« SCOTUS Preview: Political patronage and misperceived association | Main | Narrowing Second Amendment Precedent From Below »

Wednesday, January 13, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.

Posted by Jack Chin on January 13, 2016 at 11:16 PM in Immigration, Law and Politics | Permalink

Comments

Why are you simply dismissing the preempting limitation the Constitution puts on Congress, art.1 sec 8 cl 4. If you can show me when and where that capacity was extended to create NBC I'll agree, otherwise it's a nonstarter?
And don't use the 1790 nat. Act. If the Founders wanted to create NBCs by statute, when they knew that was completely limited by Constitutional Law, and if they wanted to give that allowance to NBC they had full opportunity to do so by Costitutional amendment, multiple times the Constitution was amended from 1789-1791 when they could make it absolute and above a simply mutable statute that was hence changed a scant 5 years hence.
And how are you defining the "NATURAL" in the NBC definition, you are simply making it irrelevant or redundant with born, it's not BC it's NBC?

Posted by: CrimsonSpire | Jan 14, 2016 1:01:45 AM

And by the way good research and catch on the presumptive naturalization stipulation applicable to Cruz, though my previous post nonstarters still apply, but good job, nonetheless!

Posted by: CrimsonSpire | Jan 14, 2016 1:09:24 AM

CrimsonSpire, I don't see a limitation in Art. 1, Sec 8, Cl 4, I see a power given to Congress. I also agree with the linked Katyal-Clement/Ramsey pieces linked above that since the common pre-constitutional English practice was to grant NBC status by statute, Congress also had that power. But my point (as I think you understand), is that even if that's correct, Cruz still has a problem.

I define "Natural Born" in accord with the definition given in the post; where birth under certain circumstances makes one a citizen, a person satisfying those circumstances is a citizen.

Posted by: Jack Chin | Jan 14, 2016 9:42:00 AM

Since the power given to Congress in Art. I sec. 8 cl. 4 is the sole source of its ability to grant NBC status by statute (perhaps you disagree, Jack), the clause's use of the term "naturalization" requires an *interpretation* that permits it to extend to conferring NBC status. I think there are arguments both ways, and that the stronger arguments favor Jack's reading (though based more on contemporary principles of justice than on Founding Era sources per se), but it begs the question to describe it as "a power" rather than "a limitation." The question is a power to do what.

Posted by: JG | Jan 14, 2016 11:32:58 AM

The provision ties things to a certain status AT BIRTH, not an ongoing concern that might only perfect at a later date. A separate requirement sets forth a required residence. But, there isn't one for a natural born citizen. It is set at birth from my reading of the text.

Natural born citizenship could be lost, but the possibility it might be alone shouldn't be the test.

Posted by: Joe | Jan 14, 2016 12:15:39 PM

What if you are a natural born citizen, lose it , get it back through naturalization. Are you then eligible for the presidency?

Posted by: Brad | Jan 14, 2016 4:57:33 PM

I know nothing about citizenship, when it can be revoked, etc. That said, suppose a constitutional statute provides that citizenship shall be revoked upon a determination that a citizen has joined ISIS. On your view, there would be, at least, an argument that no one in the country was a natural-born citizen, because of the possibility of revocation after birth.

Posted by: Asher Steinberg | Jan 14, 2016 7:03:36 PM

Now, that statute might very well violate the Fourteenth Amendment, but that just means I should set my hypothetical in 1860. I don't see how "natural-born citizens" could exclude born but revocable citizens, as revocability, at least when the Constitution was written, could potentially extend to everyone.

Posted by: Asher Steinberg | Jan 14, 2016 7:19:12 PM

Hi Asher,

I like the question. I don't think that citizenship could be involuntarily taken away even before the Fourteenth Amendment, but I am happy to be corrected. Certainly now, the Court has held that "Fourteenth Amendment, Section 1" citizens cannot be expatriated involuntarily.

For purposes of membership in the political community, I think that you can be kicked out is not the equivalent of being able to resign. That being said, if I ran the zoo, I would hold that there should be a strong presumption in favor of allowing the people to choose their leaders.

Jack

Posted by: Jack Chin | Jan 14, 2016 7:32:51 PM

Chief Justice Warren's Trop v. Dulles plurality opinion noted:

"Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez."

