A Nation of Laws

Nearly a year ago, I wrote a blog post on the “Clinton e-mail server” fiasco in which I argued that while I certainly would not defend former Secretary Clinton’s use of a private e-mail account for official purposes, the reality is that every Secretary of State since the dawn of e-mail has done more or less the same.  More broadly, I argued, the very real and dangerous problem we face as a nation is that elected officials and senior political appointees of both parties almost routinely flaunt laws and regulations.  Just as the old nobility of Europe were not held to the same standards as the peasants, America’s political class has come to view itself as above the law.  If you don’t believe that, just think of what would have happened if a “normal person” (the modern counterpart to a feudal peasant) did what the politicians did.  If a career member of the State Department had done what Hillary Clinton did, he/she would have been fired and maybe even jailed.  If a career officer at the CIA has ‘outed’ Valery Plame the way former VP Cheney did, he/she would have been sent to jail for a very, very long time.  The list of examples is (unfortunately), endlessly long.

If anyone had any hope that President Trump’s “drain the swamp” rhetoric meant that these sorts of abuses would stop, now is the time to wake up.  The Attorney General of the United States himself failed to disclose required information on his security form (known as a DS-86 or EQIP).  If a career civil servant of any branch of service – State Department, military, intelligence agency – did that, he/she would have his/her security clearance pulled in a heartbeat and would likely spend the next five years in jail.  It does not matter how ‘material’ the information was.  Withholding information on a security form is a crime.  Period.  Lying to or misleading the FBI officers who personally interview candidates for security clearances is a crime.  Period.  The list of senior Trump administration officials who have knowingly violated these laws is growing daily:  AG Sessions, former National Security Advisor Flynn, and Presidential son-in-law Jared Kushner, just to name a few.  On top of those, the Trump administration is now refusing to release the (evidently extensive) list of lobbyists who were granted special Presidential waivers from ethics rules so that they can now manage or oversee the exact same government bodies they once lobbied.

This post may sound to some as “anti-Trump,” but that is not my intent.  Instead, I deeply believe that we as a nation must reaffirm our commitment to equality and justice.   After all, America has survived rough times before because we are a nation a laws – laws that apply to everyone.  At its heart, that is the idea of America – a nation based on the belief that all people are equal and should be treated accordingly.  Not only are Trump administration officials continuing a decades-long practice of assuming that the laws don’t apply to political appointees, they are doing so in an unprecedentedly public and decisive manner.  The clear message is:  this Administration is above the law.  For anyone of any political party or political stripe, the time has come to stand up for America.  If we are not a nation of laws, then our Constitution is reduced to merely words on a scrap of paper.

A Sign of the (End) Times?

As of this writing (Feb 12, 2017), there is a petition on the “We the People” page of the White House web site calling for President Trump to “Issue an International Arrest Warrant for George Soros.”  I became aware of this petition because a couple of Facebook friends are pushing it.

This petition is a reflection of an illness that infects American politics today and should raise a red flag for all Americans, whether aligned with the right or the left of the political spectrum, whether a believer that George Soros is a saint or the devil.  Looking over the “We the People” page on the White House’s web site, there are (not surprisingly) quite a number of petitions that reflect a clear political bias.  Whether calling for the White House to appoint a Special Prosecutor to investigate Hillary Clinton or for Donald Trump to be tried under articles of impeachment, the political bias of many petitions is clear – and I don’t object to that.  While I certainly don’t agree with a number of the political views reflected by the various petitions, none is quite as bone-chilling as the petition calling for the summary arrest and imprisonment of an American citizen.

This petition (with its 13,513 signatures thus far) should raise alarm bells with every American because it calls for undermining the most fundamental elements of the U.S. Constitution and underlying American principles.  In effect, petition calls for the President of the United States to assume dictatorial powers.   The supporters of this petition see no need for a court, prosecutor, trial or any other “formalities.”  The supporting text for the petition simple declares George Soros to be “guilty” of a broad range of vaguely defined but ominous sounding “crimes.”  The clear message is that the supporters of this petition also want to jettison the principle that everyone is innocent until proven guilty.   Apparently in their view, a mob rather than a court with its judge and jury is sufficient for determining guilt.  In other words, a modern day lynch mob.

