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NJ Judge: Yes, Ted Cruz is eligible to be president

NJ Judge: Yes, Ted Cruz is eligible to be president

So he stays on the primary ballot.

An Administrative Law Judge in New Jersey has rejected a challenge to Ted Cruz’s eligibility to be president in rejecting an attempt to remove Cruz from the NJ primary ballot.

The Judge’s decision (full embed at bottom) is very similar to my analysis in my September 3, 2013 post, natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz. reports:

Republican presidential candidate Ted Cruz is a “natural-born citizen” under the U.S. Constitution and therefore can run in the June 7 New Jersey primary, a state administrative law judge said Tuesday.

“The more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a ‘natural born citizen’ within the contemplation of the Constitution,” Administrative Law Judge Jeff Masin wrote….

The issue now goes to New Jersey Secretary of State Kim Guadagno, who will make a ruling that can be appealed in state court. Guadagno is also lieutenant governor.

Masin wrote in a 26-page decision that the issue of whether a child born outside the U.S. to an American citizen is eligible to be president “can never be entirely free of doubt, at least barring a definitive ruling” of the U.S. Supreme Court.

“Absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue” even after “having weighed the arguments as they are presented by those trying to understand the framers’ intent,” the judge wrote.

The Judge concluded, as I did, that there is no definitive answer to the question of whether a person born to a U.S. Citizen abroad is a natural born Citizen, the overwhelming historical and legal evidence suggests that the answer is Yes. The arguments against natural born Citizenship for such a person are speculative and not supported by historical evidence.

Here’s the Judge’s conclusion:

As demonstrated above and in the thoughtful examinations of the scholars whose materials are mentioned herein, it must be acknowledged that the arguments against finding a child born outside the United States to a non-diplomat or non-military citizen of the United States are not facetious and the issue can never be entirely free of doubt, at least barring a definitive ruling of the United States Supreme Court. While absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue, having weighed the arguments as they are presented by those trying to understand the Framers’ intent, I CONCLUDE that the more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a “natural born Citizen” within the contemplation of the Constitution. As such I CONCLUDE that Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President. His name may therefore appear on the New Jersey Republican primary ballot.

Here was my conclusion in September 2013:

A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth. There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution. The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.

The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified. That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen.

It’s at this point that someone yells: Great minds think alike!


NJ Judge Ruling Ted Cruz Eligibility 4-12-2016


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You posted this at 7am. The birthers don’t usually rouse themselves until after 10 😉

Seriously though, I’m glad that your original conclusion back in 2013 was once again vindicated!

legacyrepublican | April 13, 2016 at 7:53 am

“Superior minds,” not necessarily great.

“Great minds” I reserve for something like developing a web site like Legalinsurrection where I can learn how to think and analyse at a higher level of thought than I ever did before I was graced with reading it every day.

A “Great Mind” passes its wisdom to others in a wonderful daily way.

Tis hardly surprise that you are a respected Law Professor, eh?

It is so sad but I guess it takes an army of lawyers to mess this up. One of the arguments that is frequently heard is that the Constitution does not define “Natural Born Citizen.”. To which it should be replied, ” Correct, the constition is not a dictionary and at the time everyone knew EXACTLY what it meant.”
Another great mind explains it much better:

If you are interested in the originalist viewpoint it’s a valuable read; concise and well done.

    malclave in reply to spanaway. | April 13, 2016 at 12:53 pm

    You should bring that up in court instead of on blogs.

    Gunstar1 in reply to spanaway. | April 13, 2016 at 6:50 pm

    On the other hand, we know that roughly half of the founding fathers were lawyers and would be familiar with William Blackstone’s books on English Common law.

    Book 1 Chapter 10:
    “To encourage also foreign commerce, it was enacted by statute 25 Edw. III. St. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it has been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”

    So was it the definition in some book that some of them may have had or was it the definition of the law that they had previously lived under?

It’s at this point that someone yells: Great minds think alike!

Professor Jacobson – the ol’ pot stirrer. 😀

Well now I am happy to hear that if Winston Churchill were alive today, he could run for President.

    rinardman in reply to RodFC. | April 13, 2016 at 8:43 am

    I’d vote for him.

