Yes, Ted Cruz Can be President

Cato Institute ^ | August 26, 2013 | Ilya Shapiro

[SoConPubbie]

This article appeared on Daily Caller on August 26, 2013.

As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.

(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)

But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?

No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)

What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.

There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.

In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.

So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.

That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.

So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)

In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”

[kabumpo]

First of all, there is no documentation that Rafael Cruz ever fought for or against anyone.
Second, it is ridiculous to call Batista a dictator in the context of Fidel Castro’s five decade reign of terror. Furthermore, there had been elections in Cuba in 1958 and a new president had been elected.
Some dictator.

[arthurus]

Yes, with an actual non visa holdingforeigner currently in the office of President, Ted Cruze can be President. So can anyone elso on earth who meets the age requirement unless the presidency of the kenyan somehow eliminates that requirement, too. That Constitutional taboo is gone.

[JRandomFreeper]

He will be or won't be president, regardless of how you put things in caps.

The birthers are just noise. Destined to be filtered out, and amounting to less than a fart in a tornado.

/johnny

[Lakeshark]

The idea that Ted's dad still supports Castro and there is some kind of nefarious plot to fool us all into voting for a closet communist is so unhinged, I won't bother to ridicule it......

And now, I need to go fly my black helicopter in my blue helmet........

[NFHale]

None that I can see, Tex.

Kind of settles it for me.

[COBOL2Java]

Ah, gnosticism. Gotcha.

[JRandomFreeper]

Original intent is the go-to catch-all for the birthers. That lets them play fast and loose with long meaningless quotes that don't have the force of law.

Actually looking at the laws on naturalization (of which, one can be naturalized by birth) is not as convoluted and doesn't appeal to them.

/johnny

[arthurus]

The reality is that if Cruz or Rubio becomes a serious candidate, the only subject in the MSM and in much of the rest of the information world, even NR, will be the subject of eligibility, The Republican will lose for that reason. In official debates most if not all questions will refer to eligibility. Nothing else will be discussed except to protest that there are other questions, other subjects. The voters will never learn what those other subjects might be.

[xzins]

“I believe that there is no country in the world including any and all the countries under colonial domination, where economic colonization, humiliation and exploitation were worse than in Cuba, in part owing to my country’s policies during the Batista regime. I approved the proclamation which Fidel Castro made in the Sierra Maestra, when he justifiably called for justice and especially yearned to rid Cuba of corruption. I will even go further: to some extent it is as though Batista was the incarnation of a number of sins on the part of the United States. Now we shall have to pay for those sins. In the matter of the Batista regime, I am in agreement with the first Cuban revolutionaries. That is perfectly clear.”

— U.S. President John F. Kennedy, interview with Jean Daniel, 24 October 1963[23]

[bgill]

the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship.

No, they most certainly did NOT.

[Windflier]

Strike the term "natural born" from the ONLY PLACE IT APPEARS to allow any citizen the privilege of running for the Office of President.

NO!

Amend the Constitution to define Natural Born Citizen as one who is born within the boundaries of U.S. territory to two U.S. citizen parents.

Strengthen the requirement - don't weaken it!

[NFHale]

No less an authority than JFK...

Thanks Padre...

[JRandomFreeper]

No amendment is realistically going to happen, either way.

/johnny

[xzins]

Saying that a person is a natural born citizen who is born in the US of citizen parents (owing allegiance to no other sovereign) is not remarkable.

What it does not say is that someone is not a natural born citizen who is born in the US with only one parent already a citizen.

Further, this was in the late 1860’s, so not contemporaneous with any Founders. Those Founders in 1790 declared that a child is a natural born citizen even if its parents were overseas at the time, and the father a citizen.

The point of the quote, though, is moot. No one disputes that a child is a natural born citizen born in the US of two citizen parents.

[Brown Deer]

First of all, there is no documentation that Rafael Cruz ever fought for or against anyone.

So Rafael Cruz is also a liar, like his son Ted? Rafael is the one who has claimed that he supported Fidel Castro!

But, you just might be correct, because according to this research he was lying about his claims.

Do you really want a man who was born in Canada, and has a law degree from Harvard University, but was too stupid to know that he was a citizen of Canada, running our country? Or was he really that ignorant, because he has also stated that his mother once told him that he had Canadian citizenship. So he didn't just find that out from reading the Dallas News.

[Brown Deer]

copied from:
http://www.freerepublic.com/focus/news/3056700/replies?c=83

Having significant familiarity with the authorities, background, and history of the Natural Born Clause in Article II, Sec. 1, as well as with the views of the Constitutional Law Bar on the question, I can tell you what the consensus is about the current state of the law.

It is generally believed that the Supreme Court would rule that any person born in the United States would be treated as Natural Born; any person not born in the United States would be treated as not Natural Born, no matter what their citizenship status was as a result of birth.

The parent and grandparent citizenship status questions are not viewed as affecting the outcome.

And that is a generally reliable forecast of the Supreme Court outcome by lawyers who practice before the Court on a regular basis.

All that said, the Court is increasingly drifting in the direction of political resolution of this kind of issue and even though the lawyers are in general agreement about what the law is, there is no conclusive precedent that controls and it would not be surprisng to find the Court on a decision that upheld eligibility even for someone born outside the US.