The ability of the head of state to order the summary arrest of people is a hallmark of authoritarian and totalitarian governments everywhere.  One of the key steps in Hitler’s transformation from Chancellor to Fuhrer was his successful bid to sideline Germany’s court system.  A Chancellor’s powers were proscribed by the constitution but a Fuhrer faced no constraints.  He could order the arrest, conviction, imprisonment and even execution of anyone.  There was no need for a trial.  Even in those cases when Hitler or his crowd of confidents decided a trial would be beneficial for propaganda purposes, there was no pretense of fairness, no presumption of innocence and no trial before an impartial jury of peers.  Instead, in Nazi Germany, as in Stalin’s Soviet Union, guilt was a foregone conclusion from the moment that the head of state decided.

This distinction between a duly elected leader and an absolute dictator has been recognized for thousands of years.  Under the Roman Republic, a Consul (the title for the two officials elected to jointly serve as head of state) did not have the authority to arrest or convict anyone, but a dictator did.  After the fall of the Republic and the rise of Emperors, the power of the head of state to arrest, convict and punish any person for any reasons (or none at all) was not questioned.  Emperors were dictators not subject to law or election.

I do not want to see the United States descend into the hell that was the Soviet Union or Nazi Germany.  I don’t want it to see our rights and liberties reduced to slogans that are touted in the press but ignored in reality as is the case in Russia today.  I don’t want to abandon the principles upon which our country was founded or the U.S. Constitution that has survived for nearly 220 years.  While many people who signed the petition asking for the summary arrest of George Soros likely did so to express political frustration, others likely knew exactly what they were proposing – and end to Constitutional limits on Presidential power in America and thus an end to American democracy. I hope they are – and remain – a tiny minority.

 

 

President Trump’s Executive Order on Immigration: A Self-Inflicted Wound

First, a caveat.  On policy grounds, I do not agree with President Trump’s order banning nationals from seven predominantly Muslim countries from entering the United States.  While I agree that provisions for screening applicants can always be improved, a sudden ban on all entry will weaken America’s position in the world, embolden our enemies, help ISIS and other Islamic extremist organizations with their recruitment, and unfairly victimize literally thousands of individuals who have selflessly contributed to fighting terrorism – including Islamic extremism – around the world.  I recognize, however, that I disagree with the President on policy.  As President, Mr. Trump does not need to listen to me.

As President, however, Donald Trump does need to abide by the US Constitution and to manage effectively the operation of the government of the United States.  In issuing his Executive Order on immigration, Mr. Trump failed miserably.  Here are three specific ways he failed.

(1) President Trump could have ensured that his Executive Order (EO) was consistent with the US Constitution by excluding legal permanent residents (AKA “green card” holders) from the entry ban, but he did not.

(2) President Trump could have made an exception for “special immigrant visa” (SIV) holders, which includes persons who have demonstrated extraordinary commitment to American values by helping advance American foreign and military objectives abroad, but he did not.

(3) President Trump could have made allowances for persons who were already in the air flying from an overseas origin to the USA, but he did not.

Let’s look at each of those failures in more detail.

Legal Permanent Residents:  It is telling that when Department of Homeland Security officials first saw the text of the EO they interpreted it not to cover legal permanent aliens since it was clear to the immigration experts that such a ban cannot, under the US Constitution, be applied to permanent residents of the USA.  The experts were overruled by the White House, which specifically ordered the exclusion of legal permanent residents.  That specific policy direction from the White House was clearly unconstitutional because it denied the right of due process and equal protection to legal permanent residents of the United States.  (Note: According to Section A of the 14th Amendment to the Constitution, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)  While numerous Federal Courts quickly moved to prevent the removal of legal permanent residents, countless reports indicate that many such individuals were deported or “turned around” despite the existence of valid court orders.  Others were coerced into “voluntarily” giving up their status as legal permanent residents under various threats.  The legal mess from this part of the EO will likely drag on for months or years.  The impact on the lives of people who were summarily returned to countries where they do not live, do not have a home, and may well be targeted for politically-motivated arrest or execution is incalculable.  The impact on American security will be severe.

