6 Responses to “Boston Globe writes about Cruz’s lack of eligibility for president”

1. Steve Wittlake
   January 12th, 2016 @ 2:01 pm

   By Laurence H. Tribe January 11, 2016

   There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

   People are entitled to their own opinions about what the definition ought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

   This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power — fears that no longer make sense. But the same could be said of fears that a tyrannical federal army might overrun our state militias. Yet that doesn’t lead Cruz — or, more importantly, the conservative jurists he admires — to discard the Second Amendment’s “right to bear arms” as a historical relic, or to limit that right to arms-bearing by members of today’s “state militias,” the national guard.

   On the other hand, the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.

   When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class — arguing stridently for sticking with the “original meaning” against the idea of a more elastic “living Constitution” whenever such ideas came up. I enjoyed jousting with him, but Ted never convinced me — nor did I convince him.

   At least he was consistent in those days. Now, he seems to be a fair weather originalist, abandoning that method’s narrow constraints when it suits his ambition.

   By the time another president takes office, three of the Supreme Court’s sitting members will have passed the age of 80 and one will be nearly 84. Cruz’s public pronouncements about the kinds of justices he would appoint suggest that his litmus test would filter out any jurist who views the Constitution as flexible enough to reflect accumulated experience and changed perspectives. Unless, it seems, that kind of jurist would rule in a way Cruz favors on one or another issue crucial to him — like his eligibility to serve as president. Because a rigid “originalism” tends not to favor women’s rights or gay rights, I wouldn’t count on a Cruz appointee to be open-minded on such matters.

   To be sure, no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win — Bush v. Gore isn’t likely to get a return engagement over this issue. Still, it’s worth thinking about the legal cloud that could influence some voters and would follow a victorious Cruz into the Oval Office, especially when combined with the fair weather originalist justices he’d bring to the court.

   Consider immigration. The first order Cruz says he’d issue as president would be one undoing President Obama’s temporary deportation reprieve for the parents of American children. But parents facing imminent deportation would likely invoke the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning, which set aside an NLRB order directing a Pepsi distributor to take costly steps favoring its employees. The basis for the Court’s unanimous ruling? Three of the board’s five members had been “recess appointed” while the Senate wasn’t in recess, so they weren’t eligible to exercise executive power. The four most conservative justices, including those Cruz wants to replicate as vacancies arise, went further, insisting that no president can invoke the Constitution’s recess appointments clause even during a real Senate recess to fill a vacancy that arose before the recess began. Their philosophy left no room to consider how radically things had changed between 1789, when that definition made sense, and 2014, when it didn’t.

   Faithfully applied, the antiquarian approach to judging championed by Cruz would not only aggravate today’s political gridlock over appointments. It would also imply that the deportations Cruz promises to carry out could be halted by the very justices he named to the court, who would most likely say — if they were true to their originalist principles — that he wasn’t a “natural born citizen” and thus couldn’t exercise executive power against anybody. Great news for the families of American kids to whom Obama had granted a temporary deportation reprieve; not such great news for Cruz. Yet another irony.

   Not that this almost farcical scenario would be likely to unfold in reality. Any court would look for some way to let whoever is elected to the presidency, eligible or not, exercise the powers of that office. But examining the legal issues around Cruz’s birth sheds valuable light on the perverse implications of his self-serving ideas about how the Constitution works. There are lots of reasons to be skeptical about the rigid approach to the Constitution espoused by Cruz and many of his fellow Republican candidates. The rich irony — that it could hypothetically render him powerless to keep one of his most inhumane promises if applied consistently — is just the latest example of why constitutional interpretation matters. And why candidates should be careful what they wish for.

   Laurence H. Tribe is a university professor and a professor of constitutional law at Harvard. Follow him on Twitter @tribelaw.

2. Davey Crockett...
   January 12th, 2016 @ 2:25 pm

   Well, a news outlet finally nukes Cruz!

   I salute them!

3. Philip stone
   January 13th, 2016 @ 6:15 am

   Tribe ignores the many times NBC with definition was used as dicta and at least two times as a precedent in SCOTUS cases. He like others determines his opinions on wishful thinking.

4. DSP2
   January 13th, 2016 @ 10:44 am

   Is this the best malarky a Harvard professor can point out? Give me a break Tribe! I’m with you Mister Stone.

