CATO Institute: Yes, Ted Cruz Can be President

CATO Institute ^ | Aug 26, 2013 | By Ilya Shapiro, Senior Fellow In Constitutional Studies, Cato

[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.”

[Uncle Chip]

Please note before any of us go off the deep end over this:

Ted Cruz’s father: ‘I don’t see him running for president’

http://washingtonexaminer.com/ted-cruzs-father-i-dont-see-him-running-for-president/article/2534686

[Kenny Bunk]

Scenario

Suppose the AG of Arizona was not sure of a candidate's bona fides. Some legitimate doubt existed.

He would then order the candidate off the Arizona ballot. The candidate then has the choice of contesting that action in the courts. He becomes the "Plaintiff," the AG or other election official, the "Defendant." BTW, this happens frequently in state and local elections. E.G., Rahm Emmanuel's battle to be on the Chicago ballot for mayor!

The court can
(a) support the plaintiff (the removed candidate), or
(b) The defendant, (The State AG or other Election Official.)
(1) The Defendant (in this case the State AG) is free to appeal, but in practice rarely does.
(2) If the decision went the other way, the Plaintiff could appeal, and in practice frequently does.

A national candidate so challenged can even decide not to contest the State AG's decision, as did Abraham Lincoln in the case of the southern states in 1860, and simply forgo a place on that state's ballot. If he decided to contest the issue, he would appeal up the ladder until it reached the SCOTUS. Because of time constraints, it would be fast-tracked.

IMNVHO, the key to the failure of those bringing suit against Obama in recent cases lay in making him the "Defendant." IOW, the "Plaintiffs" had no "authority" to challenge; "no standing." Or, they were unable to show "damages," no tort against them.

Also remember that two Supreme Court Justices have candidly admitted that they have "shoved this one under the rug," turning away several appeals that had legal merit on very narrow legal grounds.

Bottom line. You are correct, vetting the candidates on a state ballot is quintessentially a state matter and a major key to having the case heard at the SCOTUS.

[Jacquerie]

Have you examined your state's presidential election law?

I guarantee there is no provision for your AG to interfere with the careful political considerations that are contained there.

If every state AG could do as you describe, opponents could drag out the process such that it would shut down the presidential election process. That is not going to happen.

[Seizethecarp]

“The America we know will cease to exist after January 2015.”

For me he failure to impeach serial rapist Bill Clinton after he had emotionally scarred his daughter and all young women and wives is what showed me that Americans had fallen for the Golden Calf of the surging dot-com market and just wanted to party-on. Opportunistic lying and getting away with it was the new Clinton role model for Americans including Barry and his handlers.

But I still believe there is hope. Decisions have consequences. Staring October 1, the 90% of American workers who get their health insurance through their work will get there benefit packages and new premiums mandated by Obamacare. I predict that by October 15, Barry will be the most reviled POTUS in history!

This won’t reverse to moral collapse of America, but there is nothing better than the consequences of moral failure to bring about change.

Unlike Barry, Ted Cruz appears to love America and has let an exemplary honest, transparent, moral life on the available record and would be a great standard bearer for conservatives in 2016 should he decide to run. I see no chance that any state would refuse to allow him, or any citizen at birth, on the ballot or that the congress would refuse to certify his election by the electors should that happen.

[Seizethecarp]

“Marriage of the parents was never part of the NBC requirements of the Constitution.
“SCOTUS, in a decision by William O. Douglas (therefore nearly 40 years ago) struck down bastardy as a relevant legal classification.”

One could argue from the timeline that marriage actually WAS a requirement up until the day that SCOTUS removed the disabilities of bastardy.

In the same way citizenship of the wife was unitary with the husband and not an issue...until it wasn’t circa 1920 when women gained their own citizenship rights shortly after they got the right to vote.

Then there is the new question of adopted children, test-tube children and children of homosexual “marriages” all of which could involve foreign birth and foreign citizenship of one or both “parents” or sperm donors.

Didn’t I read that in one state they are allowing three “parents” on a birth certificate? Holy Fleep Batman! We are in uncharted NBC territory! No wonder SCOTUS is “evading” this issue.

[xzins]

“Shall be considered as”

So, for purposes of the presidency, based on what you just wrote above,that I have italicized, would you say that Ted Cruz should be considered “as natural born “ or be considered “NOT as natural born”?

[MHGinTN]

We disagree on what constitutes a natural born citizen, but the disagreement will not matter after January 2015. With the pirate Roberts on the high court, there is no twist of law that cannot be made by the progressives which Roberts will reject if his owners tell him to slide. The man has no honor.

[BuckeyeTexan]

P-Marlowe and I understand each other. We’re just talking. We aren’t fighting.