Special Immigrant Visa Holders:  The fact that the very first person to be detained pending expulsion under the EO was Hameed Khalid Darweesh, an Iraqi who had worked for the US military in Iraq for 10 years prior to immigrating to the USA with his family, is emblematic of this deeply flawed EO.  Mr. Darweesh was not a newly-arriving immigrant; he already lived here.  Even after immigrating on an SIV, however, Mr. Darweesh continued to work with the US military and it was in this capacity that he agreed to return on a dangerous mission to Iraq to help US military advisors working to defeat ISIS.  As he was returning from this dangerous mission undertaken on behalf of the US government, Hameed Darweesh was detained and would have been deported under the provisions of the EO had not a Federal Court quickly ruled that he must be afforded full due process under the Constitution.  Luckily for Mr. Darweesh, immigration officers in New York followed the court order.  Reports from elsewhere in the USA indicate that other permanent residents were not so fortunate.  To understand how unfair and how counterproductive the EO was as written, consider that Mr. Darweesh had survived 10 arduous years supporting US forces in Iraq.  Under SIV rules, he would have been eligible to immigrate to the USA after just two, but he stayed in Iraq to support US troops because he believed in the US cause and the US government.  Even after he finally did leave to save the lives of his family, he agreed to return to Iraq to support US troops.  As thanks, the US nearly threw him out of the country.  Mr. Darweesh is one man, but his story is the story of thousands of Iraqis.

While the Pentagon, under the leadership of General James Mattis, is preparing a list of SIV holders from Iraq as well as Iraqis who have provided invaluable assistance to US troops but who are still in Iraq, there is nothing in the EO that would allow the State Department to issue visas to those individuals or that would allow the Department of Homeland Security to admit them to the USA.  I have faith in the ability of Secretary “Mad Dog” Mattis to convince the White House to modify the EO, but that does not change the fact that it should never have been written so as to exclude people who have risked their lives to advance US security and save the lives of US service members.

People in the Air:  A basic principle of American legal system is that no law can be applied retroactively.  In other words, a city or state cannot decide 2017 to make fireworks illegal and then proceed to fine or arrest everyone who has ever lit a firecracker in the 50 years prior to that ban.  While retroactive laws are rightly acknowledged to be illegal and unethical, that is exactly what the EO did to the hundreds of people who boarded planes thinking that they had done absolutely everything right to prepare for their trip to the USA but then were treated as criminals on arrival.  Those caught in this trap included tourists, students, business people and at least one tiny infant coming to the USA for emergency open heart surgery.  A 60-year old woman was not allowed to see her severely ill mother in a US hospital for even a few minutes before being sent back.  The horror stories have been repeated hundreds of times.  These stories of personal anguish, as well as the perception that the US is ignoring one of the pillars of its own legal system, could have easily been avoided by including even a very brief grace period for persons who were already in the air.  Despite White House comments to the contrary, no one from one of the seven countries included in the ban could possibly receive a visa quickly enough to travel during that tiny window, meaning that allowing such a window carried no risk, no downside at all.  (Note:  All persons from those seven countries were already subject to “special processing” requirements – AKA extreme vetting – that takes at least weeks and usually months to complete even for a simple tourist visa.)

Why Did This Happen?

There are only two ways this could happen.  Either the White House is so unaware of the US Constitution and long history of the US working closely with foreign nationals to advance US national security that they did not realize how detrimental the EO would be, or they did not care.

Conservatives such as Karl Rove and former Vice President Dick Cheney have clearly expressed their disappointment with President Trump’s EO on immigration, stating that it could have, and should have, been handled much better.  Karl Rove, for example, specifically used the term “amateurish” to describe the drafting and roll-out of the EO.

I hope Dick Cheney and Karl Rove are correct, because the alternative explanation – that the White House knew its actions were unconstitutional and detrimental to US security but did not care – is much, much worse.

 

Getting it Wrong on Russia

My first “rule of thumb” for recognizing when an article or policy analysis on Russian actions is likely incorrect is that “if the speaker/author bases their analysis on the assumption that Moscow’s actions are exclusively directed toward the USA, chances are that their analysis will be wrong. Russian policies are, not surprisingly, often directed toward Russian audiences.”  Putin’s meddling in the US Presidential election offers a clear example. The obvious (to many Americans) explanation is that the reason Putin is taking the unprecedented step of directly meddling in US elections is that he wants Trump to win. Obvious, but wrong.

