This essay is written to clarify the questions regarding Senator Marco Rubio’s constitutional eligibility for the office of Vice President or President. During this study, it has become apparent how important the citizenship of the parents is to determining whether the child is a natural born citizen and why this remains a national security issue at its core.
We understand that in the 235 years of our Nation’s history, the definition of ‘natural born citizen’ as used in our Constitution has not changed. From this it is paramount that both parents must be citizens and have no foreign allegiance when the child is born in order for that child to be the Constitutional Article II natural born citizen. On the surface then, Marco Rubio is not a natural born citizen because his parents were not American citizens at the time of his birth but naturalized four years later.
One would think this is the end of the story. Not.
Rubio’s supporters, including republicans who don’t think about Article II, obots still trying to justify Obama’s existence, and the Tea Party, will want to bury Rubio’s natural born citizen issue first and foremost, perpetuating or covering up the constitutional crisis we are in with the usurper Obama. This will be done either for expediency to defeat Obama or continuing to cover for Obama, but it perpetuates a disservice to our Constitution.
For those who would like to take an analytical approach, examining the real questions of citizenship instead of glossing over them, this article is for you. The analysis reveals that in order for Marco Rubio to stand for either President or Vice President, he would need a SCOTUS ruling to determine if his citizenship at birth was undivided and unalienable. Without this ruling, he would be another constitutionally ineligible candidate, no matter how much you like him.
Cuba–A Sovereign State or U.S. Protectorate?
Spain, Great Britain, and the United States all have had major roles in the settlement of and wars over Cuba. The native Cubans had consistently fought the spanish in a bid for independence, and asked the United States for assistance. During Cuba’s second war of independence in 1897, the battleship USS Maine was sunk in Havanna Harbor, which prompted the Spanish-American war. In Cuba the war became known as “the U.S. intervention in Cuba’s War of Independence”. Spain and the U.S. ended the war, and Spanish dominance in the Caribbean, in 1898 with the Treaty of Paris. U.S. military rule of the island of Cuba persisted until 1901.The Platt Amendment of 1901 stipulated the conditions for U.S. troop withdrawal from Cuba.
The Platt amendment stipulated that the United States could exercise the right to intervene in Cuban political, economic and military affairs if necessary, and replaced the less specific Teller Amendment. It was to define the terms of Cuban-U.S. relations for the following 33 years and was bitterly resented by the majority of Cubans. Another consequence of the amendment gave the United States continued use of the southern portion of Guantánamo Bay, where a United States Naval Station had been established in 1898.
U.S Occupation ended May 20, 1902, and the Cuban–American Treaty was signed on February 17, 1903, recognizing Cuba as a sovereign republic and offering protection of Cuban citizens in return for Guantanamo Bay.
While the Platt Amendment offered protection of Cuban Citizens, it can be argued that it did not, however, create a formal “U.S. Protectorate” status as Cuba was regarded as a separate state under international law.
In history, the term protectorate has two different meanings. In its earliest inception, which has been adopted by modern international law, it is an autonomous territory that is protected diplomatically or militarily against third parties by a stronger state or entity. In exchange for this, the protectorate usually accepts specified obligations, which may vary greatly, depending on the real nature of their relationship. However, it retains sufficient measure of sovereignty and remains a state under international law. A territory subject to this type of arrangement is also known as a protected state.
The other use of the term protectorate refers to states that are not regarded as separate states under international laws, such as the British Colonies in America before the war of independence.
Nowhere in the Platt Amendment or the Cuba-U.S. Treaty is American citizenship granted to any Cuban national. Because Cuba was not a formal protectorate of the United States, and recognized as a sovereign state under international law, residents of Cuba are Cuban citizens, and never had American citizenship bestowed upon them.
Cuba drafted its first Constitution in 1901, incorporating the Platt Amendment, which gave the U.S.the right to intervene in Cuban affairs. This Constitution was in effect until replaced by the 1940 Cuban Constitution. Between 1903 and 1934, the United States constantly intervened in Cuban affairs and governance.
As stated above, Cubans remained Cuban citizens, not American citizens during this time.
The Platt Amendment portion of the Cuban Constitution was repealed in 1934 through the Treaty of Relations signed between the U.S. and Cuba. A Cuban constitutional convention led to the drafting of the 1940 Constitution, which defined Cuban Citizen by birth or naturalization:
ART. 12. Cubans by birth are:
1st. All those born in the territory of the Republic with the exception of the children of aliens who may at the time be in the service of their Government.
2nd. Those born in foreign territory, of Cuban father or mother, by the sole act of their becoming inhabitants of Cuba.
3rd. Those having been born outside the territory of the Republic, of father or mother who were natives of Cuba, but who may have lost this nationality, who reclaim Cuban citizenship in the form and subject to the conditions stipulated by law.
