February 17, 2016

The Missing Discussion of Race and Xenophobia in the Ted Cruz Citizenship Controversy

Cross-posted from PrawfsBlawg.

The debate about Ted Cruz's eligiblility to the presidency, whether he is a natural born citizen (NBC), shows no sign of abatement or conclusive resolution. Eric Posner, Einer Elhauge, Robert Clinton, and Sol Wachtler voted nay, Jack Balkin and Laurence Tribe debated the issue at Harvard, Akhil Amar supports Senator Cruz's eligibility here and here. Former university president Donald Trump has threatened a lawsuit; according to his website, Ted Cruz is eligible. And in a free country, he should be.

Nevertheless, irony abounds, as Professor Tribe wrote, because Senator Cruz is an originalist, but the best arguments for his eligibility are based on progressive readings of the Constitution and US law.  There is another level of irony not yet considered.  Cruz's immigration policy is punitive and harsh, and has introduced what seems to be a patently unconstitutional law to expatriate U.S. citizens. The joke is that historical discrimination embodied in US immigration and naturalization law, of a type that he apparently hopes to revive, make his case for natural born citizenship a heavy lift.

Michael Ramsey, an important and influential scholar on the topic, recently updated his paper about British practices, which argues that "the Framers conveyed to Congress, through the naturalization clause, the power to define 'natural' birth."  While there is wide agreement that the question is difficult, the paper has persuaded me and, for example, Akhil Amar and Jack Balkin.

Critically, the paper reserves the question of whether Congress actually exercised this power to benefit Senator Cruz. (p. 37, n.138) Evaluation of that question requires recognizing the racism, sexism, and xenophobia dominating U.S. citizenship (and immigration) law from the founding until the civil rights revolution.  For example, the naturalization acts of 1790 and 1795 restricted naturalization to "free white persons," a qualification in effect for more than a century and a half.  Reading the relevant legal materials in light of these traditions raises doubt that Congress granted natural born status to people in Ted Cruz's situation.

Here is the problem. Congress only once purported to grant NBC status to foreign-born children of U.S. citizens, in the Naturalization Act of 1790. In the Naturalization Act of 1795 and every subsequent citizenship law, including the Fourteenth Amendment, Congress never mentioned "natural born." Congress grants only citizenship.  Many commentators contend that these acts are critical.  The 1790 Act shows that Congress intended to grant foreign-born children of U.S. citizens natural born status (and had the power to do so, given that many members of the first Congress were Framers of the Constitution.)   The 1795 Act shows that Congress intended to grant NBC status even without using the words "natural born", and, by implication, has done so ever since. 

Professor Ramsey's paper finds the legislative history of the 1795 Act inconclusive regarding the import of the elimination of natural-born status, and that the 1795 law's main effect was to extend the period of U.S. residence required for naturalization. (9-10) I read the 1795 Act as much more restrictive.  In addition to lengthening the residence requirement, the 1795 law: (1) established a monitoring regime by creating the longstanding requirement of filing a declaration of intention to become a citizen; (2) strengthened the required oath, requiring, in addition to supporting the Constitution, that the person "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever"; (3) required renunciation of any hereditary titles; and (4) excluded from naturalization those convicted of having joined the army of Great Britain during the Revolutionary War.  The 1795 Act unquestionably reflects greater suspicion of noncitizens than its predecessor; perhaps it was a step toward the Alien and Sedition Acts a few years later. 

The 1795 Act's most critical change linked the kind of citizenship granted to foreign-born children of U.S. citizens to that granted foreign-born children of naturalized citizens.  When their parents naturalized, the 1790 Act had made noncitizen children under 21 "citizens of the United States."  In a separate provision, the 1790 Act made children of US citizen parents born overseas "natural born citizens."  The 1795 Act merged the two provisions. The combined provision made children in both categories "citizens of the United States." Thus, in 1795 Congress did not merely eliminate the words "natural born citizen;" it apparently intended two formerly distinct groups to be treated identically.  It is unlikely that Congress used "citizen" synonymously with "natural born citizen." That is, presumably, Congress did not mean to grant noncitizens presidential eligibility if they became citizens as teenagers upon their parents' naturalization. 

