The risk he will not take:
…when I look at the data, it’s clear to me that if I entered the race, I could not win. I believe I could win a number of diverse states — but not enough to win the 270 Electoral College votes necessary to win the presidency.
In a three-way race, it’s unlikely any candidate would win a majority of electoral votes, and then the power to choose the president would be taken out of the hands of the American people and thrown to Congress. The fact is, even if I were to receive the most popular votes and the most electoral votes, victory would be highly unlikely, because most members of Congress would vote for their party’s nominee. Party loyalists in Congress — not the American people or the Electoral College — would determine the next president.
I’m always amused at the horror of some that a president might be selected exactly the way the Founders intended it.
“and then the power to choose the president would be taken out of the hands of the American people and thrown to Congress. ”
Clearly this moron has no idea of how the government is structured.
“I’m always amused at the horror of some that a president might be selected exactly the way the Founders intended it.”
Yeah really
More specifically, the “House of Representatives” — not “Congress” inclusive of the Senate — would choose. As with John Quincy Adams.
More interesting is the question of who would serve if the House can’t reach a majority by Inauguration Day — does the Vice President get to be “interim” president for a few weeks?
Bizarrely (given current circumstances), yes. House would have until March 4th to come up with a president, or Biden would take over. I’m pretty sure that would light a fire under them, if they were having trouble.
March 4? What, they have until the original inauguration day, not the one moved forward to January?
I don’t think the 12th Amendment has ever been amended.
Nope, not Biden.
20th Amendment is quite clear that presidents and vice presidents step down on January 20th. Biden would no longer be president of the Senate. I think the March 4th stuff got overwritten by the 20th Amendment.
It would be the newly elected vice president who would take over until a president is selected by the House. Assuming we have a vice president, which we probably would not, if the presidential election were thrown to the house, as the Senate would have to choose a vice president. If they do, no problem, and the VP acts as president until one is selected.
If neither is selected, then congress gets to pass a law (and, FAIK, they have already passed such a law) as to who ACTS as president until one is selected. The Speaker, most likely? We could, therefore, be under an acting president for a long time, maybe even a full term, before a 45th POTUS is elected or selected.
My worry is how crazy things will get when someone actually comes out and notes that Cruz is ineligible because he’s not a natural born citizen, he’s an automatically naturalized one.
The issue came up with Chester Arthur, born seven years before James Madison died, Barry Goldwater, John McCain, and Barrack Obama. McCain could run because 8 USC 1403 says that children born to US citizens in the Panama Canal zone were, after a certain date, citizens at birth. We passed similar laws for the Virgin Islands, Guam, Puerto Rico, Alaska, and Hawaii, turning them into US soil for Constitutional purposes. We never did that with Alberta.
Of course the GOPe has known this from the outset, and my guess is they were going to let Cruz Hoover up the conservative vote, evangelical vote, and strong border vote and then let him get to the convention and say “Oops. Turns out you’re ineligible. I guess your delegates will have to go to Jeb!” Yet another way they stab the base in the back.
Most constitutional experts, including liberal ones, seem to feel that your claim is wrong and that this is a non-issue. Anyone who was a citizen from birth is eligible.
They are mistaken. Even Lawrence Tribe, Cruz’s Constitutional law professor at Harvard (and who defended Al Gore in 2000), says Cruz is not eligible.
The crux is that the Constitution lays out three requirements to be eligible for the Presidency, age, 14 years in the US, and be a natural born citizen. That does not mean a citizen from the day you were born, it means you have to be born on US soil. Though the phrase only appears once in the Constitution, Blackstone’s Commentaries on the Common Law of England has almost a whole chapter on the meaning and reasoning behind “natural born” citizens, and that only citizens born on English soil can sit on the Privy Council, etc.
