By RD Skidmore

Neil Cavuto, of the Fox Business Network, submitted the question to Senator Cruz on his constitutional presidential qualifications for natural born Citizen during the January Republican debate:

“…Senator Cruz. Now you are, of course, a strict constitutionalist — no one would doubt that. And as you know, the U.S. Constitution says only natural-born citizens are eligible for the office of president of the United States… you were born in Canada to an American mother. So you were and are considered an American citizen. But that fellow next to you, Donald Trump – and others – have said that being born in Canada means you are not natural-born, and that has raised questions about your eligibility.” “Do you want to try to close this topic once and for all tonight?”

Senator Cruz’s response included: “There was nothing to this birther issue”, “…the facts and the law here are really quite clear. Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen.”; “If a soldier has a child abroad, that child is a natural-born citizen. That’s why John McCain, even though he was born in Panama, was eligible to run for president.” “If an American missionary has a child abroad, that child is a natural-born citizen. That’s why George Romney, Mitt’s dad, was eligible to run for president, even though he was born in Mexico.” “I would note that the birther theories that Donald has been relying on … the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil.” “Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified and, interestingly enough, Donald J. Trump would be disqualified.” “Because – Donald’s mother was born in Scotland. She was naturalized.”

Is Senator Cruz correct in his assertions?

The constitution clearly states as a qualification for POTUS, the candidate must be a natural born Citizen. Further the constitution identifies three Citizenship types, and constitutional scholars see that there exists a hierarchy to this: (1) natural born Citizen, (2) Citizen, and (3) naturalized citizen.

Chief Justice John Marshall, delivering the opinion of the Court in Marbury v. Madison (1803) stated “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” “Citizen,” “naturalization” and “natural born Citizen” are ALL in the original, un-amended Constitution; therefore, none can mean the same thing.  Listening to Senator Cruz’s response, this author thinks that he would have the listener believe that a natural born Citizen is constitutionally equal to a Citizen; disregarding that these have been judicially and congressionally differentiated.

The defining testament to Presidential qualification is the case of Minor v. Happersett (1874); the only SCOTUS case to look at the qualifications for POTUS, stating that a natural born citizen is a child of parents (note the plural, thus father and mother) who are citizens of the United States at the time of their birth. This precedent finding is silent on where the child is born.

Senator Cruz said “…a soldier has a child abroad, that child is a natural-born citizen”, and “…if an American missionary has a child abroad, that child is a natural-born citizen…” illustrating his point with Senator McCain, born in the US Panama Canal Zone, and Governor George Romney, born in Mexico in a Mormon Colony, while inferring that only one parent was a US Citizen.

Unlike Senator Cruz with only one citizen parent, both parents of each, George Romney and Senator McCain, were citizens of the United States when they were born; fitting with the unanimous SCOTUS opinion in Minor v. Happersett.

Congress writes the nations naturalization laws and stated in 8 U.S. Code § 1401 that a child born abroad where one parent is a US citizen, using Cruz’s example: to either an American ‘soldier’ or ‘Missionary’, are nationals or citizens (not natural born Citizen) of the US at birth, and loses this privilege when failing to reside in the US as prescribed under this code.

On citizen parentage Senator Cruz more closely aligns with Mr. Obama as both of their mothers were US citizens and the fathers were not when they were born. Cruz was born in Canada and his father naturalized in 2005 which is 35 years after the Senator was born, whereas Mr. Obama’s father was from Kenya and a British subject, and never naturalized.

Isn’t Senator Cruz correct to exclude Senator Rubio (b. 1971) and Governor Jindall (b. 1971) under the natural born Citizen clause as both of their parents lacked US citizenship at the times of their birth?

Cruz concludes that Donald is “disqualified” because his mother “was [a] naturalized” citizen. Yes, Mary Anne Trump was naturalized in 1942, four years before Donald’s birth, and the union of this naturalized Citizen to her Citizen husband confers natural born Citizen to their children born after her naturalization — Believe It or Not!

Shall the US Constitution and our nation’s laws be ignored for personal ambition?

 

Skidmore is a professor at Pierce College in Woodland Hills, Ca. He may be contacted at[email protected].

