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Do Trumped-Up "Birther" Attacks on Obama and Cruz Disqualify Donald? Roger Algase

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The final four paragraphs of this post have been revised and expanded early in the morning of February 5.

Update: February 2, 6:43 am:

Slate wrote the following right after the Iowa caucus results were announced:

"Donald Trump, the man who built a front-runner status in the Republican primary on the basis of his nativist campaign and Islamophobic rhetoric, is now also a loser in the Iowa caucus. Sad!

(Bold in the original.)

http://www.slate.com/blogs/the_slate...ald_trump_lost...

It would also appear that Trump's "birther" attack against Cruz as allegedly failing to be a "natural born" US citizen because of his birth in Canada to an American mother, and his even more scurrilous, racially tinged, claim that Cruz was a Canadian "anchor baby", failed to have any major effect on the Republican voters of Iowa.

But there are still many primaries left to come. It is too early to tell whether America has dodged Trump's anti-immigrant, anti-Hispanic, anti-Muslim and "birther" bullets of racial division and authoritarian rule.

My original post appears below.

The following post has been revised as of February 1 at 8:20 am.

Well before Donald Trump became a presidential candidate, he became notorious for his "birther" attack on President Obama's US citizenship by claiming that Obama was really born in Kenya, in the face of irrefutable evidence that Obama was actually born in Hawaii.

Does Trump's claim that his chief Republican presidential opponent, Senator Ted Cruz (Texas), is also falsely claiming to be a US citizen by birth because Cruz was born in Canada have any more merit than Trump's mendacious "birther" attack against President Obama?

Not if one actually pays any attention to and cares about what the law of the country that Trump wants to lead actually says.

Congress has clearly defined who is a US citizen by birth in 8 USC Section 1401. Paragraph (g) of that section provides that a citizen by birth includes anyone born outside the US who, at the time of birth, had at least one US citizen parent who had lived in the US for at least five years since reaching the age of 14.

No one, not even Trump, has challenged the fact that Cruz' mother met that definition at the time Cruz was born. If someone believes that the laws of the United States mean what they say, that should be the beginning and the end of the discussion - as indeed two former US Solicitor Generals, Neal Katyal and Paul Clement have shown in a March 11, 2015 Harvard Law Review Forum article mentioned in one of my recent posts (On the Meaning of "Natural Born Citizen", 128 Harv. L. Rev. F. 161)

In their article, Katyal and Clement show that at the time the US Constitution was written, the commonly understood meaning of the term "Natural Born Citizen" in the US was based on English Common Law (which has traditionally been understood to include both English court decisions and English statutory law), and that under the Common Law, people born outside England to one or more English parents (at that time, the father specifically had to be an English subject, but this has obviously since been changed), were English citizens from birth.

Katyal and Clement also show that under the Constitution, Congress has always had the power to change the requirements for US citizenship by birth outside the United States. This power has never been challenged by the courts.

Therefore there is no serious argument that can be made to the effect that Congress somehow lacked the power to enact Section 1401(g). The fact that Trump has even raised this issue, let alone his promoting the false and irresponsible claim that Cruz's birth in Canada by itself, even with American parentage, disqualifies him for US citizenship by birth, raises legitimate questions about Trump's own fitness for the highest office in this land.

While there may admittedly be at least a scintilla of legitimacy to Trump's doubts about Cruz' US citizenship, based on an unrealistically narrow and strained "originalist" interpretation of the Constitution as Harvard Law School Professor Lawrence Tribe has suggested, Trump's related claim that Cruz was an "anchor baby" in Canada is nothing more than derogatory and inflammatory name-calling with obvious negative racial connotations, and without a shred of truth.

There is no evidence whatsoever that either of Cruz' parents gained any immigration status in Canada, or avoided any negative immigration action, as a result of Cruz' birth in that country, which is the common meaning of this vicious and highly offensive term.

This "anchor baby" insult shows that Trump is not really interested in discussing the law surrounding his "birther" attack on Cruz, any more than he was interested in a serious discussion of his "birthrighter" claim that the 14th Amendment doesn't guarantee automatic US citizenship to all American-born children.

The latter claim was rejected by the US Supreme Court 118 years ago, in U.S. v. Wong Kim Ark, a decision which is still the law of the land. But what is a little detail like the law of the land to Donald Trump, compared to an opportunity to vilify and humiliate a political opponent, especially one who has now actually dared to beat America's allegedly "invincible" strongman in the Iowa caucus.
_________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly professional and skilled workers from many different parts of the world and ethnic/religious backgrounds obtain work visas, green cards, and US citizenship.

Roger's email address is algaselex@gmail.com

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Updated 02-05-2016 at 11:38 PM by ImmigrationLawBlogs

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Comments

  1. Retired INS's Avatar
    I must agree with you on this. The nationality Act of 1790 clearly stated that children born outside of the U.S. are natural born citizens. That law also required the father to be a citizen, but that was changed in 1934, and in 1994 Congress made that change retroactive to the founding of our nation, so the child a citizen mother is a natural born citizen, no matter where in the world the birth occurs. You might add that those born after 1986 have an even easier requirement if only one parent is a citizen.
  2. Jack kevin's Avatar
    The actual query regarding Cruz?s ?natural given birth to citizen? status continues to be given towards catchall family of ?birtherism, ? but it?s some sort of considerably various scenario than the http://www.assignmentbay.co.uk "]get someone to do my assignment birther expenses against Chief executive Obama that Trump spearheaded years ago. The actual relevant birther concept used that Chief executive Obama was given birth to with Kenya.
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