By Linda Bentley | April 13, 2016
Objectors file exceptions after New Jersey ALJ declares Cruz eligible
‘Congress does not have the magical ability to convert Canadian-born Ted Cruz into an American-born Ted Cruz’
TRENTON, N.J. – On Tuesday, New Jersey Administrative Law Judge Jeff Masin declared Sen. Ted Cruz, despite being born in Calgary, Alberta, Canada, met the constitutional requirements to be president and could appear on the New Jersey presidential primary ballot.
Victor Williams
The challenge was brought by Catholic University of America law professor Victor Williams, who is running as a write-in candidate for president in nine states, including New Jersey, and the South Jersey Concerned Citizens Committee.
After Masin issued his recommendation/initial decision, Attorney Mario Apuzzo filed exceptions of objectors Fernando Powers, Donna Ward and Bruce Stom to Masin’s initial decision with the New Jersey Department of State Elections Division.
The objectors accepted the part of Masin’s decision in which he found they had standing and that their objection did not present a political question and is therefore justiciable.
However, the objectors rejected the part of his decision dealing with the definition of an Article II natural born citizen and whether Cruz meets that definition.
Attorney Mario Apuzzo
In his brief, Apuzzo states, “ALJ Masin has neither considered nor addressed the historical and legal evidence that objectors provided in their two briefs to the court. He does not address any of the arguments that they made in these briefs. Rather, ALJ Masin relies upon some law professors and commentators and their articles for his decision, without actually analyzing the relevant historical and legal sources cited within those articles.”
Apuzzo goes on to say the professors and commentators claim in their articles the meaning of natural born citizen isn’t clear and “therefore tell us what it ought mean.”
Arguing historical and legal sources tell us what the meaning was and if these writers want to change the meaning, Apuzzo stated, “then they should advocate for a constitutional amendment rather than provide some revisionist definition of the clause which then they ask us to adopt as the meaning of the clause.”
Apuzzo said Masin rejected the original definition of an Article II natural born citizen and simply adopted their revisionist definition.
Apuzzo cited various U.S. Supreme Court cases dating from 1875 (Minor v. Happersett) through 1998 (Miller v. Albright) “explaining that children born out of the United States by inheritance of citizenship from U.S. citizen parents could be citizens of the United States only through a naturalization Act of Congress, and that without such Act, such children would be aliens.”
Apuzzo said those cases prove the common law that defined U.S. citizenship never did incorporate English naturalization statutes as providing some different meaning to that common law, a meaning to suggest that a person born out of the United States to one or two U.S. citizen parents could ever be a natural born citizen rather than a naturalized citizen of the United States.
He accused Masin of totally ignoring those binding precedents of our U.S. Supreme Court and instead adopting a revisionist definition of natural born citizen.
Despite the decisions of the U.S. Supreme Court being binding upon Masin, Apuzzo said Masin doesn’t feel as though he’s bound by them.
He also pointed out Masin confuses the fact that states may have adopted statutes from English common law with whether those same laws were adopted by the Framers as national laws.
Pointing out numerous issues with how Masin came to his conclusions, such as providing mostly his own conjecture on what John Jay meant by his famous letter to George Washington dated July 1787, Apuzzo said he “assigns to John Jay some corrupt motive, to make his own children born out of the United States natural born citizens,” while glossing over the significant change made by the Naturalization Act of 1975 in removing the language from the Naturalization Act of 1790, “shall be considered as natural citizens” and replacing it with “shall be considered as citizens of the United States.”
Apuzzo wrote, “He dismissed this elephant in the room by simply saying that the Third Congress did not tell us why they made the change. He ignores that the Third Congress made the change knowing that Article II, Section 1, Clause 5 provides that after the adoption of the Constitution, only a natural born citizen (not sufficient to be a “citizen of the United States”) was eligible to be President. ALJ Masin ignores this critical fact which dooms Cruz’s argument that he is a natural born citizen under the early naturalization Acts.”
In conclusion, Apuzzo stated, “We have demonstrated that Congress naturalized Ted Cruz with a naturalization Act. Ted Cruz is at best a naturalized “citizen” of the United States “at birth.” He is not nor can he be a “natural born citizen” of the United States. The New Jersey Secretary of State should therefore accept ALJ decision on standing and political question and reject that part that defines a natural born citizen and which finds Ted Cruz a natural born citizen under that definition. Rather, she should find, based on all the historical and legal evidence provided by objectors in their briefs, that Ted Cruz is not a natural born citizen and keep his name off the New Jersey primary election ballot.”
Masin is the same administrative law judge who heard the 2012 challenge to Obama’s eligibility to be on the New Jersey primary ballot.
Apuzzo represented the plaintiffs in that case as well where oral arguments debated whether Mickey Mouse was eligible to appear on the New Jersey ballot and if Masin had a coffee mug containing an image of Obama’s birth certificate.
