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Saturday, January 9, 2016

On Citizenship and the Presidency

A quick note; not much more than an expanded Tweet. My dogs are waiting to play with me, and, of course, they have priority over just about everything else.

I find recent commentary, sparked by Trump but kept alive by CNN and others, on Cruz's citizenship kind of amusing and even bizarre. I have dealt with the Cruz "natural born issue" on two occasions some time back (here and here.) In fact, the first one of those pieces was written over three years ago when I spotted the coming liberal campaign to discredit Cruz. Trump, unfortunately, has picked up on it, and the progressive media has been playing games with it. Even dopey White House spokesman Earnest got into the act saying,
Mr. Cruz was “somebody who actually wasn’t born in the United States and only 18 months ago renounced his Canadian citizenship.”
This is all nonsense often by people who don't want any checks on whom votes in US elections. I have discussed the "natural born issue" before and I am not going to repeat it. Let me just say this: on the issue of US citizenship what matters is US law, not foreign law. It does not matter if Canadian law says Cruz has a claim to Canadian citizenship (not a bad thing to have, I might add), per US law Cruz is a US citizen. Cruz did not give up his Canadian citizenship, he gave up his claim to it.

Please note, Mr. Earnest, that per the Kenyan Constitution, Obama, even if born in Hawaii, has a claim to Kenyan citizenship. Has he given up that claim? Please also remember that it was the Hillary Clinton 2008 campaign which brought up the issue of Obama's citizenship and place of  birth.

There are literally tens-of-millions of American citizens who have claims to foreign citizenship. If you don't believe me, check, for example, Irish, Italian, Mexican, Israeli, Spanish, and variety of other African and Central and South American nationality laws on that. I, myself, have a "claim" to Spanish, Moroccan, and Israeli citizenship. Are we going to insist that anybody in the US who potentially has a claim on a foreign citizenship must actively renounce that claim? Should millions of persons line up at the Irish Embassy, for example, and renounce their claim to Irish citizenship? What would that do to Boston's political class?

Let's discuss more serious stuff.



You can (MUST!) follow me on Twitter at Lewis Amselem@TheDiplomad

58 comments:

  1. "Let's discuss more serious stuff.
    Were I that lucky, the powerball millions would be all mine!

    ReplyDelete
  2. I've considered activating my latent Irish citizenship. But it would make things difficult with my clearance.

    ReplyDelete
  3. As others have observed elsewhere: it is well to thrash out this ridiculous argument now, because Democrats will spring it on the electorate in October.

    Again, Trump, though a buffoon and a slime (did you see his nice words for Kim Jong Il?) has done something useful.

    ReplyDelete
    Replies
    1. I disagree - I think this was the first misstep of the Trump campaign. I suspect that Cruz is many Trump supporters' second choice and vice versa. Trump can kiss-off Christie, et al, but Cruz is a guy, like a "friend," that Trump needs to keep close.

      I can see your point in that this helps Cruz by clearing the decks of the issue early on. Trump could have fed the progressives a bait fish, thinking that it would help Cruz - but why do that? Maybe Trump is thinking of Cruz as his VP?

      Delete
    2. Hello, Mr. Hall! Long time.

      I agree that this is a Trump mistake. I disagree about it being his first.

      But he is largely immune to them, so potent are the forces that propel him: generally, that other politicians follow media preferences over public interest, as you and I understand the latter.

      To be fair to the other politicians, masses of voters for media preferences reliably show up at the next election; masses of voters for the public interest, as you and I understand it, do not.

      Even if they do show up in a wave a few times, a politician usually figures he must play the percentages. But what if that wave is consistent over a few cycles?

      Current our streak is one cycle long: 2014. We're going for two, and it looks very iffy.

      Delete
  4. I would go full "Starship Troopers"and require serving in armed forces. I would add being a land owner to give better odds that one knows what is what. Otherwise, how could you rate "citizen"?

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  5. Oh. And a BIG heh on the Boston political class. Nice one Centurion.....nice.

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  6. so what was the whole hoopla about President Obama birth certificate about?

