WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  January 18, 2016

Topic category:  Constitution/Constitutional Crises

Shocker: Trump trumps Cruz on legal status of "natural born Citizen" under Constitution

The unpleasant and unavoidable fact vexing Cruz is that the phrase "natural born" precedes "Citizen" in the Constitution's presidential qualifications provision and is a further qualification not to be disregarded.

What were the odds that bombastic billionaire businessman Donald Trump, who never went to law school, would school Senator Ted Cruz, a Harvard Law School star, former Supreme Court law clerk and former Solicitor General who successfully argued important constitutional cases before the United States Supreme Court, on a legal matter like the meaning of "natural-born citizen" under the Constitution during a debate of Republican presidential hopefuls?

John Jay, the first Chief Justice of the United States, is credited with the first known use of "natural born Citizen" with respect to presidential qualifications in a July 25, 1787 letter written to George Washington during the Constitutional Convention. Jay wrote: "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen."

That hint for the express declaration was quickly taken. The Constitution expressly requires that the President of the United States must be a "natural-born citizen." Article II, Section 2 states: "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 eligible to the office of President...."

That there was to be a distinction between a citizen and a "natural born citizen" should be obvious.

What it was to be is arguable.

It seems safe to conclude that the provision does not disqualify persons born by caesarean section, because there is no evidence that how a baby is delivered was not deemed a matter of constitutional significance. However, there was some concern about future naturalized citizens. They were not eligible for the Presidency or Vice Presidency. Former California Governor Arnold Schwarzenegger conceded that a naturalized citizen is not a "natural born Citizen" and dreamed of a constitutional amendment making him eligible.

Does the Constitution disqualify citizens born outside the United States?

The United States Supreme Court has never ruled on that, so the issue is not "settled."

Cruz nevertheless claimed that it is settled, but that was, at best, wishful thinking.

On January 11, 2016, the Boston Globe published an op-ed by Laurence Tribe, Cruz's constitutional law professor at Harvard Law School that began this way:

"There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a 'natural born citizen' despite his 1970 Canadian birth. Senator Cruz contends his eligibility is 'settled' by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a 'natural born citizen' is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty."

After Trump advised Cruz to bring a declaratory judgment action during the debate on January 14, 2015, Cruz harrumphed that he would not take legal advice from Trump.

To be sure, Cruz has not brought a declaratory judgment action, because (1) as Tribe noted, bringing it would be admitting that there is uncertainty, (2) a declaratory judgment would bind only parties to it and (3) the matter would not be finally resolved at the Supreme Court in time to help Cruz even if it was treated as a justiciable controversy and resolved in his favor by a federal district court.

What is a declaratory judgment?

See http://legal-dictionary.thefreedictionary.com/Declaratory+Judgment:

"Statutory remedy for the determination of a Justiciable controversy where the plaintiff is in doubt as to his or her legal rights. A binding adjudication of the rights and status of litigants even though no consequential relief is awarded.

"Individuals may seek a declaratory judgment after a legal controversy has arisen but before any damages have occurred or any laws have been violated. A declaratory judgment differs from other judicial rulings in that it does not require that any action be taken. Instead, the judge, after analyzing the controversy, simply issues an opinion declaring the rights of each of the parties involved. A declaratory judgment may only be granted in justiciable controversies that is, in actual, rather than hypothetical, controversies that fall within a court's jurisdiction.

"A declaratory judgment...is conclusive and legally binding as to the present and future rights of the parties involved."

Cruz has not even been nominated for President, so a court may find there is not yet a justiciable controversy, and even if it finds a justiciable controversy, its ruling would only bind parties to the action.

Worse for Cruz, "natural-born citizen" may not include every citizen who is not a naturalized citizen.

The 1992 edition of the Oxford Companion to the Supreme Court of the United States Supreme Court was published nearly a quarter of a century ago. long before the issue of whether Cruz is eligible to be President arose.

It explained:

"The framers' stipulation that the president be a "natural born" citizen is an rule of jus soli. According to this ancient doctrine--the term means 'right of land or ground'--citizenship results from birth within a territory. This contrasts with jus sanquinis, or right of blood, by which nationality derives from descent. Citizenship based on place of birth was a feudal remnant, in tension with principles of liberal theory that rest political legitimacy on a foundation of consent. Birthright citizenship, however, offered several practical advantages: it helped clarify property rights; it promoted immigration; it avoided jurisdictional conflicts;and it eased fears of massive expatriation in wartime." Id. at 146.

Trump was born in Queens, New York, so he is a natural born citizen, although his mother was born in Scotland.

Cruz was born in Canada, which is not a state or territory of the United States.

Cruz's father was not a United States citizen when he was born, but his mother was and he argues that alone makes him a "natural born Citizen."

It's definitely NOT settled, as the article to which Tribe referred in his op-ed--a lengthy work titled "Natural Born in the U.S.A.: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It" by Sarah Helene Duggin The Catholic University of American, Columbus School of Law, and Mary Beth Collins published at 85 B.U. L. REV. 53 in 2005) and available athttp://scholarship.law.edu/cgi/viewcontent.cgi?article=1129&context=scholar--explains.

