Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
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.”
Your Alinsky mind tricks are wasted on me.
nice try
No cigar.
you have virtually no following and you are harmful to the conservative cause.
I can’t stand liberals, but I lump radical birthers in with Liberals because you folks want to give the Courts too much power.
The time to fight the battle is in the primaries. Not the general election.
You’ve been a staunch Obama defender on eligibility before Ted Cruz was even a blip on the map. All one needs to do is check your posting history.
That, or you are an idiot.
It is also very clear that you are not a conservative.
Stating facts which you do not like is not, in any way, support for Obama.
Hear, Hear!
ping
I am so in line with your thinking. I just wish more people had as much common sense or at least, the brain power to acknowledge that common sense.
bttt
bttt
Bm
Jim, I really love Ted Cruz and if he wins the primary I will certainly work for him and vote for him. I think it’s a bit too early to settle on one candidate just yet. After watching both of them, my instinct says Scott Walker is the one who can carry it all the way. He and Cruz are the two I’m watching, and I think that Cruz will have the same problem that Sarah had. He will be Alinskyed to the point where sqishy moderates will be convinced he is satan incarnate. Walker has already been through that and came out smelling like a rose. Note the response he got in Iowa. He & Cruz were the two who got the most response.
ping
I support Cruz for anything but the Presidency, I can not in good conscience have opposed Obama’s qualification to President, and then turn around and support Cruz when I don’t believe neither is a natural born citizen.
The article states “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.”
What??? where did he get that?
There is a difference between a natural born citizen and a citizen.
Being a citizen at birth is not the same as being a natural born citizen. The author fails to make the connection.
Reading the Supreme court cases is interesting, for example United States v. Wong Kim Ark, 169 U. S. 649 (1898):
The Fourteenth Amendment of the Constitution ... contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
So its pretty clear to me that anyone NOT born in the US is a citizen by naturalization.
They may be a (naturalized) citizen at birth by virtue of the citizenship of their parents, or under different circumstances through the process which is what we normally think of the as the naturalization process.
This is just my opinion, but this highlights the need for the Supreme Court to make a ruling on this issue.
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