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CATO Institute: Yes, Ted Cruz Can be President
CATO Institute ^ | Aug 26, 2013 | By Ilya Shapiro, Senior Fellow In Constitutional Studies, Cato

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.”


TOPICS: Canada; Constitution/Conservatism; Extended News; Front Page News; News/Current Events; Politics/Elections; US: Arizona; US: Florida; US: Kentucky; US: New Jersey; US: Texas
KEYWORDS: 2016gopprimary; arizona; barrygoldwater; barrygotawaiver; beammeupscotty; canada; cato; chrischristie; cruz; cruz2016; eligible; florida; georgeromney; johnmccain; kentucky; marcorubio; mexico; naturalborncitizen; nbc; newjersey; panama; scottwalker; tedcruz; texas
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To: xzins

“it is considered an assumed renunciation”
__

No, that’s not right. There are no “assumed renunciations” of citizenship under U.S. law:

“ELEMENTS OF RENUNCIATION

A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:

1. appear in person before a U.S. consular or diplomatic officer,
2. in a foreign country (normally at a U.S. Embassy or Consulate); and
3. sign an oath of renunciation”

(from the State Department — http://travel.state.gov/law/citizenship/citizenship_776.html )

What you may be thinking of is the fact that it is much easier for a U.S. citizen born abroad to document his or her citizenship by obtaining a Consular Report of Birth Abroad (CRBA), and those can only be obtained by age 18.

However, failure to obtain one certainly does not result in loss of citizenship, it just complicates the paperwork required if and when proof of U.S. citizenship is required.


461 posted on 08/31/2013 8:16:19 PM PDT by BigGuy22
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To: P-Marlowe
Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States

"Never been resident" means more in 1700s English that what was meant by the earlier "reside" for 2 years. Having had to wade through countless 1700s John Wesley sermons and the English of that era, "never been resident" would have meant that the father actually had to have "lived" there, that is, had his life there.

462 posted on 08/31/2013 8:29:17 PM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: HiTech RedNeck

I repeat, IF Cruz decides to run and IF he’s the strongest conservative running, I’ll support him to the hilt and I believe most of the grassroots tea party conservatives will also. No way in hell will I support Kristy, Bush or any GOP-e backed RINO (Rubio for example) pretending to be a conservative. McCain, Romney should be the end of that trail.

If someone of the caliber of Sarah Palin or Jim DeMint decides to run, Cruz will have some competition among the grassroots. Some might also include Santorum or Perry as viable conservatives. Just praying we decide on the strongest conservative very quickly and don’t destroy any of them thereby allowing the sure loser RINO to take the nomination.


463 posted on 08/31/2013 8:29:23 PM PDT by Jim Robinson (Resistance to tyrants is obedience to God!!)
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To: BigGuy22

I’ll have to look for it, but I know I’ve seen the requirement that one follow through on citizenship gained from one’s parents even though born overseas. It’s too late now.

I’m guessing I saw it in the Foreign Affairs Manual from the State Deptmt.


464 posted on 08/31/2013 8:32:14 PM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: xzins

FWIW Rafael Cruz not only had his life here, but the business he owned that took him to Calgary was in Austin Texas. There are those who would argue that the Republic of Texas is not really in the United States, but most of us Native Texans, if pressed, will reluctantly that admit that the Republic of Texas may actually be a member of the Union.


465 posted on 08/31/2013 8:35:15 PM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds)
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To: Jim Robinson

Just posted:

Conservatives shower Sen. Cruz of Texas with praise at Orlando gathering

http://www.freerepublic.com/focus/f-news/3061211/posts


466 posted on 08/31/2013 8:39:32 PM PDT by txrangerette ("...hold to the truth; speak without fear." - Glenn Beck)
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To: Jim Robinson

I don’t have any particular axes to grind here and I would not personally deny Cruz a vote due to the controversy. Still, I would like to hope some lessons are learned from the previous debacle.