After all was said and done, Masin decided Obama had no obligation to prove his eligibility and ruled children born in the United States to aliens were natural born citizens.
Now Masin is somehow stretching that definition to include children born in a foreign country to at least one parent that is not a U.S. citizen to be considered natural born citizens.
New Jersey Lt. Governor Kim Guadagno has the final say as to whether Cruz will remain on the ballot and may accept, modify or reject Masin’s ruling.
On Wednesday, April 13, Williams filed his own blistering exceptions to Masin’s recommendation/initial decision.
First, he strongly protested the “irregularity of the Office of Administrative Law’s ‘recall’ of Jeff Masin to conduct the hearing rather than following a regular order of a random assignment of the case to a neutral officer,” and stated Masin began the hearing “acknowledging that he had ‘been recalled’ and appointed to the case because of his past experience with the natural-born citizen issue.”
Williams went on to say, “To state, as some are doing, that Mr. Masin was ‘cherry-picked’ for this case would not capture the ethical concern presented.”
Second, Williams stated, “It was telling that Masin also stated at the beginnings of the hearings that he had not read the parties’ briefs (which had been due and submitted for several days before the hearing); rather Mr. Masin spend the days before the hearing reading a variety of secondary sources. Mr. Masin’s incredible accomplishment in producing a 26-page, quite detailed recommendation in a one-day time period deserves related note.”
Because Masin was irregularly “recalled” for this hearing, Williams stated it was more than just unfortunate “in terms of fairness and the perception of objectivity,” and said, “No public confidence can be had in the resulting recommendation.”
However, he notes it is the ultimate duty of Guadango to protect the integrity of the New Jersey ballot and “enforce the U.S. Constitution’s clear and unambiguous eligibility requirements for candidates for the presidency.”
Third, Williams raised the fact that his request for an extension of time and delay of the ALJ’s recommendation to allow him adequate time to reply to Cruz’s supplemental late-night filing of April 11 was never even addressed.
Williams also stated his strong support for the reasoning and arguments filed by Apuzzo on behalf of his objectors while separately emphasizing “in the Wong Kim Ark case, the U.S. Supreme Court was required to fully consider the differences between law of the soil vs. citizenship by parentage and the high court ruled that citizenship by place (by soil) was the governing precept in interpreting the Article II, Section I ‘natural born citizen’ requirement.”
Again, Williams argued the term “natural born citizen” was “deliberately drafted and knowingly included by the 1787 Federal Convention’s final product, sent to the States for ratification, to require all Presidents must be born on the soil. It is a simple soil test just as is the requirement for a President to have been 14 years in residence on the soil.”
Williams pointed out the well-established interpretive norm that the Constitution does not have “surplus” words – “natural” purposely modifies “born citizen.”
Although Cruz didn’t have to go through the complex naturalization process, if he actually ever went through any process, Cruz, at best, could only be a naturalized citizen, the same exact status as those 650,000 aliens a year who become citizens by more complex processes.
Williams said it was clear Masin has not changed his views on these matters. However, he added, “neither have the views of Chief Justice John Marshall changed regarding our Republic’s basic constitutional order. Since John Marshall’s opinion in Marbury v. Madison, citizens, lawyers and judges have all known that the U.S. Congress may not alter, tweak, add to or subtract from the clear and unambiguous text of the U.S. Constitution,” which may only be altered by the Article V amendment process.
Williams asserted, “Congress does not have the magical ability to convert Canadian-born Ted Cruz into an American-born Ted Cruz.”
Claiming to share Cruz’s Evangelical “born-again” faith tradition, Williams stated, “But beyond the spiritual, Ted Cruz now claims some type of ‘born again’ experience that transformed him from ‘Canadian-born’ to miraculously a ‘natural born [American] citizen.’”
He stated, “The time-line for miracles is always important: this claimed miracle only happened after he decided to run for President and to renounce his Canadian citizenship in May 2014.”
Calling Cruz out as “the very intelligent Princeton man, the Harvard trained lawyer, the Supreme Court advocate who preaches textualism, strict-constructionism,” Williams said Cruz “does not actually believe he is a ‘natural born citizen.’ Thus, the patent falsity of his New Jersey Certificate of Eligibility and the fraud inherent in the procurement of his Signature Petitions.”
Making it clear that not only does he have standing, Williams said his standing to challenge Cruz’s placement on the ballot is specially as a “competitor candidate” actively seeking the election in the state of New Jersey and in other states across the nation as a “write-in” candidate.
Last, Williams stated “Guadagno has the sworn duty to maintain New Jersey ballot integrity, and to protect, preserve and the defend the U.S. Constitution, by not allowing the ineligible Ted Cruz who has falsely filed a Certification of Eligibility and fraudulently procured signature petitions on the June 7, 2016 primary ballot.”