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  7. I have read on at least two different, unaffiliated blogs that Cruz's parents obtained Canadian citizenship prior to his birth and were residing in Canada (not just visiting) at that time. In addition, I recently read that parents who give be birth outside the U.S. are directed by the U.S. consulate to fill out a specific form to help establish their child's U.S. citizenship.

    If all of that is true, does it change the conclusion of his citizen status?

    ReplyDelete
    Replies
    1. In addition to Kepha below, here is the answer. All 3 of my children were born in Canada, to me (Canadian citizen at the time) and my wife (US citizen by birth).

      We went to the consulate to get the form known as "Report of Birth Abroad of a Citizen of the United States".

      On the reverse of said form (which I am looking at as I write) are the regulations clearly stating that the person in those circumstances is a Citizen of the USA, as is the person both of whose parents are US citizens.

      The term "Natural Born" is irrelevant to determination of US citizenship, and is not defined in law.

      And finally it matters not if Cruz's parents were visitors to Canada, "Landed Immigrants" (the term used there) or even naturalized Canadian citizens. You cannot lose your US citizenship by birth except by making a declaration before a judge to relinquish it.

      Graham

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    2. It isn't about 'citizenship'... that's not under discussion. The question is over the odd phrasing in the constitution regarding the qualification clause for potus, "natural born citizen". It is assumed that this does not reference someone who immigrated to the US from abroad and become a US citizen. Beyond that is still pretty clear. but would be much clearer still if the writers of the constitution hadn't been sloppy. :)

      - reader #1482

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    3. "If all of that is true, does it change the conclusion of his citizen status?"

      Good question. The answer is no. Canada does not ask you to give up your U.S. citizenship to become a Canadian citizen.

      So even if his mother became a Canadian citizen, unless she specifically separately gave up her U.S. citizenship (of which there is no whisper of evidence), she would be no less a U.S. citizen, and he would be no less a "natural born citizen."

      Delete
    4. Oh, I forgot to address the item about having to fill out a separate form to establish, so to speak, the chain of evidence.

      Let my reply be a rhetorical question. How much significance do you think attaches to the State Department using a separate form?

      Delete
  8. Dip, it's too bad your readership isn't more extensive. As a former consular officer, US citizenship law and issues of multiple nationality were my bread and butter. Too often, Americans seem to forget that other countries have their nationality laws and citizenship which is hard to lose (often, just as with us, because they are protecting the people from abuse by government).

    Back in 2008, some of my friends seemed to think I was a traitor because I pointed out that US citizens can transmit that citizenship to foreign-born offspring (assuming, FTSOA,that the O was born in Kenya). Never mind that I never voted for the O, and always considered him a downright bad choice.

    It is clear that Sen. Cruz is a US citizen by jus sanguinis, and a Canadian citizen by jus solis. I will also hazard the guess that he went through most of his life scarcely caring that the folks north of the Great Lakes and Line Forty-nine saw him as a fellow Canadian.
    Given that Cruz had to go through a process to deliberately renounce Canadian nationality, my guess is that like us, the Canadians probably have some very stringent legal conditions that have to be met before they will strip someone of citizenship--and these conditions are probably ones that the average decent, ordinary dual national will probably never come up against (I also suspect that given the amount of lawful sojourning and residence that both Canadians and Americans spend in each other's countries, there are probably lots of US-Canadian dual nationals running around). However, I've already gotten missives from friends and relatives on the Left that Sen. Cruz should be declared ineligible as a stateless refugee, due to his father having been in such a status at the time of his birth.

    I had to deal with matters of jus sanguinis citizenship with both of my sons. The elder was born in Taiwan while I was teaching there, while the younger was born in Thailand when I was doing a tour of duty there. In the latter case, we had to satisfy the Thai authorities that our baby was our natural child rather than an adoptee when we left; in the former, when my older son went back to Taiwan to study Chinese, he had to persuade the Taiwan authorities he had never been registered as an ROC national (and thus eligible for military conscription). These were not cases of being nasty, but simply the local officials doing jobs mandated by their laws.

    As a visa officer, I sent people who wanted American degrees across the hall to settle citizenship claims--it turned out their birth in the USA happened because Dad got lonely while pursuing his Ph.D. in the USA, sent home for Mom, and the youngster ended up being born in some American university hospital.