[Nero Germanicus]

We can look to actual, real life events that happened in Arizona as an example.
1) On November 30, 2007, Barack Obama signed a notarized Arizona Presidential Preference Election Candidate Nomination Paper attesting that he is a “Natural Born Citizen of the United States.”
http://www.scribd.com/mobile/doc/11107727
2) With that attestation, Obama was cleared for the 2008 Arizona Primary and the 2008 General Election Ballot in accordance with Arizona election statutes.
3) The Arizona legislature passed a bill that would require candidates to present evidence of their eligibility before being placed on the ballot.
4) Arizona Governor Jan Brewer vetoed the proof of eligibility bill.
5) John McCain won Arizona’s 2008 Electoral votes.
6) Arizona Tea Party members request that Arizona Secretary of State Ken Bennett get documentation of Obama’s eligibility from Hawaii before placing him on the 2012 Arizona ballot.
7) Bennett writes to the Hawaii Registrar of Vital Staistics and secures a Letter of Verification of Birth in Lieu of Certified Copy from Hawaii.
http://www.azcentral.com/12news/Obama-Verification.pdf
8) With the Letter of Verification, Bennett clears Obama for the 2012 Arizona ballot.
9) An Arizona citizen registered voter, Kenneth Allen initiates a ballot challenge in state court in Tucson to Obama’s natural born citizen status and seeks to bar Obama from the 2012 Arizona ballot.
10) The Court rules that Obama is a natural born citizen and is eligible.
Allen v. Obama, Arizona Superior Court Judge Richard E. Gordon: “Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.”—Pima County Superior Court, Tuscon, Arizona, March 7, 2012
http://www.scribd.com/doc/84531299/AZ-2012-03-07-Allen-v-Obama-C20121317-ORDER-Dismissing-Complaint
11) Mitt Romney defeats Barack Obama in Arizona and wins Arizona’s electors.

[Nero Germanicus]

The Roberts Court has struck down two-thirds of the Obama Administration’s appeals in the 2012-2013 term. That is among the highest percentage of rejections in the history of the Republic and some of them have been 9-0 unanimous rejections.
http://p.washingtontimes.com/news/2013/jun/26/obama-administration-lost-two-thirds-of-cases-duri/?page=all

[BuckeyeTexan]

Yeah, the future of citizenship laws is going to be a mess!

Knowing you, this is a dumb question, but ... have you read the FAM on the determinations that the State Department must make for those claiming U.S. citizenship on behalf of a child born to a foreign surrogate mother for a U.S. citizen egg-donor mother and U.S. citizen sperm-donor father? (Such a child is considered born out of wedlock, BTW.)

Our FF couldn’t have foreseen such a mess, which is one of the reasons they gave us the ability to amend the Constitution.

[Seizethecarp]

“Knowing you, this is a dumb question, but ... have you read the FAM on the determinations that the State Department must make for those claiming U.S. citizenship on behalf of a child born to a foreign surrogate mother for a U.S. citizen egg-donor mother and U.S. citizen sperm-donor father?”

No, but this certainly confirms the issues that await SCOTUS and state AGs in future eligibility challenges.

Courts are the first stop for interpretations of the constitution and statutes and only for more extreme cases of needed change can support for the difficult amendment process be resorted to.

[Uncle Chip]

Read what PM posted.

... and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States ...

Were both of his parents citizens of the US at the time of his birth???

[xzins]

FWIW, Cruz’s case and Obama’s case are different. Obama’s mom was 18 and might not have fulfilled the legal residency requirement if obamama had been born outside the USA. There is no doubt that Cruz’s mom fulfilled the residency requirement. It really is apples and oranges

[xzins]

Not a requirement of the 1790 or the 1795 laws. Only the father had to be a citizen. So, one parent citizenship goes back to the Founders

[Uncle Chip]

Only the father had to be a citizen. So, one parent citizenship goes back to the Founders

But the mother became a citizen upon marriage to her husband -- so if the father was a citizen then so was the mother.

[xzins]

Then just consider Cruz’s father a citizen since the Founders allowed a spouse of a citizen to be an automatic citizen. As you know the nation now treats women as equal citizens and with a vote. We decided they were wrong about women’s equality.

[P-Marlowe]

“Shall be considered as” So, for purposes of the presidency, based on what you just wrote above,that I have italicized, would you say that Ted Cruz should be considered “as natural born “ or be considered “NOT as natural born”?

Of course he would be numbered among the Natural Born Citizens. The language there is mandatory and in the future perfect tense. Hence all children of citizens born overseas or outside the territories of the United States become Natural Born Citizens at birth. There would be no question about that.

George Washington approved that language one year after the Constitution that he helped draft was ratified by the States.

So, Uncle Chip, do you disagree wth George Washington and the founders who Comprised the First Congress on whether or not someone like Ted Cruz shoul be considered as "Natural Born"?

Uncle Chip, I don't believe you ever answered my question about whether this issue is a deal breaker for you. If the primary comes down to Cruz of Christie are you going to vote? If so, then for whom would you cast your ballot?

[xzins]

So, since they are to be “considered as NBCs”, then for purposes of the presidency, Ted Cruz should be considered as a natural born citizen.

This is different than Obama whose mother might have not fulfilled the residency requirement while Cruz’s mother definitely had.

[Uncle Chip]

The language there is mandatory and in the future perfect tense. Hence all children of citizens born overseas or outside the territories of the United States become Natural Born Citizens at birth.

So are you saying that it is a requirement that a natural born citizen be born abroad???

That is what you are telling all of us -- that a mother must go to a foreign country in order to give birth to a natural born citizen of the country that they left??

That is what you are claiming here, isn't it???

So, Uncle Chip, do you disagree wth George Washington and the founders who Comprised the First Congress on whether or not someone like Ted Cruz shoul be considered as "Natural Born"?

So, P-Marlowe, do you agree with George Washington who Comprised the First Congress that the 1790 Naturalization Act should be revoked and replaced with the 1795 in which there is not reference to natural born citizen???

And save the cheesy lawyer lingo slop. I'm not on the witness stand and you are not Clarence Darrow.