Wednesday, March 23, 2016

Timothy Dugdale on Einer Elhauge's Claim that Ted Cruz is Not Eligible to Be President

As much as I enjoyed Professor Elhauge's lucid and engaging article, I think he's wrong on Ted Cruz and "natural born citizenship." Here is why. Ted Cruz is beholden to the Immigration and Nationality Act of 1952, as amended (INA). See Minasyan v. Gonzales (9th Cir. 2005).  Under INA § 301(a)(7), the U.S. citizen parent transmits citizenship to a foreign born child if the US citizen meets their physical presence obligation and the birth occurs "in wedlock" between the citizen and her alien spouse. Mother Cruz obviously met her obligation and was "armed" to inject Ted with her "American-ness." The traditional rational for naturalization is a transfer of loyalties or as John Jay would have it, to minimize foreign infiltration. This is not the case here. What would be the point of the physical presence requirement, then? And it is obvious that Ted Cruz and his mother have had a long relationship both in and outside the United States. One need only look at Justice O'Connor's dissent in the very splintered ruling of Nguyen v. INS (2001):

It is difficult to see how, in this citizenship-conferral context, anyone profits from a "demonstrated opportunity" for a relationship in the absence of the fruition of an actual tie. Children who have an "opportunity" for such a tie with a parent, of course, may never develop an actual relationship with that parent. See Miller v. Albright, 523 U. S., at 440 (1998) (opinion of Stevens, J.). If a child grows up in a foreign country without any postbirth contact with the citizen parent, then the child's never-realized "opportunity" for a relationship with the citizen seems singularly irrelevant to the appropriateness of granting citizenship to that child. Likewise, where there is an actual relationship, it is the actual relationship that does all the work in rendering appropriate a grant of citizenship, regardless of when and how the opportunity for that relationship arose.


I might add that even if Ted Cruz's father had brought Ted into the marriage after an affair with another woman and Mother Cruz accepted Ted as her very own, he would be a US "natural born" citizen. See Solis-Espinoza v. Gonzales (9th 2005). The control in that case would be the family law of legitimation in Alberta, Canada under Article IV's "full faith and credit." The Supreme Court recently championed this very clause in V.L. v. E.L. (per curiam 2016).

Make no mistake about it. Ted Cruz's citizenship is a big deal because it strikes right at the heart of Plenary Power and its roots in foreign relations. But in domestic relations and family law, Article IV has supremacy. After Obergefell, equal protection challenges to the two track system of citizenship/naturalization articled too many moons ago in United States v. Wong Kim Ark (1898) are inevitable. Americans, not just diplomats and military personnel, travel the world and live abroad. They have children abroad. Those kids are every bit natural born citizens as a kid born in Detroit. 

Timothy Dugdale


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