Ted Cruz’s lying is not going to make his birth problem go away.

Sunday, January 24th, 2016
By: Jonathan MontagJ.D.

At the last Republican debate, on January 14, 2016, Ted Cruz said to the Republican front runner Donald Trump, “Listen, I spent my entire life defending the Constitution before the U.S. Supreme court and I’ll tell you I’m not going to be taking legal advice from Donald Trump.”  Also, challenging Mr. Trump’s charge that Mr. Cruz is not a “natural born citizen of the United States,” Mr. Cruz stated:

The legal issue is quite straightforward, but I would note that the birther theories that Donald has been relying on, some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil. Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified, and interestingly enough, Donald J. Trump would be disqualified because Donald’s mother was born in Scotland.

Already recognized as a great prevaricator, as noted here and here and a million other places, looking at these two statements, one must conclude that they are both untrue.

The issue that has led to two lies is whether as a person born in Canada to a United States citizen, like Mr. Cruz, is eligible to be President. According to Article II, Sec. 1, Clause 5 of the Constitution, “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.”

Mr. Trump has challenged whether Mr. Cruz is natural born. (Born in 1970, Mr. Cruz obviously was not a citizen at the time of the adoption of the Constitution, 1789). It is this Constitutional question that Mr. Cruz feels is a non-issue, thus expressing consternation at Mr. Trump’s raising it. However, has Mr. Cruz spent his entire life defending the Constitution? At a strictly literal level, of course not. While suckling at his mother’s breast in Calgary, Alberta, Canada, and until he became a lawyer, he did little Constitution defending. Mr. Cruz graduated Harvard Law School in 1995. Then, he began engaging in protecting the Constitution. He clerked at the Fourth Circuit Court of Appeals and for Chief Justice William Rehnquist in 1995 and 1996. We can assume he spent time of Constitutional issues at these courts, but also on regulatory and statutory issues as well. He then worked in private practice where one can imagine he did Constitutional work plus all kinds of work.  Between 1999 and 2003, Cruz was the director of the Office of Policy Planning at the Federal Trade Commission, an associate deputy attorney general at the United States Department of Justice, and domestic policy adviser to President George W. Bush on the 2000 George W. Bush presidential campaign. One can imagine there was some Constitutional defending going on, but also lost of other stuff. His clearest period of defending the Constitution was 2003-2008 as Solicitor General of Texas.

It is often noted that Mr. Cruz appeared before the Supreme Court nine times. It is worth mention that not all of the cases were Constitutional and of those that were, five involved the death penalty. Here is a brief breakdown of his cases:

Frew v. Hawkins:  This case involved Texas’s failure to abide by an agreement it made with parents to provide  health care services to children to reduce lifelong vulnerability to illness or disease to settle a law suit against Texan officials. The families sued to enforce the agreement. Texas asserted that the federal courts did not have jurisdiction to enforce the agreement. Texas, represented by Mr. Cruz, lost 9-0.

In Dretke v. Haley, Mr. Michael Halley was sentenced to 16 ½ years in prison based on a 3 Strikes program under Texan law. It became apparent that Mr. Haley was not subject to the sentencing enhancement and was thus over-punished for his crime, stealing a calculator. The State of Texas, represented by Mr. Cruz, admitted that he did not fall under the law, but argued that the federal courts had no authority to right the injustice. The Supreme Court remanded the case to the Texas courts to review the sentence under Texas procedures to correct a mistake after appeals have been exhausted. The Supreme Court ordered the remand, 6-3.  Mr. Haley was re-sentenced. Mr. Cruz views the fact that the Supreme Court did not order re-sentencing, but left it to the Texas courts, as a victory.

Medellin v. Dretke  and Medellin v. Texas involved a Mexican citizen convicted of rape and murder who was sentenced to death. After he exhausted his appeals in the Texas courts, he argued that his conviction was invalid because of a treaty the United States signed affording foreigners in American jails the right to contact their consulates. Mr. Medellin was not afforded the right. The Supreme Court held that Mr. Medellin’s conviction could still stand despite the lack of notice. Texas and Mr. Cruz won 6-3.  Mr. Medellin was executed in 2008.
In League of United Latin American Citizens et al. v. Perry, Texas citizens challenged a Texas redistricting map that they alleged disenfranchised them through racially-based gerrymandering. The Supreme Court ruled 5-4 that one district, Congressional District 23, violated the federal Voting Rights Act. The Texas citizens felt they were victorious because a large part of the Texas district map had to be re-drawn. Mr. Cruz and Texas felt victorious because the court did not find the entire map was unconstitutional.

