Friday, October 31, 2014

Is Ted Cruz Eligible to Serve as President? Not So Fast!

Is Ted Cruz Eligible to Serve as President? Not So Fast!

October 31, 2014 by Richard Michael

I'm not going to rebut the Yes, Ted Cruz IS eligible to serve as president article using any of the Obama (so-called 'birther') arguments. The Obama arguments are wrong for other reasons, but that, as they say, is another story.

I had seen this article over a year ago shortly after it was published, but now that others are using it as a basis for the validity of the conclusion, it's time to show that the conclusion is false because it is based on false premises.

My deconstruction of this article is that it is based on certain premises, which must all be true in order for the conclusion to be valid.

Here are the premises that Greg Conterio, the author, established:

1. That the law for presidential eligibility is the United States constitution.

2. That the United States Code, specifically 8 U.S.C. 1401[1], controls the definition of natural born citizen.

3. That Raphael Cruz was a United States national on December 20, 1970.

4. That Eleanor Elizabeth Wilson was a United States citizen on December 20, 1970.

Premise 1:

The law for presidential eligibility is the United States constitution.

Is there anyone who argues that the constitution does not set out the law for presidential eligibility? If not, we can stipulate to that.

Premise 2:

8 U.S.C. 1401 defines natural born citizen.

This is a major premise.

It is simply not true. There are Supreme Court opinions, the one that comes to mind immediately and is directly on point is United States v. Wong Kim Ark, 169 U.S. 649 (1898), that state unequivocally that the legislative power (Congress) cannot define or redefine terms in the constitution.[2]

Think about it. If an act of Congress could redefine any term in the constitution, then Congress could define speech, religion, arms, search, jury, property, money, income, or whatever other term was inconvenient at the time.

What Conterio is claiming is fairly illogical. Congress enacted a statute. Therefore, that statute controls the constitution. While in practice, it seems that Congress can do whatever it wants, the courts usually will check it at some point. This is one of those.

The Congress knows this, because the courts have not let it get away with it in the past. That is the reason that Congress invented a new, similar term that it could define -- citizen at birth.

The term citizen at birth is semantically similar to the term natural born citizen in the sense that the former includes the latter. In other words, a natural born citizen comes within the meaning of citizen at birth. The reverse, however, cannot be the case. If it were, it would mean that the Congress could change the constitution by simply revising 8 U.S.C. 1401.

This premise is, therefore, invalid. It follows, therefore, that Conterio's conclusion cannot be valid, since it relies on the statutory term being equivalent to the constitutional term.

Premise 3:

Raphael Cruz was a United States national on December 20, 1970.

This premise is stated as a fact without any supporting evidence. From what I can quickly gather from Wikipedia's Ted Cruz article, Raphael arrived in Austin, Texas in 1957 at the age of 18. There is no indication in the article that Raphael was a United States national before Ted's birth. Raphael became a naturalized United States citizen in 2005 at age 66.

We're missing some facts about Raphael. So let's make some reasonable presumptions. Let's presume that Raphael obtained the status of permanent resident (green card) that permitted him to live and work in the United States (and apparently, Canada) for 48 years. Let's also presume that this made him a national of the United States[3]. Title 8 of the United States Code has gone through extensive changes since 1957, but let's also presume that the sections necessary to make Raphael a national of the United States have not changed.

One more factor that might enter into this is whether Raphael's absence from the United States for more than 180 days changed his lawfully admitted for permanent residence (8 U.S.C. 1101(a)(20) and 8 U.S.C. 1101(a)(13)(C)) status. For example, was Raphael in Canada for more than 180 days before Ted's birth?

So, if our presumptions are factually correct, Ted Cruz was a United States citizen at birth under 8 U.S.C. 1401(d)[4].

Premise 4:

Eleanor Elizabeth Wilson was a United States citizen on December 20, 1970.

Since one of the three previous premises were invalid, there's really not much need to address this one. I'm going to address it anyway, because the language of 8 U.S.C. 1401(d) is, in my opinion, ambiguous and open to interpretation.

It's not clear when Raphael and Eleanor were married. From Wikipedia's Ted Cruz article, Eleanor lived in Houston, Texas while going to school at Rice University and worked in the oil industry in Texas thereafter. The article doesn't say when Raphael and Eleanor were married or when they went to Canada, but they returned to Texas in 1974. So, we can't easily tell how long they lived in Canada, where Ted was born.

The language of 8 U.S.C. 1401(d) regarding the citizen parent is conditional. The condition is that the citizen must have been physically present in the United States ... for a continuous period of one year prior to the birth of such person.

The fact that there is a condition means that Congress wanted to exclude some citizens from giving the citizen at birth status to their children. Without going into the legislative history, we can't know exactly who was meant to be excluded. Noting that 8 U.S.C. 1401(d) only applies to a pairing of citizen and national should narrow the scope of the exclusion. I can't come up with a reason for the exclusion without looking at the continuous period language.

