CATO Institute: Yes, Ted Cruz Can be President

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.”

Through his mother, there is not doubt of Ted Cruz’s US citizenship at birth.

My mentioning the father is hypothetical and is based on the ease with which it was possible to acquire citizenship on the old frontier...so far as the requirements are concerned. It was simply a number of years as a resident and then an oath before any magistrate anyplace at any time.

The difficulty had to do with any travel really. I’m sure many on the Kentucky County frontier considered themselves citizens but were prevented by the situation from traveling great distances.

The answer is that that child would be born a citizen of the United States, and possibly a citizen of Canada, depending upon the respective Canadian laws regarding the matter. Under Original Intent, which did not countenance citizenship descending via the mother as the law of the time followed the state of the father as far as citizenship, there would have been no doubt that that child was a natural-born citizen. However, the presence of the Canadian claim of jurisdiction upon the child would have been regarded as a problem, imho, whether the Founders countenanced the possibility of such an occurrence or not. So, it falls into the grey area of "doubt" as so eloquently explained by Chief Justice Waite in Minor v. Happersett. Such doubt can be resolved. Whether or not renunciation of Canadian citizenship is sufficient, I couldn't say. It removes the foreign jurisdictional claim, that much is true.

That question is: If a Canadian woman marries an American man on American soil, and they have children - are those children American because they were born here? Or are they Canadian because of their mother's Canadian citizenship?

The child is a Canadian citizen if, but only if, the government of Canada chooses to view the child as a Canadian citizen per Canadian laws.

The child is an American citizen if, but only if, the government of the United States chooses to view the child as an American citizen per American laws.

The American government and the American people have no control over the laws of Canada or the choices of the Canadian government. Since the American people and the American government should retain exclusive control over our presidential selection process, we cannot permit Canadian government choices or Canadian government laws affect, influence or manipulate our presidential selection process. So, unless we wish to grant to Canada the power to control our presidential selection process, we need to treat the Canadian citizenship issues as irrelevant to our process and irrelevant to a candidate's eligibility under American laws.

The natural born citizen exemption of Article II codified into law in the 1790 Act expired in 1795 as time ran out.

Naturalization Act of 1790:

"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:"

US Constitution Article II Section I:

"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."

Naturalization Act of 1795:

No natural born citizen exemption for citizens anymore after 1795 since the time of the Adoption of the Constitution had expired. That language in the 1790 Act was not put in the 1795 Act or any subsequent ones.

There is a Constitutional distinction, between “natural-born citizen” and “born citizen,” as evidenced by the language of the Nationality Act of 1790 having been rescinded and replaced with such language as it was, by the Nationality Act of 1795. Original Intent is demonstrated in more ways than one by those Acts, being largely created by Founders as they were, being of that era. The sword cuts both ways, in other words. It shows that birth abroad was not originally intended to preclude eligibility to the Presidency in and of itself, but it also demonstrates that citizenship at birth is not necessarily natural-born citizenship, Constitutionally speaking.

If it has taken you five years and a journey through eighteenth century Swiss philosophy to develop your choice/preference for a narrow "two citizen parents and born in the United States" definition for NBC, then you should expect that it may take you some time to shed the old choice/preference and to exchange that choice/preference for a somewhat broader "citizen at birth" definition for NBC. As Obama's eligibility becomes less relevant and Cruz's eligibility becomes more relevant, you may find that process to be inevitable.

I have spent enough time studying the NBC clause to know that the clause and the history surrounding it is sufficiently uncertain that it lends itself to more than one reasonable interpretation. So, don't be surprised to find that you will tend to choose one precise definition rather than another depending upon the candidate at issue and your feelings about that candidate. That's how you got to where you're at and that's how you can expect your future course to be determined.

