Florida Sen. Marco Rubio and Texas Sen. Ted Cruz spar during CNN's Republican debate in Las Vegas, Nevada (Photo: CNN screenshot)
NEW YORK – During the South Carolina Republican presidential debate, Donald Trump correctly predicted Democrats would challenge in court Sen. Ted. Cruz’s constitutional eligibility to be president.
Largely because 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, the issue will likely continue to play a role in the 2016 presidential campaign – as evidenced by the fact that Democrats have just filed federal lawsuits challenging the presidential eligibility of both Cruz, R-Texas, and Sen. Marco Rubio, R-Fla.
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In fact, the constitutional issue that dogged President Obama for years has been raised during the current election cycle with regard to three different Republican candidates – Cruz, Rubio and Louisiana Gov. Bobby Jindal, who has dropped out of the race.
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.” In it, Vattel defined “natural born citizen” as a person born in a country to two parents who are citizens of that country at the time of the person’s birth.
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Under Vattel’s definition, Trump, for example, is a natural born citizen because he was born in the United States to two parents who were U.S. citizens at the time of his birth.
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Whether Cruz is a “natural born citizen” is somewhat more complicated, as evidenced, for example, by last week's Washington Post op-ed by Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School. In her opinion piece, starkly headlined "Ted Cruz is not eligible to be president," McManamon writes:
"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 John C. Eastman, the Henry Salvatori Professor of Law & Community Service and founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, writing in National Review, strongly rebut McManamon's argument. Eastman argues 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," McManamon writes.
Other constitutional scholars are also defending Cruz's eligibility, as ABC News reports.
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Texas Democrat challenges Cruz eligibility
Nevertheless, just hours before Thursday's GOP debate, Houston attorney Newton Boris Schwartz Sr. filed a 28-page complaint with the U.S. District Court, Southern District of Texas in Houston, Schwarz v. Cruz (Case 4:2016 cv-00106), asking the court to resolve the ongoing controversy over the definition of "natural born citizen." Schwartz, pointing out there is no U.S. Supreme Court decision or precedent, said that time is of the essence, with the Iowa caucus scheduled for Feb. 1.
Federal Election Commission records show Schwartz was registered as having contributed to the Harris County Democratic Party on Aug. 17, 2004, and again on June 15, 2009. Among Schwartz’s contributions to Democratic Party political candidates were two donations to “Rick Noriega for Texas,” consisting of a $250 contribution on June 27, 2008, and a $2,050 contribution on Sept. 16, 2008, made on behalf of one-term Rep. Rick Noriega, D-Texas, who served in the U.S. House from 2008 to 2009.
The appendix material filed with Schwartz’s lawsuit includes an application to vote by mail in the March 1, 2016, Democratic Party primary election in Harris County, Texas, the county in which Cruz resides.
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Rubio citizenship challenged in court
Meanwhile, WND reported Friday that Sen. Marco Rubio is also fighting an eligibility challenge that Fort Lauderdale, Florida, resident Michael Voeltz, a car salesman and registered Democrat, filed in the Florida Circuit of the 17th Judicial Circuit in Broward County. The lawsuit argues Rubio was born May 28, 1971, four years before his parents were granted U.S. citizenship in 1975.
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.
He continued:
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.
Vattel concluded:
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’s claim is that 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 parents who were both Cuban citizens when he was born.
Under the Vattel standard, none of the three – neither Obama, Cruz nor Rubio – 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.
“Concerning the history of the constitutional provision, the clause’s apparent intent, the English common law expressly applicable in the American colonies and in all of the original states, the common use and meaning of the phrase ‘natural born’ subject in England and the American colonies in the 1700s, and the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term ‘natural born Citizen’ to include those born abroad to U.S. citizens), it appears that the most logical inferences would indicate that the phrase ‘natural born Citizen’ would mean a person who is entitled to U.S. citizenship ‘by birth’ or ‘at birth,’” Maskall wrote on page 3 of the CRS report.
“Such interpretation, as evidenced by over a century of American case law, would include as natural born citizens those born in the United States and subject to its jurisdiction regardless of the citizenship status of one’s parents, or those born abroad of one or more parents who are U.S. citizens (as recognized by statute), as opposed to a person who is not a citizen by birth and thus an ‘alien’ required to go through the legal process of naturalization to become a U.S. citizen,” Maskall continued.
Under this definition, all three – Obama, Cruz and Rubio – 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.
Under the definitions of the Naturalization Act of 1790, Obama would be a natural born citizen because his mother was a U.S. citizen when he was born.
Cruz would be a natural born citizen because his mother was a U.S. citizen when he was born, and it would not matter that he was born in Canada and his father was a Canadian citizen at the time of his birth.
Rubio would be a natural born citizen because he was born in the United States, and it would not matter that both his parents were Cuban citizens at the time of this birth.