Under the circumstances, it seems fair to apply the canon that "change of language strongly implies an intent to change the object of legislation," United States v. Fisher, 6 U.S. 358, 388 (1805) (Marshall, C.J.), and therefore to conclude that the 1795 Act reflects the decision of Congress not to grant natural born status to overseas-born children of U.S. citizens.  That many in Congress in 1795 were Framers is as important as it was with the 1790 Act: It is impossible that the significance of voting to eliminate the words "natural born" was lost on James Madison and other drafters of the Constitution. I am aware of no indication in text or legislative history that Congress in any later naturalization or citizenship legislation desired to grant "natural born" status to any children born out of the United States.  (I assume that in recent decades Congress has given the issue little thought.)

There is another curve-ball.  Congress sometimes declares noncitizen adults, retroactively, to have been citizens "at birth."  For example, in 1994, Congress enacted 8 USC 1401(h), granting citizenship and nationality "at birth" to people born overseas to U.S. citizen mothers before the date in 1934 when female U.S. citizens were granted equal rights to transmit citizenship to their children.  Congress can at its pleasure grant retroactive citizenship for many purposes (such as to make the new citizen's existing children, retroactively, U.S. citizens "at birth"), but it seems doubtful that Congress can make NBCs out of people who were not citizens at all when born.  If so, then it cannot be assumed automatically that Congress intends to exercise its NBC power every time it grants citizenship "at birth"; perhaps Congress simply wants the beneficiaries, in law, never to have been "aliens" or has some other motive.

Senator Cruz's citizenship did not rest on the long-superseded 1795 Act; the applicable provision (Section 301(a)(7) & (b) of the 1952 Immigration Act) was written in the 1930s. But that also was the era of the "white America" naturalization policy.  As discussed before, Congress granted people with one US citizen parent only conditional citizenship, which automatically expired unless specific steps were taken to retain it. The retention requirement was imposed because of the potentially questionable loyalty of a person with only one US citizen parent, born in a foreign land. 

Applying "strict construction" and "neutral principles" to the words enacted by Congress, Senator Cruz may be in trouble. To conclude that he is an NBC requires, first, acceptance of Professor Ramsey's compelling but controversial theory about the breadth of congressional power under the naturalization clause. Next, it requires the assumption that Congress sub silentio intended to grant natural born status, when their last word on the subject was directly to the contrary. Third, it requires the assumption that by citizenship "at birth" Congress always means "natural born citizenship," when the 1994 amendment, I believe the most recent, makes clear that is not the case. Finally, it requires an assumption that Congress intended to grant presidential eligibility to a class that it distrusted to the point that it made their citizenship temporary.

Again, Senator Cruz should be eligible; the natural born citizen clause is confusing and illiberal. The cleanest resolution would be constitutional amendment; next best would be a statute not about Cruz as an individual but declaring that all citizens at birth are natural born. For whatever reason, both seem nonstarters. But there are other routes, based on progressive readings of the law, or originalism rooted in the Reconstruction Amendments.

On the principle that amendments can impliedly repeal earlier, inconsistent constitutional provisions, perhaps the NBC clause did not survive enactment of the Fourteenth Amendment. The Fourteenth Amendment itself, notably, makes no "natural born citizens," those born in the U.S. are merely citizens, yet this is the only provision for citizenship in the Constitution. The Framers of the Fourteenth Amendment must have contemplated that those born in the United States would be eligible to the presidency, yet it made them mere citizens. Perhaps this should be read as a determination that citizenship at birth suffices.

Alternatively, perhaps on the theory that acts of Congress and jurisprudence created in a pre-modern era should be eyed suspiciously, the broad immigration and naturalization powers recognized in Congress should be subject to far more searching judicial review. On that principle, it might be that, contrary to current doctrine, Congress may not make citizenship contingent. Indeed, perhaps Senator Cruz is a natural born citizen because, again contrary to current law, Congress must grant unconditional natural born citizenship to children of U.S. citizens born overseas.

Finally, relying on the democracy canon, Rick HasenSandy Levinson, Akhil Amar and others propose that there should be a heavy thumb on the scale on the side of finding Senator Cruz eligible. 

Any of these, or others, might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate.