen.  That definition was binding upon the nation.  

The Constitution did not give to Congress the constitutional power to define a natural born citizen.  The Constitution also did not give to Congress the power to amend it through a statute.  Rather, the Constitution requires a duly ratified amendment in order to amend it.  The 1790 Act is just a statute and surely could not amend the Constitution’s meaning of a natural born citizen. 

Since 1790, Congress has for policy reasons seen the need, exactly for the reason that they are not natural born citizens, to naturalize children of U.S. citizens born out of the United States. 

Congress did not explicitly define a natural born citizen in the 1790 Act.  It only said that children born out of the United States to U.S. citizens “shall be considered as natural born citizens.”  This is no different from saying that a couple’s adopted children shall be considered as that couple's natural children.  In making that statement, the person is not defining that couple's natural born children. 

In the Naturalization Act of 1790, the First Congress naturalized children to enjoy all the privileges and immunities of natural born citizens.  A careful reading of the statute’s text shows that Congress did not give or change the definition of a natural born citizen, but rather only naturalized children born out of the United States to U.S. citizen parents.  What Congress did, by using the language “shall be considered as natural born citizens,” was to only extend the privileges, immunities, and rights of a true natural born citizen to those children born out of the United States to U.S. citizen parents, to the extent that it could constitutionally do so.  That extension could not include the privilege of being eligible to the Office of President. 

Only the Acts that are in effect when one is born apply to the question of that person’s citizenship status at the time of birth.  Cruz was not born when the 1790 Act was in effect (only from 1790 to 1795) and therefore he cannot claim any status to being a natural born citizen under it even if the Act purported to and could constitutionally grant to anyone the status of a natural born citizen. 

The 1790 Act also required that the child be born to both a father and mother who were U.S. citizens.  Cruz was born only to a U.S. citizen mother.  Not being born also to a U.S. citizen father, Cruz would not even be a citizen of the United States under the early naturalization Acts of Congress (1790, 1795, 1805, and 1855) and is made a citizen only because Congress eventually did away with the doctrine of coverture (allowing husbands and wives to have their own citizenship rather than wives acquiring that of their husbands) in 1922 with the Cable Act.  If born between 1802 and 1855, Cruz would not even be a citizen, even if he was born to a U.S. citizen father and mother.  Cruz got lucky because Congress in 1934 passed a naturalization Act (Act of May 24, 1934, § 1, 48 Stat. 797) which for the first time allowed a person born in a foreign country to a U.S. citizen mother and a non-U.S. citizen father to be a citizen of the United States.  That naturalization rule was carried forward in the Nationality Act of 1940 (H.R. 9980; Pub.L. 76-853; 54 Stat. 1137, enacted October 14, 1940) and the Immigration and Naturalization Act of 1952 (Pub.L. 82–414, 66 Stat. 163, enacted June 27, 1952), the latter being the statute in effect when Cruz was born and without which, along with those of 1934 and 1940, Cruz would be an alien. 

In any event, the Third Congress repealed the 1790 Act when it passed the Naturalization Act of 1795, which removed “shall be considered as natural born citizens” and replaced it with “shall be considered as citizens of the United States.”  In 1795, the Third Congress, clearly indicated that Congress never intended to suggest that those persons were eligible to be President.  Rather, what it meant to do was to only naturalize them to enjoy all the privileges and immunities of citizens of the United States, who  were not eligible to be President under Article II, Section 1, Clause 5, unless also natural born citizens. Representative James Madison, along with the entire Third Congress, and with the approval of President George Washington, told us in 1795 through the Naturalization Act of 1795, that a person born out of the United States to U.S. citizen parents was not a "natural born citizen" of the United States, but rather a "citizen" of the United States.  By surgically changing this language as it did, the Third Congress, which still had many Founders and Framers among its ranks as did the First Congress, with the lead of then-Representative James Madison and with the approval of President Washington, made it known that Congress did not intend in 1790 to grant the status of natural born citizen to anyone born out of the United States, even if born to U.S. citizen parents. 

All subsequent naturalization Acts of Congress provide that Cruz is a citizen of the United States, even as we shall see below the one which applies to his birth in 1970.  But yet Cruz tells us that even though he was born out of the United States, because he was born to a U.S. citizen mother, he is a natural born citizen.  Clearly, he is not telling the truth, for Cruz is not an Article II natural born citizen under the very words of James Madison and President Washington.  At best, he would be a “citizen” of the United States “at birth” under the naturalization Act that was in effect when he was born in 1970, which in any case is not and cannot be that of 1790 which was long ago repealed and which being born only to a U.S. citizen mother he did not satisfy in any event.   

   

So as we can see, Cruz cannot possibly be a natural born citizen through the Naturalization Act of 1790.  Reading the Act of 1790 and 1795 together confirms that the Framers did not view someone like Cruz, born out of the territory and jurisdiction of the United States, to be a natural born citizen.  On the contrary, they would have viewed him as an “alien or foreigner” in need of naturalization by Congress.   

Cruz also relies upon the Congressional naturalization Act that was in effect when he was born in 1970.  That Act is the Immigration and Nationality Act (INA) of 1952.  When enacted in 1952, the INA at section 301, required a U.S. citizen married to an alien to have been physically present in the United States for ten years, including five after reaching the age of fourteen, to transmit citizenship to foreign-born children. The ten-year transmission requirement remained in effect from 12:01 a.m. EDT December 24, 1952, through midnight November 13, 1986, and still is applicable to persons born during that period.

As originally enacted, section 301(a)(7) stated:

(a) The following shall be nationals and citizens of the United States at birth: (7) 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 not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

The modern version of this statute is found at 8 U.S.C. Sec. 1401(g).

Hence, a naturalization Act of Congress that applied at the time of his birth, does make Cruz, a “citizen” of the United States “at birth.”  That naturalization Act of Congress naturalized Cruz at birth to be a citizen of the United States from the moment of birth.  This Act does not make him a natural born citizen.  First, a naturalization Act passed 165 years after the Constitution was adopted surely cannot inform on the Framers’ definition of a natural born citizen.  Second, the Act is a naturalization Act.  Third, Acts of Congress do not and cannot amend the Constitution.  Fourth, the text of the Act does not use the clause “natural born citizen.”  Fifth, Congress required the U.S. citizen parents to satisfy a physical presence in the United States requirement.  A natural born citizen surely would not be subject to such a condition.  Sixth, as we saw for Barack Obama, simply being a citizen “at birth” or “by birth” is not sufficient to be a natural born citizen, for one may qualify for that birth status under the Fourteenth Amendment or under a naturalization Act of Congress as Cruz does, but not also under the common law which defines a natural born citizen. Because Cruz does not satisfy the American common law definition of a natural born citizen, he must look to positive law such as an Act of Congress for his citizenship status.

Cruz is not a U.S. citizen by virtue of birth alone.  Cruz is not a natural born citizen by virtue of his mother’s birth alone.  Rather he is a citizen by virtue of a naturalization statute without which he would be an alien.  See: 

U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898) (explained that one born out of the United States to U.S. citizen parents, not being a citizen at common law can only be a naturalized citizen through a naturalization Act of Congress and that if it were not for a naturalization Act of Congress, he or she would be an alien and not a citizen); 

United States v. Perkins, 17 Fed. Supp. 177 (D.D.C. 1936) (petitioner contended, among other things, that he was born out of the United States to a U.S. citizen mother which made him a natural born citizen, but the court citing Wong Kim Ark, whose statements the court found not to be dicta as petitioner had contended, explained that petitioner could not be a natural born citizen, but rather at most a naturalized citizen so made by naturalization Acts of Congress);

Schaufus v. Attorney General, 45 Fed. Supp. 61 (1942) (a foreign born child was a naturalized citizen within the meaning of an expatriation statute);

Zimmer v. Acheson, 191 Fed.2d 209 (10^th Cir. 1951) (“There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; [footnote 1] and a citizen who did not acquire that status by birth in the United States is a naturalized citizen [footnote 2],” in footnote 1 citing to Elk v. Wilkins, 112 U.S. 94, 101, 102, 5 S.Ct. 41, 28 L.Ed. 643; United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S. Ct. 456, 42 L.Ed. 890; Johansen v. Staten Island Shipbuilding Co., 272 N.Y. 140, 5 N.E.2d 68, 70; Schaufus v. Attorney General of United States, D.C.Md., 45 F. Supp. 61, 67, and in footnote 2 citing to United States v. Wong Kim Ark, 169 U.S. 649, 702-703, 18 S.Ct. 456, 42 L.Ed. 890; Johansen v. Staten Island Shipbuilding Co., 272 N.Y. 140, 5 N.E.2d 68, 70; United States v. Kellar, C.C.Ill., 13 F. 82, 85; Schaufus v. Attorney General of United States, D.C.Md., 45 F. Supp. 61, 67.  The Court held that if the appellant became a citizen of the United States at birth under Revised Statutes, § 1993, the appellant, “at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.” Id. at 211);   

Montana v. Kennedy, 366 U.S. 308 (1961) (explained that if a child is not born in the country, the child needs a naturalization Act of the sovereign authority to make that child for all intents and purposes a citizen and without such naturalization the child would be an alien);

Rogers v. Bellei, 401 U.S. 815 (1971) (a person born out of the United States to U.S. citizen parents can be a citizen of the United States only if Congress allows it through one of its naturalization Acts and such person therefore becomes a citizen of the United States “at birth” through naturalization without which the person would be an alien); and

Miller v. Albright, 523 U.S. 420 (1998) (“There are ‘two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.”). 

Cruz is a “citizen” of the United States “at birth” by virtue of his birth circumstances which qualify him for the status only because a naturalization Act of Congress (a positive law) says so, not by virtue of his birth circumstances alone.  At best, he is a “citizen” of the United States “at birth” by the very text of the statute.  He is a “citizen” at birth of the United States, Canada, and maybe Cuba also.  But he is not an Article II natural born citizen which could not under U.S. law possibly allow one to be simultaneously a citizen at birth of other nations.  Renouncing his birthright Canadian citizenship as he did in 2014 does not nor can it retroactively change the birth circumstances with which he was born.  He was not born with unity of citizenship and allegiance at birth and therefore the Framers would not have trusted him with the great and singular civil and military powers of the Office of President and Commander in Chief of the Military.

Cruz insists that he is a natural born citizen because he was not “naturalized.”  But as I have shown above, we do not validly get to the conclusion that Cruz is a natural born citizen by proclaiming that he "was never naturalized," when first, he has not satisfied the constitutional definition of a natural born citizen with its necessary and sufficient conditions, and second, we may have a different definition and perception from Cruz of what "naturalized" means.  Getting to one being a natural born citizen by saying one was not naturalized depends upon one’s definition of naturalization and not upon the definition of natural born citizen.  Hence, the approach is not honest, for Cruz is not starting with the constitutional definition of a natural born citizen, which provides its necessary and sufficient conditions, but rather getting to the status by telling us that anyone who is a citizen and not "naturalized" is a natural born citizen.  The false game is one of pretending to define "naturalized" instead of truly defining "natural born citizen" under its constitutional definition.  But Cruz’s argument that he was never naturalized is false, for I have shown that under all the laws of the United States, he was naturalized although at birth. 

Cruz looks to Senator John McCain for help.  But there is no help there.  Under the common law, the status of birth in the country is also extended to children born physically out of the territory of the United States to U.S. citizen parents who are on diplomatic service for or serving the military of the United States.  These children are “reputed born” in the United States and do not need a naturalization Act of Congress to make them citizens of the United States.  See Vattel, § 217. “Children born in the armies of the state or in the house of its minister at a foreign court. For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.”). 

John McCain was born outside the territory of the United States (in Panama), but not outside its jurisdiction, to U.S. citizen parents serving the national defense of the United States.  Because his parents, serving the armies of the United States, are considered as not having voluntarily quitted the territory of the United States and as having remained under the jurisdiction of the United States, their son born to them in the foreign territory is reputed born in the United States.  Hence, McCain was born "in" the United States to U.S. citizen parents.  He is therefore a natural born citizens. Cruz’s parents had voluntarily left the United States to pursue private economic interests in Canada.  Neither Cruz’s father nor mother were serving the national defense of the United States (serving in the military or some other comparable capacity) while in Canada.   So, while in Canada, Cruz’s parents were under the strict jurisdiction of Canada and not that of the United States.  Additionally, Cruz’s father was an alien.  Hence, Cruz cannot benefit from the McCain rule. 

Cruz also looks to former Governor George Romney for help.  But there too, there is no help.  Romney was born in Mexico to U.S. citizen parents.  Initially he was the front runner for the Republican nomination for President of the United States in the 1968 election.  But he withdrew from the contest in early 1968. https://en.wikipedia.org/wiki/George_W._Romney. Hence, he never advanced far enough for the issue of his place of birth to be considered in any serious way. 

So, Cruz may be a citizen of the United States at birth.  But he became such only by virtue of a naturalization Act of Congress, not by virtue of his birth alone or by being born to a U.S. citizen mother alone.  Cruz was able to breathe fresh air as a U.S. citizen all his life only because Congress through a naturalization Act so allowed him.  Without that naturalization Act, Cruz would have breathed fresh air only as a Canadian and Cuban citizen.  Cruz therefore is not nor can he be a natural born citizen. 

Cruz tries to escape the requirements of the natural born citizen clause by characterizing the resolution of its meaning as a political question.  But the matter of who is a natural born citizen is not a political question as Cruz likes to characterize it.  It is a clear and direct question that arises under the Constitution which requires that anyone born after its adoption must be a natural born citizen in order to be President.  The definition of a natural born citizen has always been and continues to be under the supreme law of the land a child born or reputed born in the United States to parents who were both U.S. citizens at the time of the child’s birth. 

Yes, Mr. Cruz, the matter is clear and "settled."  The historical and legal record and reason show that you are not a natural born citizen.  I am really turned off by Cruz and his supporters claiming to be conservatives and defenders of the Constitution and then acting so deceitfully and dismissively on the question of whether Cruz is a natural born citizen, which, being a requirement of presidential eligibility, is such a fundamental requirement of the Constitution and a safety feature for the survival and perpetuation of the republic.  

Any lawsuit brought by presidential candidate Donald Trump against presidential candidate Ted Cruz on his not being a natural born citizen will be successful. 

Mario Apuzzo, Esq.
February 18, 2016
http://puzo1.blogspot.com
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