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REFERENCES

5th Republican debate transcript, annotated: Who said what and what it meant.  https://www.washingtonpost.com/news/the-fix/wp/2016/01/14/6th-republican-debate-transcript-annotated-who-said-what-and-what-it-meant/

8 U.S. Code § 1401 – Nationals and citizens of United States at birth. https://www.law.cornell.edu/uscode/text/8/1401,

Immigration Help, US Nationals, Defined, rights and Restrictions. http://www.immihelp.com/immigration/us-national.html

“An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject”, United States Congress (January 29, 1795).; Indiana University, available at http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html,

British Nationality Act, 1948, (11 & 12 Geo. 6.) CHAPTER 56. “Part II, Citizenship of the United Kingdom and Colonies. Citizenship by birth or descent.”  http://www.uniset.ca/naty/BNA1948.htm,

CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW by Keith E. Whittington. Lawrence, KS: University Press of Kansas, 1999. 320 pp. Cloth $39.95. ISBN 0-7006-0969-5. Vol. 10 No. 4 (April 2000) pp. 261-264., http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/whitting.html, (last visited 7 November 2011)

 

How Mitt Romney’s Mexican-Born Father Was Eligible to be President, By Huma Khan via WORLD NEWS, January 27, 2012. http://abcnews.go.com/blogs/politics/2012/01/how-mitt-romneys-mexican-born-father-was-eligible-to-be-president/, (last visited 16 January 2016

 

Marbury v. Madison, 5 U.S. 137, (5 U.S. 1 Cranch 137) (1803), available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html, (last visited 3 December 2011.

 

Mary Anne Trump, receipt of naturalization, Public Access; https://www.fold3.com/search/#s_given_name=Mary+Anne&s_surname=Trump&ocr=1&preview=1, (last visited 19 January 2016)  (“Fold3_Page_Index_to_the_Naturalization_Petitions_of_the_United_States_District_Court_for_the_Eastern_District_of_New_York_18651957.jpg”)

 

MINOR v. HAPPERSETT, 88 U.S. 162; 21 Wall. 162 OCTOBER, 1874, Term; available at http://law2.umkc.edu/faculty/projects/ftrials/conlaw/minorvhapp.html, (last visited 25 October 2011); Minor v. Happersett, 88 U.S. 162, 167, 21 Wall. 162, 22 L.Ed. 627 (1875)   Refer to paragraphs 17-19.

  

Principles of Constitutional
NOW LOOK WHO’S GETTING GRILLED OVER ELIGIBILITY, Joe Kovacs, 03/30/2011.  http://www.wnd.com/2011/03/281157/, Regarding Donald Trump’s mother’s naturalization date.

Construction; http://constitution.org/cons/prin_cons.htm, (last visited 7 November 2011)

Principles of Constitutional Interpretation, http://www.thefederalistpapers.org/principles-of-constitutional-interpretation,

 Oath of naturalization for citizenship; available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=facd6db8d7e37210VgnVCM100000082ca60aRCRD&vgnextchannel=dd7ffe9dd4aa3210VgnVCM100000b92ca60aRCRD, (last visited 26 October 2011)

 Oath of Office for President, US Constitution, Article II, Section 1, adopted 1787

US SUPREME COURT PRECEDENT STATES THAT OBAMA IS NOT ELIGIBLE TO BE PRESIDENT.http://naturalborncitizen.wordpress.com/2011/06/21/us-supreme-court-precedent-states-that-obama-is-not-eligible-to-be-president/,

O’GILVIE ET AL., MINORS v. UNITED STATES – 519 U.S. 79 (1996). available at http://supreme.justia.com/us/519/79/case.html,

 

Ted Cruz: not the first W.H. hopeful to face eligibility question; Louise Dufresne CBS News January 14, 2016.http://www.cbsnews.com/news/ted-cruz-not-the-first-presidential-candidate-eligibility-questions-election-2016/,

Ted Cruz renounces Canadian Citizenship, 10 June 2014, FoxNews.com. http://www.foxnews.com/politics/2014/06/10/ted-cruz-renounces-canadian-citizenship.html,

8 U.S. Code § 1401 – Nationals and citizens of United States at birth

https://www.law.cornell.edu/uscode/text/8/1401,

United States Constitution, Article 2, Section 1, Clause 5. 1787  The Constitutional requirement for President is “…No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be ELIGIBLEto the Office of President; …”

United States Constitution, Article 2, Section 1, Paragraph 6. 1787

United States Constitution, Amendment XII, U. S. Constitution, ratified July 27, 1804

United States Constitution, Amendment XIV, ratified July 9, 1868