In  Smith v. Texas, a third death penalty case, a challenge was made to a Texas death penalty sentence because Mr. Smith was mentally handicapped. The Supreme Court set aside the sentence and remanded to the Texas courts to reconsider the sentence and to consider Mr. Smith’s low IQ and other mitigating factors. The Supreme Court decided 5-4 to remand. Mr. Smith later negotiated a life sentence.

In Panetti v. Quarterman, a fourth death penalty case, the Supreme Court disallowed a Texas death penalty, 5-4, because Mr. Panetti did not understand why he was being executed. Apparently Texas is still trying to execute him, though Mr. Cruz is no longer involved.

In Kennedy v. Louisiana, where Mr. Cruz represented the State of Texas supporting Louisiana’s position, he argued in this fifth death penalty case that the death penalty is appropriate for raping a child. The court voted 5-4 against Cruz, Louisiana, and Texas, holding that executing someone for raping a child is unconstitutional under the Eighth Amendment prohibition against cruel and unusual punishment.

Finally, in Global-Tech Appliances v. SEB S.A., after his time as Solicitor General and back in private practice, Mr Cruz, while an attorney with Morgan, Lewis & Bockius LLP, won a patent infringement case 8-1. In the case, a Global-Tech Appliances subsidiary was found liable for inducing infringement based on a theory of willful blindness.

Lawyers do not necessarily have to agree personally with the positions they take in representing a client. It is conceivable that a solicitor general must represent his state and argue positions he does not agree with or that he considers weak positions. However, a solicitor general also must use his discretion to pursue justice and not squander resources or a state’s reputation on spurious cases. Mr. Cruz’s commitment to the death penalty, supporting Texas’s failure to implement federal health laws, to uphold improper criminal sentences, and support racially-motivated gerrymandering may not be his personal positions, but her has never voiced his regret at taking the positions he did for Texas.

Not only was Mr. Cruz’s assertion that he spent his life defending the Constitution an exaggeration, his other statement, that the birther argument disqualifies Mr. Trump, is also not true. Mr. Cruz asserts that he is a U.S. citizen because his mother was a United States citizen when he was born. As discussed here, this is partially correct. Under the law applicable to him, Mr. Cruz would be a citizen if his mother was a citizen and she resided in the United States for ten years before he was born, five after the age of 14. He needs to go through this rigmarole because he was not born in the United States. I have not discovered any birther asserting that a person born  in the United States, other than the offspring of some foreign diplomats, is not natural born. The natural born issue only arises for persons not born in the United States. To assert that Mr. Trump is not a U.S. citizen when he was born in the United States is simply a lie to confuse the issue.

Mr. Cruz’s problem is that he is a citizen at birth based on current statutes. But statutes about acquiring citizenship at birth have changed many times over the centuries. The words of the Constitution cannot be defined by current statutes, as that would mean that the Constitution can be amended merely by Congress’s passing laws. We all know from Article 5 of the Constitution that amending the Constitution is much more complicated than that.
Mr. Cruz’s problem is that there is no definition of natural born. Applying statutes from the past do not provide firm conclusions even if that old statutes defined the meaning of the Constitution. Under some past statutes, a mother could not convey citizenship to a child. Like owning property, voting, and a myriad of other things, women were legally invisible until modern times. Mr. Cruz would not have been natural born if he was born in Calgary to an American mother in many periods in the past. In fact, during some periods, if his mother married a foreign citizen, she would have lost her own U.S. citizenship.  This natural born issue could be more serious than we thought as discussed here and here and here and here.  If Mr. Cruz wants to define the Constitution by modern Immigration and Nationality Act statutes, he needs to explain why and how it conforms to his originalist view of the Constitution.  Lying is not going to solve the problem. Posted January 24, 2016.


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