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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.”
Hi Peter,
Through her marriage, Jennie JEROME acquired the title of Lady Randolph Churchill as well as British citizenship.
I see your comment a lot and I finally think it should be commented on.
Citizens (plural) could describe all the citizens(pleural) of the US, not all the parents(pleural) of the children.
For example there are "Children of Veterens Tuition Grants". Verterens (plural) doesn't describe a requirement for a child to have two veteren parents. It instead is plural to describe all the veterans who have children.
I don’t think Cruz will actually run. Peace will reign at FR.
Cruz is doing this to embarass Obama. I bet Cruz releases his college records too.
Through her marriage, Jennie Jerome acquired the title of Lady Randolph Churchill as well as British citizenship.
I take it that this nullifies my theory regarding the passing on of American citizenship by an American mother married to a foreigner in a foreign land. Or does it?
That being said, the reason why I am somewhat nervous of an interpretation of the Constitution is this.
For a person born in a foreign land, say where an avowed hatred of America and the infidel exists, could become the President. His father could be some sort of fanatic. A misguided American woman could go to that country and give birth to a son by him. That son could go to America. He could take citizenship, he could reside in the United States for 14 years.
He could become President. His eyes gleaming like the coals of hell and his mouth twisted, he could then tell Americans it is all over for you now.
America for Americans.
Well......I'm certainly glad you did ! Nothing like a comment on a comment.........
It also (just possibly) might mean....."Born of two citizen parents" as described in Vattel's mid 18th century classic......and still quoted by the U.S. Supreme Court more than half a century later!
“He could become President. His eyes gleaming like the coals of hell and his mouth twisted, he could then tell Americans it is all over for you now. “
In my mind, Obama. I fully believe he was born in Kenya.
Further that thought of yours: What about illegal aliens that HATE, DESPISE, America, and wave the Mexican flag in our streets? How about their first or second generation children that are born to parents and grandparents who are US citizens? We have that now. Millions of little pro-Mexican, anti-American citizens are here now. Any one of them could rise to be the President.
You might be smokin’ somthin’ or else just be ill-informed.
Wild, man.
But I assure you the law on this is not wild like your wild scenarios.
It’s very settled.
And Ted Cruz knows that law.
Inside, outside, up, down, sideways.
Show where the U.S. Supreme Court has ruled ineligibility for President.
Show where they have found in a case that natural born citizen means what internet pretend scholars and lawyers like to claim.
Show where the Constitution says it.
Show where the relevant statute law says it.
You can’t.
The State Department's Foreign Affairs Manual:
"7 FAM 1131.6-2 Eligibility for Presidency
(TL:CON-68; 04-01-1998)
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
d. ...In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
It has never even been determined that a person born abroad to TWO U.S. citizen parents is Constitutionally eligible. Cruz was born to only ONE U.S. citizen parent.
Jim, I have been doing this stuff for over 25 years.
The whole question of who qualified as a Natural Born Citizen in 1789 when the Constitution was ratified can be answered by reference to the first immigration and Naturalization act passed by the First Congress and signed into law by George Washington, the Father of this great Country.
First of all it should be noted at the outset that the laws in effect at the time of Cruz’s birth clearly entitled him to citizenship at birth status.
With that in mind, it must also be noted that the first and only definition that statutorily indicated who was entitled to NBC status was in the naturalization act of 1790 (one of the first laws signed into law by Geroge Washington) and that statute clearly stated that the children of Citizens born overseas were entitled to NBC status.
So if we are looking for a contemporary interpretation of what the founders meant by that clause, then we have it in that statute.
Therefore anyone interested in the original intent of the founders in who is a NBC, one need not look any further than the act signed into law by George Washington.
Hence if Ted Cruz had been born under the same conditions in 1790, then George Washington would have considered him an NBC.
If the first law of Naturalization that George Washington signed into law would make Ted Cruz a NBC, then I am certainly not going to argue that it was the intention of the framers to exclude him.
There is not a single doubt in my mind that Ted Cruz is a Natural Born Citizen in accordance with the definition as understood by none other than George Washington.
I understand that there are Freepers who harbor doubts on this issue. I can understand that because the issue is murkey and subject to a lot of esoteric arguments.
With that said, I think the following is an imperative:
If there is any reasonable doubt as to whether Ted Cruz would be a NBC then as pro life Christians and patriots, we owe it to both ourselves and our posterity to give Ted Cruz the benefit of that doubt.
Our posterity is counting on us to do all we can to preserve the blessings of Liberty for them. Dividing over this issue at a time like this will do nothing to accomplish that mission.
Retreads should keep a low profile.
Your State Dept. quote has already been trotted around the track here. It isn’t proof of anything. Its statement that a court has not determined x is just as true when stated that a court has not determined the opposite of x, either. And speaking of one parent sufficing for those born outside the U.S. to still be natural born, that is in statutory law, which has been word-for-word quoted over and over and over on these threads.
Y’all are gonna push Jim too far. Leave it alone for now. Cruz hasn’t declared. Both sides have presented evidence to support their claims. We’re not going to solve this on FR.
I do recall Coach Fry going to Iowa State and doing well there.
To me he’ll always be a Mustang.
Yet truth be told I was always for TCU when those two played.
Too late. Rides3 has ridden the lightning bolt.
The statement of an unnamed State Department Bureaucrat on this issue carries no weight. Besides that the statement indicated that nobody knows the answer.
I disagree.
I know the answer, and the answer is that Children of Citizens born outside the United States are Natural Born Citizens. We have George Washington’s signature on that position.
Well...I'm glad you're glad..
It also (just possibly) might mean....."Born of two citizen parents" as described in Vattel's mid 18th century classic......and still quoted by the U.S. Supreme Court more than half a century later!
I believe Vattel didn't say "born of two citizen parents". I believe he used the phrase "parents who are citizens'.
Again, Citizens (plural) could describe all the citizens(pleural) of the US, not all the parents(pleural) of the children.
In fact Vattel did specifically mention just on parent. He said "children naturally follow the condition of their fathers, and succeed to all their rights."
You’re correct, and I have three NBC grandchildren born to my US daughter outside the US as proof.
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