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.”
What facts would that be???
Was he born in Calgary, Alberta or not???
Was he born to a father who was not a US citizen or not???
"Even Cruz admits he’s Canadian"
is incorrect.
"The Dallas Morning News says that I may technically have dual citizenship," Cruz said in a statement Monday night. "Assuming that is true, then sure, I will renounce any Canadian citizenship. Nothing against Canada, but I'm an American by birth, and as a U.S. senator; I believe I should be only an American."
It's such a Clintonian "depends on the meaning of is" statement by Cruz.
Weaselly. He was born there and lived there for four years. That's no technicality.
The fact that he doesn't want to admit it doesn't change anything.
Big difference. I know Mark Levin. He’s a constitutionalist and a grassroots tea party guy who, like us, is trying to take our country back. And he seems to place some credence in this author’s work. Levin is a great constitution-loving patriot, not some lying politician.
I fully agree... especially with the constitution-loving patriot part....
However, I do not agree with what he concludes regarding the eligibility clause.
Unlike the left wingers who almost always speak with one talking point and are willing to distort the truth to gain a political goal, we conservatives tend to be more principled and are thus more passionate about what we believe. Unfortunately, when we disagree, we tend to tear each other up into little pieces.
We need the kind of reaganesque leadership to help us put things in perspective. We should understand that the things we agree on are far more important then the things we disagree on.
Just my opinion.
Well, I kind of like Levin’s conclusion.
Can’t pull anything over on you internet sea lawyers, can he?
Funny, though, I don’t remember him denying the circumstances of his birth and early years.
However, I am sure we both agree on the most important thing....
We Must WIN!!
“I don’t remember him denying the circumstances of his birth and early years.”
He is hedging on the citizenship part. Born there and lived there for four years. Non-American father. He knows he has Canadian and American citizenship. He’s the one playing games here. Not me. I don’t have to be a “sea lawyer” (whatever that means)to understand the basic facts.
He’s the one using weaselly language. He says “I believe I should be only an American.” It doesn’t matter what he believes. Little Timbucktoo from Botswana could believe he should only be an American.
He knows he has problems that’s why he’s using the weaselly statement and “his belief.”
With all respect for Jim’s and others opinion/choice I look askance at at the ‘so-clear’ presentation as to Cruz’s eligibility for POTUSA. I see the arguments for such like a political ‘musical chairs’ when the Constitution for me has a much simpler and defined framework for ‘natural born’ when looking at many discussions of the matter from Founding Fathers to the 1800s. What bothers me very much is that similar pro Cruz arguments would be applicable to men or women such as the Muslim sons of deposed Egyptian Muslim Morsi who were born in the USA. Either father or mother would present the same dilemma. The Constitution references ‘born’ i.e. at birth. This is not two or four years after birth. I believe from my own situation that birth is vital to allegiance and the Founders were wise to this for the future of the USA. Birth does not guarantee future allegiance but it is a vital part of one’s heritage. It is a fact that Cruz was born in Canada to a Cuban citizen at the time father. I also believe the USA cannot and should not relax the Constitution one iota to accommodate someone with the status of Obama.
EXACTLY.
This is not about Cruz or even Obama as individual persons.
I think is imperative the we are all on the same page early and long before the war begins. If we resurrect this issue two years from now when the GOP has already picked its liberal RINO to run against the Tea Party candidates, it will create just the kind of dissention and division that we are seeing now. This will divide the Conservatives and the RINO will get the nomination again.
The only reason Romney got the nomination was because all the other candidates were conservative and all Romney needed to clinch the nomination was a plurality of the moderate votes.
So if we are still arguing amongst ourselves on this STUPID issue in 2015, you can bet that the Republican ticket will end up with something like Christie/Graham.
If Cruz's NBC status were ever heard in court, there is literally no chance that any court would rule he is not eligible. The burden of proof would be on those claiming he is not a NBC, and according to established rules of evidence in these kinds of cases, all reasonable doubt must be resolved in favor of the non-moving party.
Another thing, who among those on this forum would take this issue to court if Cruz won the election? Would you? Would any of the Freepers who insist that they know better than George Washington and insist now that Ted Cruz is not an NBC actually file papers to prevent his innauguration? I hope to God there are no Freepers on this forum who would be so foolish.
We don't have until 2016 to hammer out this issue. We need to be ready to start the war as early as January 2014. We need to rally the troops for the fight, and this time we need to all congeal around a single Tea Party Conservative instead of having 5 or 6 bickering Conservatives going at each others throats while Chis Christie waltzes backwards into the nomination
Right now Ted Cruz is the most likely candidate to carry the torch for the Tea Party Conservatives in 2016. We need to decide now who among us is willing to give him the benefit of any doubt as to his eligibility and who among us is willing to challenge his election in court should he actually get elected.
This issue seems to be at the forefront of the news cycles NOW, so NOW is the time to clear the air. To delay this discussion is to ensure that when the bullets actully start flying we will be standing around with our weapons lying rusty and unloaded.
This is the reference to residency I was talking about.
It says that children born to overseas US parents are NBCs. But it says that the FATHER had to have resided in the US.
We now say that the one who is the citizen had to have resided whether it's the father or the mother.
As Solicitor General of the state of Texas where he argued and won many Supreme Court cases, I believe he knows the law a hell of a lot better than you. In fact, you know nothing whatsoever of law. Just parrot what you find on birther blogs.
What are birther blogs?
Anyhow, a draft of Cruz is sure getting off on the wrong foot when a goodly chunk of those who would agree with him philosophically don’t want to back his eligibility up... for whatever reason. I truly pray for a better GOP showing this upcoming time than the mutual sniping which left a half dozen acceptable men in the dust and gave us a consummate weather vane that we finally backed because there was nothing better.
Actually, he said that he did know, but that he assumed with no action that it would go away.
There's good reason for assuming that. That is the way US law is written. Since it is possible to renounce citizenship for a US citizen, it is considered an assumed renunciation if a US citizen born overseas does not file the necessary paperwork by such and such an age. I think the assumption is that they've picked up a different citizenship and refused their US citizenship.
I’m certain that we are all happy to see the Roberts Supreme Court strike down two-thirds of Obama’s appeals, sometimes even unanimously.
Not too many people would think that pointing out that fact is somehow taking a liberal position.
It is historically typical for an administration’s position to be upheld about 70% of the time and overturned about 30%, but Obama has been rejected 66% of the time and upheld 34% of the time.
And that’s why it’s such a disappoint for me that Cruz and other who are not NBC’s didn’t call out Obama.
Their personal ambitions supersede the Constitution and changing the Constitution by proper and lawful means. What they tried and failed to do many, many times in the past.
I think I’ll vote for little Timbucktoo from Botswana in 2016.
You are correct that the 1790 law did require that the Father have at some point established residency within the United States proper, however it does not appear to be a requirement that the Father actually be a Citizen.
Here is the entire text of the 1790 Naturalization act. One paragraph. Not 2000 pages of Omnibus legislation like we have today. One Paragraph.
.
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. 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: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
Well, life sometimes hands out bitter disappointments. We fight where we can, but win or lose, we go on.
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