4th. Aliens who served for one year or more in the army of liberation, remaining in it until the termination of the War of Independence, provided they affirm this service with an authentic document issued by the national archive.
ART. 13. Cubans by naturalization are:
1st. Aliens who, after five years of continuous residence in the territory of the Republic, and not less than one year after having declared their intention of acquiring Cuban nationality, obtain the letter of citizenship in accordance with the law, provided that they know the Spanish language.
2nd. An alien who marries a Cuban woman, and an alien woman who marries a Cuban, in case offspring result from such union, or if they maintain two years of continuous residence in the country after their marriage, and provided that they previously renounce the nationality of their origin.
Note that the 1940 Constitution requires citizens to take proactive steps to secure their citizenship, even though they are called Cuban citizens. Importantly, the 1940 Constitution also includes descriptions of who loses their Cuban citizenship:
ART. 15. The following lose Cuban citizenship:
1st. Those who acquire a foreign citizenship.
2nd. Those who, without permission of the Senate, enter the military service of another Nation, or accept the discharge of duties that are inconsistent with Cuban authority or jurisdiction.
3rd. Cubans by naturalization who reside three consecutive years in the country of their birth, unless they express every three years, before the appropriate consular authority, their desire to retain Cuban citizenship.
The law may determine crimes and acts of unworthiness that may cause the loss of citizenship by naturalization, through definite sentence by competent tribunals.
4th. Naturalized citizens who have accepted double citizenship.
Loss of citizenship for the reasons designated in Clauses (b) and (c) [i.e., 2nd and 3rd Clauses, above] of this article shall not be made effective except by definite sentence pronounced after due judicial process before a tribunal of justice, as the law may provide.
In 1944, Batista was defeated in a fair election. During the regime’s rule political gangsterism swept through Cuba and shook Cuban society to its very core. According to the constitution of 1940 the University of Havana was an area in which civil and milltary police were not allowed. The result was that these political gangsters were able to murder with impunity and use the University as refuge from the authorities. These groups were used to wipe out communist infiltration of the Unions. The situation worsened to the point that Fulgencio Batista was able to justify a coup de etat which took place on March 10, 1952.
Back in power, Batista now suspended the 1940 Constitution and revoked most political liberties, including the right to strike. He then went into league with the wealthiest landowners who owned the largest sugar plantations, and presided over a stagnating economy which saw a widened gap between rich and poor Cubans. Batista’s increasingly corrupt and repressive regime then began to systematically profit from the exploitation of Cuba’s commercial interests, by negotiating lucrative relationships with the American mafia, who controlled the drug, gambling, and prostitution rackets in Havana, and with large multinational American corporations that had invested considerable amounts of money into Cuba. To quell the growing discontent amongst the populace — which was subsequently displayed through frequent student riots and anti-Batista demonstrations — Batista established tighter censorship of the media, while also utilizing his anti-Communist secret police and U.S.-supplied weaponry to carry out wide-scale violence, torture and public executions; ultimately killing as many as 20,000 Cubans.
Having initially supported Batista, at the end of 1958 the United States under the Eisenhower Administration began an arms embargo on the Batista Regime which was interpreted as U.S. support for Fidel Castro and his revolutionaries. Castro took over the Cuban government on January 1, 1959.
In 1966 the Cuban Adjustment Act was signed into law. Over a million and a half Cubans sought political refuge in the United States. Building an enclave of economic and cultural power in Miami which has changed the face of South Florida. Cuban exiles organized into a huge umbrella of political and para-millitary organizations throughout this period. Groups such as Alpha 66, Commandos L, and Omega 7 targeted Castro agents abroad and military and security targets inside the island.
The Cuban Adjustment Act allowed the Attorney General of the United States, at his discretion,
…As to the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence… The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.
The next Constitution drafted for Cuba was in 1976 which contained the following slightly revised stipulations for citizenship:
ARTICLE 28. Cuban citizenship is acquired by birth or through naturalization.
ARTICLE 29. Cuban citizens by birth are:
a) those born in national territory, with the exception of the children of foreign persons at the service of their government or international organizations. In the case of the children of temporary foreign residents in the country, the law stipulates the requisites and formalities;
b) those born abroad, one of whose parents at least is Cuban and on an official mission;
c) those born abroad, one of whose parents at least is Cuban, who have complied with the formalities stipulated by law;
d) those born outside national territory, one of whose parents at least is Cuban and who lost their Cuban citizenship provide they apply for said citizenship according to the procedures stated by law;
e) foreigners who, by virtue of their exceptional merits won in the struggles for Cuba’s liberation, were considered Cuban citizens by birth.