Blackstone’s Commentaries was the go-to reference for the Founding Fathers and every lawyer and judge back in those days, and for many many decades after. Nobody who had read Blackstone could possibly misunderstand what the Founders meant, and Blackstone was just about all anybody needed to read to pass the bar exam. He also explains that there are two parallel systems of citizenship, by soil and by blood. Only citizens by soil are “natural born” citizens, even though citizens by blood are citizens from the day they are born. Blackstone’s reasoning is that all children have lifelong allegiance to the country of their birth, not to the country of their parent’s birth, even if they return to that country. Right or wrong, that was the reasoning being used by the Founders.
James Madison said that citizenship based on soil was the controlling method in the US. He probably knew something about the Constitution and why the Presidency, unique among all offices, would require a native born citizen. Part of the reaso is that a great number of Americans moved to Canada after the Revolutionary War, where they would have children who could rightfully claim US citizenship, but whose loyalty was with the British Empire. The British Army sat up there, waiting for the American experiment in self-government to fail, where upon they could march south and restore rightful rule. If the US President was a natural born Canadian, still loyal to the British Empire, he’d misdirect American defensive efforts and then surrender to his true master. So to prevent that very likely state of affairs, the Constitution doesn’t allow people born in Canada to American parents to be President.
Many are confusing “natural born citizen” with “citizen at birth”. The two terms are used somewhat interchangeably in many statutes, with the latter substituting for the former, but under the 14th Amendment there are only two kinds of citizen. It starts out with:
It doesn’t list a third type of citizen, so there are only two: Those born in the United States and everybody else, who are naturalized citizens, even if they were naturalized automatically at birth. Congress can pass legislation on naturalization, as the Constitution grants them that power, but they can’t make someone born in the United States because that’s a factual circumstance. Only those born in the United States are natural born citizens, due to the operative definition laid out in English common law. The English did grant an equivalent status to some born abroad, but they didn’t even pretend that such people were actual natural born citizens, just that some foreign born Englishmen had the same rights and privileges as natural born citizens (and England did reserve all kinds of special rights only to natural born citizens, such as inheritance).
The Harvard Law Review ran an article cited by many that makes this mistake, and which doesn’t go back to the original texts and meanings. Thus they reach the wrong conclusions. Further, under the laws of the period, Ted Cruz wouldn’t even be a US citizen at all. He would be a Canadian Cuban because the Founders didn’t recognize citizenship as passing through the mother.
In court, the case against Cruz’s eligibility is airtight. That’s why Churchill couldn’t be President (there was absolutely no question about that) and Netanyahu can’t be President. You have to be born here to be eligible.
Even Lawrence Tribe, Cruz’s Constitutional law professor at Harvard (and who defended Al Gore in 2000), says Cruz is not eligible.
No, he said the question is “murky and unsettled.” If you’re going to rely on argument by authority, at least quote your own authority correctly.
From a logical point of view, no one (even Ann Coulter) claims that Ted Cruz is not a US citizen. There are only two types of US citizens: native-born and naturalized. Ted was not naturalized. Ergo, he is a native-born citizen.
If you want precedents, you don’t need to look solely to US Presidents. You can look at who is allowed to vote in US elections, given access to NOFORN information, etc. Can you (or the estimable Prof. Tribe) point to any cases where the INS or US courts required the child of US parents, who happened to be overseas, to go through the naturalization process? Or is it only particular academic who believes the matter is “unsettled and murky”?
An obscure point of English common law is a very thin pin on which to hang the Presidency. And any point which US courts failed to notice from 1788 up until 2016 certainly qualifies as obscure!
Maybe Trump should forget the legal chicanery and get back to his real strengths of his campaign — boorish insults and crude sexual innuendos?
But he was not born in the United States, so the 14th Amendment says he must be naturalized. And indeed he is. You’re confusing “naturalized” with the naturalization process, where you pay a lot of money, wait forever, and pass a test. We only do that for adults (and not always, sometimes we naturalize whole groups en masse, such as people Puerto Rico who went to bed as non-citizens and woke up as citizens.)