Personally, Sarah Palin is still my sweetheart candidate. Being a devoted Christian as she is, Satan’s forces will be arrayed against her coming to the White House. However here is where an adjustment of world view would be very helpful for her. Satan is in chains and cannot move any further than God permits. And God has made a promise to her and every believer, that first she is more than conqueror in Christ and second all things work together for good for her, and third God explicitly calls her difficulties “trials.” It’s up to her what mindset she wants to bring, but if God wants her ministering (yes it would be a ministry) in the White House she should fight for that to the end to see the victory, remembering the foe is not people, the foe is Satan.


467 posted on 08/31/2013 8:39:39 PM PDT by HiTech RedNeck (The Lion of Judah will roar again if you give him a big hug and a cheer and mean it. See my page.)
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To: HiTech RedNeck

I’d like to see her run, but she still hasn’t made any moves in that direction. Cruz is out there testing the waters.


468 posted on 08/31/2013 8:42:43 PM PDT by Jim Robinson (Resistance to tyrants is obedience to God!!)
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To: Jim Robinson

Agree, and there are only 3 possible candidates I trust right now. Perry, Palin and Cruz. It’s actually possible that none of them choose to run. Who knows? If any one of them do, they have my unqualified support unless they do something egregiously wrong. If more than one runs, the strongest candidate should win. None of them should be destroyed for running.


469 posted on 08/31/2013 8:46:36 PM PDT by txrangerette ("...hold to the truth; speak without fear." - Glenn Beck)
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To: Jim Robinson

Ultimately I think she needs to feel the support. She got a lot of mindshare but I’m thinking maybe she got few letters.

Well, I’ll write her a letter, I think. I will try to encourage her. Maybe I will be the “hundredth monkey.” Nothing against Cruz, and maybe a Palin/Cruz ticket or vice versa could be in the cards. I hope that there is more of a collegial spirit here and that discussions between the candidates will be based on refinement of good ideas rather than panning one another for bad ones. Staring down the guns of the lefties, that would be the most constructive course.


470 posted on 08/31/2013 8:49:13 PM PDT by HiTech RedNeck (The Lion of Judah will roar again if you give him a big hug and a cheer and mean it. See my page.)
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To: Jim Robinson
The Hypocrisy of it all.
There is enough circumstantial evidence that Obama may well indeed not be eligible to be President.
There is equally enough evidence that Cruz is also not eligible to be President.
But here we are with Mark Levin and CATO Institute proclaiming Cruz can be President.
The utter Hypocrisy and the Foul Odor of Mendacity permeates it all.
The Republican Party for most of it's existence has been anything but Conservative but way too many keep thinking it's the only alternative to the Democrats.
But except for the brief time of Ronald Reagan the Republican Party has always been a party of Big Government and will continue to be.
If those of us truly Conservative want conservatives then a political party of those values and beliefs has to come into existence. The “Pipe” dream of making the Republican Party into one that is Conservative will never happen.
471 posted on 08/31/2013 8:59:27 PM PDT by Captain Peter Blood
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To: Captain Peter Blood

We need God and His light for a guide to our wisdom once more.

Otherwise we are going to get locked into endless worldly wrangles that go nowhere while the Democrats play their satanic symbolism masterfully.

This just is TRUE.

That’s why I think I am going to root for Sarah Palin to come out of the bushes. That she shouldn’t let anything, even her past failures, stop her. She’s the most devoted believer in God of any I’ve seen in the candidacy yet. And who’s bigger, Satan or God? I think I know how I’d place that bet. She’ll take some flak because she is over the target. But she won’t be downed, not if the Lord is with her. The only way for her to be downed is to step out of the fight.


472 posted on 08/31/2013 9:05:22 PM PDT by HiTech RedNeck (The Lion of Judah will roar again if you give him a big hug and a cheer and mean it. See my page.)
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To: noinfringers2
"""I also believe the USA cannot and should not relax the Constitution one iota to accommodate someone with the status of Obama.""""

We agree on the eligibility status of Cruz.