Brennan concurred separately to explain why he thought Congress could expatriate for voting in a foreign election but not as punishment for wartime desertion. Four justices thought even that okay.

The ISIS hypo seems credible by that vote breakdown.

Posted by: Joe | Jan 14, 2016 10:26:33 PM

I know it is merely a doctrinal rather than a rational argument but "Perez v. Brownell is overruled." Afroyim v. Rusk, 387 U.S. 253, 268 (1967). The only thing I have to say in defense of the method is that if we were arguing based on what we thought the law should be if we (individually) were a majority of the Supreme Court, the terrain would be quite different, at least from my end.

Jack

Posted by: Jack Chin | Jan 14, 2016 11:03:06 PM

Joe,

It would appear that Perez, the precedent the Court was grappling with in Trop, was overruled in Afroyim v. Rusk. But that was in 1967. Prior to 1967, would the existence of a statute, like the one invalidated in Afroyim, which stripped any U.S. citizen of citizenship if they voted in foreign elections, mean that there were no natural-born citizens in the United States, because all of them were subject to automatic revocation of citizenship if they voted in a foreign election? That seems impossible. Therefore, I'm strongly inclined to conclude that whether someone's a natural-born citizen can't turn on whether he's subject to potential revocation of citizenship.

Posted by: Asher Steinberg | Jan 14, 2016 11:05:20 PM

Asher,

Surely you are correct to the extent that the U.S. conception of citizenship has always allowed for voluntary expatriation. The question is whether natural born citizenship is consistent with the government being allowed to *involuntarily* expatriate the putative citizen. Bellei wanted to remain a citizen, but could not, because he had no rights which the government was bound to respect.

Jack

Posted by: Jack Chin | Jan 14, 2016 11:37:43 PM

Thanks and given how Prof. Chin worded things, that doesn't surprise me.

Reference was made to what happened before the 14A. Afroyim (a 5-4 ruling) itself gave great importance to the 14A -- "only one that can stand in view of the language and the purpose of the Fourteenth Amendment." And, overruled or not, in 1958, involuntary expatriation was accepted in certain cases. Reasonable to think that would have been the law earlier too. Anyway, agree with Asher's latest comment.

Posted by: Joe | Jan 14, 2016 11:54:48 PM

Jack,
Do you know why you became a "natural" subject when you were born within the realm of the King?

Posted by: CrimsonSpire | Jan 15, 2016 2:14:57 AM

CommonSpire,

Is that a riddle? No more king! https://youtu.be/t-9pDZMRCpQ

Jack

Posted by: Jack Chin | Jan 15, 2016 10:54:09 AM

Maybe I'm repeating myself, but it would appear that Bellei says that limitations on revocation of citizenship derive from the Fourteenth Amendment; if one isn't a Fourteenth Amendment citizen, we're back in Perez-world. Prior to the Fourteenth Amendment there were no Fourteenth AMendment citizens. So, prior to the Fourteenth Amendment, according to Bellei, every citizen could be constitutionally subject to involuntary expatriation under the sorts of statutes at issue in Efroyim. Therefore, supposing some statute provided for involuntary expatriation on some condition subsequent to birth, prior to the ratification of the Fourteenth Amendment (which is likely the case), it would follow, on your argument, that there is *at least some doubt* as to whether *anyone* in the country at that time was a natural-born citizen. That really cannot be, unless Bellei is wrong and the drafters of Article II believed that there was some subset of citizens whose citizenship couldn't be constitutionally revoked, not by virtue of the Fourteenth Amendment, but by virtue of something else in the Constitution or, perhaps, common law.

Posted by: Asher Steinberg | Jan 15, 2016 2:49:23 PM

More clearly, "natural born citizens" couldn't have been intended to mean "the class of persons who are citizens at birth and whose citizenship is not subject to involuntary revocation," because, according to Bellei at least, that was a potentially null set until 1866, depending on what positive law on revocation was enacted (and I would guess there was a fair amount of it), and the framers couldn't have intended for natural-born citizens to be a potentially null set depending on what laws Congress made about revocation.

