Posted on 01/07/2016 9:04:25 AM PST by conservativejoy
The Ted Cruz birther controversy is different from previous birther flaps involving President Obama and Marco Rubio. In Obama's case, the argument focused on whether Obama was in fact born in the United States — a debate that ended when Obama finally produced an original, long-form birth certificate showing he was born in Hawaii. The Rubio birther brouhaha did not involve doubts about whether Rubio was born in the U.S. - he was, in Miami - but over the fact that neither of his parents was born in this country. They weren't, but Rubio's birth in this country makes him indisputably a natural born American citizen, and thus eligible for the presidency.
Now comes the Cruz flap. There's no doubt that Cruz was born in Canada, to a Cuban father and a mother who was a natural-born U.S. citizen. The question is whether that makes Cruz himself a natural born citizen, and thus eligible to serve in the White House.
As many commentators have pointed out, there's no Supreme Court case defining the Constitution's "natural born" phrase. But that doesn't mean Cruz's status is just conjecture. There is plenty of U.S. law defining who is a citizen at birth - that is, a citizen from the first moment of life, and not a foreigner who became a U.S. citizen by naturalization - and under that Ted Cruz was a citizen at birth.
A few years ago, I looked into the law because of the Rubio controversy. I talked to two lawyers who had done extensive work on yet another birther controversy - the 2007 Democratic lawsuit against John McCain, who was born in the Panama Canal Zone to American parents (one of whom was serving in the U.S. Navy). McCain won that litigation, and the case left his lawyers, Theodore Olson and Matthew McGill, with a close knowledge of U.S. citizenship law.
First, the law itself. From the story I wrote in 2012:
The Constitution specifies that a president must be a "natural born citizen" of the United States, but it does not define the term. The Supreme Court has never clarified the issue, but there is a law, 8 U.S. Code 1401, that spells out in detail who is a citizen.
The law uses the phrase "citizens of the United States at birth" and lists categories of people who fit that description.
First, there are people born inside the United States. No question about that; their citizenship is established by the 14th Amendment.
Then there are the people who are born outside the United States to parents who are both American citizens, provided one of them has lived in the U.S. for any period of time. And then there are the people who are born outside the United States to one parent who is a U.S. citizen and the other who is an alien, provided the citizen parent lived in the United States or its possessions for at least five years, at least two of them after age 14.
That last category clearly includes Cruz, making him a "citizen of the United States at birth." The only question, then, is whether a citizen at birth is also a natural born citizen.
"My conclusion would be that if you are a citizen as a consequence of your birth, that's a natural born citizen," Olson told me in 2012. "It is not our view that natural born citizenship requires the citizenship of both parents."
"The key problem here is that the Supreme Court has never told us what the phrase natural born citizen means," added McGill. "Most people believe it to mean that if you are a citizen of the U.S. at birth, you are a natural born American citizen."
Nevertheless, until there is a court case, there is no absolutely definitive definition of "natural born citizen." Which means that for the moment, the argument is as much political as it is legal. Which is not the best news for Cruz, who not only has rivals on the campaign trail - Donald Trump set off this controversy by saying Cruz's situation could be a "big problem" for the Republican Party - but enemies in the Senate as well.
"I don't know the answer to that," said John McCain, who doesn't like Cruz, when discussing Cruz's birth situation in an interview Wednesday. McCain pointed out that he, McCain, was born on an American military base, which was not the same as Cruz's problem. "That's different from being born on foreign soil so I think there is a question," McCain said. "I am not a constitutional scholar on that, but I think it's worth looking into. I don't think it's illegitimate to look into it."
Translation: You're on your own, Ted.
Will the question finally be settled by Cruz? Will there be a court case in the heat of the campaign? Maybe not. Back in 2012, in a different context, Olson didn't think so. "The funny thing is that the courts probably won't touch this in anticipation of an election," he told me. "And then, once the election is over, if the person is elected, the courts would be very reluctant to overturn the will of the people."
UPDATE: In response to this question, a number of Twitter followers have claimed that Cruz is not a natural born U.S. citizen because his mother "renounced" her U.S. citizenship while living in Canada when Cruz was born. This rumor was apparently started by Florida Democratic Rep. Alan Grayson, who told the press that Cruz's mother "may have elected to give up her U.S. citizenship."
The Cruz campaign says that is categorically false. "She did not renounce her U.S. citizenship," says Cruz spokesman Rick Tyler. "She was born an American citizen in Delaware. She never had Canadian citizenship. Just like Ted, she has never breathed a single breath on this earth when she was not an American citizen."
