The Natural Born Citizen Requirement, Part 1: Is Senator Cruz Eligible To Be President?

The Issue and Why It Matters 

The issue concerning Senator Cruz’s eligibility for the Presidency is whether he is a “natural born citizen” despite being born in Canada to a mother who was a U.S. citizen and a father who was a Cuban citizen. As a result, questions about his eligibility have surfaced repeatedly during this election season, no doubt in some cases for political reasons. 

I thought at first that this was a fairly simple topic, but once I started looking at it more closely I realized there was much more to it than I thought. Accordingly, I will be devoting two posts to this topic. Part 1 will introduce the qualifications for President, some relevant history, and the importance of addressing this issue. In Part 2 I will share my thoughts about what I think the term natural born citizen means and its impact on Senator Cruz.

Article II of the Constitution sets forth the qualifications to be President:

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States. 

These are the only requirements that must be met to take the oath of office for an individual elected by the Electoral College as President: the individual must be a natural born citizen, 35 years old, and 14 years a resident within the United States. (The Framers carved out an exception to the natural born citizen requirement for those who were citizens at the adoption of the Constitution, but that exception no longer applies.)  

The question of constitutional qualification is much more than a political issue or a technicality -- it goes to a fundamental requirement of the Constitution that has been unchanged for over 200 years. In fact, because these qualifications are deemed so important, they have been extended during our history to individuals who could, in certain situations, become the President or Acting President.

The 12th Amendment, ratified in 1804, addressed several concerns with the Electoral College, especially the result of the election of 1796 when bitter rivals John Adams and Thomas Jefferson became President and Vice President because, as originally drafted, the Constitution made the runner up for President the Vice President. The Constitution did not expressly address the Vice President's qualifications, although implicitly they were the Presidential qualifications. To make things clear, the following sentence was added at the very end of the Amendment: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” This applied the three qualifications for the President to the Vice President.

The 20th Amendment, ratified in 1933, moved the commencement of the Presidential, Vice Presidential, and Congressional terms to January and added provisions addressing the lack of a President-Elect. This Amendment expressly states that no one can be President who is not qualified under the Constitution. The words of the Amendment make it clear that qualifications were a very serious concern:

. . . if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

These words assume that there may be cases in which someone who has been elected by the Electoral College could still lack constitutionally mandated qualifications. They also highlight the unique and important nature of the natural born citizen clause. An individual could be just under 35 and just short of the 14 years of residency and yet soon qualify with the passage of time. But time does not work for the natural born citizen clause: one either is or is not natural born. You do not age into it.

Congress in 1947 enacted a law spelling out the line of succession for who becomes the Acting President if, among other reasons, there is a failure to qualify as President by the person elected President. Once again, the qualifications of Article II come to the fore, because this law expressly states that government officers may succeed to this position if and only if “such officers . . . are eligible to the office of President under the Constitution.” 

This brief historical tour demonstrates that the qualifications set forth in Article II -- including the natural born citizen requirement -- are not some anachronistic list that we should treat lightly or ignore. Quite to the contrary, these words have garnered repeated attention and been addressed on several occasions since they were first written in 1787. To those who think that these requirements really are not needed, I say this: You may be right, but by what authority may we ignore express Constitutional mandates? In my view we can no more dismiss these qualifications than any other parts of the Constitution that remain in force. Shall we start by dispensing with the First Amendment? The Fourth? Of course not. To ask the question is to answer it. Change comes through amendment, not lack of fidelity to the "supreme Law of the Land" -- which the Constitution is under Article VI.

The question of Senator Cruz’s eligibility transcends politics, and if we are to honor the words of the Constitution we need to confront this issue honestly and openly. Those who believe, as I do, that we are bound by the Constitution unless and until it is amended must see that its terms are followed and enforced. We have operated that way for over 200 years, and I see no reason to stop now.

To be continued . . . 

U.S. Appeals Court Overturns Tom Brady Deflategate Decision

Suspension Ordered Reinstated

In a 2-1 decision, the U.S. Court of Appeals for the Second Circuit today reversed the district court judge's decision in favor of Tom Brady, and ordered the district court to confirm the original award in favor of the NFL.  The court held that "the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness."