So, be patient with yourself. Obama's not running again. ;-)

Here is the one thing I need to emphasize. The principle intent of the Framers was that the Consitution must be interpreted so as to ensure that future generations would continue to “secure the Blessing of Liberty”. Therefore, not even considering the Common Law rules for Stautory Interpretaion that any term that is vague must be interpreted in the light most favorable to the non-moving party, I believe that as people who love this country, people who honor our founders, and people who believe in the principals of Liberty, that we must be willing to consider the current Zeitgeist and the Constitutional Crisis of this time and recognize that if we believe that a man such as Ted Cruz is the most likely candidate to both return our Country back to the Republic our founders envisioned and to secure the Blessigs of Liberty to ourselves and our posterity, then we must not only give every benefit of the doubt as to his eligibility to Ted Cruz, but we must actively and enthusiastically work to ensure his election in 2016.

Simply put, given the times in which we live, any strict and unbending rule of interpretation which would prevent Ted Cruz from ascending to the office of the President would in and of itself be unconstitutional.

I am convinced just based on the standard principles of general statutory interpretation that Ted Cruz, being a Citizen at Birth, would fall into the Category of Natural Born Citizen.

To those who disagree, I have to ask whether, in light of the current Constitutional Crisis in which we find ourselves today their refusal to support someone like Ted Cruz because of their rigid interpretation of the NBC clause will be a step towards or away from the principle goal of our Founders to preserve the Blessings of Liberty to both ourselves and our Posterity.

If they cannot in all good conscience say that their position will work to secure those blessings,, then I believe that as Patriotic Americans, they owe it to both themselves and their posterity to reconsider their position.

I do not believe we will have another shot at preserving the Constitution after 2016 if we don’t elect a president at that time who truly believes in the founding principles of Liberty.

If we end up with a Democrat or a RINO in 2016, then the Republic is finished. So what is more important right now, applying such a rigid interpretation to some vague clause in the Constitution so that we exclude the most electable man who can save this Republic, or saving this country by enthusiastically supporting him?

I have been giving Ted Cruz every benefit of a doubt as regards Constitutional eligibility. I believe that a very plausible case can be made for his being eligible to the office of President without turning into some “living Constitution” fool with no respect for founding principals. What I will not do, is pretend that there is no issue, here. There is, being primarily in my view Canadian citizenship, which Cruz is moving to renounce.

Is this sufficient? That I do not know, but it's an effective step under the jurisdictional argument I've been making for quite some time, well before your attempts to shut down any discussion. Do you honestly believe that Democrats have the logic, integrity and internal consistency not to use an eligibility argument against Cruz? I don't. They'll be screaming it from the rooftops. They hold us to our own set of rules, not theirs. Therefore, exploring the matter thoroughly is necessary and the right thing to do, both politically and Constitutionally.

Ted Cruz is certainly paying attention and doing what he can to remove objections on this basis. He has been a powerful voice for conservatism in his short time in office. May that voice extend from words into actions, and may he be found eligible, it's not at all outside the realm of the possible. I'll gladly vote for him if so.

Fair enough?

The political landscape is littered with the corpses of those who were doing a good job in their present position but then gave heed to consultants who convinced them that it was time to move up to a higher office when they should have stayed put.

Why do you think Obama has fought so hard to protect his Hawaiian birth certificate?? It’s because even he knows that birth in a foreign country for an American President would be a deal breaker even for those with his own. As long as he can claim a birth within the United States and an American mother, he knows his eligibility is defendable.

Ted Cruz doesn’t even have Obama’s birthplace deniability going for him since it is public knowledge that was born in Calgary, Alberta, Canada — something that you and others can’t even bring yourselves to admit it.

The media and Dem Party operatives would let him knock his opponents out of the race and then descend on him like vultures. They would challenge his electoral votes with legal challenges in state after state. Just when he needed to go on the offensive they would have him back on his heels. They would make him answer the question that you won’t.

The first rule of warfare is: Don’t arm your enemy before going into battle against him.

He’s a great Senator effectively serving the state of Texas and this country. He should continue to do so until or unless he decides to run for Governor or take a Cabinet position.