Note that 8 U.S.C. 1401(e)[5] explicitly defines the continuous period as at any time prior to the birth (in contrast with 8 U.S.C. 1401(d) which does not). There must be a reason for this difference as well.

Does it mean that Congress intended to exclude children of a parent who has permanently moved outside of the United States, but still retains citizenship? Can the continuous period be at any time in the parent's life? Does prior imply that the continuous period must be in close proximity to the birth?

I don't know the answer to these questions, but there must be some reason for the condition.

The validity or invalidity of this premise, in my opinion, cannot be determined without more facts about Eleanor and without identifying the citizens that the statute was intended to exclude.


Is Ted Cruz eligible to be president (or vice-president) of the United States?

I don't know.

What I do know is that Greg Conterio's article is wholly lacking as the basis for the conclusion that he is.

Conterio's major premise is false.

Does Ted Cruz' status come within the citizen at birth definition of 8 U.S.C. 1401? If the presumptive missing facts about Raphael and Eleanor are correct, then it does.

Clearly, then, the only issue is whether the statutory term citizen at birth in 8 U.S.C. 1401 is equivalent to the constitutional term natural born citizen.

As I said earlier, there is a reason why Congress chose the term citizen at birth for the statute, rather than the term natural born citizen -- Congress cannot define natural born citizen.

Whether Cruz is a natural born citizen brings us back to what that term meant at the time it was written. For a really expansive dissertation on the meaning of the term, see Wong Kim Ark. This was a landmark case and there is extensive additional material about it at University of California Hastings College of the Law Library, including the actual briefs used in the case.

Let's also examine the semantics of the term natural born citizen. Natural implies in or of nature. A woman giving birth is natural. Every birth has a physical location in nature. If citizenship were determined merely by a definition in a statute, that does certainly not ring of nature. The nature of things does not change over time. The term citizen at birth is a statutory definition. It's anything but natural. It's the creation of a legislature. It can change over time. So, on this basis alone, citizenship conferred by statute is arguably not natural.

Based on Wong Kim Ark and several cases that follow it, Cruz' eligibility is arguably doubtful because he was not born on the soil (jus soli) of the United States and his father was not a citizen.

Blame Canada

I couldn't resist. Both articles that promote the conclusion that Ted is a natural born citizen of the United States don't address the Canadian citizenship issue. I'm not sure how dual citizenship would affect natural born citizen status, but let's look at it.

Our neighbor to the north is also an English common law country (excepting, perhaps, Quebec). That being said, its law of citizenship would default to the English common law of jus soli.

I haven't researched the Canadian constitution or the laws enacted by the Canadian Parliament. Let's just say that, because Canada was created in a very different manner than the United States, its constitution and government are much more complex than ours. Up until the Constitution Act of 1982, Great Britain still exerted control over Canada. Even today the Queen of Canada (Queen of England) is still the formal head of state. Nevertheless, there are many provisions of law that are common to both countries. Given that, I'll just extend the logic of the proponents to Canada. (If a Canadian law expert finds any fault with this, I will gladly credit any corrections.)

Before 1947, Canada had no citizenship statutes; Canadians were all British subjects. In 1946, Parliament enacted the Canadian Citizenship Act, S.C. 1946, c.15, which remained in effect until 1977. Under Canadian law, Ted Cruz is absolutely a natural born citizen (Canada does not use that term) of Canada, having been born in Calgary, Alberta. It does not matter his parentage, because Ted's parents were neither foreign diplomats nor foreign invaders. While in Canada, the Cruz family was subject to Canada's jurisdiction.

So, can a single person be a natural born citizen of two countries? Under Conterio's analysis, the answer must be yes. But logically, how can one person have absolute allegiance to two countries at birth? If he were elected president of the United States, Canadian's could rightfully claim that he was our first Canadian president.

Can a United States statute nullify Canadian law? Obviously not, unless, perhaps, it were done by treaty. Wouldn't the superior law, with respect to Ted's birth, then be Canadian law?

I've only just touched the surface on this issue here. Unlike Conterio, I certainly don't claim to have absolute answers. It's an interesting situation. The only thing certain is that you can't change the facts. Now if we could discover more of the missing facts, we'd be closer, perhaps, to a reasoned resolution.

Regardless, not everyone will be happy. If Ted Cruz does run for president, there will be lawsuits. The only question is whether the courts will be more amenable to addressing the issue than they have been with Obama.

Ted Cruz is a lawyer. He was the Solicitor General of Texas for five years. He wasn't an obscure law school professor. Why not ask Ted Cruz himself to write the brief to support his eligibility?


[1] While I haven't done the research, let's stipulate that the language of 8 U.S.C. 1401 has not changed since December 20, 1970.

[2] "The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution." United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898)

[3] "The term "national of the United States" means a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C. 1101(a)(22)(B)

[4] "a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;" 8 U.S.C. 1401(d) (Emphasis added.)

[5] "a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;" 8 U.S.C. 1401(e) (Emphasis added.)

© Copyright 2014, Richard Michael. All rights reserved.