I am not at all surprised by this decision.  Under federal law, it is exceptionally difficult to overturn arbitration awards of any kind, as there is a strong national policy favoring arbitration.  Courts simply cannot redo every arbitration at the behest of the losing party. The court's opinion articulates the standard well:

1. [A] federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential—indeed, among the most deferential in the law. Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second‐guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards . . .. We must simply ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.” . . . These standards do not require perfection in arbitration awards. Rather, they dictate that even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained‐for authority.

The question now is what happens next.  Brady can seek to have the entire appellate court review the case, or seek review in the Supreme Court, but both options are the legal equivalent of a Hail Mary pass.  Even for a quarterback as talented as Tom Brady.

The Department of Justice and Apple -- The iPhone Saga Continues

Apple and the Feds -- Part 2

In my post dated April 1, 2016 (located here), I suggested that the dispute between the Department of Justice (which includes the FBI) and Apple about accessing iPhones was not going away any time soon.  It most certainly is not.  The Department of Justice today indicated that it will be appealing the ruling in a case in Brooklyn because it still needs Apple's help unlocking an iPhone.  In fact, the FBI Director stated yesterday that the apparently successful hack utilized in connection with the San Bernardino iPhone will not work on later models.

Stay tuned as this issue works its way through the legal system.

For more details, check out these articles from The New York Times:

New York Times, April 8, 2016
New York Times, April 7, 2016

Supreme Court Nominations and the Constitution

Must the Senate Consider a President’s Supreme Court Nominee?

No.  The Constitution grants the President the power to nominate Supreme Court Justices, but he can only appoint them if and when the Senate consents -- and there is no obligation requiring the Senate to take action. 

Article II, Section 2, states in relevant part as follows:  “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .”  Notably, the word "shall" applies to the President's nomination and appointment powers, which makes them obligatory, but the term is not used for the Senate's advice and consent power. 

The FBI, iPhones and National Security

Does the Federal Government Have the Power to Force Apple to Defeat iPhone User Protection?

While the FBI's private contractor has now unlocked the iPhone used by one of the San Bernardino terrorists, and the FBI advised the court earlier this week that it no longer requires Apple's assistance, the underlying issue is not going away any time soon.  

The real issue in these cases is whether the FBI, a part of the Executive Branch, has the power to force Apple to write software to override a user's security choices.  On the current iPhone, a user can set the phone to erase all data on the phone after 10 failed attempts to enter the correct passcode.  The erase feature provides peace of mind for those who use their iPhone to do banking and other sensitive tasks, and Apple has made strong protection a prime selling feature of the iPhone.  

The federal government is currently seeking court orders against Apple in several cases.  The problem is that the federal government ultimately lacks the authority to seek such orders.  Under the Constitution, the three branches each have limited powers, and the power being asserted by the Executive Branch simply does not exist.  The government knows this, and that is why the Justice Department is attempting to use the All Writs Act, a law dating back to 1789, to try and get what it wants.  But that law, which was designed solely to ensure that federal judges had the ancillary judicial powers necessary to their work of being judges, provides zero authority for the Executive Branch to direct and control the choices that private companies like Apple choose to make about their products.

Once again, faced with an outcome it dislikes, we have an administration that asserts unlimited executive power to act as it deems necessary.  This current effort, all too common in this administration -- especially in matters governed by administrative agencies -- brings to mind the attempted seizure of the steel mills by President Truman during the Korean War, which he felt was critical in the face of a potential strike.  In a stinging rebuke, the Supreme Court held that his seizure was unconstitutional due to a lack of authority.  

As Chief Justice John Marshall stated over 200 years ago in Marbury v. Madison, the seminal Supreme Court case that established the primacy of judicial review while addressing the limits of government authority, "[t]he Government of the United States has been emphatically termed a government of laws, and not of men."  To the extent that courts today do not keep in check unbridled efforts by the Executive Branch to assert powers it does not possess, like those being asserted against Apple under the All Writs Act, they will diminish the force of these words.   More importantly, they will diminish the revolutionary idea behind them of limited government power -- an idea that has served us well for over two centuries. 

For an interesting and comprehensive analysis of the issues involving Apple and the All Writs Act, take a look at this decision issued recently by Federal Magistrate Judge Orenstein:  OrensteinOrder22916