Wednesday, March 25, 2015

Natural born questions

Every-word of the Constitution is important. Let’s take a look at three that have been in the news today: “natural-born Citizen.” First of all, it is clear that there are two classes of citizens in the vision of the framers, namely “natural born citizen,” and “others.” Clearly, naturalized citizens are in the “other” class and therefore not eligible to be President of the United States. 

Are there citizens who are neither naturalized nor natural born? Such a citizen would not be eligible to be President, according to the express terms of the Constitution.

Of course, there are those who are citizens but not eligible because of age or residency requirements –- thirty-five and 14 years respectively. But are there people other than naturalized citizens who are ineligible for the presidency because of the nature of their citizenship? And might Ted Cruz be one of them?

First, some background: The Constitution says that a qualification for being President is being a “natural born Citizen.” However, the Constitution doesn’t define “natural born Citizen.” The Third Congress enacted The Naturalization Act of 1790, which provided "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 resident in the United States." Presumably, this is the law that Ted Cruz referred to when he said the matter has been settled law for over two hundred years.

The statute clearly recognized a distinction between non-naturalized, foreign born citizens of the US, and “natural born Citizens.” The 1790 Act provided automatic citizenship to the minor children of persons duly naturalized, and according to the language of the statute, such individuals, providing they are residents, become “citizens of the United States” automatically. In the very next sentence, act grants to the children born to citizens overseas the status of “natural born citizens.” The proximity of the two clauses strongly supports the conclusion that the statute creates two different classes of citizens: (1) Natural born citizens (and those granted that status) and (2) others, including naturalized as well as those who are minors acquiring citizenship automatically as children of naturalized citizens. Those in the first class are eligible to be President: those in the second class are not. And the facts of the case support the conclusion that Ted Cruz is in that former class: the class of automatic citizens who receive the additional status of the “natural born citizens” who are eligible to be President. As Ted himself might say, “Case closed, eh?”

But here’s the funny part. That statute was superseded by the naturalization Act of 1795, which provided, “the children of citizens of the United States, born out of the limits of jurisdiction of the United States, shall be considered as citizens of the United States,” provided that the father of such a child had been a resident of the United States. Did you catch that? The superseding statute removed the words, “natural born” from the description of children born to citizens abroad. These children are "birthright citizens" to be sure. 

Far be it from me to suggest that Ted Cruz is not a birthright citizen. But the statute makes it clear that not all birthright citizens are natural born Citizens, eligible to serve as President. 

Congress is presumed to have intended to make a distinction between the language of the 1790 statute, and the language with which it superseded that law.  And the courts are tasked with giving effect to the Congressional intent. In fact, there are lots of people who say that the courts should stick to the literal letter of statutes and these people were out in force recently when King v Burwell was being argued.

What will they say now? 

I hope that as a minimum, any defense they have to what looks to me like a slam-dunk will at least have the decency to include an apology for the last 6 years of birtherism. But don't count on it.

“… and tell ’em Big Mitch sent ya!”

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