Seems as if some people, like a certain state Supreme Court Justice are having a bit of a problem with the concept of “settled law.” Just like a certain Harvard Law School graduate and Presidential candidate
.
[His advice on “Obergefell:] Ignore it.
“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday.
Silly me, I thought that Supreme Court Constitutional decisions were the “law of the land” and “settled law” unless or until the other branches of government amend the Constitution or SCOTUS reverses the decision through a subsequent lawsuit (for reason good enough not to honor stare decisis).
Mr. Cruz doesn’t stop with denying actual “settled law,” but also seems to invent “settled law” (that just happens to benefit him).
“Look as a legal matter, the question is quite straightforward in settled law that the child of a U.S. citizen born abroad is a natural born citizen,” Ted Cruz said. “People will continue to make political noise about it. But as a legal matter it is quite straightforward. I would note that it has occurred many times in history. John McCain was born in Panama but he was a natural born citizen because his parents were U.S. citizens. George Romney, Mitt’s dad, was born in Mexico when his parents were Mormon missionaries. But he was a natural born citizen because his parents were citizens. And actually Barry Goldwater was born in Arizona before Arizona was a state. And yet he was a natural born citizen because his parents were citizens. As a legal matter the question is quite straightforward.”
Settled by whom, Mr. Cruz? Care to cite a statute or court decision for your opinion? No, the question regarding the Constitutional “natural born Citizen” requirement for a POTUS hasn’t “occurred many times in history.” Wasn’t even questioned during the first hundred years of this country’s existence. When it was, it was quickly dismissed as the potential cases concerned men that had been born in a US state. That, Jus soli, and not the citizenship status of their parents at the time of their birth, was viewed as controlling for the status of “natural born Citizen.”
It was a minor issue in 1964, but that had nothing to do with the citizenship of Goldwater’s parents when he was born (both of whom were “natural born Citizens”), but whether or not the Arizona Territory was US soil at that time. Apparently nobody could make a credible case that it wasn’t.
It surfaced again in 1968 because candidate George Romney had been born in Mexico where his US born parents had been taken by their parents when they were children (as migrants, not missionaries) and from which they fled back to the US during the Mexican Revolution when George was but a five year old. The question had barely been raised before Romney dropped out; so, the issue died without any legal resolution.
John McCain’s situation was similar to that of Goldwater’s as McCain pointed out a few days ago, …I was born in the Canal Zone which is a territory. Barry Goldwater was born in Arizona when it was territory when he ran in 1964,”… Legally correct or not, McCain asserted that jus soli is a component of being a “natural born Citizen.” McCain’s complication was that the Canal Zone was less well defined as a US Territory than Arizona had been when Goldwater was born. A 2008 NYTimes article pointed out that it wasn’t a slam dunk . Thus, in 2008 we saw:
The resolution was passed in a vote in the Senate. A simple resolution is not voted on in the other chamber and does not have the force law.
A courtesy of McCain’s Senate colleagues. Not legally binding, but again absent any credible challenge, it was accepted that McCain was a “natural born Citizen.” (His mother was in the Canal Zone on orders from the USG-Navy which can hardly not have been considered a factor in his case.) IOW, they kicked the can down the road and the public didn’t object.
Thus, in the handful of historical cases, jus soli came to be viewed as controlling but without any of them submitted to federal courts for adjudication.
Tres amusing that in 2012 Ted Cruz said,
“Obama’s mother’s citizenship is irrelevant since his father wasn’t American and he wasn’t born in America. He can’t be president.”
Cruz was rejecting jus soli (or maybe he doesn’t know that Hawaii is a US state) in favor of paternal Jus Sanguinis because even if Obama had been born in Kenya, which he wasn’t, there would have been no need for Cruz to mention the citizenship of Obama’s father. Jus sanguinis has never been the controlling criteria in the US or most (all?) countries in the western hemisphere. In fact, under US law, a US citizen mother carries more weight in determining US birthright citizenship for her children born outside the US than the father does. By Cruz’s little rule, he would have been born a citizen of Cuba (or Canada if his father had been naturalized in Canada before he was born). And he damn well knew that in 2012 when he latched onto the con-grifter “birther” gravytrain.
Many have looked at the issue of Ted Cruz’s birth and declared that he is a “natural born Citizen.” However, as Timeaus at dKos has said,
I’ve been a U.S. immigration lawyer for 30 years. There is indeed some doubt as to whether Cruz was a U.S. citizen at birth, because he has not produced documents to prove that. Birth to a U.S. citizen abroad is NOT enough!
Plus, those opinions make a leap that US birthright citizenship based on parental US citizenship equals “natural born Citizen.” Had George Romney’s situation been addressed legislatively or in federal court in his favor, then opinions wrt Cruz would have some terra firma under them. But had such a decision in favor of Romney been based on having two US citizen parents, Cruz wouldn’t have been out of the weeds.
There remain too many unaddressed and undocumented questions about Cruz along with the fact that “natural born Citizen” remains undefined for the question of him meeting the Constitutional requirement to be answered.
After all the years of crap that US born Barack Obama was put through about the circumstances of his birth, should Democrats/liberals give Ted Cruz a pass in order not to appear unseemly? Unseemly would be questioning Marco Rubio’s “natural born (jus soli) Citizen” qualification. (Not that GOP candidates have been respecting the rights of other US jus soli citizens.) If Cruz gets a pass on being a US “natural born Citizen,” are Republicans willing to stipulate that Maya Soetoro-Ng is also a US “natural born Citizen?” (Not that Maya is known to have any presidential ambitions.) How many have even thought about the potential and easily identifiable scenarios this slippery slope can lead to? Are the children of Sally Kennedy eligible? Something to think about.
Note:
The 1967 SCOTUS decision in Afroyim v. Rusk added (likely unintended) complicatons to the issue of “natural born Citizen.” Made it possible for someone like Mrs. Cruz to get US-Canadian dual citizenship and more difficult to lose her US citizenship. For a related discussion, see The Hill when dual citizenship becomes a conflict of interest
Updatte
TPM – McConnell: Senate Won’t Weigh In On Cruz’s Birther Debacle. No Senatorial courtesy for Cruz. Who could have predicted that?