The primary reason Putin is meddling in the US election process is that he wants to discredit the democratic process, in general, and American democracy, in particular. His primary target is not the USA but pro-democracy groups inside Russia as well as in various former Soviet Republics that maintain their client relationship with Moscow. (To Putin, both Russian democracy activists and those in the Russia’s “near abroad” are “domestic” since he views and treats those former Republics as de facto satellites.) Putin may be a brutal dictator bent on reestablishing the Russian Empire of Alexander III, but he is also geopolitically smart and understands that the spread of democracy is antithetical to his goal. By undermining the still widely-held conception among residents of the FSU that democracy is good and American-style democracy is great, Putin is working to consolidate his power by dashing people’s dreams.

Personally, I am not convinced that Putin even wants Trump to win.  I am not even certain if Trump really cares who wins.  I agree that Trump is very useful to Putin.  Trump is the classic “useful idiot” that the Soviet Union’s propaganda and espionage organs valued so highly – the type of foreigner who promotes Moscow’s propaganda line without even being paid or blackmailed.  Putin, however, is smart enough to recognize the difference between an idiot and a world leader with whom he would have to deal.  Putin must realize that a Trump presidency would bring unprecedented uncertainty – uncertainty that could lead to war or even nuclear war. So, while Putin knows that Hillary Clinton would be a formidable and implacable foe to his plans for a renewed Russian empire, given the choice he could well choose the enemy he knows over an uncertain and unreliable ‘friend.’ It could also be, of course, that Putin really does not care who wins and that his only goal is to tarnish the image of democracy.  Putin is confident (or arogant) enough to believe that whoever wins the election, he’ll deal with him/her.

Looking at the election today, Putin must feel a bit like Bin Laden after the World Trade Towers collapsed – his plan is working even better than he could have hoped. Not only have the e-mail ‘scandals’ he rigged by funneling data to WikiLeaks led to Trump and his supporters feverishly supporting Moscow’s age-old narrative that American elections are really no different than corrupt and rigged Russian elections, now the Trump camp is threatening some type of (possibly armed) insurrection if Trump loses, which he almost certainly will.  Trump is being joined in his calls for revolt by people who should know better, such as Milwaukee County Sheriff David Clarke, who is urging Americans to take up “pitchforks and torches.”

The increasingly unhinged and violent rhetoric coming from the Trump camp must sound to Putin as the most beautiful music he has ever heard. Even if only a tiny percentage of Trump’s supporters carry through on their threats, or even if they only continue broadcasting the message that American democracy is a sham, not only will the image of American democracy be debased for decades to come, but Putin will be facing a US that is greatly weakened by internal divisions and thus less able to counteract Putin’s global agenda.  Whatever the outcome of America’s internal debate, a paralyzed and divided America would be a true “win-win” for Putin.

Note: This piece is heavily draw from a speech I gave at the Mar’s Woods Lifelong Learning Group in Lake Oswego, Oregon on September 6, 2016.  I edited greatly to turn a 45-minute speech into a short article and updated slightly to reflect more recent events.

The Curious Question of Who Can Be President

Ted Cruz’s candidacy is once again causing the question of just who is eligible to become President of the United States to appear in the media.  To help frame this question for anyone who is genuinely interested in the complex legal issues at play, I’ll provide a brief summary of the Byzantine, internally-inconsistent and constantly changing mess that is American citizenship law.

Before I begin, let me say three things up front.  First, I am not a Ted Cruz supporter.  Secondly, my own analysis of the issue leads me to believe that Ted Cruz is almost certainly eligible to become President.  I am not a lawyer, but I was a trained U.S. Consular Officer for many years during a period when Consular Officers were expected to be able to cite chapter and verse of relevant citizenship laws, regulation and procedures.  I do not support Mr. Cruz, but I certainly do not doubt his eligibility to become President.  Thirdly– and most importantly – anyone who purports to have the definitive answer as to Mr. Cruz’s eligibility falls within my definition of  spin-doctors propgating “lies and damn lies” because there is no definitive answer.  That answer can only come from the court system, perhaps even the Supreme Court itself, and federal courts will not entertain hypothetical cases.  We will only have the final answer if Mr. Cruz, or some future candidate born outside the USA, is elected President.

