Michael Gaynor
Ted Cruz isn't a "natural born citizen," but he was naturalized at birth
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By Michael Gaynor
February 17, 2016

Cruz should be campaigning for a constitutional amendment dropping the "natural born" citizenship requirement" instead of running for President (and perhaps praying that the Supreme Court will decline to rule of the issue of his qualification if he wins on the ground that it is "a political question").

In Zummer v. Acheson, 191 F.2d 209 (10th Cir. 1951), the meaning of the Constitution's "natural born Citizen" clause was indirectly involved and the types of citizenship were discussed.

The case is bad news for people born outside the United States, like Ted Cruz, even if both of their parents are United States citizens.

Zummer v. Acheson was decided long ago, untainted by presidential politics concerns, and explained that there are two types of citizenship – native born (or natural born) and naturalized.

It was a declaratory judgment action brought by Harry Ward Zimmer and Ilona Zimmer to be declared United States citizens.

Harry was born in Bavaria and his daughter Ilona was born in Germany. Harry's wife and Ilona's mother was born in Germany and never became a United States citizen.

Werner Herman Zimmer was born in Gera, Thuringia, in 1867. He came to the United States sometime after January 1, 1890. Thereafter, he married Nellie M. Lang, who was born in Wheeling, West Virginia in 1867. Harry is one of the issue of that marriage.

Werner was naturalized in 1896. In 1901 he returned to Germany to visit his ill father. He resided in Germany continuously from 1901 until his death in 1933. Nellie resided with her husband in Germany until his death, and thereafter she continued to reside in Germany until her death in 1947.

In 1908, Werner and Nellie, accompanied by Harry, came to the United States to visit relatives. Werner remained in the United States for a short period only. Nellie and Harry remained several months, visiting relatives in West Virginia. They returned to Germany early in 1909. From the time of his return in 1909 until 1925 Harry resided continuously in Germany, where he grew up and received his education. In the summer of 1925 he visited relatives in the United States. He returned to Germany in the fall of that year and continued his studies at the University of Wurzburg in Bavaria, from which he graduated. He resided in Germany continuously from his return in the fall of 1925 until 1933. In November, 1933, Harry and Nellie came to the United States and visited relatives in West Virginia and Kansas. They returned to Germany in January, 1934. In the fall of 1934, Harry again came to the United States and visited relatives at Kansas, and West Virginia. He unsuccessfully sought employment in the United States. He again came to the United States in September, 1938, and returned to Germany in November, 1938.

In 1940, Harry received notice to report to a German draft board. He reported and was examined and thereafter, on June 11, 1940, began active service in the German army. During the interim between the receipt of the notice to report and the time he reported to the draft board, Harry made no effort to secure evidence of his American citizenship. Explaining that failure, he testified, "I didn't do anything because I expected that would be cleared up when I reported at the board. * * * I expected when I going there and tell that would be sufficient." He also testified that he considered himself something of a dual citizen, and that the German draft board had a right to consider him as a German citizen. At the time he was examined by the German draft board he advised the board he was an American citizen. They told him he was a German citizen and directed him to "stay in line." He made no report of the matter to the American consul, although the United States was not then at war with Germany, and he made no effort to prevent his induction. He testified that he was fearful harm would come to him or his wife; that they talked it over and decided that the war would not last very long and that perhaps the best thing to do would be to enter the army. He thus explained his failure to appeal to higher German authority or to the American consul, or to take any affirmative action to prevent his induction.

The public law of Germany in 1940 required all soldiers to take an oath upon entry into the service, reading as follows: "In the name of God I swear this sacred oath: that I will unconditionally obey Adolf Hitler, the Fuhrer of the German Reich and people, and the Commander-in-Chief of the Wehrmacht, and will be willing as a brave soldier to sacrifice my life at any time for this oath."

Harry testified that when the oath was administered he did not raise his hand, nor repeat the oath as the other inductees did. He received two promotions while in the German army.

On or about April 4, 1947, Harry made an application for a passport for himself and Ilona as citizens or nationals of the United States. The application was denied on the ground that Harry had expatriated himself by taking the oath of allegiance to Germany. Harry came to the United States on a temporary visa for the purpose of prosecuting the instant action.

The trial court refused to believe Harry's testimony that he did not voluntarily take the oath of allegiance set forth above and concluded that if he had not theretofore lost his American citizenship, he expatriated himself when he took such oath. Ilona claims citizenship solely through her father. The court further concluded that since Harry was not a citizen of the United States on the date of the birth of Ilona, she did not derive American citizenship through her father.

Harry and Ilona appealed from a judgment adjudicating that neither of them is a citizen of the United States.

In rejecting their appeal, the appellate court stated:

"There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen."

The appellate court pointedly stated "by birth," not "at birth."

There is a YUGE difference, as Donald Trump might say.

A naturalization statute can convey citizenship at birth to persons who are not "natural born" citizens, but it cannot make them "natural born."

The appellate court further stated:

"Revised Statutes 1993, in force at the time of the birth of Harry Ward Zimmer, provided: 'All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.' "If Werner Herman Zimmer, by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen."

Here native born means born in the USA, not elsewhere.

What that means for Republican presidential hopeful Ted Cruz is this: since his mother was a United States citizen, he became a United States citizen at birth, specifically, "a naturalized citizen and not a native-born citizen."

Cruz should be campaigning for a constitutional amendment dropping the "natural born" citizenship requirement" instead of running for President (and perhaps praying that the Supreme Court will decline to rule of the issue of his qualification if he wins on the ground that it is "a political question").

The claim that there is no question that Cruz meets the "natural born Citizen" requirement is as doubtful that Werner refused to take that oath to the Fuehrer.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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