I’m sure in light of the questions, Cruz has discussed this with his mother. There is no documentation anywhere that Cruz’s mother ever applied for Canadian citizenship. She votes regularly.
Cruz renounced his Canadian citizenship as soon as he knew of it, but actually that citizenship was nullified the first time he voted.
The Act also establishes the United States citizenship of certain children of citizens, born abroad, without the need for naturalization: "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".
That's a new wrinkle. I bet dual citizens will be surprised to find out that voting affects their citizenship status.
NO, the issue with O, is a law saying that a parent could only confer citizenship to a child if they had lived continuously in the U.S. for 14 years before the age of 18. O’s mom had not.
I should also have added, if it could be established that O was not born in U.S. that statute would apply.
That applies to Canada. Don’t know what the laws are in other countries.
No. The dispute is over which events constitute "naturalization." The correct understanding is that "natural born citizen" is one who would be considered a citizen naturally, without depending on any law. In other words, someone who would be considered a "native" of a country even if that country had no state, and so had no laws defining who is or is not a "citizen."
Someone who is legally a citizen only because of a statute enacted by Congress, but would not be considered a native of the country without that law, is clearly not a "natural born citizen." Few would disagree with that.
The controversy arises over such questions as whether someone who's a citizen because the 14th Amendment defines them to be one (because they were born here to illegal alien parents, for example,) but would not be considered a citizen were there no 14th Amendment and no Acts of Congress declaring them to be a citizen, would qualify as a "natural born citizen."
The "natural" in "natural born citizen" is intended to require that the person be a native American, not just a "citizen." And it has nothing to do with ethnicity or race.
No, we’re not missing that because it never happened.
Where did she live? Kansas, Washington and Hawaii as far as I know.
And BTW, I don't think this birther attack on Cruz is anything but a bunch of crap. But Trump didn't start it. McCain and his media buddies did.
And 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: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
So it was the understanding of Congress in 1790, that the children born outside the country of U.S. citizens are considered to be natural born citizens so long as the father had been a resident of the United States at some point. Since many of the members of that Congress had been delegates to the Constitutional Convention of 1787 and/or signers of the Constitution and/or members of state conventions that ratified the Constitution, that strikes me as a pretty authoritative interpretation of what the Constitution means by the phrase "natural born citizen."
I really do get confused about this.
For one thing, my father was in a better position than Cruz - born in “Canada” (really, Newfoundland) but to TWO full-citizen Americans. He considered himself never eligible to be president.
Further, he was TS classified for years, yet whenever I applied for clearance, I had to explain how his being born in Newfoundland didn’t matter. I still have a personal note he wrote explaining how he passed into the US at age 2, then was given the option around 18 of either/or citizenship.
Unlike Cruz, my father NEVER held Canadian citizenship, much less up until a little while ago even while a federal public servant?
(I DO question that. Seems totally inappropriate to me to be a senator yet still beholden to another country!)
So you see both the cases regarding Obama and Cruz equivalently? If so, why?
“This was the case conservatives were pushing against obama, the Kenyan, for the last 7 years.”
Only because his mother was too young to confer citizenship to a child born abroad, under the law at the time, when she gave birth. Cruz’ mother does not have that issue.
What is a certainty, is that there is no person alive who has standing to bring the matter to any court.
Your contention is that a dual XYZ/Canadian citizen loses his Canadian citizenship by voting in country XYZ election.
I think that's false. And so what anyway. Nothing in the constitution prohibits a citizen of Canada from being president of the US. The eligibility requirement is that the person be a natural born citizen of the US.
I don't understand how this could possibly work. The Constitution, as amended, is the law of the land. If not in the Constitution or in statute, how is citizenship to be defined?
Where is the definitive source we can use to determine who is a native American?
Are you saying the Constitution isn't "law"?
Cruz is not a Canadian citizen. He renounced that citizenship as soon as he learned of it, so how is he beholden? Your dad could have renounced his Canadian citizenship and run for the Presidency.
She lived in Kenya and supposedly gave birth in Hawaii. She also lived in Indonesia, but that was after O was born.
I always thought that there were only two kinds of US citizen, natural born or naturalized. Is there a third way?
Undocumented citizens...
Natural Born Citizen, as I understand it, is that you must be a child of 2 US Citizens, paternity in particular is important as properties and rights are passed through the father...
Cruz nor Obama’s fathers were US Citizens at their birth. It has nothing to do with where you were born.
Natural Born is not Native Born, it has a very specific meaning at the time of its writing.
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