    Ragspierre in reply to RodFC. | April 13, 2016 at 10:25 am

    I’m happy to know that the children of our military, children born on ships at sea, etc. can be presidential candidates, and not barred by some gonzo superstition about “the ground” they were born on.

    Spiny Norman in reply to RodFC. | April 17, 2016 at 11:04 pm

    No, Winston could not, because he was never a US citizen until Congress made him an honorary one. His mother was American-born, but gave up her US citizenship to marry Lord Randolph Churchill. She was not a US citizen when Winston was born.

If we cannot ignore history why do you sir ignore United States vs Perkins? I wonder if it’s because it doesn’t fit your Eureka moment, hmm.

No court has ever held in favor of the idiotic birther position, which is closely related to similar conspiracy nuttery. This decision merely adds to the unbroken string, but it will not dissuade the nut cases.

Actually SCOTUS has weighed in no less than six times. Perhaps most notably Minor v. Happersett (1874 or 5) in which they quoted Vattel’s Law Of Nations, the book that the framers relied upon. Sometimes we need to take off the lawyer hat and put on the historian hat.

    Dave B. in reply to spanaway. | April 13, 2016 at 6:10 pm

    How do you manage to wear either one over that big pointy birther hat?

    Gunstar1 in reply to spanaway. | April 13, 2016 at 6:37 pm

    Except when you put on the lawyer hat, you learn that it was a case about a woman born in the US to two citizens. The court says it is without a doubt that such a person is a natural born citizen and there are doubts about other qualifications.

    “For the purposes of this case, it is not necessary to solve these doubts.”

    This is the most notable case? One that specifically says there could be other types of natural born citizen but that they don’t have to figure that out right now?

This is still playing in the junior league. The blizzard of challenges from the Dems haven’t begun yet. The merits of the arguments hardly matter; all they have to do is keep at it until they get a loyal Dem judge … as they did in Florida during Bush v Gore. Expect fireworks a-plenty.

    rotten in reply to tom swift. | April 13, 2016 at 9:38 am

    And the Democrats don’t have to win on the merits either.

    They just have to suck the oxygen out of Ted’s campaign on this bogus issue, while their TV shows paint Ted as the stalker nerd freak.

      MaggotAtBroadAndWall in reply to rotten. | April 13, 2016 at 11:33 am

      And if Trump wins the nomination, TV viewers will enjoy a perpetual loop of average Americans telling their stories about how Trump screwed them. The vendors and employees screwed over in four bankruptcies of entities he controlled. The tenants screwed over in buildings he controls who were evicted after some emotional sob story like losing a job or experiencing some medical hardship. The former students who are suing him for fraud at Trump University.

      The new one exposed by CBS is that he scammed people in a pyramid scheme during the depths of the 2009 recession. The pyramid scheme is now defunct, but he got their money.

      How do you suppose general elections voters will respond when they see all of that? Will they vote for a guy for president who claims he has more money than God but uses bankruptcy laws to screw mom and pop vendors and former employees; who puts tenants or condo owners who can’t pay the rent or mortgage out on the street; or who allegedly scammed desperate people caught in the recession in a now defunct pyramid scheme? That’s not even counting all of the clips the Hillary campaign will use purporting to show him as misogynistic and racist.

      His already sky high record unfavorable ratings are no where near a ceiling. They are going to keep bending upward when David Brock decides to unload the mountains of opposition research he has collected. The phrase he used in a Politic article was something to the effect they have enough to ‘level Trump Tower to the sub-basement level’ or something like that.

      All of you Trump schmucks are going to continue to blame conservatives, the establishment, and pretend Trump got screwed by a rigged system when you have known full well from the beginning that he is a horribly flawed candidate who will almost certainly lose in a landslide defeat in the general election.

      But you are concerned that Cruz will be portrayed as a “stalker nerd freak”.

      OK. Right.

        Well said, although you forgot the one about the grandma he tried to evict from her home with eminent domain so that he could build a parking lot for his prog buddy’s limousines.

    Why do you think any given Dem will be any more successful in their birtherism against Ted Cruz than Donald Trump was against Barack Obama?