Personally, I strongly support Cruz—I think he would make the most effective candidate.

But, on the current state of the law, I am of the legal opinion that he is not eligible. To date, I have not seen anything that conclusively demonstrates that he was even born a citizen of the United States.

His mother was a citizen? Sure. But the child of a US Citizen mother and non Citizen father born outside the US is a US Citizen at birth only if the mother meets very specific tests set out in the Citizenship statutes.

In order to know whether Cruz passes, you need to know his birth date; his mother’s birth date; the period in which her primary residence was in the geographical limits of the US.

The statutory requirements were amended from time to time with amendments being effective with respect to children born after a specified date.

Further, the consensus of the Constitutional Bar is that the Mother Citizenship statute is not constitutional because there is no equal provision for a Father Citizenship.

Finally, I am concerned that what will happen is that the media will lead Conservatives down the path of support for Cruz until other Conservative candidates are out; then the media will discover that he is not eligible and will send the Republican’s off to nominate Bush or Christie; leaving us with a choice of the Liberal Democrat or a Liberal Republican.

What should be done is to force an effort to identify the place of birth of the present occupant of the White House and use his ineligibility as leverage to get a statutory resolution validating Cruz. That needs to be done now while there is still leverage which will disappear at the end of the current term.

83 posted on 08/23/2013 1:39:31 PM PDT by David

copied from:
http://www.freerepublic.com/focus/news/3056700/posts?page=89#89

The fact that his citizenship was based on (Congressional) statutory requirements is in itself a demonstration that he is not a ‘natural Citizen’. A requirement of Article II, Section 1.
Any dependency on any law passed by Congress is a form of Naturalization. And a citizen’s source of citizenship must be natural or naturalized - but not both.

Citizenship based on statutes passed by Congress = naturalization. A naturalized citizen is not a natural Citizen and is thus obviously not a natural born Citizen.

We seem to be making this much harder than it needs to be - maybe by design....

You are technically correct.

The people making the pro eligibility argument tend to base their position on Citizenship at Birth under the Citizenship statutes. But, as you say, that really wouldn't count under the Natural Born requirement.

In Bari's case (the guy who presently lives in the White House); if the issue was birth in Kenya, which I believe it is not, if his mother was Stanley Ann, which I believe she was not; he would still lose the argument because she couldn't pass citizenship for the reason that she was too young at birth to have lived in the US for five years after age 14.

Unlike most lawyers, although I view myself as a hired gun first; I am also interested in the result from a personal objective perspective.

If, for example, I were retained on behalf of Cruz, I might be thinking about a Constitutional Amendment that validated his position--maybe a provision that said something like Citizen at birth under the citizenship statutes with at least two grandparents who were US Citizens at birth who were born in the US. Maybe I would add other qualifications.

I say that on the assumption (because all the facts necessary to reach a legal conclusion as to the actual condition are not on the record) that under the statute as in effect at Cruz's birth, his mother qualified to pass US Citizenship to a child born outside the US with a non-US Father. If not, I would think about other alternatives.

I would then add a provision to the Citizenship statute that retroactively made children born to a US Father and a non-citizen mother citizens at birth as long as the Father's paternity were established conclusively under regulations promulgated by the Secretary (DNA) on the same basis on which a child born to a US Citizen Mother would become a citizen at birth.

I might also add qualifications to the citizenship provision.

I would consider the merits of doing that on the basis that such an amendment would on the true facts of Bari's parentage validate his eligibility as a trade for the validation of Cruz.

You would get there by using Bari's vulnerability as leverage. That leverage is out there and effective for only a couple of years so if that were the objective to be pursued on behalf of Cruz, someone should start finishing the work on Bari's historical parentage and place of birth.

89 posted on Saturday, August 24, 2013 9:11:08 PM by David

[xzins]

Cruz’s father says he did not know Castro was a communist. Since he fled to the US in 1957, he fought in only the early stage of the revolution.

He was a teenager.

[sometime lurker]

There was only one definition of natural born citizen at the time the founders wrote Article II. That definition is found in the The Law of Nations or the Principles of Natural Law (1758)

This is incorrect. Much of the Constitution is based on English Common Law, and the common law definition is quite different. You may be very sure that the Founders were conversant with English Common Law. So much so, that the Naturalization Act of 1790 said

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 [emphasis added]

Thus many of the Founders voted on this act, which said those born out of the limits would be considered as natural born. While the 1790 version would have excluded Ted Cruz because his father had not been resident in the US (to my knowledge), but it has been amended many times and the act in effect at the time of his birth had only a residency requirement for his mother, which she fulfilled.

[Uncle Chip]

The reality is that if Cruz or Rubio becomes a serious candidate, the only subject in the MSM and in much of the rest of the information world, even NR, will be the subject of eligibility, The Republican will lose for that reason. In official debates most if not all questions will refer to eligibility.

Bingo!!! Nail meet Head.

The Democrats will have the entire Republican talking head establishment on their heels and Hillary who has no elegibility problems will waltz into Bill's new den of interns virtually unopposed.

[NFHale]

No argument from me.

I think Cruz is an amazing American success story.

He represents the very idea of America - a place you can run to to be free, and make a success of yourself.

Too bad we have an entire home-grown class of clowns that will never understand that, and will spend the rest of their lives waiting for their EBTs.