This column by ACRU President and CEO Susan Carleson was published on January 13, 2016 by The Washington Times.
Who was Aldo Mario Bellei, and why should Donald Trump care and Harvard Professor Laurence Tribe know? Because Mr. Bellei puts the lie to Donald Trump’s attack on the eligibility of Senator Ted Cruz to be president backed up by Professor Tribe’s claim that “[t]he Supreme Court has never addressed the issue [of natural born citizenship] one way or the other, as I believe Ted ought to know.”
Donald Trump is trying to slow Ted Cruz’s progress in Iowa by casting doubt on the latter’s eligibility for president. In arguing that Sen. Cruz is not a “natural born citizen,” Mr. Trump is relying on liberal law professor Laurence Tribe. Of course, Mr. Tribe’s agenda obviously is to help the Democrats and deny the presidency to the best conservative candidate.
To do so Mr. Tribe has been misleading Iowa voters and the American public.
Despite Mr. Tribe’s personal belief that his former Harvard Law student is eligible to become president, he’s provided oxygen to those desperate to kill Ted Cruz’s candidacy by claiming that nothing is “settled law” until five lawyers on the current Supreme Court say so.
Well, in 1971, five Justices on the Supreme Court settled the question of the citizenship right of a person born abroad to an American mother.
It’s a matter of public record that in Rogers v. Bellei, (401 U.S. 815), the Supreme Court affirmed congressional authority to grant citizenship at birth to a person born abroad to an American citizen parent.
The Bellei case was not about where the plaintiff was born; it was about to whom he was born, which was his American citizen mother. Sen. Cruz was born in Canada to an American citizen mother.
The Court made it crystal clear that American citizenship is defined only two ways — by the 14th Amendment and congressional statutes. Put simply, a citizen is either natural born or naturalized. Sen. Cruz was not naturalized, so he is natural born. Period.
Mr. Bellei was born in Italy to an alien father and an American mother. He was bestowed American citizenship at birth, but because he never lived in the U.S. he lost his citizenship because he failed to comply with the residency requirement imposed by § 301(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1401(b). He filed suit to prevent the Secretary of State from carrying out and enforcing the residency requirement claiming that it violated due process under the U.S. Constitution. The U.S. District Court for the District of Columbia agreed with Mr. Bellei and ruled that § 301(b) was unconstitutional.
The State Department appealed and the U.S. Supreme Court reversed the lower court ruling holding that the citizenship clause of U.S. Constitutional Amendment XIV did not apply to citizenship by birth abroad to an American parent. Further, that Congress’ imposition under § 301(b) of a condition subsequent to citizenship was not unreasonable, arbitrary, or unlawful.
Sen. Cruz’s mother was born in Wilmington, Del. in 1935 and resided in the United States for 35 years. She met and married Sen. Cruz’s father, a Cuban citizen in the U.S. They temporarily moved to Calgary, Alberta, Canada where Sen. Cruz was born in 1970. The family returned to the U.S. in 1974, where they have resided ever since.
Back to Mr. Bellei who was born in Italy to an American citizen mother and an Italian father. The Court acknowledged that he had acquired citizenship under Italian law and U.S. citizenship at birth under 8 U.S.C. § 1401, which defines those persons who
“shall be nationals and citizens of the United States at birth.’ Paragraph (7) of 301 (a) includes in that definition a person born abroad ‘of parents one of whom is an alien, and the other a citizen of the United States’ who has met specified conditions of residence in this country.”
The Court went on to hold that Bellei’s statutory citizenship was lost because of his failure to comply with another condition in the statute, requiring a five-year residency in the U.S. between the ages of 14 and 28. He had resided in Italy and then in England his entire life, never in the U.S.
Again, it wasn’t about where he was born, it was about to whom he was born — his American citizen mother, who could have been on Mars at the time of Cruz’s birth.
The same is true for Sen. Cruz. The statute governing Cruz is: 8 U.S.C. Sec. 1401:
“The following shall be nationals and citizens of the United States at birth:
g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.”
Neither his mother nor Sen. Cruz has a residency problem, as did Mr. Bellei.
As the Supreme Court made clear, there are only two types of American citizenship — citizens at birth, such as Sen. Cruz, and those who become citizens through the naturalization process, such as did Sen. Cruz’s father in 2005 and Mrs. Trump in 2006.
Sen. Cruz is qualified to become president of the United States under U.S. Constitution Article II, Section 1, Clause IV. It’s settled.