ARTICLE 30. Cuban citizens by naturalization are:
a) those foreigners who acquire Cuban citizenship in accordance with the regulations established by law;
b) those who contributed to the armed struggle against the tyranny overthrown on January 1, 1959, provided they show proof of this in the legally established form;
c) those who having been arbitrarily deprived of their citizenship of origin, obtain Cuban citizenship by virtue of an express agreement of the Council of State.
ARTICLE 31. Neither marriage nor its dissolution affect the citizenship status of either of the spouses or their children.
ARTICLE 32. Cubans may not be deprived of their citizenship save for established legal causes. Neither may they be deprived of the right to change citizenship.
Dual citizenship is not recognized. Therefore, when a foreign citizenship is acquired, the Cuban one will be lost.
Formalization of the loss of citizenship and the authorities empowered to decide on this is prescribed by law.
ARTICLE 33. Cuban citizenship may be regained in those cases and ways specified by law.
Cuban Citizenship over Time
In the century prior to 1901, Cubans were colonial subjects of Spain. Under the 1901 Cuba Constitution, which contained the Platt Amendment, Cuba was a sovereign state recognized by international law, thus residents were citizens of Cuba. Although loosely protected by the United States, no U.S. citizenship was conferred to Cubans in Cuba.
- Mario Rubio (1927) and Oria Garcia (1931), were born under the 1901 Constitution of Cuba and Platt Amendment as Cuban citizens.
Under the 1940 Cuba Constitution, Cuban citizens had to take proactive steps to become a Cuban citizen. Given this was the first real independent constitution without the Platt Amendment, we assume that most Cubans, including Senator Rubio’s parents probably took those steps.
Batista suspended the 1940 Constitution from 1952-1958 and it is unclear what happened with citizenship at that time, particularly with those who were known to oppose the regime. Were there laws on the books outside of the 1940 Constitution’s provisions for loss of citizenship that stripped resistors or defectors of Cuban citizenship?
Fidel Castro came to power through rebellion against Batista, who had him imprisoned at one time. Castro overthrew the Batista regime on January 1, 1959. Castro did not restore the 1940 Constitution as he had promised but instead repressed any opposition, moving the country to a revolutionary marxist dictatorship, the tenets of which were enshrined in the 1976 Constitution.
Did the citizenship of Cubans under the 1940 Constitution change when it was suspended from 1953-1959?
- In 1956, Mario Rubio and Oria Garcia left Cuba for the United States, long before Castro came to power.
In the context of the complex historical relations between the U.S. and Cuba, under what citizenship status did the Rubio’s enter the United States? Were they (a)U.S. Nationals, (b) Political Refugees, (c)stateless, (d) Cuban citizens or exiles, or (e) alien(s) lawfully admitted for permanent residence, eligible to receive an immigrant visa, and admissible to the United States for permanent residence?
- The Rubios never formally renounced Cuban citizenship at any time before they were naturalized in 1975.
It is important to answer this question because U.S. Nationals, for example, owe sole allegiance to the United States even though they are not U.S. Citizens. Is it possible that the child of U.S. Nationals could be be a natural born citizen?
- Marco Rubio was born in 1971 in the United States. Under the 1940 Cuba Constitution Marco Rubio was born with Cuban citizenship by blood (jus sanguines).
- The citizenship status of Senator Rubio’s parents at the time of his birth, given no other information, was Cuban. Both parents then had a foreign allegiance at the time of Marco Rubio’s birth.
Legal research and clarification of the Senator’s parents’ citizenship status while in the United States is essential to determining whether Senator Rubio is a natural born citizen of the United States.
- Senator Marco Rubio was born with dual citizenship at birth–from Cuba and the United States, the first under the 1940 Cuba Constitution, the latter under the 14th Amendment.
- Senator Rubio’s parents did not become American citizens until 1975, four years after his birth.
Based on this analysis, Senator Marco Rubio is not a natural born citizen and is ineligible for the office of President or Vice President. His parents were not American citizens at his birth and Senator Rubio was born with dual citizenship.
If Senator Marco Rubio wants to run for President or Vice President of the United States, this essay concludes that he should seek clarification from the Supreme Court that his U.S. citizenship at birth was unalienable and undivided. Glossing over the issue does not speak well for his integrity, or those who would support him. If SCOTUS refuses to give him that clarity, then Senator Rubio should voluntarily refrain or should be disqualified from running for either of these positions.
There will be those who attempt to empathize with the ‘American story’ of immigrants coming to escape persecution and make a life for themselves. However honorable and compelling that story is, for many, it cannot be used to overlook the real constitutional requirements that the President and Vice President have undivided and unalienable allegiance.
The national security implications? The last thing we need is a President or Vice President of divided loyalties whose allegiance includes a communist country. What if Rubio still has relatives in Cuba who could be seized by the Castro regime for blackmail of the United States?