One week ago, the Pennsylvania Supreme Court tossed out a court challenge to Sen. Ted Cruz’s eligibility to run for president – based on his birth in Canada – and several other similar cases also have been dismissed for technical reasons.
But on Monday, the secretary of state’s office in New Jersey held a hearing on the issue.
A Washington-area law professor, Victor Williams, challenged Cruz’s candidacy, claiming Cruz filed a false certificate of eligibility along with the signatures he submitted to put his name put on the New Jersey ballot.
The Washington Times reported Williams said, “The certificate is false and the signatures were collected by fraudulently representing Mr. Cruz [as] eligible.”
Williams, who teaches at Catholic University, said Cruz’s Canadian birth certificate on public record “incontrovertibly proves, that he was, and is, a natural-born Canadian.”
“It is simply a physical impossibility for him to be both a natural-born Canadian and a natural-born American,” he asserted.
But the GOP candidate’s lawyers have argued it’s “inconceivable that the Framers intended to exclude a U.S. citizen at birth from holding the office of president, simply because of where he or she happened to be born.”
“After all, that individual is not a ‘foreigner’ – but rather, a U.S. citizen from birth,” they said.
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The Philadelphia Inquirer reported the arguments were before Jeff Masin, an administrative law judge, whose decision is expected on Tuesday.
But that likely then will be reviewed by Lt. Gov. Kim Guadagno, who is New Jersey’s secretary of state. Ultimately, the decision could determine whether Cruz is on the ballot in the state.
NBC reported Williams is trying to get around the issue of standing – a demonstration that he is personally harmed by an action – by declaring himself a candidate for the office.
The rulings repeatedly have found that merely being a citizen or a taxpayer doesn’t give a plaintiff standing.
GOP front-runner Donald Trump has raised Cruz eligibility issue frequently, arguing that if the Texas senator becomes the GOP nominee, the Democrats would take him to court.
Trump also questioned Barack Obama’s eligibility, arguing he had not released sufficient documentation.
The U.S. Supreme Court has yet to rule specifically on the meaning of “natural born Citizen” in Article 2, Section 1 of the Constitution, a requirement imposed only on the president.
The eligibility of Sen. Marco Rubio and Louisiana Gov. Bobby Jindal also was questioned before they dropped out of the GOP race. Both were born in the United States, but their parents were not citizens at the time of their births.
The strictest definition of “natural born citizen” derives from the writings of Swiss political theorist Emmerich de Vattel in his 1758 treatise “The Law of Nations.” Vattel defined it as a person born in a country to two parents who are citizens of that country at the time of the person’s birth.
Cruz’s eligibility was challenged in a Washington Post op-ed by Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School.
Headlined “Ted Cruz is not eligible to be president,” McManamon wrote: “Let me be clear: I am not a so-called birther. I am a legal historian. President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference.”
Meanwhile, other experts, including law professor John C. Eastman, the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, writing in National Review, rebutted McManamon’s argument. Eastman argued natural born citizen was defined in a bill passed by the first Congress in 1790 and signed into law by President George Washington: “Children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.”
“Under that widespread and long-standing interpretation, Senator Cruz is clearly a natural-born citizen and therefore eligible for the presidency,” Eastman wrote.
The Vattel standard
In his 1758 treatise “The Law of Nations: or, Principles of the Natural Law Applicable to the Conduct and Affairs of Nations and Sovereigns,” Vattel specified in Chapter 19, Section 212:
The citizens are members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or natural-born citizens, are those born in the country of parents who are citizens.
As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it.
In the next two sentences, Vattel emphasized the concept that “natural-born citizens” are those born in the nation to parents who are citizens of the nation:
The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born.
I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will only be the place of his birth, and not his country.
Under Vattel’s definition, “natural-born citizen” is not a vague concept. Applied to the U.S. Constitution, a “natural born Citizen” would be someone born in the United States to parents who are United States citizens.
According to this definition, a person born in the United States to one parent who was a United States citizen and a second parent who was a citizen of another country would not qualify.
Obama claims he was born in Hawaii to a Kenyan father and a U.S. citizen mother. Cruz was born in Canada to a mother who was a U.S. citizen and a Cuban-born father with Canadian citizenship, who was a U.S. green-card holder. Rubio was born in the United States to two Cuban citizens.
Under the Vattel standard, none of the three would be deemed eligible to be president.
A more flexible standard: The 1790 Naturalization Act
On Nov. 14, 2011, the Congressional Research Service published a research report authored by legislative attorney Jack Maskell, titled “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement.” The document was published as Obama was being pressed to make public his original long-form birth certificate, supposedly issued in 1961 by the Hawaii Department of Health as proof Obama was born in Hawaii.
The CRS document said the applicable standard for defining “natural born citizen” was the 1790 Naturalization Act.
The 1790 First Congress, which included 20 members who had been delegates to the original Constitutional Convention – eight of whom were members of the Committee of Eleven that drafted the “natural born Citizen” clause – passed the Naturalization Act of 1790 (1 Stat. 103, 104). It provided: “And the children of citizens of the United States that may be born beyond the sea or out of the limits of the United States, shall be considered as natural born citizens.”
If this meaning of “natural born” is considered with regard to Article 2, Section 1 of the Constitution, there is no requirement that the person be born in the United States to be a “natural born Citizen,” as long as he or she is born to parents who are U.S. citizens.
The CRS argued that the applicable legal precedent for the 1790 Naturalization Act was not the political theory of natural law relied upon by Vattel, but English common law.
Under this definition, Obama and Cruz would be “natural born citizens” under the meaning of Article 2, Section 1 of the Constitution. None of the three had to undergo a naturalization process to become U.S. citizens\ but rather were considered U.S. citizens from the time of their birth.
Cruz was born in Alberta, Canada, to an American mother and Cuban father, and he gave up any claim to Canadian citizenship in 2014.
Cruz has responded that it is “settled law” that a child born to a U.S. citizen, even if abroad, is a “natural born citizen.”
In the 2008 presidential election, there were dozens a lawsuits filed challenging Obama’s eligibility.
One contended that Obama was occupying the Oval Office as an illegal alien. Some of the legal challenges alleged Obama was not born in Hawaii, as he insists, but in Kenya. Obama’s American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.
Other challenges focused on Obama’s citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen.
The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born. Several details of Obama’s past have added twists to the issue of his eligibility and citizenship, including his family’s move to Indonesia when he was a child and his trip to Pakistan in the 1980s.
But rather than answering definitively, the Obama campaign, and then the White House, repeatedly obtained orders from judges based on technical issues, such as standing, to shut down inquiries.
Eventually, Obama’s White House provided a document it claimed was his official birth certificate from the state of Hawaii, only to be met immediately by accusations that it was forged.
The only official law-enforcement review of Obama’s documentation, done by Sheriff Joe Arpaio of Maricopa County, Arizona, concluded that there is probable cause to believe the White House document is a fraud.
His investigators said it appears Hawaiian officials engaged in a systematic effort to hide Obama’s records.
Obama has yet to release many of the ordinary documents valued by presidential historians, such as his passport records, school records, undergraduate records and thesis, Harvard Law School records, Harvard Law Review articles, University of Chicago articles, Illinois State Bar Association records, Illinois State Senate records and schedules, medical records, parents’ marriage license and adoption records.