For a formal yet succinct explanation of why there is no definitive answer to the question of whether Ted Cruz is eligible to become President of the United States, I turned to the Foreign Affairs Manual (the FAM), a massive, dense and often incomprehensible set of rules and guidelines that were created to translate literally thousands of (often inconsistent if not contradictory) U.S. laws and regulations into one comprehensive manual that governs the day-to-day operation of civilian American government operations abroad.    According to Section 1131.6-2, subparagraph a, of the seventh volume of the Foreign Affairs Manual (usually cited as 7 FAM 1131.6-2a), “[i]t has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.”  Just in case anyone is tempted to read nefarious political intentions into that language, it is worth noting that that particular section of the FAM has not changed since April 1, 1998, so it could not possibly have been written with any current Presidential candidate in mind.

Why is This Question So Complicated?

The question of who is eligible to become President of the United States is complex for two primary reasons.  First, the Constitution is unclear.  Section 1 of Article Two, Clause 5 of the U.S. Constitution states:  “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President […].”  That is the only place that the term “natural born Citizen” appears in the Constitution, so it has been up to the Congress and the courts to determine what the words mean.

Second, both Congress and the courts have changed their mind many times over the course of U.S. history and have used all types of confusing language.  While some citizenship laws included language making them retroactive, others applied only to persons born after the law was passed.  It is therefore possible (although I am not sure if it ever really happened) for identical twins who were born just before and just after midnight on a date when the law changed to have different citizenship status.

Starting with the basics, there are three ways to become a U.S. citizen today: (1) being born in the United States, (2) being born outside the United States to parent(s) who are U.S. citizens, or (3) being naturalized at some point after birth.  Each of these three paths to citizenship has its own peculiarities that could impact the ability of a person to be considered a “natural born citizen” for the purpose of becoming President.

The Easiest Cases First: Naturalized Citizens

Of the three routes to becoming a U.S. citizen, the easiest one to understand is the third: naturalization.  Lawmakers, lawyers and courts are in almost universal agreement that persons who became a U.S. citizen via naturalization are not “natural born citizens” and thus cannot become President of the United States.

Even for naturalized citizens, however, the situation may not be set in stone.  A potential ambiguity arises because over the long history of frequently-changing U.S. citizenship law, the Congress has, in some but not all citizenship laws, included language stating that persons who became U.S. citizens under the provisions of such-and-such law are “considered natural born citizens.”  While Congress has not yet used that language in any law governing naturalized citizens, the fact that it has used such language in laws governing the citizenship of persons born overseas to one or two American citizen parents has led various legal experts to opine that Congress could pass a law with a similar provision for some group of naturalized citizens.  This possibility attracted some attention in 2013 when the Austrian-born actor and former Governor of California, Arnold Schwarzenegger, was reportedly considering (or being urged to consider) a run for the presidency.

Persons Born in the United States: Not as Simple as You May Think

With very few exceptions, legal experts agree that anyone born in the United States is a natural born American citizen.  While the actual legal situation is not as simple as most people believe, the fact is that more that 99.9% of persons born in the USA over the past 70 years are citizens by birth.  If anyone who fell into the remaining 0.1% decided to run for President, the case would almost certainly have to be decided by the courts.  The same would probably be true if someone over 70 who fell into racial or ethnic groups previously subject to discriminatory “exclusion” laws were to run for President.

The primary exception to the general rule that persons born in the USA are natural born citizens of the USA concerns children born to diplomatic staff and their spouses. Children born in the USA to parents who are duly accredited foreign diplomats on assignment to the United States do not become U.S. citizens at birth.  Interestingly, the same exclusion generally does not apply to children born to foreign consular officials working here.  This distinction arises due to the varying level of immunity diplomats and consular officers receive.  Diplomatic immunity is so extensive that children born to foreign diplomats are viewed as not being subject to U.S. law and, as such, do not meet the requirements for citizenship by birth as set out in the 14th Amendment and further defined in 8 U.S.C. § 1401.  Consular immunity is much more limited than diplomatic immunity, so children born in the USA to accredited foreign consular officials are usually considered American citizens.  The same is true for children born to support staff who are generally subject to U.S. laws even though they enjoy some level of administrative or “official acts” immunity in conjunction with their official functions.  Just in case someone feels that those rules are not complicated enough, rest assured that there are small numbers of other exceptions to the exceptions that have been created by laws and treaties, such as one between the USA and Canada concerning the citizenship of the children of consular officials born to parents from one country serving in the other.   The collection of laws and regulations is complicated enough that there is an office in the State Department that makes individual determinations for each and every child born to foreign diplomats, consular officials and other government representatives working in the USA.

