—by Philip A. Perez
Elliott v. Cruz, 134 A.3d 51 (Pa. 2016).
Abstract:
On March 10, 2016, Senior Judge Dan Pellegrini authored an opinion for the Commonwealth Court of Pennsylvania that decided the Constitutional issue on the merits of whether Senator Ted Cruz, born in Canada, is eligible to hold the Office of President. Judge Pellegrini held that a “natural born citizen” includes “any person who is a United States citizen from birth,” and concluded that Senator Cruz is eligible to be President. The memorandum opinion is twenty-two pages and relies heavily on the research and conclusions of legal scholars published in law review articles and in a Congressional Research Service (“CRS”) report. The Pennsylvania Supreme Court affirmed the court’s opinion on March 31, 2016. A copy of the opinion is available here.
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The Commonwealth Court’s opinion is the first to address this issue on the merits. The attorney for the petitioner stated his client intends to appeal the decision to the U.S. Supreme Court, which will give the Court the opportunity to decide this lingering constitutional question. The following analysis focuses on the lower court’s opinion on the merits.
Procedural History
Carmon Elliot (“petitioner”), a Pennsylvania resident and registered Republican, petitioned the Commonwealth Court of Pennsylvania to set aside Senator Ted Cruz’s (“respondent”) petition to appear on the Pennsylvania primary election ballots for the Office of President.
Facts
The parties agreed to stipulated facts. Among them, that respondent was born in Calgary, Alberta, Canada, that his mother was born in the State of Delaware, that his mother is and has always been a U.S. citizen, and that his mother had been physically present in the U.S. “for more than ten years of her life, including at least five years after she reached the age of fourteen,” and that Senator Cruz was a citizen from the moment of his birth.
It is worth mentioning that the opinion does not identify the requirements provided by Congress for whether a person is eligible to be a U.S. citizen by birth. However, under Section 301 of the Immigration and Nationality Act, a child born outside of the United States or its territories is considered a U.S. citizen if, inter alia, his parents are married and one is a U.S. citizen who meets the applicable time requirement (which for Senator Cruz required that his mother was “physically present” in the U.S. for ten years, five of which must have been after her fourteenth birthday). Immigration and Nationality Act, 8 U.S.C. § 1401 (2012).
Issues
Political Question Doctrine
The court first addressed the respondent’s claim that the issue is a political question for which the court does not have jurisdiction. Respondent argued that the question of whether a candidate is eligible for the Office of President is an issue for Congress or the Electoral College. The court found that the determination of whether a candidate is eligible to hold the Office of President is not textually committed to Congress or the Electoral College.
In support of its finding, the court looked to Article II, Section 1, clauses 2 and 3 and the Twelfth Amendment of the U.S. Constitution, and found that these provisions reaffirmed Congress’ role in “counting the ballots” but that neither “evidences a textually demonstrable constitutional commitment of the issue of Presidential eligibility to Congress.” The court also found that the Constitution does not give the Electoral College the power to determine whether a candidate is eligible since it only directs the members to select a candidate and transmit their votes.
The court held that the issue is justiciable, and found there was not a lack of judicially discoverable and manageable standards. The court pointed to other instances where U.S. courts decided issues regarding citizenship in other contexts, including issues regarding “natural born citizen[s].” Specifically, the court noted the Supreme Court’s finding in Hall v. Florida, that “No natural born citizen may be denaturalized,” could “never be applied” if the issue were not justiciable.
Meaning of “Natural Born Citizen” in Article II, Section 1, clause 4 of U.S. Constitution
Article II, Section 1, clause 4 of the U.S. Constitution provides that “[n]o 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[.]”
The court noted that the term “natural born citizen” is not defined in the Constitution, and that the Supreme Court has never defined its meaning with regard to the eligibility of a presidential candidate.
The petitioner argued for Jus soli citizenship—meaning citizenship vests in a person “based on the geographic location of his or her birth, regardless of the parents’ citizenship status.” The respondent argued for Jus sanguinis citizenship—meaning citizenship vests in a person based on his ancestry. Specifically, respondent argued that a person is a natural born citizen if at least one of his parents is a United States citizen, regardless of whether the person was born in the United States or one of its territories.
The court acknowledged the importance of this question and gave examples of past presidential candidates who had their eligibility challenged. The candidates noted by the court included Charles Evan Hughes, born in the U.S. to non-citizen parents, Senator John McCain, born on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent, Governor George Romney, born in Mexico to U.S. citizen parents, and President Barack Obama, born in the U.S. but his father was not a U.S. citizen.
The court then looked to articles by legal scholars and a CRS report published in 2016 for consensus and insight on the issue. First, the court cited an article by Charles Gordon published in 1968.[1] The court provides an excerpt of Gordon’s conclusion from the article: (1) “[N]atural-born” should be considered in light of the English usage at the time of the founding, and English statutes “accorded full status as natural-born subjects to persons born abroad to British subjects;” (2) The Framer’s intent was likely to exclude American citizens who acquired citizenship through naturalization; and (3) The Fourteenth Amendment and the Naturalization Act of 1790 did not limit or define the presidential qualification clause, nor bar the understanding that the clause includes children born abroad to American parents.
Second, the Court provides an excerpt from a report by the CRS that analyzes the historical and legal background of the issue.[2] The report concludes that the term “natural born” likely means a person who is entitled to U.S. citizenship by birth:
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
Third, the court provides an excerpt from an article by Paul Clement and Neal Katyal published in 2015.[3] The authors conclude that “a U.S. citizen at birth is a natural born citizen and constitutionally eligible to serve as President.” The authors found that the term meant someone who is a U.S. citizen at birth “with no need to go through a naturalization proceeding at a some later time.”
Clement and Katyal note that Congress has always taken the position that a child born abroad to a U.S. citizen parent generally becomes a U.S. citizen, subject to residency requirements on the parents. The authors note that British laws in place for the American colonies explicitly used the term “natural born” to include children born outside of the British Empire to British subjects, and that the Framers would have been familiar with the statutes and the way the term “natural born” was used. The authors then explain how the term has been used and defined in the Immigration and Naturalization Acts passed throughout U.S. history.
Clement and Katyal point to two sources that suggest the purpose of the “natural born” provision was to ensure that a “foreigner” could not be elected to the position of Commander in Chief.[4] The authors recognize Senator Cruz’s birthplace and conclude that “there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.”
At the end of the opinion, the court acknowledged that there is not a consensus on the issue, and that some legal scholars contend that a presidential candidate must be born in the United States. However, the court found that the Jus soli position is a minority view and held “consistent with the common law precedent and statutory history, that a ‘natural born citizen’ includes any person who is a United States citizen from birth.”
The court found that Senator Cruz is eligible to run for President because he was a U.S. citizen from birth, and it denied the petition in this case.
[1] Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md. L. Rev. 1 (1968).
[2] See Jack Maskell, Cong. Research Serv., R42097, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (2011).
[3] Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. 161 (2015).
[4] Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787; 3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).