    His Majesty King Bhumibol Adulyadej of Thailand also has a claim to US nationality. He was born in Cambridge, MA when his father, Prince Mahidol Aulyadej (who was merely half-brother to the king)was pursuing a medical degree.

    And I get what you mean about your own claims to Spanish, Moroccan, and Israeli citizenship. I understand that in WWII, Spanish diplomats rescued a number of Sephardim, even though those people hadn't been domiciled in Spain since 1492; while Israel has its Law of Return that applies to any Jew who wants Israeli citizenship. I'd be curious to know what the provisions of Moroccan nationality law are, and how they apply to Jews and other non-Muslims.

    ReplyDelete
    Replies
    1. I hear a lot of taiwanese americans take ROC passports merely because the lines are faster at airports! I say "take the citizenship of the nation on whose side you'll fight".. don't want to have ambiguous loyalties.
      My dual-canadian-american relatives don't see it that way... and they wont, until we get another War of 1812! :)

      - reader #1482

      Delete
    2. "Back in 2008, some of my friends seemed to think I was a traitor because I pointed out that US citizens can transmit that citizenship to foreign-born offspring (assuming, FTSOA,that the O was born in Kenya)."

      &ltleftie&gt Okay, you weren't a traitor for that reason. Why were you a traitor? &lt%2Fleftie&gt :-)

      Delete
  9. I think I'd hold off on permitting anyone who might have a claim on citizenship on the Moon. After all, aren't there enough lunatics in politics already?

    Green Bear

    ReplyDelete
  10. Article Two specifies natural born citizenship, not just citizenship. The US Code delineates between naturalized, native born, and natural born citizens.

    Yes, children born out of the country to US citizens are entitled to US citizenship. This was a statue passed in 1795 (superseded the one in 1790). However, natural born citizens do not derive citizenship from any statute or man-made law, including the 14th Amendment (Minor vs. Happersett).

    Many attempts over the years to delete the special NBC requirement from the Constitution. But the latter needs to be amended, not disregarded for its inconvenience.

    Foreign law may not have any bearing on US citizenship, but that has nothing to do with the definition of natural born citizenship.

    ReplyDelete
    Replies
    1. We have discussed this before and I don't want to get into it all again. The Supreme Court has never issued a conclusive ruling on the definition of NBC. The courts have come to accept that any person born a USC is a NBC. It is clearly a matter left to the definition of Congress and the earliest definition in 1790 established the rules for citizenship of persons born outside the USA. Since many member sod that Congress had been framers of the Constitution that has been taken as the most reliable statement that persons born outside of the USA can be considered NBC. The issue I was raising in my post is that the media and Trump and others have been saying or implying that since Canada might consider Cruz a citizen, Cruz is ineligible for the Presidency. That's nonsense as what matters in this case is US law. As accepted today, Cruz is a USC at birth and, hence, a NBC.

      Delete
    2. This comment has been removed by the author.

      Delete
    3. Do we really need to Supreme Court to miss this part of the constitution up also? NBC is a question of undivided loyalty. Another country may grant any ethnic citizen of the US the right the claim citizenship, but the instant he claim that new citizenship he bring his loyalty and dedication to the US into question and should be consider to renounce his American citizenship. I don't believe any US citizen can be dual citizen. He may have the option of be an Irish Citizen or Israeli but if he take any other citizenship he is no longer a US citizen. If an US citizen renounced his US citizenship by claiming citizenship of another country and no removed himself from the US, that should be a capital crime. Personally, I don't think anyone not born of two US citizen, and rise in the USA for the majority of his childhood can be NBC.

      On beside the academic questions - who is going to bring this to court, no court is going to tough this. After the big O do it really matter anymore?

      Delete
    4. If the courts hold (or opine in dicta) that natural born citizen merely equals born a citizen, what of the rule if statutory construction against interpreting so as to make words meaningless? Maybe natural born citizen means someone born to citizenship, but not via caesarian section.
      In addition to a sarcasm font, we could sure use a "snark" font, or a "wiseguy" font.