5. Make the ELIBILITY issue CLEAR
   January 13th, 2016 @ 12:19 pm

   A thought about fighting for the NBC adjudication and implementation to enable legal elections.

   The so called BIRTHERS can help get the “proper” word out if they help in getting the electorate informed of why the NBC birth issue is extremely important.

   The electorate needs to know that in 200+ years Americans have adhered to the Constitution’s NBC clause to elect a Potus, and that the POTUS election history would be the PRECEDENCE for the SUPREMES to use when adjudicating the NBC issue.

   Chester Arthur as far as I know was another FRAUDULENT Potus candidate. If any of the current GOP candidates are elected …based on a law of Congress vice the Constitution a new precedence will be established that the SUPREMES could use to make an NBC decision.

   And! again it would be the second, in this era, a VIOLATION of the Supreme Law and a continuation of future nullification of the Constitution’s NBC clause.

   A vote for eiter; Jindal, Cruz, Rubio would lead to acceptance of Congressional laws to elect a POTUS instead of the Peoples Law aka Constitution.

   A Constitution can only be altered by a 2/3 vote of Congress for the amendment proposed by Congress and that amendment to be ratified by 75% of the states before implementation as law in America.

   Recognition of a new NBC violator as POTUS will further diminish the current 200+ year precedence of implementing the NBC clause contained in the Constitution and the following “true Americans” fought to DEFEND the Constitution that they took an OATH to DEFEND; a)Decorated Terry Lakin, Leutenant Colonel of the U.S. Army b) Walter Fitzpatrick, c) Darren Huff, have served prison time or may still be in prison,and others too not mentioned here have suffered reprisals for DEFENDING the SUPREME law.

   Theresa Cao was criminally fined for disturbing congress when defending America’s Constitution.

   Judge Napolitano on Fox says that there is a 100 year old law that allows the 3 current NBC abusers to attempt a try at being POTUS. Mark Levin says the same as Napolitano about the Congress law, but NEVER, EVER says, as Napolotino says, that the NBC Constitutional clause has not been adjudicated by the SUPREMES. In addition to his adjudication comment, NAPOLITANO states that the Supreme court is allowing the NBC arguments to RIPEN before the NBC issue is adjudicated.

   Napolitano said what Michigan Law Review said about the Supreme court’s intervention may be a breach of the Separation of Power Doctrine.

   Article III courts could step on the electorates toes who are the owners of the Constitution and elect government
   representatives. https://video.foxnews.com/v/4698578258001/legality-of-cruzs-natural-born-us-citizenship-explained/?#sp=show-clips

   Many of the electorate expound on the FALSE NBC legalism narratives made by Jindal, Rubio, Cruz and the WH . https://dictionary.reference.com/browse/legalism

   The current 3 of the ineligible candidates are using the law that Congress made and are not telling the electorate that the Constitution NBC clause has not been adjudicated to legalize the implementation of the Congressional law being used now to enable qualifications for POTUS.

   In the past the challenge to the congressional law for candidates have not occurred nor were there any “standing” authority granted to those who oppose electing candidates, as Potus, outside of the Supreme Law mandates.

   As all lawyers do, they look at CURRENT law that is in play in the electorate. Napolitano said what Michigan Law “Current Impressions” has said. The Justiciability of Eligibility is stated as: “May Courts Decide Who Can Be President?” https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1087&context=mlr_fi

   Supreme Court intervention in the NBC fight is a huge jurisdiction issue for the court.

   What current law is in play now? Is it the SUPREME law or the law Congress made re: NBC?

   Remember the Florida Supreme Court’s action that many consider that the Florida court SELECTED the candidate for POTUS during the Bush election process.

6. Cruz, LEVIN, WatchDog
   January 29th, 2016 @ 8:56 pm

   GOTO THE LINK FOR THE FULL STORY

   Ted Cruz Isn’t a ‘Natural Born’ Citizen

   “Thus, naturalization as a term seems to have two very different meanings: (1) legislatively conferred citizenship either automatically or pursuant to some process, and (2) the more recent understanding, the process for acquiring citizenship where Congress has prescribed such a process. The Constitution appears to adopt the former reading on the issue of presidential eligibility, however much modern language usage employs the latter. In his recent comments on whether he is a “natural born” citizen, Sen. Ted Cruz appears to confuse or obfuscate these two.”

   https://www.usnews.com/opinion/articles/2016-01-27/ted-cruz-is-not-a-natural-born-citizen-according-to-the-constitution

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