The party, the states, the electorate and in turn the Electoral College and finally Congress make the decision, it's a series of hurdles.

The party? The party is in the bag for whomever represents the best path for a return to power, of that I have no further delusion remaining. There may be a state to take up the matter, there may not be. The electorate has become a herd of cattle, collectively speaking. The Electoral College is well on the way to ceremonial status in practice. The Congress certified Obama with no objections, despite his being a complete cipher with little in the way of a discernible paper trail, despite well-known and highly publicized doubts.

Any day in court will happen at the hands of a state, imho.

The party, the states, the electorate and in turn the Electoral College and finally Congress make the decision, it's a series of hurdles.

Actually the first hurdle is you (and me). We have to make a decision long before any of these other hurdles come into play. We need to make a decision on whether or not and for what reason we are going to go to battle fir Ted Cruz. If he is going to have any chance at winning, he is going to need vast amounts of grass roots support long before he even announces his candidacy.

If you had to make a decision right here and now, knowing that the future of the Republic is hanging in the balance and after you have read all the pro/con arguments on this thread, how would you vote? If the decision were entirely yours, if you were the sole deciding vote, how would you vote?

Would you give Ted Cruz the benefit of the doubt and declare him eligible? Or would you declare him ineligible?

The future of this nation is in your hands. You can't vote "present". Cast your deciding vote now.

I have a question that I have been attempting to get answered and I get no response. That question is: If a Canadian woman marries an American man on American soil, and they have children - are those children American because they were born here? Or are they Canadian because of their mother's Canadian citizenship?

The correct answer is...."Yes! They are American citizens but not Natural Born citizens because only one parent was a U.S. citizen. If the lady had renounced her Canadian citizenship and became "Naturalized" prior to the birth.....then the children would be considered "Natural Born".

If the lady kept her Canadian citizenship instead of becoming a naturalized U.S. citizen then the children would be considered "Native Born" citizens and not be eligible to serve as "Commander in Chief". They could run for office....being U.S. citizens....and become Governors, Congressmen, Senators....and even Supreme Court Justices. But according to the Constitution....they would never be given the authority to command the military. This is reserved for "Natural Born" only (present moron excepted).

We are both strong conservatives so we are on the same side.

We both agree that Cruz is an outstanding person and would make an excellent President.

We both agree that if Cruz is the nominee, we will support him to the hilt.

We both agree that losing is not an option.

However, even though we do not agree that Cruz is a NBC, for pragmatic reasons, I have come to your side. This is why I will support Cruz.

Just like the founders avoided making slavery a big issue prior and during the adoption of the constitution, for the good of our country we must follow their example and do the same with the eligibility issue.

At this point, debating eligibility is not going to change any minds. So let us use our energy to convince constitutional purest to help us save the country by supporting whoever is the most conservative candidate and suspend the NBC debate ..... for now.

Well, that's one possibility. Another possibility is that Obama thought that he was benefiting politically from the birther claims about a Kenyan birth and speculation as to the identity of his "real" parents, etc. If there were people who voted against Obama because of the birther claims, they were nearly always people who would have voted against him anyway.

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There will probably be some anti-Cruz birthers on the left and they will probably be just as successful as the anti-Obama birthers have been. If Cruz is lucky, the anti-Cruz birthers will hire someone like Orly Taitz and if he's really, really lucky, the anti-Cruz birthers will produce Cuban birth certificates for him and raise bizarre questions about his "real" parents.

Most likely, though, the anti-Cruz birthers will raise money by selling books and DVDS so that they can file lawsuits that the courts will continue to refuse to hear. What might surprise you is that the vast majority of Constitutional law professors and mainstream "experts" will conclude that Cruz is a NBC. So, if the MSM wants to join the birther movement, they will face a very uphill road.

I think that Ted Cruz has a good shot at getting the 2016 nomination and, if he does, he has a very good shot at becoming our next president.

Ted Cruz - 2016

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