Those born in the US are natural born citizens and Congress can’t touch them. Naturalized citizens, however, are determined through legislation. For a while in the 1800’s parents born to US citizens abroad weren’t even granted US citizenship. Congress can do that. What it can’t do is make them “natural born” citizens. Only God and geography can do that.
For a bit of clarity, babies adopted abroad by US parents are automatically US citizens. We can’t deport Angelina Jolie’s kids because they became Americans when they were adopted. Ted Cruz could have been born to two Canadian parents and adopted by a US citizen mother and his legal status would be exactly the same as it currently is – a baby born abroad whose parent (whether natural or adoptive) is a US citizen.
Adopted babies are naturalized citizens without any process at all, just like babies born abroad to US citizens. However, there are exceptions to the rule. Not all children born abroad to US parents qualify for citizenship. Their parents have to meet certain criteria such as having lived in the US as an adult for a period. This has come up in the case of babies born to Muslim parents attending US universities who acquire US citizenship automatically (they are native born). The parents then returned to their home countries and raised those babies, who went on to join ISIS and Al Qaeda, took sex slaves, and started making more babies. Those new babies are not US citizens even though they are born to US citizen terrorist parents. Congress makes such naturalization laws so US citizenship doesn’t eventually spread across the globe like a fungus, because once everyone can trace their lineage back to one US citizen anywhere in their ancestry, everyone would be a US citizen.
More simply, everyone has a case of collective amnesia because when I went to school it was explained quite simply that “natural born” meant that the President has to be born in the United States. That’s what it meant when it was written, and that’s what it meant until a few months ago. Why do you think so many people went nuts trying to prove Obama was born in Kenya? If it didn’t matter they wouldn’t have bothered.
For a bit of clarity, babies adopted abroad by US parents are automatically US citizens.
I think that’s a fairly recent development, a result of the Child Citizenship Act of 2000. My recollection is that friends who adopted a baby overseas in the 1980s had to file paperwork to naturalize their daughter.
The point being, Congress can change who is and isn’t a citizen, but only the Supreme Court can say who is and who isn’t a natural-born citizen.
Why do you think so many people went nuts trying to prove Obama was born in Kenya? If it didn’t matter they wouldn’t have bothered.
If Obama had been born in Kenya he wouldn’t have been a U.S. citizen from birth, since his mother had not lived in the U.S. for five years after her 14th birthday (she was only 18), and in 1961 that was the standard for granting automatic citizenship to children of U.S. citizen mothers born abroad. My own birth record from a few years later includes the dates and places my mother had lived in the U.S. prior to my birth in France, presumably to establish that she met those requirements.
That would’ve kicked Obama out of the Senate, but even if his mom had spent enough time in the US for him to be a citizen at birth, if he’d been born in Kenya he wouldn’t be a natural born citizen.
This came up earlier with Barry Goldwater, who was born in the territory of Arizona before it was a state. That both his parents were US citizens and that he was a US citizen from birth was irrelevant. The question was whether the territory of Arizona counted as US soil at the time he was born. And precedent says territories and districts count as US soil – otherwise all those politician’s kids born in DC wouldn’t be eligible.
You’re confusing “naturalized” with the naturalization process, where you pay a lot of money, wait forever, and pass a test.
So, now you’re telling us Ted was naturalized without being naturalized? You sound like the lady at the DPS office who told me I wasn’t a citizen and couldn’t get a driver’s license because my passport was expired.
The naturalization process takes forever? And costs a lot of money? But Immigration Warriors have been telling us that it’s simple and easy, if people are just willing to obey the law.
Yep. That’s exactly it. Children born abroad to US parents are automatically naturalized. Their citizenship is conferred through an act of legislation. The Constitution gives Congress the power to determine the laws of naturalization, but Congress can’t touch “natural born citizens” because those are different category – and determined by God, territory, and the common law when the US Constitution was adopted.
