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."
If it is a settled matter of law with no unique factual situation, their petition would certainly be denied.
Um, no.
Encyclopedia Britannica is a general encyclopedia not a legal encyclopedia like Corpus Juris Secundum or American Jurisprudence.
Black’s Law Dictionary is the foremost legal dictionary in the United States.
That you believe Britannica to be an authority on legal definitions tells me it’s time to end this discussion.
Carry on.
I actually laughed out loud at that. Thanks for the chuckle.
In case you're wondering why I laughed, SCOTUS did exactly that in Rogers v. Bellei.
Congress can revoke naturalized citizenship. Congress can impose statutory requirements to retain statutory citizenship-at-birth.
He can do his own research.
This does raise an interesting question of why Obama fought so hard against releasing his own Hawaiian "birth certificate". By this same reason as long as his mother was an American citizen at the time of his birth it would not matter if her were in fact born in Kenya, as many have believed.
Well, in Obama’s case, birth outside the country would matter because his mother was three months shy of being able to transmit citizenship to him.
The law requires the one citizen parent to be physically present in the U.S. for five years after the age of 14. Stanley Ann Dunham was three months shy of being 19.
York keeps making this mistake, so I have to assume it's on purpose. It wasn't about where his parents were born; it was that they weren't American citizens when he was born.
-PJ
Exactly right.
My dad was GIVEN THE CHOICE of Canadian or US citizenship when he came of age. He rejected Canadian. He was NEVER a Canadian/Newfoundland citizen.
He has always seen himself as ineligible.
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