Posted by: Asher Steinberg | Jan 15, 2016 2:59:49 PM

Asher,

The Fourteenth Amendment citizenship clause is understood to be declaratory of preexisting law, other than to the extent that it overrules Dred Scott (I.e., no statute or constitutional provision made citizens--other than by naturalization--yet, at least some people born in the U.S. had to be citizens). And Perez v. Brownell says that statutory expatriation came into existence in the early years of the 20th century. So it is not clear to me that the Framers or the Reconstructors thought that common law/Fourteenth Amendment citizenship could be involuntarily terminated, just as the Supreme Court has now held that it cannot.

Jack

Posted by: Jack Chin | Jan 15, 2016 5:24:28 PM

"The Fourteenth Amendment citizenship clause is understood to be declaratory of preexisting law, other than to the extent that it overrules Dred Scott"

I perused the two opinions in Rogers v. Bellei & find the dissent rather telling on the "preexisting law" point -- it noted that said law was a tad opaque but many thought federal citizenship grew out of state law. Birthright citizenship there would be a major change. The dissent also provides some evidence that citizenship could be involuntarily terminated.

As you say, let SCOTUS write it, let it be law, but what was 'thought' as a factual matter is a bit more tricky.

Posted by: Joe | Jan 15, 2016 6:05:23 PM

That's a cute video, however it seems to make light of a subject I was assuming you took very seriously, Thus to me it is disappointing that you appear to be treating it with a cavalier dismissal.

The reason one became a "natural" subject upon birth within the King's realm is similar to, but not a completely direct transmission of why one became a "natural" citizen when born within the soil of our new nation.

As seen by sovereigns and kings...
By natural law the sovereign or king was a chosen vessel by God to have dominion over the earth. Thus like God all things under him were an extension of him "personally". Which is the reason why we use the word "personal" or "personally" to signify the concept that an action of another toward us or object such as a toothbrush or a cellphone becomes "personal" to us the owner. It becomes a rightful extension of the person themselves and under their authority.

Thus if one's land was a personal rightful extension of their "being" then all objects or individuals inhabiting my rightful personal bodies extension becomes under my complete authority and thus an extension of myself.

As seen by the King...
Thus as my rights flow from God and God has seen fit to give me dominion over the land which is now an extension of my person, then that which flows from my body, i.e. the offspring or issue of my subjects, thus coming from my bodily extension (my soil), will thus become not simply "at birth" subjects, but because of the conditions of that birth from the King's body, thus personally being a part of his body, the subject born or issue are now "natural" born subjects. Because they are a "NATURAL" issuance or extension of the King's body.
Thus flowing from such reason they become, a NATURAL - BORN - SUBJECT, not simply a "born subject". "Natural" because they naturally flow from the body of the sovereign personally, i.e. the land, "Born" because, well they are simply born, and "Subject", because they are beneath the sovereigns authority, as a cell phone is beneath me, thus within my subjection, i.e. Juris - Diction = authority of my will and words.

Each descriptive part of the definition "natural born citizen" holds within itself a significant independent criterion of the makeup of the whole, thus loss of one part, creates nothing that can be construed nor considered the same as the whole. Like building a car without an engine and saying there's no difference from that and our common understanding of what a car is.

Thus making one part, (NATURAL) surplusage, distorts the purpose and meaning of the whole. The Founders by no doubt, would not have been ignorant of this knowledge, being among them scholars in their own right.

Thus you see now how important not being simply a "subject" "at birth" but a "NATURAL" subject "at birth" was in maintaining the king's rightful authority over his land and peoples. Thus statutory subjects as expanded by England carried no force of Natural Law or natural connection to the land of the sovereign whatsoever, thus DID NOT flow naturally from the body of the King nor could they, as we are now enlightened to this inextricable conceptual understanding.

Thus in like manner as the Founders would see it, simply being a citizen "at birth" would have NO "NATURAL" connection to, nor be, by any means a natural extension of the sovereigns, i.e. the collective citizenry's sovereign land, and thus incapable of being "NATURAL", PERIOD!

Thus anyone simply born a citizen "at birth" would be found by the Founders, in stark contrast to their Constitutional definitional understanding as rightfully stipulated by the Constitution, ARTICLE II, SECTION 1, CLAUSE 5 (i.e. A "NATURAL - BORN -CITIZEN"), thus in only identifying the condition of "born citizen" and those conditions alone, by their birth condition thereby they would be held vacant of an absolutely necessary conditional criterion. That being any "NATURAL" birth connection whatsoever to the sovereigns land. Thereby unequivocally they would be held NOT QUALIFIED, as a person rightfully fulfilling the Constitutional edict of being a "NATURAL" BORN CITIZEN.