As I’ve mentioned (here or at Instapundit), for a long time in the 1800’s such children weren’t even citizens. They had to get in line like everybody else, but the law was changed after the adoption of the 14th Amendment and Civil Rights acts. Citizenship upon birth abroad is something granted by Congress, not an inherent right or condition. And under common law, there are exceptions to citizenship by birth on US soil. It does not apply to diplomats and those born under foreign occupation (as happened in parts of Maine in the War of 1812), and in some cases can be prohibited by treaty. One such case was [url=https://scholar.google.com/scholar_case?case=3381955771263111765&q=U.S.+v.+Wong+Kim+Ark,+169+U.S.+649&hl=en&as_sdt=4000006&as_vis=1]US v. Wong Kim Ark[/url], a case from 1898 concerning a Chinese man born and raised in San Francisco. The case is not only interesting in its own right; the ruling goes on forever and mentions “natural-born citizen” 45 times, getting into the meaning and precedents going far back into English law, contrasting that with US law, etc. It also mentions just about every prior applicable court decision on citizenship, foreign laws on citizenship, with links to the relevant cases.
And it makes it pretty clear that such a case would be open and shut. Ted Cruz is not a natural-born citizen, he’s a naturalized one. In fact, the first naturalization act of 1790 made foreign born children of US parents US citizens. That was a naturalization act, not a “natural-born” act because Congress can only write laws for naturalization. Then that law was changed and children born abroad quit being citizens at all.
Unfortunately Justice Gray isn’t as direct and to-the-point as Scalia. He meanders a bit, but it’s well worth reading.
Perhaps more to the point, the Framers wouldn’t have used the phrase “natural-born citizen” if the meaning of the term was to be decided by Congress, and has been pointed out by Volokh regarding the law forbidding anyone who mishandles government documents from ever holding public office in the US (regarding Hillary), Congress doesn’t have the power to place additional restrictions on Constitutional eligibility requirements, and correspondingly would not have the power to reduce those requirements. If Congress passed a law declaring that 21 is the new 35 in the name of adult equality, I don’t think running a 21-year old for President would pass Constitutional muster.
If an American woman was on vacation in Lichtenstein, and the woman was preggers and gave birth while on vacation, it would seem to me that the child is an American citizen.
But what if father was not an American citizen, and what if the mother was a teenager, and the child was born in the early 1960s? What then? And what if Eleanor Cruz, I mean, what if the mother lived in Canada for a long time, and was even registered to vote in Canada, and what about Section 349 of the Immigration and Nationality Act? This is not clear cut!
The child would definitely be an American citizen. The question is whether she’d be a “natural-born citizen”. There’s precedent in English common law to argue it either way, and no U.S. court has ever settled the issue. Ironically, Cruz styles himself a Constitutional originalist, and when the Constitution was written “natural-born citizen” meant born in the country in question.
We could resolve this problem by passing an amendment that replaces “natural-born citizen” with “citizen from birth”, or better yet, drops the requirement altogether. The founders were worried about foreign nobility being brought in to rule the newly free colonies, like the way William of Orange was brought in to rule England in 1688, and that hasn’t been a threat for a long time. Being born in Canada doesn’t make Ted Cruz less likely to be a good president, and being born in Austria doesn’t make Arnold Schwarzenegger less likely to be a good president. It’s a provision that’s outlived its purpose.
Disclosure: I was born to U.S. parents in a U.S. military hospital in France, and was told growing up that I was a “natural-born citizen”, but have since learned that it isn’t that simple. Fortunately (for all concerned) I have no plans to run for president.
There’s precedent in English common law to argue it either way,
Yup
or better yet, drops the requirement altogether.
Nooooooo. You have said this before but its still a bad idea. But don’t you also want open borders? I think trying this experiment in global socialism would be best tried in some other country or better yet, a space station.
