Saturday, January 16, 2016

17 Unanswered Questions About Ted's 


This argument isn't going away for one reason: Mr. Cruz refuses to open his citizenship files. I spoke with an immigration lawyer today and confirmed that everyone born outside of the US who has petitioned for, or secured citizenship, has a file.

1. Why doesn't Ted share his records and put this issue to rest? They've been requested through the Freedom of Information Act, but are classified for privacy reasons, Ted will have to approve their release.

2. How is Cruz's situation different from Obama's? The big challenge for Obama was proving he was born in the US. It was generally assumed that if he was born here he was a NBC, if he was born in Kenya, he would have been disqualified. That was the question eight years ago, why is it different now? And will that question affect the likelihood of litigation from the democrats?

3. Will Ted Cruz publicly say that had Obama been born in Kenya, he would nonetheless have been a natural born citizen of the United States?

4. Ted Cruz knew the details about the challenges to Obama, and how his situation was similar. Does his failure to prepare a compelling defense against the charges he knw were coming show a lack of strategic sense, or a lack of defense?  Are we expected
to believe that Ted, with his high aspirations, never looked into this issue and sought to prepare a water-tight argument? He's argued before the Supreme Court on many occasions. What does the lack of any compelling argument or evidence tell us? Does anyone believe that Ted failed to look into this issue at length?

5. If a person born abroad to an American citizen never contacts the US government about their status, and doesn't set foot in America, can they show up at a port of entry seventy years later and be welcomed into the presidential contest?

6. Canada's 1946 nationality law established Ted Cruz as a Canadian citizen upon his birth in 1970. The same law precluded dual citizenship. Are we to assume that Ted was unaware of this until he renounced his Canadian citizenship in 2014?

7. Canadian law precluded dual citizenship when Cruz was born. According to the 1946 nationality law, Cruz was a Canadian at birth. Canada knew his mother was American, yet they still conferred citizenship. Canadian authorities, at least, did NOT recognize his American citizenship, since it would have conflicted with their laws precluding dual citizenship. Since Cruz is apparently a natural born Canadian, how can this be squared with his claim of being a natural born American citizen?

8. . TPM obtained a list of eligible Canadian voters published in 1974 which included both Mr. And Mrs. Cruz. The list does indicate that it is eligible for revisions, but that seems a stretch: For some reason Canada believed that Mrs. Cruz was an eligible voter (Canadian citizen). The 1946 nationality law says that a woman becomes a citizen after living with a Canadian man for a year as a landed immigrant. When did Rafael Cruz obtain Canadian citizenship? Where are Ms. Cruz's Canadian immigration records, and was she ever a Canadian citizen? Here's how the process of identifying Canadian voterswas handled:

"In accordance with the Canadian Election Act, such lists were compiled in the 1970s by a pair of officials, called enumerators, who went door-to-door together in an electoral district to ascertain the name, address and occupation of any person qualified to vote. The statute states that enumerators who “willfully and without reasonable excuse” added a name to the list “of any person who is not entitled to have his name entered thereon” forfeited pay for their services and were be subject to other punishments....
"In 2013, a Canadian elections official told TPM that in the process of compiling the list, enumerators asked people to affirm that they were Canadian citizens.
"So when they knock on doors, they ask them: are you Canadian citizens, are you 18 years of age or older, and are you a resident in this facility and how long have you been living here?" Drew Westwater, the director of election operations and communications for Elections Alberta, told TPM. "If they meet all that criteria then they add them to the list, take their name and addresses and anyone else who's living there. And they ask, is anyone else living here a Canadian citizen 18 years of age or older? And if they are, then they take their names from them at the door. And that's the way it worked in those days.""

10. As late as 2013, Ted's spokeswoman was insisting that Ted had never been a Canadian citizen. Why the confusion? Just how hard is it to determine if a person holds Canadian citizenship?

“Senator Cruz became a U.S. citizen at birth, and he never had to go through a naturalization process after birth to become a U.S. citizen,” said spokeswoman Catherine Frazier. “To our knowledge, he never had Canadian citizenship.”

11. According to Ted, there is no difference in the citizenship status of a person born in the US to two citizen parents, and one born abroad to an American and a foreign citizen. The latter seems to be a much more tenuous claim to citizenship, why is it elevated to the same status as the former? Could that be what the founding fathers intended? From WAPO:

"The Constitution does not define what "natural born" means, but the expert consensus is that a person only has to be a US citizen at birth to meet that threshold."

