Ted Cruz is a U.S. citizen at birth, natural born is a different question

by LAWRENCE SELLIN, PHD January 14, 2016

According to Public Law 414, June 27, 1952, An Act: To revise the laws relating to immigration, naturalization, and nationality and for other purposes [H.R. 5678], Title III Nationality and Naturalization, Chapter 1 - Nationality at Birth and by Collective naturalization; Nationals and citizens of the United States at birth, the relevant section being:

SEC. 301. (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.

With the stipulation that:

(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State for at least five years: Provided That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

Ted Cruz fulfilled those requirements and is, therefore, a US citizen at birth and meets the Constitutional test outlined in the Supreme Court decision Rogers v. Bellei, 401 U.S. 815 (1971).

According the Department of State, Ted Cruz's parents should have applied at a US Consulate for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) and/or a U.S. passport to have registered him as a U.S. citizen. Failure to promptly document a child who meets the statutory requirements for acquiring U.S. citizenship at birth may cause problems for the parents and the child when attempting to establish the child's U.S. citizenship and eligibility for the rights and benefits of U.S. citizenship, including entry into the United States. By law, U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States.

Ted Cruz has not released any documents directly related to how and when he obtained US citizenship.

Being a US citizen at birth does not necessarily make you a "natural born citizen" and eligible for the Presidency. 

Article 1 Section 8 of the Constitution states that Congress shall have the power to establish a uniform rule of naturalization. That raises the question whether Ted Cruz can be a "natural born citizen" at all if he obtained citizenship through an act of Congress, which regulates naturalization?

The definition of "natural born citizen" itself is presently disputed depending on whether you make an "originalist" interpretation of the Constitution based on the wording and historical context at the time of its writing or consider the Constitution a "living" document interpreted based on changing societal and cultural circumstances.

The "originalist" interpretation was described as recently as September 2008 in a Michigan Law Review article entitled "Originalism and the Natural Born Citizen Clause" written by  Lawrence B. Solum, then John E. Cribbet Professor of Law at the University of Illinois College of Law:

"What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a natural born citizen."

Donald Trump, for example, is clearly a "natural born citizen" by the "originalist" interpretation because he was born in the United States of parents both of whom were US citizens at the time of his birth.

Only since 2008 and the candidacy of Barack Obama, have those believing in a "living" Constitution interpreted "natural born citizen" as simply a citizen at birth of one US citizen parent. There are no Supreme Court decisions describing it in that way, but many decisions including statements referring to natural born citizens as US citizens of two US citizen parents, for example: The Venus, 12U.S. 253(1814), Shanks v. Dupont, 28 U.S. 242 (1830), Scott v. Sandford, 60 U.S. 393 (1856), Minor v. Happersett, 88 U.S. 162 (1875).

Many "living" Constitutionalists have also used statutory law to buttress their arguments, often incorrectly in my opinion, such as citing the Naturalization Act of 1790.

The Act established US citizenship of children of citizens born abroad without the need for naturalization:

"And the children of citizens of the United States that may be born beyond the 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."

The Citizenship Act of 1795 (Act of January 29. 1795, Section 3, 1 Stat. 414, 415) repealed the 1790 law and replaced the phrase "natural born citizen" with "citizen:"

"And the children of citizens of the United States that may be born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States: Provided That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."

To demonstrate transparency, Ted Cruz should release documents directly related to how and when he obtained US citizenship, such as a CRBA.

Separately, there should be a resolution by proper adjudication of the dispute over the definition of "natural born citizen" and, thereby, eligibility for the Presidency; not simply amending the Constitution by press release or via the pronouncements of talking heads.

Lawrence Sellin, Ph.D. is a retired colonel with 29 years of service in the US Army Reserve and a veteran of Afghanistan and Iraq. Colonel Sellin is the author of "Restoring the Republic: Arguments for a Second American Revolution ". He receives email at lawrence.sellin@gmail.com.

 


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