The founders were worried about foreign nobility being brought in to rule the newly free colonies, like the way William of Orange was brought in to rule England in 1688, and that hasn’t been a threat for a long time.
There are still foreign ruling elites today. For example, it would still complicate any attempt by a foreign power to rule the US.
The issue came up with Chester Arthur
How so? Arthur was born in Vermont, decades after Vermont became a state.
and Barrack Obama
Again, how so? Obama was born in Hawaii, two years after Hawaii became a state.
Arthur had made a lot of enemies in New York, and an attorney there claimed that Chester was born on the Canadian side of the border. Arthur’s father, an immigrant, was a preacher who worked a circuit from Vermont into Canada, moving along every few weeks to speak at a different church. So the attorney claimed that Arthur was born in Canada during one of these trips.
Arthur didn’t argue that he could be President even if he was born in Canada, he showed that he really was born in Vermont.
Arthur didn’t argue that he could be President even if he was born in Canada, he showed that he really was born in Vermont.
And? Why we he argue the more complex point when it was easier to argue the simple point? That he argued the simple point doesn’t mean the law was settled on the other point. Further, just because some clowns tried to claim an untruth, “Arthur was born in Canada”, doesn’t mean we should take their argument that the law is questionable.
Here’s Harvard Law’s opinion: And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
I believe Cruz qualifies under 8 U.S.C. § 1401 paragraph g.
The Harvard Law article is quite wrong, and other legal scholars have pointed out that it’s quite wrong.
If Arthur had been born in Canada, not only would they have not allowed him on the ticket, he probably wouldn’t have been a US citizen because during the early 1800’s we didn’t give citizenship to foreign born children of US parents, and further, we didn’t allow citizenship to pass down from the mother, so Arthur would have been a natural born Canadian with British citizenship.
For more talk about the meaning of “natural-born citizen” see US v. Wong Kim Ark
Everybody understood that a natural-born subject has to be born under the complete protection of the liege (thus allegiance), meaning that only those born within the realm are natural-born subjects, and each person has natural allegiance to the government or ruler of the country of the place where he was born, unless that place was occupied by foreign ruler’s army, in which case the natural allegiance went to the occupier.
As stated in the opinion of the court:
The opinion also notes that the Constitution must be interpreted according to English common law, and Blackstone’s Commentaries spill a lot of link explaining that the primary allegiance of a person is to the country where he was born. There cannot be two primary allegiances, only one, so a person born in Canada has allegiance to Canada and is a natural-born citizen of Canada, thus they cannot be a natural-born citizen of the United States or they’d have two primary allegiances, and that was held to be impossible. Indeed, the opinion makes it explicitly clear that children born in the US have no allegiance to their parent’s native countries, and their citizenship in those foreign countries isn’t even recognized by our government. Thus those children are “native-born” Americans. Correspondingly, for a long period children born in foreign countries to US parents were not recognized as US citizens unless they were the children of US diplomats. They have never been “native-born”, and can’t be.
The immigration act of 1790 says:
If they were natural-born citizens as used in Article II, there wouldn’t be an act of legislation saying they “shall be considered as natural-born citizens”. That echoes English statues that grant children born abroad to English parents the same rights as natural-born English subjects, with almost the same exact wording and going into detail about granting them the inheritance rights enjoyed by natural-born subjects.
This is equivalent to Congress passing a law saying that everyone who reaches the age of 21 shall be considered to be 35 (fully adult). People might run around claiming a 21 year old has all the rights of a 35 year old, which could apply to all cases except the Article II requirement for the Presidency, as the Constitution doesn’t grant Congress the power to change the Constitutional requirements for President. Only an amendment can do that. Similarly, since “natural-born” was well understood by the Founders, lawyers, and early justices (they spilled gallons of ink on it), we do not get to redefine the term to mean what we want it mean, especially when it’s originally meaning is starkly different from the modern (post 2014) conception of “citizenship at birth”.