We do know what the Framers thought. In 1790 naturalization act it is clearly expressed that a child born in foreign country to citizen is NOT a natural born citizen absent an act of congress to treat tgem as such. The 1790 act provided NBC treatment until 1795 when congress chose to take NBC treatment away. It is simple.

    StotheOB in reply to Gary Britt. | April 13, 2016 at 11:14 am


    Naturalization Act of 1790, as passed by the First Congress (which was largely made up of Founders):
    And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That person heretofore proscribed by any State, shall be admitted as a citizen as aforesaid, except by an act of Legislature of the State in which such person was proscribed

    Now granted when it was rewritten a couple years later the “natural born” part disappeared, but never in 1790 did a single person object to its inclusion, nor was any reason given to its removal at a later time. For all we know its later removal was merely a typo on behalf of the guy having to copy all the text over… and thats the best theory really considering no record anywhere to say what the Founders in the First Congress wrote & passed in 1970 is not what they intended.

    So go ahead all you Trumpeters, fight to change what is in the Constitution and ignore what the Founders wrote all you like. But dont you dare do so claiming you are somehow on the side of the Founders & Constitution – you are not, and instead are clearly trying to change the Constitution to fit your personal desires just like every other Living Constitution warrior we have to deal with

      The 1790 act clearly says foreign born to citizen is NOT an NBC but the founders decidex to have them “deemed” to be NBC’s.

      The 1795 act took away the deemed NBC status.

      Arguing with absolutely no evidence that the change in language in 1795 was not intended to change the law and was an oversight violates all rules of statutory and constitutional interpretation. Changes must be given their effect and are presumed to be done deliberately and with purpose.

      1790 Act says foreign born to citizen is not NBC but will be deemed as NBC pursuant to statute. In 1795 congress changed the statute to make foreign born to citizen merely a citizen but expressly deleted that they would be deemed to be an NBC.

      It is quite possible that for the first 5 years of existence the pool of NBCs needed to be expanded and that in 1795 they decided the statutory increase in the pool of NBCs was no longer necessary or was bad policy for security reasons.

        StotheOB in reply to Gary Britt. | April 13, 2016 at 12:10 pm

        So youre argument is the Founders are stupid and didnt know what they are doing or what they were saying in 1790

        Oh, and what they said in 1790 isnt what they really said, too, aparently

        Seriously, you Trumpeters make my head hurt with your constant assaults on all common sense and longstanding reality

          What you wrote above bears no resemblance at all to what I have written. It is so far off the only response to your post that is required is to say, No go back and read what I wrote again. This time for comprehension.

          Congress said what they meant in 1790 AND they said what they meant when they changed it in 1795. No mistakes no typos. The Act says what it means and it means what it says in both 1790 AND 1795.

          StotheOB in reply to StotheOB. | April 13, 2016 at 1:04 pm


          “The 1790 act clearly says foreign born to citizen is NOT an NBC but the founders decidex to have them “deemed” to be NBC’s.”

          Wrong & here is where you claimed they didnt know what they were saying. Instead they very clearly gave a definition to subset of people that were Natural Born Citizens but were obviously having their status quested by someone somewhere at the time. Otherwise none of this would have ever been in the 1790 act.

          “The 1795 act took away the deemed NBC status.”

          Wrong. 1975 merely saw two words disappear upon all the text being rewritten. No one ever gave one single reason for the text to be removed. In a court of law, even a bad lawyer would get that accepted as a simple error in the copying.

          If the subsequent theories you gave as to why it was removed was given, then the Founders would have had such an argument on the Floor and there would be documentation of it. They didnt. Everything we have says they wanted the NaturalBorn text in there, and absolutely nothing we have contradicts that.

          And as far as where I said you think the Frounder were stupid – well, what else should I call it? I mean you seem to be here arguing that what the Founders *really meant* was National Born Citizen, which would be a Citizen by birth Born Nationally. That is what your theory argues though, that they were just too stupid to put what they meant, and that they didnt really mean Natural Born Citizen.

          But since they wrote Natural Born Citizen, thats what the law follows. In said law there are but two types of Citizens:
          Natural Born Citizen (like Ted Cruz)
          Naturalized Citizens (those who have to be given Citizenship, which doesnt apply to Cruz)

          And that is why Donald Trump will never bring a case, because he knows he will lose it in grand fashion. Its also why every single case brought has been laughed out of the court. There is no argument here other than from those who want to rewrite the Constitution to fit their own bigotry. Everyone knows that but the bigots themselves…

          No I don’t think the founders were stupid. I think you are or at least your post at 1:04 PM is pretty v dumb and argues with itself.

          The first half of your post is your pure made up conjecture based on assumptions unsupported by any evidence such as discussions on the floor of congress. Then in the second half of your post you violate principles of statutory construction and ignore the plain meaning of the text in question and demand evidence of arguments on the floor of congress where congress stated they really meant what they wrote.

          You continually overlook basic matters in your contrived artificial made up reasoning.

          Again for your education here are tbe basics.

          1. Foreign born to a citizen is NOT even a citizen of any kind absent a statute by congress that grants such foreign born to citizen some type of citizenship status.

          2. The type of citizenship status, if any, awarded to the foreign born of a citizen is determined by the provisions of the act of congress.

          3. The 1790 Naturalization act provided that foreign born of a citizen would be a cituzen (but for this they would NOT be citizens). The founders who wrote this act obviously believed that foreign born to citizen would NOT be an NBC. And they apparently wanted to confer NBCstatus on them so they wrote the 1790 act to provide that foreign born to citizen would be treated “as if” they were NBC even tbough they weren’t really NBC as that term was understood by them. They were “as if” or deemed to be NBC.

          4. In 1795 congress rewrote the Naturalization act but they changed the type of citizenship awarded to a foreign born to citizen. In the 1795 act and all versions since foreign born to citizens are granted citizenship BUT THEY ARE NOT AWARDED NBC STATUS. Congress removed the award of NBC status to foreign born of citizen.

          It us quite simple except for liberal lawyers and cruzbots.

          StotheOB in reply to StotheOB. | April 13, 2016 at 7:40 pm

          Since simple stuff seems difficult for you, ell all I can really say, good luck getting your bigotry and lack of knowledge to change the Constitution and 230+ years of how the Country has done business.

          Im sure you, unlike your phony Orange God and his utter failures doing it, will actually get a President disqualified this time…

          Meanwhile, FYI, yet another case was tossed out today – just like everyone other one, and any in the future. Why? Because the law has been unbelievably clear to pretty much everyone in history but those bigots I mentioned in my previous post.

Well I’m sure our modern day “Moses” will be happy to see this case go down as a loss like his famous “ban the dildo” case. One of his many losses. Of course he probably threw the case since “Fleshlights” and similar devices were probably also included in the case.

So a typo of a Congressional Act THAT LASTED FOR 200 years? OH MAN! YOU CRACKED IT

What can possibly have more weight? A typo in 1790 that lasted 5 years or a typo in 1795 that is still a typo today? PLEASE SCHOLARS BY ALL MEANS TELL US.

    StotheOB in reply to mrjr101. | April 13, 2016 at 12:15 pm

    Uhm, huh?

    In 1790 the Founders in the 1St Congress very specifically wrote”Natural Born Citizen” and never did one single person voice concern over the language. That isnt a typo, thats what they wrote

    In 1795 when the paper was rewritten two words disappeared, despite no reason being given for their removal. In a court of law, that will be argued as a typo – an exclusion with no explanation what so ever, that merely erroneously disappeared.

    Its just facts here. And all you TrumpCultists can hope and pray and wish and whine all you like, but it aint changing

    BTW, isnt Trump your perfect prophet who wins, wins, wins and is going to solve all your problems or whatever? Why hasnt he won a case to stop Cruz yet though?

    Trump says he wants to beat Cruz, but he isnt taking the unbelievably easy step you Cultists seem to insist will actually beat Cruz. Odd, isnt it?

      Psst typos are things like leaving out an and or an or or mispelling a word.

