Michael Gaynor
Blame Sean Hannity for supporting Cruz and helping Hillary, NOT for supporting Trump
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By Michael Gaynor
April 26, 2016

This election season Hannity may be inadvertently making it up to Hillary Clinton by misrepresenting Cruz's presidential eligibility status. If it does not become generally appreciated that self-described constitutional conservative Cruz president is relying on liberal judicial activism to make him presidentially eligible, perhaps Trump will not become the 2016 Republican presidential nominee and then Hillary Clinton will be the next President.

In 2013, Donald Trump told ABC News that he wasn't sure that Cruz is eligible to be President of the United States. "If he was born in Canada, perhaps not," Trump said.

Trump's not a lawyer, but he has some good legal instincts.

In 2015, Trump told reporters in Iowa that the accident of Cruz's Canadian birth is "a problem. It could be a difficult problem."

Trump is right about that.

Sean Hannity isn't.

He's swallowed the liberal Kool-Aid on the meaning of the Constitution's "natural born Citizen" clause and needs to he hannitized.

Ironically, these days Hannity is taking incoming for supporting Donald Trump for President.

THAT is an undeserved rap.

Hannity's recent eruption at Cruz for not answering a question and implying that Hannity is a "hard-core" Trump supporter made it seem like Hannity is supporting Trump. See "Sean Hannity to Ted Cruz: 'You gotta stop!'" (April 21, 2016) (www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=160421).

That event was deceiving.

There was nothing unfair about Hannity's question to Cruz. Cruz should have addressed it directly instead of dodging it and attacking the questioner.

But, by handling it the way he did, Cruz made Hannity look like a "hard-core" Trump supporter and himself look brave for agreeing to the interview.

Cruz, nearly ten years younger than Hannity, is an expert debater and deftly used an old debater's trick: attack the question (and the questioner).

Actually, Hannity has been helping Cruz greatly since 2013, by treating the issue of Cruz's eligibility to be President as a bogus issue.

When Hannity wins even faint praise from Media Matters (http://mediamatters.org/blog/2013/08/20/sean-hannitys-birther-conversion/195492), he should sense that he's doing something wrong.

On August 19, 2013, already running for President, Cruz released his birth certificate and announced that he would renounce any formal ties he still retains to Canada and Hannity proclaimed on his television show that Cruz's actions "put this so-called controversy to rest" and asked whether "flirting with birtherism" means liberals are "racist against a Hispanic."

Hannity knew what Cruz's birth certificate said, but there's plenty of law and history that apparently Hannity has not read and there is a huge difference between the Obama and Cruz cases: Obama's natural born citizenship claim was upheld because Obama was born in the United States and Cruz admittedly was not born in the United States.

Let's turn to Hannity's interview of Cruz at CPAC 2015.

That day Hannity pitched softball questions to Cruz. For example, "Why does Ted Cruz love America?"

Softball questions are forgivable, but Hannity went much further to help Cruz: he tried to inoculate Cruz on the presidential eligibility question by insisting that those who question Cruz's presidential eligibility must be "liberals."

Hannity is not a lawyer and he got it wrong: constitutionalists (like Cruz represents himself to be) dispute Cruz's eligibility to be President, because the Constitution as originally adopted specified one federal office that can be held only by a natural-born citizen – President of the United States.

The Constitution has not been amended to delete the natural born requirement.

Instead, that requirement was extended to the office of Vice President by the Twelfth Amendment.

Naturalized United States citizens can be United States Senators and Supreme Court Justices, but not Presidents or Vice Presidents.

The Twelfth Amendment was proposed in 1803 and ratified in 1804 and concluded: "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

The timing is particularly noteworthy, because Cruz supporters often cite the Naturalization Act of 1970 as evidence that he should be considered a natural born United States citizen.

The Naturalization Act of 1790 stated that "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."

Those Cruz supporters note that his father had been resident in the United States before he was born.

What they omit to mention are that (1) only fathers could transmit United States citizenship until an act of Congress extended the ability to mothers in 1934 and (2) the Naturalization Act of 1790 was repealed by the Naturalization Act of 1795 and that Act removed the characterization of such children as "natural born," stating that "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States."

At CPAC 2015 Hannity brought up the circumstances of Cruz's birth, as follows: "I am asking this next question because I know the liberal media will, so we might as well get it out of the way for them, Your mother was an American citizen, you talked about your dad coming from Cuba, you were born in Canada, you had dual citizenship. There are a bunch of liberal birthers out there that would try to make the case that you're not eligible."

Unsurprisingly, Cruz replied that he's an American citizen by birth and obviously eligible to run for president under the Constitution.

It's NOT obvious.

It's NOT true.

Cruz is ineligible to be President.

There are two kinds of citizens – natural born and naturalized.

Cruz is a naturalized United States citizen, not a natural born United States citizen or both.

The Citizenship Clause of the Fourteenth Amendment to the United States Constitution is not limited to natural born citizens. It states that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

It doesn't say "born or naturalized in the United States, or born outside the United States and naturalized at birth by an Act of Congress," because a United States citizen is not both a natural born United States citizen and a naturalized United States citizen.

Under the jus soli principle, the country of citizenship of a child is determined by the child's country of birth.

Cruz was a natural born Canadian, not a natural born United States citizen.

The Constitution authorized Congress to provide for naturalization and it did.

But it was not until 1934 that Congress provided for the transmission of American citizenship from American citizen mothers to their children.

Being naturalized at birth is not the same as being natural born.

Cruz falsely claimed that if he has a presidential eligibility problem, then so does Trump, because Trump's mother was born in Scotland.

That's nonsense.

Another debater's trick.

Trump is a natural born citizen because he was born in New York, which is a State of the United States.

Period.

If Trump had been born in New York in 1800, he would have been a natural born United States citizen too. Period.

If Trump had been born in Canada in 1800, he would have been a naturalized United States citizen under the Naturalization Act of 1795, based upon his father's United States citizenship, but not a natural born United States citizen.

The Naturalization Act of 1795 did not presume to make such a person a natural born citizen and the Twelfth Amendment shows that the distinction between natural born and naturalized was well understood.

President Obama should thank Hannity for his two-term presidency. Hannity put Rev. Wright on his television show soon after Obama announced his candidacy and disinvited Wright to appear at the announcement. BUT, Hannity did not PRESENT Wright's "God damn America" tape until about year later, and then it was too late to stop the Obama campaign.

This election season Hannity may be inadvertently making it up to Hillary Clinton by misrepresenting Cruz's presidential eligibility status. If it does not become generally appreciated that self-described constitutional conservative Cruz president is relying on liberal judicial activism to make him presidentially eligible, perhaps Trump will not become the 2016 Republican presidential nominee and then Hillary Clinton will be the next President.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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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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