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Flash Point: Attorney Slays Western Free Press

Over Article II Natural Born Citizen Requirement

This is getting beyond absurd. Another conservative publication cites the Nationality Act as proof that foreign born persons are eligible to be president under Article II Section I Clause 5. Never mind the fact that there's been numerous attempts to amend Article II in order to allow such persons to be eligible for the presidency.

Attorney Mario Apuzzo commented:

Your and Mr. Conterio’s reliance on a naturalization Act of Congress to prove that Ted Cruz is a natural born citizen is misplaced. At best, you have established that Ted Cruz is a “citizen” of the United States “at birth” under a naturalization Act of Congress. But under Article II, Section 1, Clause 5, being a “Citizen of the United States,” for any person born after the adoption of the Constitution, is not sufficient to be eligible to be President. Rather, such a person, which includes Ted Cruz, must prove that he is a “natural born Citizen.” A naturalization Act of Congress does not establish who is a natural born citizen. There were no Act of Congress in place when the Framers drafted and adopted the Constitution and so they surely could not have relied upon any such act to define a natural born citizen. But even if any such Act was in place which clearly none were, the Framers did not rely on any such act for their definition of a natural born citizen. Rather, as both Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) confirmed, the Framers relied upon the common law to define a natural born citizen when they drafted and adopted the Constitution. They also informed that that common law defined a natural born citizen as a child born in a country to parents who were its citizens. You have not presented any evidence that Cruz satisfies this common law definition which Minor and Wong Kim Ark confirmed was adopted by the Framers.

Additionally, the U.S. Supreme Court in Wong Kim Ark and Rogers v. Bellei (1971) explained that any person who is born out of the United States to U.S. citizen parents does not automatically become a citizen of the United States by descent from the parents. Rather, the Court explained that it is only through the grace of a naturalization Act of Congress that such a person is accepted as a “citizen” of the United States and that Congress has the power to impose conditions for the acquisition and retention of that citizenship, and even the power to deny such citizenship all together. A person subject to Congress’s power to grant or withhold citizenship is not a natural born citizen under the Constitution which denies Congress such power and gives it only the power to naturalize.

Senator Ted Cruz is a naturalized "citizen" of the United States "at birth" by virtue of a naturalization Act of Congress. See Wong Kim Ark; Bellei (both explain that a person born out of the United States to U.S. citizen parents can become a U.S. citizen only through a naturalization Act of Congress). He is not a natural born citizen by virtue of the common law upon which the Framers relied to define a natural born citizen. Under that common law, a natural born citizen was a child born in a country to parents who were its citizens at the time of the child's birth. Being born in Canada to a U.S. citizen mother and a non-U.S. citizen father, Cruz cannot satisfy that presidential eligibility definition which still existing under the Constitution today. He is therefore not a natural born citizen and not eligible to be President.

You and Ted Cruz have failed to carry your burden of proof to demonstrate that Cruz is a natural born citizen. Hence, Cruz is not a natural born citizen and not eligible to be President.

Now let us move onto Mr. Obama, who is the reason you and other Obots commenting have emerged from your den to come here and comment favorably for Senator Cruz. Concerning Wong Kim Ark, the case did not define a natural born citizen any differently than Minor did. Minor said that under the common law with which the Framers were familiar when they drafted the Constitution a natural born citizen was a child born in a country to parents who were its citizens at the time of the child's birth. Wong Kim Ark cited and quoted Minor approvingly on citizenship. What Wong Kim Ark did do is answer the Fourteenth Amendment question left open by Minor. Virginia Minor was a natural born citizen and so Minor did not have to address the Fourteenth Amendment. Wong Kim Ark interpreted the Fourteenth Amendment which both Minor and Wong Kim Ark said did not define a natural born citizen. Since Wong was not born in the United States to U.S. citizen parents like Virginia Minor was, Wong Kim Ark had to determine if he was a “citizen” of the United States under the Fourteenth Amendment. There was no dispute that Wong was born in the United States. The problem was deciding whether he was born "subject to the jurisdiction" of the United States. The Court relied upon the colonial English common law to determine that since he was not born in the country to a foreign diplomat or a member of an invading army (the only exceptions under the English common law to the jus soli rule that any child born in the King's dominion was a natural-born subject), he was born subject to the jurisdiction of the United States and therefore a citizen of the United States from the moment of birth by virtue of the Fourteenth Amendment. Wong Kim Ark never held that Wong was a natural born citizen and it did not need to. Furthermore, I can see that you do not know that the holding of a case is found neither in the dissenting opinion of the decision nor in the argument of counsel.

Hence, de facto President Barack Obama, who was presumably born in the United States to a U.S. citizen mother, but to a non-U.S. citizen father, is also not a natural born citizen. He may be under Wong Kim Ark a "citizen" of the United States "at birth" by virtue of the Fourteenth Amendment, which does not define a natural born citizen. But he is not a natural born citizen by virtue of the common law that does define a natural born citizen.