Citizenship by birth has not always been nearly so universal.  For much of American history, laws passed by Congress, various state laws and a multitude of court rulings limited who could become a citizen by being born in the United States.  Among the most significant such provisions were those that denied citizenship to persons of African origin and those that denied citizenship to persons of Asian origin.  In 1857, for example, the majority opinion in the Supreme Court’s Dred Scott decision held that anyone whose origins could be traced to Africa could never be a citizen, even if the person or his/her parents came to the USA freely rather than as slaves and had lived here for generations.  While the prohibition against African-Americans being citizens was eliminated by the passage of the Civil Rights Act of 1866 and then the 14th Amendment in 1868, other exceptions lasted much longer.  Native Americans, for example, did not automatically become citizens at birth until 1924.  Many persons of Asian origin were prohibited from being citizens for any reason, including birth in the USA, due to a whole range of laws passed by Congress between the 1880’s and the 1930’s specifically targeting persons whose families came from China, Japan and other Asian countries.  Those exclusions were not lifted until the passage of the Magnuson Act in 1943, so it is theoretically possible that an Asian-American who was born in the USA prior to 1943 could be barred from becoming President.  I say “theoretically” because no such case has ever been decided by the courts so it is not yet 100% clear whether an American politician with Asian roots could successfully challenge the constitutionality of the law(s) that prohibited him/her from becoming a natural born citizen.

None of the exceptions described above apply to President Barack Obama, who was born in Hawaii in 1961, two years after it became a U.S. State.  While most proponents of the politically and racially charged “birther movement” asserted that President Obama was born outside the USA, those contentions were so obviously false that they never even reached a court.  Amid the easily discredited nonsense, however, one more nuanced legal argument did emerge.  The basis of that argument was that President Obama was not a “natural born citizen” despite the fact that he was born in the USA.  Central to the case was the contention that to be a “natural born citizen,” it was not enough to be born in the USA; both parents had to be Americans citizens as well.  While the case was decided in President Obama’s favor by the Court of Appeals in Indiana, the fact that a court even agreed to hear the case demonstrates that the question was worth thinking about, which is not surprising given that past Presidential candidates had been challenged on the same grounds.  In 1896, Christopher Schürmann’s inability to win the Labor Party nomination for President was largely attributed to concerns that his parents were both German citizens, a fact that (his opponents contended) would render Schürmann ineligible to serve as President even though Schürmann himself had clearly been born in the USA.  While the case never went to court, the charges nonetheless appear to have served their political purpose by sabotaging Schürmann’s candidacy.

Charles Evans Hughes managed to win the Republican nomination for President in 1916 despite concerns that the fact that both of his parents were British, and not American, could render him ineligible to become President.  Because Hughes lost to Woodrow Wilson, the question never made it to court.

It is hard to say for certain if there was ever a serious legal question as to whether someone born in the USA must also have two American citizen parents in order to be eligible to be President; it may have always been a political ploy.  In any event, thanks to the suit brought against President Obama in 2008, that question has now been settled.  To turn legalese into plain English, the court conclude that President Obama was born in Hawaii two years after Hawaii became a U.S. state, so he was born in the USA and is therefore a natural born citizen.  Period.  The citizenship of his parents is irrelevant.

The Really Tricky Question: Persons Born Outside the United States

The class of citizenship cases that is most complex includes the case of Republican Presidential contender Ted Cruz, who was born in Canada in 1970 to an American mother and Cuban father and who held dual U.S.-Canadian citizenship until 2014, when he formally renounced his Canadian citizenship. The fact that Mr. Cruz was elected to the U.S. Senate after having been born in Canada and while still holding Canadian citizenship did not raise any constitutional questions for the simple reason that the “natural born citizen” language of the U.S. Constitution refers exclusively to the President.