As the body of the citizens is now the sovereigns collectively, so the soil is now a rightful extension of the body of the sovereigns. So thus only those who choose to "COMPLETELY" subject themselves to the body of the sovereigns upon birth within the body of the sovereigns become not simply "at birth" but by condition of their birth, a "NATURAL - BORN - CITIZEN". Just as no "natural born subject" was born who's subjection was not utterly complete to the king, so also no "natural born citizen" is born without complete and utter jurisdiction of the collective sovereigns of the United States.

Posted by: CrimsonSpire | Jan 15, 2016 10:28:20 PM

CommonSpire,

Sorry for the miscommunication, but you directed a question to me as an individual asking about "you", which I read as "me," and I was born in the US (and have the long form birth certificate to prove it!)

Anyway, I do not disagree with much in your comment. My point of departure is the proposition that the Framers used the phrase "natural born citizen" meant that they were adopting the historical phrase for the context of a representative democracy, reflecting a different political theory, and therefore possibly different details about what circumstances made one a natural member of the political community. Also, for the reasons set out by Michael Ramsey in the linked article, by 1787, Parliament had extended the definition of natural born quite substantially by statute. As a result, I think Congress had the power to declare that particular categories of people are natural members of the political community at birth, and has often done so.

I also think that the text of the Fourteenth Amendment, Section 1 proves that Congress sometimes used the phrase "citizen" to include "natural born citizens." So the fact that naturalization laws do not use the full term is not dispositive.

My question is whether the temporary/contingent citizenship Congress gave to people with one USC parent is an exercise of that power.

Jack

Posted by: Jack Chin | Jan 16, 2016 1:10:15 PM

At this point it may be appropriate to include the perspective that I presented to Jack with regard to the discernible constitutional distinction that can be drawn between an individual born under the exact circumstances as Cruz presumably was, i.e., born as an offspring of a USC in another sovereign country, and not born under U.S. (territorial) jurisdiction; and that of an individual who was born in the U.S. and under its jurisdiction.

The citizenship at birth status of individuals born under the same circumstances as Cruz is, of course, entirely DEPENDENT upon (and resultant from) Congressional immigration and naturalization law. As such, Congress has the (Article 8, Section 1 enumerated) authority to pass legislation at any time that would subsequently deny citizenship at birth status to individuals born under those same exact circumstances.

On the other hand, the citizenship at birth status of individuals who are born in the United States and under its jurisdiction is entirely INDEPENDENT and irrespective of any congressional legislative activity of any kind; because the citizenship at birth status of such individuals (born in the U.S. and under its jurisdiction) is enshrined in the Constitution of the United States (as per the 14th Amendment); and there is therefore nothing that Congress can constitutionally do to deny citizenship at birth status to such individuals.

That appears to be a clear, discernible constitutional distinction between the legal born citizenship status of Cruz—which is entirely owing to legislation, and the natural born citizenship status of those whose citizenship at birth is independent of congressional action or statute (i.e. natural born citizens).

Since there is such a distinction, then one cannot logically or constitutionally be the other. To wit, a legal born citizen is by no means necessarily a natural born citizen. Cruz’s born citizenship status is of the legal variety…and not of the natural variety. Only those whose born citizenship is of the natural variety can be POTUS.

Posted by: Stephen Foster | Jan 16, 2016 10:45:49 PM

How does Stephen Foster's analysis apply pre-14A?

The Curtis dissent in Dred Scott, e.g., argues "citizens of the several States were citizens of the United States" under the Articles of Confederation. And, the "whole matter [of citizenship] was left to stand upon the action of the several States."

The rules were not fixed on mere birth and as with citizenship given to those born of citizen parents abroad today could be readily altered. The dissent in Rogers v. Bellei noted this "states rights" view of U.S. citizenship was also believed by many to continue into the constitutional era. Who was "natural born" then?

The 14A: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." This doesn't alone tell me what a "natural born" citizenship is. The split noted by caps doesn't by logical inference demand the result argued.