      Delete
  11. Being that justice Roberts can't seem to find an authority to which he *wont* defer, if it came to it, he'd bow to the authority of the vote. Cowardice can cut both ways, I suppose. (His 'saving constructions' in awarding Obama pretty much whatever he wanted really peeved me..)

    - reader #1482

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    Replies
    1. Sure he can. There's the actual text of the Constitution of the United States, for instance.

      Also, hello there 1482.

      Delete
  12. If you take the originalist point of view, you need to work out what the constitution-writers meant by NBC. The best way to do that is probably to see what "natural born subject" would have meant to Britons of that era because the constitution-writers had spent most of their lives as "Britons of that era". Anyway, speaking with the confidence born of ignorance on the subject, I suspect that Cruz might well pass that test.

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    Replies
    1. You're exactly right. As noted, the 1790 Congress--comprised of a lot of Britons of that era--passed a nationality act which allowed for foreign-born persons to be considered US citizens. That's the closest we have to a definition of what they meant.

      Delete
    2. Not quite on point, I fear. The clause in full is:

      "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]" (emphasis added)

      So the undoubted fact that state citizens of that time could become president tells us nothing about "natural born citizen[s]."

      Delete
  13. A plea to those more middle-east/foreign-policy educated than myself... something that's bothered me for a long time.
    Is Iran's support for HAMAS the *only* visible instance of terror funding crossing sectarian lines? Is there a real rhyme or reason for it, or is it purely expediency on the part of Iran?

    - reader #1482

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    Replies
    1. Heavens, no; there are many, not all coming from Iran. Iran's support of Islamic Jihad is another, just off the top of my head.

      Winning in the end is the obvious reason. In total war, winning is not "mere" expediency.

      But I admit it doesn't really rhyme.

      Delete
  14. I encourage parents of any children with the ability to get an EU passport via heritage or accident of birthplace to get one:
    -- in northern Europe, Scandanavia and the Baltics nearly every university course in business or engineering is taught entirely in English,
    -- you spend your three or four years entirely on your major, not a variety of unrelated courses,
    -- the tuition is nominal or free, so you only need to fund your living expenses and travel.

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    Replies
    1. I would add they might want to do this before sharia law comes into effect.

      Delete
    2. The Islamabteilung attacks have concentrated on cathedrals and cathedral towns, under the delusion that Europe's faith is Christianity.

      They may shift to colleges and college towns. That would strike Europe's real centers of faith.

      Delete
  15. It seems to me that only those born citizens by blood and place are natural born citizens.

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    Replies
    1. 'seems' is a rather ambiguous statement when talking about invalidating the candidacy of a major primary contender. If we were talking about whether Bob Smith down the corner should be putting out a sign claiming to be a 'natural born citizen' on his front lawn, then sure... whatever. That's not the case here. This does matter, and we can't invalidate a person/movement (even Obama) without clear legal purpose and precedent.

      - reader #1482

      Delete
  16. Dip, while you are correct in stating that the SCOTUS has not ruled specifically on the definition of "Natural Born", that does not mean that there isn't a legal definition. The truth of the law on this issue is very simple. So simple that the mystery is deciphered by application of one of the most clear, concise and undeniable rules of law; the code of statutory construction governs, and therefore, “natural born Citizen” must require something more than being born in the United States. Let me put it to you in appropriately simple language:

    Clause A = “Only a natural born Citizen may be President.”

    Clause B = “Anyone born in the United States is a Citizen.”

    (While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as “Clause A” and “Clause B” for now.)

    The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.

    Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.

    Clause A is a specific clause that says only those members of the nation who are “natural born” may be President.

    According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.

    It’s truly that simple. This is not some crazy conspiracy theory. It’s not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. The rule cannot be denied and its simplicity cannot be ignored.

    If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the “natural born Citizen” clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The SCOTUS has determined that it is inadmissible to even make that argument.

    Interestingly enough, Marco Rubio also has a question of "Natural Born" status about him. His parents became citizens of the US not long after arriving from Cuba, however, if his father became a citizen after his birth, the strict legal definition of "Natural Born" could leave room for a challenge.