And there’s a ton of solid legal reasoning behind the Founder’s use of the term, and why they would restrict the office of President to only citizens born on US soil. Period thoughts about allegiance, nationality, and loyalty drip with the accepted truth that people are loyal to the country of their birthplace, and that all other loyalties are tentative and transitory. A person born in Canada is and always will be loyal to Canada, unless he commits treason against it. He may grow attachments to other countries, but his true loyalty will forever be Canadian. That’s how they thought back then, and they wrote about it extensively.
Anyone who walked into the Supreme Court trying to argue Cruz’s case would get shellacked. From Justice Fuller’s dissent in Wong:
Never once in 61 mentions of “natural-born” and “native-born” (in just that one ruling, which cites numerous other rulings) do the terms apply to children born outside the territory and control of the United States. That’s because the terms had a simple and well-understood legal meaning – “born here”.
And that agrees with the Founder’s worry that a European government would seek to control the United States by slipping a foreign born national into our highest office where he would take control of the US military and again subjugate us to royal rule.
How in the hecking heckity heck does “Big Gulp” Bloomberg get electoral votes, unless the GOP somehow nominates Pat Buchanan or Lindsey Grahamnesty? Everybody knows Bloomie is a Democrat who switched parties for the sole purpose of one mayoral election. He would split the Democrat vote. I can’t imagine him getting more than four Republican votes outside of New England.
How in the hecking heckity heck does “Big Gulp” Bloomberg get electoral votes… Everybody knows Bloomie is a Democrat who switched parties for the sole purpose of one mayoral election.
Like, ahem, Donald Trump?
“My old pappy told me, ‘Son, you can fool some of the people all of the time, and all of the people some of the time, and when you think about it, those are pretty good odds.'” — Bret Maverick
Trump can claim to have changed on positions, which isn’t hard when he stakes out so many positions on all sides of an issue but Bloomberg has a billion dollar organization trying to ban guns and recent examples of policies he has championed that are abhorrent to the majority of Americans.
The question isn’t whether or not a Democrat could appeal to Republicans or people who don’t normally vote but whether a specific Democrat could.
Bloomberg knows that running on banning guns and big gulps isn’t going to get him many votes. Hillary is going to learn the same thing.
Bloomberg has a cadre of armed bodyguards. So, he could could take a page from Immigration Warriors like Gregg: “I support *legal* gun ownership. Legal does not mean legal for *everybody.* There’s a difference between supporting legal gun ownership and advocating open gun stores.” 🙂
Hijacked thread.
You might want to ask yourself why Trump is leading. Could it be that many of his supporters are actually people who got the shaft from our current immigration policy?
When Trump says he’s going to make Mexico pay for the wall, that actually makes a large portion of Americans happy. Why are they happy? Is it because they can’t make a living anymore?
And, by the way, I happen to know many, many people in this situation, as I don’t live in an ivory tower or have an elitist tech job.
As has been said, if the illegals were taking jobs away from journalists the border would have been sealed and planted with land mines many decades ago.
When Trump says he’s going to make Mexico pay for the wall, that actually makes a large portion of Americans happy.
No doubt. Trump has identified the “poorly educated” as one of his target audiences, and the poorly educated are likely to be taken in when a candidate says stupid things.
The poorly educated Archie Bunkers are unwilling to compete on a level playing field. They think that if an employer decides an immigrant is more qualified than they are, they have “gotten the shaft” and want the government to intervene to protect you from competition. Affirmative action for white people.
Trump appeals specifically to folks who are fed up with Dean Wormer nanny-statists like Bloomberg. I can’t imagine Bloomie taking even Jeb or Kasich votes.
You mean the Trump who fundraised for Bush and Romney, and is to the Right of McCain?
I think the article makes clear that his main objection is that this would lead to the election of candidates he finds unacceptable: not Clinton or Sanders, of course – I mean those awful Republicans.