A person very well might, and this is the common understanding, be naturally born because pursuant to citizenship rules (yes, they aren't fixed here; actually, to be a stickler, the 14A can be amended too so it is DEPENDENT on the supreme "law" of the land not being changed) in place before his/her birth, citizenship is present at birth without anything happening. No further act of "naturalizing" has to be done. The person obtains citizenship "naturally" -- simply by being born. The case can be stronger if the person had one or even better two citizen parents already etc. (see, e.g., McCain / the Tribe-Olson memo)

Finally, we are back to the question if citizenship can be stripped. If it could be, by congressional legislation that could change, we would be back to the same place. Current doctrine aside, it is far from compelling one way or the other if this is possible.

Posted by: Joe | Jan 17, 2016 11:08:21 AM

Jack,
So that there is no confusion, I would like to ask a straight up question.

Do you believe that the Constitution actually gives the power to Congress, for the sake of so many words, the power to literally give away the qualifying condition of NBC to those of it's choosing, or is this simply a theoretical supposition you are postulating, and seeing if there may be any possible relevant legal substantiation?

Thank you in advance for your response.

CrimsonSpire

Posted by: CrimsonSpire | Jan 17, 2016 1:38:49 PM

CommonSpire,

Up to a point, yes, as a revolutionary republic based on popular sovereignty rather than the divine right of kings, we the people have the power to decide (possibly within some limits) who is a natural member of the political community. This is Michael Ramsey's implication of the meaning of the Constitution's naturalization power, created after a time when Parliament had an established practice of giving natural born status to whomever it chose. Even if there are limits (e.g., children of non-citizens born out of the U.S. like Arnold cannot retroactively be declared "natural born"), children of US Citizens are comfortably within the power, in my view. As I said, my question is whether we the people (through Congress) *in fact* made conditional (or defeasible) citizens like Senator Cruz such members. But I do not see why the founding generation would have bought in to particular details, wholly inconsistent with the principles of our government, of the regime we threw off.

Jack

Posted by: Jack Chin | Jan 17, 2016 9:39:44 PM

Joe,

The citizenship at birth status that is conferred upon one via legislation is a legal status. The citizenship at birth that results from the fact of one’s birth, without regard to and independent of legislation is ‘natural.’ This was true prior the 14th Amendment, and in point of fact, is true without regard to the 14th Amendment.

Whenever citizenship at birth status is contingent upon congressional legislation, the same circumstances of birth upon which Congress confers or permits citizenship at birth status can be denied by Congress. But when citizenship at birth results from the fact of one’s birth without regard to and independent of congressional legislation, such natural (or organic) citizenship at birth status can only be denied by (some) constitutional amendment. This was true prior to the 14th Amendment (except for slaves), and in point of fact, is true without regard to the 14th Amendment.

Citizenship at birth status that CAN be denied via congressional (immigration and naturalization) legislation is different than citizenship at birth status that CANNOT be denied via congressional legislation of any kind; but by constitutional amendment only. Since they are different, they cannot be the same. Therefore legal citizenship at birth is not necessarily natural citizenship at birth; and only those with natural citizenship at birth are eligible to serve as POTUS. This was true prior to the 14th Amendment, and is in fact still true without regard to the 14th Amendment.

Posted by: Stephen Foster | Jan 18, 2016 6:46:25 AM

"The citizenship at birth status that is conferred upon one via legislation is a legal status. The citizenship at birth that results from the fact of one’s birth, without regard to and independent of legislation is ‘natural.’"

Before the 14A, citizenship apparently relied on state LEGISLATION, which could change over time, so when exactly was there natural born citizenship? Federal citizenship grew from state citizenship. And, for instance, state citizenship could be tied to one's mother, but the status of the mother (e.g., racially) was variable.

You add a caveat "except slaves," but (1) not true [free blacks were affected too at least and don't really see why only blacks were covered either] and (2) that alone means your rule wasn't absolute. In fact, according to the 13A, slavery can (but not must) be allowed for those duly convicted of a crime.

I admit to be somewhat confused by your "rule" but can grant it's a possible approach. OR, "natural" can be citizenship that is attached simply by being born per existing legislation or constitutional rule with no additional "naturalizing" after the fact. There might perhaps be a floor there (e.g., free whites with a citizen father born on U.S. sovereign soil or whatever cannot be denied) but the outer limits, such as 1790s law that those born of citizen parents on a ship outside of U.S. waters could be natural born might be flexible.