      Typos are NOT substantive changes to a statute. You have the burden of proof backwards as Scalia would be happy to tell you if he were still with us. The courts give effect to plain meaning of the words written and presume that a change in tbe language is purposeful and intentional absent strong and compelling evidence to the contrary. The burden of proof us on you to come forward with the proof it is a typo. Proof that congress did not intend a change in the law when they changed tge words. We are waiting…..

        StotheOB in reply to Gary Britt. | April 13, 2016 at 7:53 pm

        First, odd you seem to think the exclusion of some words is a proper definition of Typo, but not the exclusion of others… All I can say is glad we have you here to be able to tell us what the proper way Typo should be thought of and which specific words it applies to!

        Second, the burden of proof falls on your side because you are the one claiming it was taken off very deliberately, for a specific reason, despite all Congressional Record indicating there was no deliberate reason it was left off.

        If what you insist took place actually took place then there would be oral (and transcripted) or written arguments as to why it took place. There isnt. Anywhere. In fact there is not one single document showing a single person disproving of the inclusion of Natural Born over the 6+ years in question.

        Everybody was cool with the inclusion, everyone voted on it, and then poof, it magically disappeared for no reason what so ever. Again, typo according to all evidence we have… You have to prove otherwise. And you cant. Which is why you would be laughed out of court

          Nope wrong. The burden of proof is always on the party asserting the plain words of the statute don’t mean what they. So you need to bring forth strong and compelling evidence that the words don’t mean what they say and that Congress changed the words but didn’t intend to change the meaning. Still waiting…

          P.S. Scalia was not big fan of congressional record speeches proving anythinv because they can be so fake and self serving. But ring forth your proof

Thanks for telling us how dumb you are. The phrase never saw the light of day in the preceding Acts of Congress. A typo is corrected if it is found to be a typo. Founders did not automatically died in 1795. They were still alive.

Thee are reasons to prefer Cruz over Trump and vice versa but this eligibility issue is nonsense. Cruz could have handled it better when it was first raised but it is still nonsense.

s/b “There are reasons…”

Yes Gunstar that District Federal Court Opinion has more weight than a crappy left wing liberal administrative Judge opinion, genius

    Gunstar1 in reply to mrjr101. | April 13, 2016 at 7:00 pm

    Um, no it doesn’t. No one, anywhere, has to pay any attention to it as it is not a binding decision, not even to the DC district court itself.

    If you want something that has weight, look for Appellate or SCOTUS opinions.

I already looked at SCOTUS in Wong Kim Ark and you are the retards ignoring it “This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed — “born in the United States,” “naturalized in the United States,” and “subject to the jurisdiction thereof” — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” Wong Kim Ark, 169 US 649, 689 (1898)

There’s a wide gulf of understanding here, that I doubt will be bridged.

History that I have studied indicates that Vattel’s Law of Nations was widely read and understood at the time of our founding, and certainly known by the Founders. In that book Vattel defines a “natural born citizen” as being a citizen born within a country to a father who was a citizen of that country (only the father’s allegiance was important then.) Today we consider women equal to men, so the modern version of Vattel’s definition would be, “a person born within a country to parents who are both citizens of that country.”

If those Founders had intended for any person with only one citizen parent to be able to be President, then I trust that they would have made that clear; that they chose instead to require a “natural born citizen” means to me that they wanted someone without any foreign influences to be our Commander-in-Chief; which seems obvious to me, but then I’m not a law professor.

Ted Cruz was born in Canada; has a Canadian birth certificate; was a dual citizen until 2014; his mother may or may not (I’ve seen no evidence either way) be an American citizen; his father was Cuban born but had become a Canadian citizen (again, I don’t know about his mother) and Ted Cruz has sealed his birth records.

Looks to me like Ted has got a lot of foreign ties, in fact that’s all that holds him together.

For a legal issues site, there’s very little evidence being presented. Has anyone a link to any of Mr. Cruz’ birth records? Or his Consular Report of Birth Abroad? His mother’s birth certificate? Or any facts that bear on this case?

It seems that Obama’s “birth certificate” is now accepted as totally not bogus, even though no one living has been able to examine it and ascertain that it both exists and is verifiable. I find that very sad, and an indication of how far this country has fallen. YMMV.