The question of whether someone born outside the United States can become President, even if he/she is born to two American citizen parents, has never been definitively decided.  This legal limbo persists despite the fact that the first citizenship law passed by Congress, the Naturalization Act of 1790, stated that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”  (Emphasis added.)

That first citizenship law also included follow-on provisions that codified gender discrimination by denying citizenship to children born to American citizen mothers who gave birth after having married a foreigner who had never lived in the USA while granting citizenship to the children born to American men in analogous circumstances.  Yet another provision in early U.S. citizenship law reversed the tables somewhat by granting U.S. citizenship to children born overseas to unmarried American women but denying it to children born out of wedlock to American men.  Those 18th century citizenship laws established a legal precedent for official gender-based discrimination that continue to this day.  Driven by concerns that “fake” illegitimate children of American soldiers in Vietnam and Korea would claim an American father as a means of coming the USA, for example, Congress has made it much harder for the illegitimate children of American men resident abroad to be recognized as citizens than the illegitimate children of American women.

Despite these few continuing vestiges of gender-based citizenship law, by 1970, the year that Ted Cruz was born, U.S. citizenship law had evolved to the point where he clearly fell into the category of persons “considered as natural born citizens” even though only his mother was an American citizen at the time of his birth.  In 1970, the only way someone born outside the USA to a U.S. citizen mother could have been excluded from being “considered as a natural born citizen” would have been if his mother had also been born abroad and had not been physically present in the USA for more than five years, two of which had to be after her 14th birthday.  Because Mr. Cruz’s mother was born and grew up in the USA, that exclusion clearly does not pertain to him.

The Thin LIne Between Law and Politics

Despite the seeming clarity of Ted Cruz’s case – and my own opinions – I have to admit that his legal ability to become President of the United States is not 100% clear.  The most common argument against Ted Cruz’s eligibility centers on whether the term “considered as natural born citizen” is legally equivalent to “is a natural born citizen.”  This question was at the heart of Constitutional Law Professor Mary Brigid McManamon’s piece in the January 12 edition of the Washington Post.   Prof. McManamon concluded, in language construed to broke no argument, that Ted Cruz is not eligible to be President since the (implied or intended) Constitutional meaning of “natural born citizen” was “born in the USA.”  She only presented information that supports that view.  Just a week prior to when Prof. McManamon’s opinion piece appeared, however, Washington Post columnist Ruth Marcus, who is both a Pulitzer Prize winner and Harvard Law graduate, concluded in equally authoritative language that Ted Cruz clearly meets the constitutional requirements to be President.  Like McManamon, Ms. Marcus presented ony one side of the issue and did not address the counter-arguments.  Both of those eminent experts were wrong and for the same reason: they chose to present their own views as unassailable truths rather than opinion and to simply ignore all facts and opinions that did not support their chosen position.  While I agree with Ms. Marcus that Senator Cruz almost certainly meets the constitutional requirements to become President, I also realize that my beliefs do not matter.  As I noted at the start, what matters is how courts interpret both the Constitution and applicable citizenship laws — and the courts have not yet spoken.

Ted Cruz is not the first candidate born outside the USA to face scrutiny over his eligibility to become President.  The most recent similar cases involved Republican Presidential candidates George Romney and John McCain.  While he was born in Mexico rather than Canada, Mr. Romney’s legal citizenship status is somewhat similar to Mr. Cruz’s in that Mr. Romney clearly falls into the category of persons “considered to be natural born citizens” of the USA by virtue of being born to American citizen parents residing overseas.  Had he been elected, someone probably would have challenged Mr. Romney’s eligibility to become President, most likely with the result that the courts would rule in his favor.  But that’s just my opinion.

