Saturday, September 28, 2013

But What If Ted Can't Be President?

Imagine the scene:

Candidates for the nomination of the Republocratic Party to the office of President of the United States are gathered for a debate. Standing at lecterns, from left to right, are five candidates for the nomination. They are:
White Tail, a Native American, born on a Native American reservation, in the United States to parents that were, as well, and have always been, registeredmembers of their federally recognized tribes and citizens of the United States.
Freddie Fox, born in the United States to Canadian parents, both of whom were born in Canada, claim Canadian citizenship, travel on Canadian passports, but who work in Hollywood.
Bethany Depp, born in France to married parents then living in France but who were born in the United States to parents also born in the United States and that have always been citizens of the United States.
Odala Olama, born in Kenya to an unmarried mother visiting Kenya from her native United States, of which she claims to be a citizen since birth not yet 21 years of age, and to his father, a native born citizen of Kenya. 
Omama Osama, born in the United States to an unmarried mother, a native born citizen of the United States, not yet 21 years of age, and his father, a native born citizen of Kenya.
After eight years of ongoing “birther” controversy, a blogger participating as a questioner in the Republicratic debate asks each candidate to address the following question and its parts:

"Article II of the Constitution organizes the executive powers of the federal government and deposits them entirely within a President of the United States That Article also sets the qualifications for the President.  There are not many:  The president must be 35 years of age, must have been fourteen years a resident of the United States, and must be a 'natural born citizen' of the United States On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States What provision of the Constitution makes you a natural born citizen of the United States Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Perhaps we should just ignore the inconvenient portions of the Constitution.  In fact, arguments are made, from the left and the right of the political spectrum, that there already is a whole lot of ignoring the Constitution going on.  We are, however, a constitutional republic. Thus, we aught not simply ignore the provisions of the Constitution that we find disagreeable. The Constitution provides for its own amendment in Article V.  A straightforward reading of Article V omits any process whereby the Constitution is amended by being ignored or reinterpreted.

To the present unpleasantness:

I have concluded that Senator Ted Cruz of Texas is ineligible to serve as President of the United States.  While this statement will result in castigation by others who, like me, love the stand he took in the Senate on defunding Obamacare, I take it because it reflects my honest conclusion regarding the text and meaning of the Constitution.

I could not support his selection as the 2016 nominee of the Republican Party for the Presidency.  I may get smacked around for saying so, but the Constitution limits eligibility for the office of the President to those who are "a natural born citizen" (or who are old enough to have been "citizen of the United States, at the time of the adoption of this Constitution"). US Const. Art. II, sec. 1, cl. 5.

The Constitution does confer a power on the Congress regarding naturalization. Article I, sec. 8, cl. 4 states that Congress has the power "To establish a uniform rule of naturalization." The Constitution does not state that Congress has the power to define what is a "natural born citizen." Nor does the Constitution say that the Congress has the power to determine that individuals born outside the United States are "natural born citizens."

Some have argued that the naturalization power granted to Congress necessarily encompasses the power to grant “natural born citizen” status to persons that would not, by circumstances of their birth, be considered natural born citizens. Those who take that position err. They do so by relying the fact that the English parliament exercised power to grant “natural born subject” status to person that, but for such a statutory enactment, would not have been “natural born subjects” because they were not within the English Common Law definition of such. Unlike the legislative powers exercised in a parliamentary government, however, the Congress of the United States is a legislative body of limited, express powers only. For those, such as Paul Clement and Neal Katyal, that conclude that “natural born citizens” includes persons granted that status by virtue of congressionally enacted Naturalization Acts, their conclusion rests on concluding that Congress was given the power not only to naturalize citizens who were aliens, but to further endow “natural born citizen” status on persons who circumstance of birth did not cause them to fall within the common law definition of “natural born citizen.”

Prior to the ratification of the Fourteenth Amendment, there was no constitutional clause defining citizenship of the United States or how citizenship is acquired. It is only with the Fourteenth Amendment that we have a constitutional provision defining citizenship: "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." That clause, however, does not expressly or directly assert that its provision defines the Article II phrase, “Natural Born Citizen.”

The Naturalization Clause cannot properly be the source of a power in Congress to enact laws extending "natural born citizenship" to persons born outside the United States. As the Supreme Court interprets "naturalization," for example in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892), it is "the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Thus, the Naturalization Power is the power to confer a status similar to, but not the same as, "natural born citizenship."

I am not certain how any of my fictional candidates would respond to the questions posed.  Remember those questions: 

[1] On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States 

[2] What provision of the Constitution makes you a natural born citizen of the United States 

[3] Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States 

[4] If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Were I Ted Cruz, standing at such a lectern, I think my answer would have to be, "My mother is a native born citizen of the United States, therefore I am."  In fact, he said nearly precisely those words in an interview with ABC:  “My mother was born in Wilmington, Delaware. She’s a U.S. citizen, so I’m a U.S. citizen by birth. I’m not going to engage in a legal debate.”  But given his unwillingness to engage in "legal debate" on the question, we may never know what provision of the Constitution he believes makes him a US Citizen.  He has eschewed reliance on the Fourteenth Amendment's Citizenship Clause.  Since the Constitution omits a provision granting "natural born citizenship" status to persons born abroad to American citizens, he most likely would look to federal statutes by which Congress has, justifiably or not, sought to extend natural born citizenship in special circumstances to those born outside the United States.  And here is Ted’s "got ya" moment.

The Constitution DOES NOT CONFER, by its EXPRESS TERMS, a power on Congress to endow any person with status as a "Natural Born Citizen" of the United States. Remember, Congress is not Parliament. Instead, as explained above, the Naturalization Clause grants to Congress the power to provide a uniform rule for naturalization.  Again, in turn, naturalization makes one that is not a citizen into a citizen, by operation of law, not by fact of birth.

I would prefer to be wrong in this conclusion. I am willing to be convinced otherwise by such arguments as rest on the Constitution and sound principles of its construction and interpretation. Those offered thus fair fail to carry weight. Indeed, more often, what is suggested to be noteworthy about such conclusions is who has drawn the conclusion rather than the reliability, historicity or constitutionality of them. Absent a reasoned explanation that dissuades me from my understanding based on history and the law, I cannot support Ted Cruz in his pursuit of the Republican nomination.