Does Ted Cruz really believe that the founders would equate his situation with a person born on US territory to two US citizen parents? That's absurd on its face. What are the other possibilities? The only thing that would make Cruz LESS eligible would be if both of his parents were citizens of another country, and he was born outside the US, in which case the founders would wonder why such a birth was even being considered. The question has never been definitively decided in court. The founders established a unique standard for the presidency for a reason, and it is now made irrelevant by 'expert opinion'? 

12. Mr. Trump suggests that Cruz seek a declaratory statement from the courts, indicating that he is eligible to be president. Cruz has not said that this would be ineffective, just unnecessay (a dubious argument, given developments). If he had such a judgment in hand, wouldn't his path be clearer? Then why wasn't this done years ago?

13. Cruz supporters cite US law describing citizenship at birth and how it can be acquired. Of course the laws don't mention or establish any difference between citizenship and natural born citizenship, so why are his supporters citing those laws? As an attorney Ted knows that it would open a can of worms because NBC status is not clearly defined in law. For that reason and others, the entire spate of immigration and nationalization laws are silent on this issue. So why does Ted argue that the laws refer to 'natural born' citizenship status, when this has never been legally defined and therefore cannot be part of the laws?

14. When Cruz's family came to the US in 1974, how was Ted admitted? He had a Canadian birth certificate, showing he was a Canadian citizen at birth. Is there any evidence of a Consular Report of Birth Abroad, which serves as a substitute for an American birth certificate? When his parents arrived at the border, did they say their son was an American, or even that he wanted to be one, or was he just passed through as a Canadian child? Was any positive action ever taken to legally codify his status as a natural born American? If his mother was still a US citizen, she should have have had to prove that, in order to establish Cruz as an American, if we accept Cruz's interpretation of the law. Is that what happened?

15. Cruz is a constitutionalist, an originalist. The founders specified in a 1790 law the status of a NBC:

The Naturalization Act of 1790 specified that "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."

Notice the plural "citizens". The law was repealed and replaced in 1795, the 1795 law was replaced in 1798, and the 1798 law was repealed in 1802. The 1795 and subsequent laws defined people in the above circumstances as 'citizens', dropping the 'natural born' . So we have only the 1790 definition to go by, which, admittedly, could be construed as a citizen mother only. However, the laws in question were intended to protect against divided loyalties. Requirements for citizenship from the 1795 law:

and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a citizen or subject....

And the founders discussed the NBC clause:

"Based on the above evidence, we can conclude that John Jay's letter to Washington, and the comments of Madison and later others at the Convention, establish the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a "natural born citizen" would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President." 

Does Ted believe that the founders would have conferred NBC status on a citizen of another country, given their focus on loyalties?

16. The use of the word 'natural' is taken by many to reference natural law - a law separate from statutory law, describing the nature of a thing - a status that cannot be changed by statutory law. This is one of the reasons cited for a lack of later statutory clarification of the law. However, commentaries from the period did comment on the meaning of the constitutional requirement:

"In 1825, in a significant and widely recognized work on the Constitution, William Rawle specifically noted that the term “natural born citizen” as used in the Constitution would include “every person born within the United States ...whether the parents are citizens or aliens....”
Similarly, in his treatise on Citizenship of the United States, Frederick Van Dyne, Assistant Solicitor of the Department of State, explained in 1904 that the rule governing citizenship is not one derived from “international law” or the so-called “law of nations,” but is rather municipal law which “[e]very nation determines for itself’ and, in the United States, derives from the common law principle of jus soli, dependant “on the place of birth,” as modified by statute incorporating the principles of jus sanguinis to include the children of citizens “born out of the jurisdiction of the United States.”
In reviewing Supreme Court decisional material, the author in this treatise noted that the Fourteenth Amendment and the 1866 civil rights act “reaffirm the fundamental principle of citizenship by birth” which “was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural born citizens thereof.”

Can Mr. Cruz cite anything from any of the founders or their contemporaries which buttresses his case? 

17. Consider the average voter, who will not dive into this issue in any detail. At a time when distrust in government and officialdom is at a historic high, are they likely to accept this formulation stoically: "Ted was not born in America, but he is a natural born US citizen, experts agree"? 

Is there enough doubt about the issue to insure litigation if Cruz is the nominee? In the context of electoral politics, that question is not academic. Unless Cruz can put this issue to rest with finality, doubts will linger.

Mr. Cruz is a young man. This need not be his last run at the presidency; he only has a few years of service as a Senator under his belt, and he will probably remain a Senator for as long as he likes. His insistence on pushing ahead now, in spite of the doubts and risk, should be reconsidered.

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