John McCain’s situation was somewhat more complex, primarily because he was born in 1936 and thus potentially could have come under the more restrictive version of citizenship law that was in effect at that time.  From 1795 until 1940, being born overseas to American parents did not automatically convey citizenship.  Instead, there were numerous (and changing) limitations on the citizenship of persons born overseas as well as tests to be met after birth.   Under the particular version of U.S. citizenship law in effect at the time of Mr. McCain’s birth in Panama, the key legal question was not only in which country he was born, but also in which hospital.  Under provisions specific to the Panama Canal Zone, persons born in a U.S. facility in the Canal Zone were “considered natural born citizens” while persons born in private facilities were not.  While Mr. McCain has always maintained that he was born in the U.S. military hospital, which certainly seems likely given that his grandfather was the base commander and his father was assigned to a submarine stationed at the U.S. base there, some of Senator McCain’s political opponents nonetheless tried to mount a challenge to his eligibility to become President.  In a bipartisan gesture, the U.S. Congress passed a non-binding resolution affirming that Senator McCain is a natural born American.  Despite this, if he had won the election there is a good chance that someone would have mounted a legal challenge to his eligibility to become President.  This challenge could have been based on the question of the exact hospital where he was born or on the broader question of whether persons “considered to be natural born citizens” according to laws passed by Congress meet the Constitutional definition of “natural born citizens.”  The arguments presented by Professor McManamon in the January 12 edition of the Washington Post would apply equally to both John McCain and Mitt Romney.

Claiming that political opponents are somehow ineligible to become President is nothing new.  The first “birther” movement arose with the election of President Chester A. Arthur in 1881.   In President Arthur’s case, this was due to the fact that his father was a traveling minister who served towns on both sides of the U.S.-Canada border.  President Arthur’s political opponents contended that he actually born on the Canadian side.  Because Arthur’s father was an Irish citizen at the time of Arthur’s birth in 1829 (or 1830), he would not have been a citizen at birth if he were born in Canada even though his mother was undeniably a natural born American citizen from Vermont.  While the challenge to Chester Arthur’s citizenship never reached federal court, it does provide an interesting insight into the how laws change over time.  If we assume solely for the sake of argument that Chester Arthur’s opponents were correct and he was born in Canada, then all that would separate Chester Arthur from Ted Cruz is the date of their birth.  Both had American mothers and foreign fathers.  When Chester Arthur was born, children born outside the USA to American citizen mothers and foreign fathers were not necessarily American citizens.  By the time Ted Cruz was born 140 years later, the law had changed so that he mother transmitted citizenship.  Because a number of Presidential candidates are proposing changes to U.S. citizenship law, including to birthright citizenship, the comparison of the cases of Ted Cruz and Chester Arthur may be more than just an historical mind game.

The Elephant in the Room

While I have tried to present a genuinely balanced, non-partisan analysis of the complex issues surrounding the question of who is eligible to become President of the United States, I cannot in good conscience end without addressing the proverbial “elephant in the room:” the anti-Obama “birther” movement.  This remains a topical issue because so many people still buy into the rhetoric.  A recent poll found that 53 percent of Republicans still doubt Obama’s citizenship. At the same time, an overwhelming 70 percent don’t have any doubt Cruz is American and eligible to be president.  In other words, 23% of Republicans profess to simultaneously holding not just inconsistent but diametrically opposing views.

First, I believe that no rational person can seriously doubt the fact that President Obama was born in Hawaii, a U.S. state.  Even if, however, someone lives is a “Man in the High Castle” style alternate reality in which history is totally rewritten and Barack Obama was born in Kenya and somehow transported (either by secret supersonic plane or even the TARDIS itself) to Hawaii to complete all requirements for a Certificate of Live Birth to be issued, then this fictional, alternate Obama would still be in exactly the same legal position as Ted Cruz.  Both men would have been born after 1952 and thus subject to the same set of citizenship requirements included in the amendments to the Immigration and Naturalization Act passed 1952.  Both men would have been born to U.S. citizen mothers who were themselves born in the USA.  Both men would have had non-citizen, foreign-born spouses.  So, I have to ask myself:  how is it possible for anyone – no matter how detached from reality their views on President Obama’s birth place may be – to consider Ted Cruz to be eligible to be President but not Barack Obama?  The sad reality is that millions of Americans evidently hold those utterly inconsistent views.  I cannot say if they are driven by ideology, racism or other base instincts.  What I can say for sure is that whatever is driving them is also blinding them to the inconsistency in their own beliefs.   That, unfortunately, is a very sad reality that makes me worry about the future of American politics.