Posted by: Joe | Jan 18, 2016 1:32:37 PM

Jack,

Have you actually extrapolated out this conclusion, actually starting from the beginning, going back to the basics and working from there, because I believe you may find that those basic "Founder's" blocks may not easily allow nor lend themselves to such a conclusion?
Oh, and by the way it's not "Common"- Spire. I haven't taken it personally.

Thank you, CrimsonSpire

Posted by: CrimsonSpire | Jan 19, 2016 1:46:47 PM

So the 1970 law required she live in the US for 5 years between the ages of 14 and 28 in order to pass 'unconditional' citizenship to little Rafael?

OK. She was born in 1934; she would have been 28 in 1962; there is no evidence that she lived anywhere but the United States before 1964.

She lived in the United States for 14 years between the ages of 14 and 28.

What is the problem here?

Posted by: Keith | Jan 19, 2016 10:11:38 PM

CrimsonSpire, my apologies on the name blunder.

Keith, Ted Cruz's mother had her residence requirement to transmit her citizenship which I did not address. The one I mention is a second, additional residence requirement which applied to Senator Cruz himself to retain his temporary citizenship.

Jack

Posted by: Jack Chin | Jan 19, 2016 10:43:32 PM

You need to edit your article.

In explaining Senator Cruz's residence requirement of five years between 14 and 28 years of age, you used the female pronoun "she". That makes it sound like his mother.

Posted by: CEHughes | Jan 19, 2016 11:01:42 PM

Yes, I see that I misread your description of the problem. My appologies.

So to simplify then, the question is:

Was the residence requirement that was law in 1970 made moot for those born between 1950 and 1978?

If so, then the entire discussion is irrelevant.

If not then the question is simply, did Rafael Edward live in the United States for 5 consecutive years between the ages of 14 and 28, which means between 1984 and 1998?

According to his biography as reported in Wikipedia, he relocated from Calgary Canada to Houston Texas in 1974, where he went to primary and secondary school, and then graduated from Harvard Law School in 1995. It sounds to me like he has a solid case of satisfying the requirement. So whether the requirement was rendered moot or not, he passes.

Where then is the issue? Is it a problem of how many angels you can get to dance on the head of a pin? The esoteric point you seem to want to dissect has no practical point. There is no practical outcome of arguing back and forth about whether X means Y or Z especially when X no longer applies.

IANAL, but my view of the law is that it is not about defining every single teeny tiny thing that has no practical application ever. I know that sometimes a case turns on the location of a comma, or the reference to one comma and the ignoring of a different comma and I know academics need something to discuss, but really this stuff is so esoteric that it makes a Sophomores dope smoke filled dorm room sound positively intellectual.

This argument is sure to have proponents on every side none of which will ever acknowledge error - and it just doesn't matter.

You say that the possibility of conditional citizenship is in tension with 'citizen at birth' idea of Natural Born Citizen but how is there a tension when the circumstance never existed? You say Cruz might have been in a position where he might not have been allowed in the country after age 23 but that situation never arose, he entered the country around age 4 - as he was perfectly entitled to do - and never left (to live).

There is simply no controversy to contest.

Posted by: Keith | Jan 20, 2016 3:50:29 AM

How can legislation be regarded as having interpretational precedence or superiority over (an amendment to) the Constitution? In other words, how can immigration and naturalization legislation be considered determinative as to who—as a result of it—is consequently a natural born citizen; as opposed to (an amendment to) the Constitution being considered determinative as to who—as a result of it—is consequently a natural born citizen?

How is the description of a natural born citizen of the United States as an individual who is a citizen as a result of the fact of his/her birth without regard to, and independent of, any immigration and/or naturalization legislation or process NOT precisely what the framers intended and understood it to be?

Otherwise (or without such an intention and understanding) the 1790 Naturalization Act’s provision for regarding some of those born overseas to American citizens as natural born citizens would have been redundant and superfluous.

Cruz does not fit such a description, as he would not be a citizen at birth absent the immigration and naturalization legislation that gave him legal citizenship at birth. Such legislation is within constitutional congressional authority, but it is not and could not have been what the framers had in mind with the term “natural born citizen,” because such an immigration and naturalization legislative provision obviously did not exist when the Constitution was adopted; and the process of immigration and naturalization legislation itself does violence to the notion of natural born.

Posted by: Stephen Foster | Jan 23, 2016 3:01:57 AM

Post a comment