However, this is war and our nation is about to fall into the hands of the Godless.

Let me ask you a question.

If ultimately the choice boils down to a far left liberal who is technically constitutionally eligible like Hillary OR Ted Cruz who you and I agree is not a NBC, Would you.....

1) Vote for Hillary because she is the only eligible candidate?

2) Stand by your principles, stay home and not vote?

3) Be pragmatic and in order to revive our nation, vote for Ted Cruz... the only true conservative who at that point would have the ability lead us out of doom?

For me the answer is easy..... We first need to save our nation. Then later, we can have our principles.

Consider this.... Most founders believed that slavery was not a good thing for our the country but they also realized that slavery was an issue that would likely derail the establishment of the constitution. So brilliantly, they authored the constitution in such a way that slavery would not be sustainable.

We need to do the same with the eligibility issue.

473 posted on 08/31/2013 9:10:01 PM PDT by Constitution 123 (Knowledge is I forgot wh but to Obots, ignorance is bliss.)
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To: P-Marlowe
"""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...."""

For me, the ideal coarse of action would be for Cruz to declare himself ineligible thus putting Obummer on the defensive and at the same time, Cruz could vigorously support another eligible candidate like Sarah Palin.

Absent this unlikely scenario, as conservatives, we should to accept the reality of the situation and support him to the hilt.

It is a matter of survival.

474 posted on 08/31/2013 9:22:40 PM PDT by Constitution 123 (Knowledge is I forgot wh but to Obots, ignorance is bliss.)
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To: GregNH

“That language was removed by congress in 1795.”

Are you saying they thwarted our Founders intent?


475 posted on 08/31/2013 9:30:42 PM PDT by Sun (Pray that God sends us good leaders. Please say a prayer now.)
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To: Constitution 123
For me, the ideal coarse of action would be for Cruz to declare himself ineligible thus putting Obummer on the defensive

Bingo.

That would do more for the conservative movement than anything else -- to show that he respects the Constitution too much to file for an office for which he is Constitutionally ineligible -- in stark contrast to someone else who had to lie about his paternity to get around the Constitution.

476 posted on 08/31/2013 9:43:12 PM PDT by Uncle Chip
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To: Sun
The founders "intent" was only temporary, jibing with the temporary nature of this clause in Article II:

"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution"

It would make sense in 1790, that children born of citizens abroad would be "considered" as natural-born citizens because non-native-born citizens at the time of the adoption of the Constitution were considered as natural-born citizens. By 1795, the need to allow and qualify a wider pool of natural-born citizens would have been less necessary because there would have been plenty of real natural-born citizens.
477 posted on 08/31/2013 9:47:03 PM PDT by edge919
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To: Uncle Chip

Exactly right. Both Obama and Cruz suffer the same fatal criterion of being born to foreign-national fathers. It doesn’t matter where they are born, they do not meet the Supreme Court’s exclusive definition of natural-born citizen. If Cruz admits this, then people will start to understand why Obama was never eligible for office. It’s no wonder that so many Obots are angrily insisting that Cruz is eligible.


478 posted on 08/31/2013 9:49:15 PM PDT by edge919
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To: edge919
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution"

You make a good point that escapes people new to this.

The Naturalization Act of 1790 codified Article II into law.

It made anyone who was a citizen at the time of the adoption of the Constitution into a natural born citizen, even if they were born overseas and in foreign countries, thus the "shall be considered as natural born citizen" language.

That's why that exemption was not renewed in the 1795 Act -- because it was only for those who were citizens during the time of the adoption of the Constitution which incidentally took a number of years.

479 posted on 08/31/2013 10:11:16 PM PDT by Uncle Chip
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To: P-Marlowe; Kenny Bunk

“..9 unelected and unaccountable people, the same people who gave us Roe v. Wade. ..”

And part of that group look to foreign law to rule on the UNITED STATES Constitution.


480 posted on 08/31/2013 10:19:00 PM PDT by Sun (Pray that God sends us good leaders. Please say a prayer now.)
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