    ReplyDelete
    Replies
    1. Sorry to be pedantic, but clause B doesn't say anything about people physically born outside of the US. I does not say ONLY Anyone born in the United States is a Citizen

      Delete
  17. Suppose "natural born" implies a citizen by right of birth, rather than by some other mechanism. Then Cruz qualifies, surely? Why should "natural born" imply that? As I said, study usage in the time of the Founders. I'll bet English law had precedents.

    Alternatively, accept that the Constitution simply leaves NBC undefined. Then you turn to statute law, as Dip recommends.

    ReplyDelete
  18. From Blackstone:

    "it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."

    How wonderful it would be if the Dems objected to Cruz because his only claim is through a mere woman, rather than through his father. Heavens, the joke would be so fine that it would be worth supporting Cruz for that reason alone.

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    1. Yes, and if you read the nationality act of 1790, much of the wording is borrowed from the statute you mention. Subsequent Congresses modified it, but the point remains: this was an issue left to the Congress to define.

      Delete
    2. .. which is consistent with the constructive gap mentioned earlier... there are two phrases in entirely different contexts (potus qualification and citizenship)... those aren't restrictive of each other or even necessarily related. if the NBC clause in the constitution was discussing citizenship, then yes, the construction/scoping argument would make sense.. but here there are two different things. Congress is free to pass a law defining NBC however they want, and it would be constitutional. Even with no precedent, and even if the constitutional clause placed a restriction on citizenship (which it doesn't) there'd certainly not be enough 'wiggle room' between citizen and nbc to invalidate a citizen running for potus.... it would be interpreted as a constructive gap of zero size.

      What *would* be funny, is if NBC is a status conveyed at birth... ie, if the person has renounced citizenship, can s/he still run for potus since he/she got 'NBC' status at birth? silly, I know..

      - reader #1482

      Delete
    3. "No Person except a natural born Citizen ..." requires, it seems to me, that the person be an NBC, rather than permitting it to anyone who had once been an NBC.

      Delete
    4. The Nationality Act of 1790 was replaced in 1795. Congress removed the term "natural born citizen" and replaced it with just "citizen.".

      Children born abroad to US citizens are "naturalized at birth." They are not natural born citizens.

      Delete
  19. Dip,

    As much as I look forward, every day, to reading you work, I just cannot bring myself to follow you into the venal sewer that is much of Twitter. That said, I applaud your heroic foray into the natural home of the idiotic leftie thought-bubble; it could certainly use some pockets of sanity.

    ReplyDelete
  20. I like this debate, it shows again how little I know about my country.
    On the political side of the issue I agree with Mr. Mad that the Republicans and Cruz are better off by far to hash this out now. Sensing the mood of the electorate I feel that the Democrats would make a big mistake to try to hang their hat on this one. Look at how Trump makes so called "controversial" statements is attacked full force by MSM, Dems, Rhinos, and still gets stronger. It's an indication of people fed up with one side and could care less about what they say.
    James the Lesser

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  21. Wondering how many in the white house had a lighter step and happier heart today after seeing these photos

    http://www.telegraph.co.uk/news/worldnews/middleeast/iran/12096275/Iran-holds-two-US-Navy-boats-in-Persian-Gulf.html

    This administration is so dead set against US success, it wouldn't surprise me if they threw a party.

    I would be *highly* surprised if Kerry *didn't* apologize to Iran over this. I'm not sure there is situation that *hasn't* merited an apology from Kerry (except for his 2004 presidential run).

    - reader #1482

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  22. If they did enter Iranian waters without permission an apology is due.

    It would seem that the tales of American naval officers being incapable of celestial navigation are true. Or are they marines, in which case the claim is that they have been taught celestial navigation? Or were they indeed "snooping"? Could the US conceivably need small boats for "snooping"?

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    1. I think it's more what the Iranians did with the capture than the capture itself. I can go with a quiet apology and quiet acceptance followed by release, but the Iranians very publicly rubbed our nose in our self-imposed impotence.

      Delete
    2. Bah! As if the US would have shown good manners and good grace in the equivalent situation. It would have been all bombast and hysteria.

      Delete
  23. We should make this a simple issue: We should outlaw dual citizenship. If you want to remain a U.S. citizen you must not be a citizen of another country.

    ReplyDelete
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