Posted on 01/28/2016 12:59:06 PM PST by Kaslin
If you attend a presidential campaign event, you may come across someone wearing colonial garb or an Uncle Sam costume or body paint. But a Ted Cruz rally in Iowa last weekend featured something possibly unprecedented: guys dressed up as Royal Canadian Mounted Police.
This was not a random choice of attire. The guys in scarlet tunics were protesters, who passed out copies of Cruz's Canadian birth certificate to highlight the questions about his eligibility for the American presidency. The Constitution says the president must be "a natural born citizen" of the United States.
There is no dispute that the Texas senator was a U.S. citizen from birth, since his mother was an American. Donald Trump has raised questions, though, about whether Cruz, being born in the great state of Alberta, qualifies as "a natural born citizen."
Cruz dismisses the issue. "It's settled law," he says. "As a legal matter it's quite straightforward." In fact, it's never been settled, it's not straightforward and some experts don't agree with his reading.
The fact that it was Trump who raised the issue made it deeply suspect. But though it's unlikely that anything coming out of Trump's mouth is true, it's not impossible. And his claim that this is an unresolved question that could end up throwing the election into doubt happens to be correct.
When it comes to parsing the crucial phrase, Harvard law professor Laurence Tribe has noted, "No Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a 'natural born citizen' is completely unsettled."
Tribe says that under an originalist interpretation of the Constitution -- the type Cruz champions -- he "wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on U.S. soil to be a 'natural born citizen.'"
Cruz retorted that this is just what you'd expect from a "left-wing judicial activist." But Tribe, an eminent constitutional scholar, is not so predictable. He surprised gun-rights advocates years ago, before the landmark Supreme Court decisions on the Second Amendment, when he said it protects an individual right to own firearms.
Even if he's a judicial activist, the Supreme Court might agree with him. Cruz should know as much, because he has denounced the court for its "lawlessness," "imperial tendencies" and, yes, "judicial activism."
Nor is Tribe alone among experts. University of Chicago law professor Eric Posner says, "The ordinary meaning of the language suggests to me that one must be born on U.S. territory." Chapman University's Ronald Rotunda, co-author of a widely used constitutional law textbook, told me a couple of weeks ago he had no doubt that Cruz is eligible. But when he investigated the issue, he concluded that under the relevant Supreme Court precedents, "Cruz simply is not a natural born citizen."
Catholic University law professor Sarah Helene Duggin wrote in 2005, "Natural born citizenship is absolutely certain only for United States citizens born post-statehood in one of the fifty states, provided that they are not members of Native American tribes."
Steven Lubet, a Northwestern University law professor, spies another possible land mine. Cruz qualified for citizenship because his mother was an American citizen (unlike his father). But "under the law in effect in 1970, Cruz would only have acquired U.S. citizenship if his mother had been 'physically present' in the United States for ten years prior to his birth, including five years after she reached the age of fourteen," Lubet wrote in Salon.
That raises two questions: Did she live in this country for the required amount of time? And can the Cruz family prove it?
Whether the justices would take the case is another question. Unless some state election official bars him from the ballot on constitutional grounds or a rival candidate goes to court, it's unlikely a lawsuit would get a hearing. But if that happens, the Court may elect to resolve the matter -- and no one can be confident of the ultimate verdict.
Trump, believe it or not, is onto something. Cruz's candidacy suffers a potentially fatal defect. If Cruz is nominated or elected, he could be disqualified. When Republican voters cast their ballots, they have to ask themselves: Is he worth the risk?
Yes, until he gets the question cleared up, he could certainly be disqualified.
He already cleared the question up. He is a natural born citizen
Serious question: Could Cruz be elected VP without legal questions being raised?
Just as I predicted several years, ago when this was a hot topic on FR.
I would bet on it, i’m not a lawyer but the evidence i see is pretty straight forward.
But what perplexs me is why did he even try for it? Sounds like he was either too stupid or thought America was.
He’s not eligible. You can take the plain reading, which everyone has always understood to mean, “born on U.S. soil”. Yes there might be an exception for the children of military and diplomats stationed overseas, but Ted’s father was actually a Canadian citizen, and there’s no question that Ted acquired Canadian citizenship at birth. At the time of the framing, citizenship never came through the mother, only the father, so he wouldn’t even be a regular citizen much less a natural born citizen. You can also go to the intent of the provision which was clearly to prevent anyone with even a shred of potential for divided loyalties from ascending to the Presidency, and Ted was admittedly a dual citizen until less than two years ago. Not eligible. Not even a close case.
Yes, he could be disqualified.
But keep in mind that would only happen after he’s won the election, in the Electoral College. The House could either declare the EC vote invalid, or the Supreme Court could. The latter being a realistic possibility.
But even if that happens Constitutional mechanisms kick in. It does NOT mean that the Democrat gets inaugurated. It means that the House, voting by majority of state delegations, chooses the President. The GOP controls a majority of House delegations, so you’d still have a Republican as President.
But would you have a Conservative?
I put my money on the later.
The same qualifications apply to both offices. The questions of whether and how the issue is raised and handled are independent of whether he is qualified. He's naturalized, the precedents are clear and settled.
I don’t know if truth enters into this discussion but the truth is that Ted Cruz holds none of the Canadian opinions that seem to annoy Americans (neither do I and I live here in the socialist paradise to your north).
I am absolutely sure he does not want to hug trees, embrace Syrian refugees or cheer for Nickelback. Neither do I.
So the point is a narrow legal point, not some dramatic revelation about hidden values.
Ted Cruz is simply not a Canadian. The question about whether he is a “real” American is of course for you to decide, but it seems ironic to me that the only person willing to stand up for your constitution is then disqualified by it. Perhaps just being born there is not the only point that is important. Perhaps wanting to be there is more significant than where you started out.
However, carry on, this should kill off what’s left of the tourist industry.
Legal qustions were raised about Barack Hussein Obama, II.
226 lawsuits were filed challenging his eligibility as a Natural Born Citizen. That didn’t stop him from being elected and reelected.
He can be disqualified in a number of ways. One just by the vote, without deciding the issue. Another by the RNC, which is entitled to form its own conclusions. Yet another by some secretary of state or judge denying him ballot access. And then there is the electoral college and Congress, should he win the general election.
Of course the question can be brought up. I also doubt that the Federal courts would want to touch it with a 10 foot pole. More likely some screwball state court (Austin, TX anyone?) and would force the Federal courts to give it a look.
Once it gets a hearing, God only knows what the courts will do.
Ultimately I think the point is moot. St. Rafael will likely be out of this before it becomes an issue.
If you let Cruz participate in the caucus, this birther thing becomes a non-issue.... again.
Before worrying about NBC status of senator Rafael Cruz, I ponder another question.
There are at least a thousand people born in Saudi Arabia, mostly to an American mother and a Saudi father. Should we consider them all Natural Born Citizens?
Nobody ever slips on a plastic banana peel.
If Cruz were elected, and disqualified, would the Vice-President assume office. Cruz-Carson sounds nice.
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