Thursday, March 17, 2016

Harvard Law Professor Files Amicus Curiae Brief 
In Canadian-Born Cruz NY Ballot Access Challenge

Harvard Law Professor, Former Chairman of the Antitrust Advisory Committee to Obama's campaign, Einer Elhauge, filed an amicus brief at the New York Supreme Court advising the court that Canadian-born Ted Cruz is not eligible to be president under the Article II natural born Citizen requirement.  Elhauge also says it's not a political question.

Excerpt via Professor Elhauge's brief filed on March 16, 2016:


In short, the text, history, canons of interpretation, contemporaneous dictionaries, and other evidence strongly indicate that by “natural born citizen” the Constitution meant someone who was a natural born citizen at common law, meaning someone who was born either (a) in a United States territory or (b) to a U.S. official serving his country abroad. Contrary to the Cruz brief, see Cruz Brief at 33, this understanding is entirely consistent with the common understanding that John McCain was a natural born citizen because McCain actually met both of these grounds. John McCain was both (a) born in a U.S. territory (the Panama Canal Zone) and (b) born to parents who were both U.S. soldiers serving their nation abroad. However, the Constitutional meaning of “natural born citizen” excludes Ted Cruz because he was (a) born in Canada rather than a U.S. territory (b) to a father who was not a U.S. citizen and to a mother who was a private U.S. citizen who was not serving for the U.S. in Canada.

The Constitutional Meaning of Natural Born Citizen Has Not Been Expanded by Decisions or Statutes. Contrary to the analysis above, the Cruz brief asserts that: “Every judicial decision and virtually every constitutional authority agrees that a ‘natural born Citizen’ is anyone who was a citizen at the moment he was born—as opposed to becoming a citizen through the naturalization process at some point after his birth.” Cruz Brief at 29.

The Supreme Court’s Understanding. The Cruz Brief’s assertion that “every judicial decision” adopted this understanding of “natural born citizen” conflicts with the very first decision the brief cites in support of this claim, United States v. Wong Kim Ark, 169 U.S. 649 (1897). That Supreme Court decision expressly stated:

Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

Id. at 702-03. The highlighted portion of Wong Kim Ark thus explicitly stated that persons who are born abroad and become citizens at birth only because a Congressional statute makes them so are “naturalized”, not natural born citizens.

In other words, Wong Kim Ark confirms the analysis above that the true distinction is that natural born citizens become citizens at birth under common law, whereas naturalized citizens become citizens (whether at birth or latter) because of Congressional statute. Accordingly, those persons who become citizens at birth only because of a Congressional statute are “naturalized” even though they are naturalized automatically rather than requiring completion of the post-birth naturalization process that Congress requires for other persons.

The Supreme Court’s understanding in Wong Kim Ark also fits a basic fact about the Constitution. The Constitution only gives Congress certain enumerated powers. Those enumerated powers give Congress the power of “Naturalization.”
U.S. Const. art. I, §8, cl.4. But nothing in the Constitution gives Congress any power to create natural born citizens or modify the meaning of natural born citizens. Thus, to the extent Cruz was born a citizen only because of a Congressional statute, he is necessarily a naturalized citizen rather than a natural born citizen.


Full brief: (pdf)