To be sure, the authors argued emphatically that the "natural born" qualification should be eliminated.

They concluded:

"If the natural born citizenship proviso ever served a legitimate purpose, it has long since outlived its usefulness. The most serious threats to our country are no longer conniving European monarchs capable of enthralling illiterate voters, but bitter political disputes, terrorist attacks, and diseases that quickly circumnavigate the globe. The uncertainty the proviso creates with respect to Presidential qualifications elevates the chances of another major electoral dispute in the near future and increases the vulnerability of the nation in the event of a crisis. Perhaps most importantly, in twenty-first century America, the natural born citizenship clause serves to divide us rather than to protect us. In a nation of immigrants, its inherent inequity flies in the face of the spirit of equality at the heart of our constitutional system. The distinctions it creates disserve Americans who work and live abroad while they do important jobs, it debases those who have freely chosen this land as their home, and it dishonors the sacrifices of thousands of members of the United States military and civil services. In short, the proviso ties the hope of a nation not to a mature decision that our Constitution and our beliefs are worthy of loyalty, but to an accident of birth. It is time to eliminate it."

BUT, the Constitution has not been amended to eliminate the "natural born" qualification and the authors acknowledged:

"At present...the natural born citizenship status of millions of Americans is open to question. Natural born citizenship is absolutely certain only for United States citizens born post-statehood in one of the fifty states, provided that they are not members of Native American tribes recognized by the United States government. To varying degrees, the natural born status of all other United States citizens is suspect."

Thus, Cruz was wrong on both counts when he declared that (1) there may be a question as to Trump's eligibility to be President AND (2) there is no question that he (Cruz) is eligible.

As noted in the article,

"[i]n 1790, less than three years after the drafting of the Constitution, the First Congress passed An Act to establish an uniform Rule of Naturalization,9 9 the United States' first federal naturalization law. The Act provided for naturalization of aliens in the United States, the derivative naturalization of their children, and the transmission of United States citizenship by descent to foreign born children of United States citizen fathers.10 0 Unfortunately, like the Constitution's natural born citizenship proviso, the relevant language of the 1790 Act can be interpreted in different ways. In pertinent part, the statute provided: And the children of citizens of the United States, that may be born beyond 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 residents in the United States ....101" Id. at 76.

Under this statute, Cruz would not be a "natural born Citizen," because his father had not been a United States citizen.

As noted further in the article,

"[i]n 1795, Congress passed a second naturalization statute.117 This act provided that foreign born children of United States citizen parents were to be 'considered as citizens of the United States,' but it omitted the 'natural-born' language of the 1790 statute.' 118 The term 'natural born' never again appeared in the naturalization laws of the United States. 'The accepted modem designations... refer only to citizenship at birth and by naturalization, with the former group divided into native-born citizens and citizens at birth abroad.' 119 The several comprehensive naturalization statutes enacted since 1795 reflect these modem designations. 120" Id. at 78-79.

Footnote 118 discussed the conflicting interpretations as follows:

"McElwee presents this change as a correction initiated by James Madison after he discovered the erroneous inclusion of the 'natural born' modifier in the 1790 statute. McElwee Brief, supra note 15, at 15,877, 79. Freedman and Morse, however, view the subsequent statutory changes differently. See Freedman, supra note 16, at 361-62 (stating that the 1790 act reaffirmed the Framers' intent by declaring foreign born children of United States citizens 'natural-born'); Morse, supra note 50, at 100 (arguing that the 1795 Act, like the 1790 Act, was merely declaratory of the principle of jus sanguinis). McElwee contends that the Freedman article 'was apparently inspired by a desire to accomplish a desired result, namely, to urge eligibility for the Presidency on behalf of Mr. Franklin Delano Roosevelt, Jr. who was born at the family summer home at Campobello, New Brunswick, Canada.' McElwee Brief, supra note 15, at 15,879. Interestingly, McElwee's own work is a briefing paper opposing the candidacy of Governor Romney. Id. at 15,875." Id. at 78.

The unpleasant and unavoidable fact vexing Cruz is that the phrase "natural born" precedes "Citizen" in the Constitution's presidential qualifications provision and is a further qualification not to be disregarded.

Plainly the applicable law has not been settled.

That's what Trump said.

That's what Cruz denied.

Tribe commented after the debate, in which Trump cited Tribe as well as others as raising “serious questions” about Cruz’s eligibility, that the answer depends on one’s approach to interpreting the Constitution. “The more of a genuine ‘originalist’ someone (like Cruz) is, the harder it becomes to resolve that ‘serious question’ in Cruz’s favor. The more of a ‘living constitutionalist’ someone (like me) is, the easier it becomes to conclude that ‘natural born citizen’ has gradually acquired the broader meaning on which Cruz necessarily relies.”

A genuine strict constructionist would not try to amend the Constitution under the guise of interpretation.

Cruz should be arguing on the merits, not claiming that the matter of interpretation is "settled." Since he isn't, Tribe seems to be relishing the irony: Cruz needs those "living constitutionalists" who loathe the judicial philosophy for which Cruz has been known to qualify him as a presidential candidate.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

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