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.”
I say BS! There is no way the original intent was to let partial foreigners be eligible. Common sense would indicate that NBC means born in the native country to citizens (plural) of that country.
FWIW, Cruz is a great conservative, and Canada is a wonderful country (as I can attest to, being a NBC of Canada).
It’s my understanding that naturalized citizens (opposed to citizens at birth) are not natural born citizens per the requirement.
No, its not “settled science”; its settled law.
Don’t like it? File a law suit. Oh. Thats right. DOZENS of law suits have already been filed. On the State and Federal level. Years and years of law suits.
And how many were won?
I have my reasons why so many FReepers oppose Cruz based on this silly NBC argument (RINO agitators) but I hope not. I hope most of them are just ignorant.
Argue it all you wish. But if he runs, this site will support him to the hilt. Those who get nasty about it and or attack us or our good patriotic conservative friends like Mark Levin or our very best grassroots conservative candidates may find they no longer have accounts here.
Don’t get nasty. NBC means exactly what it says.
Boss:
I ain’t gonna argue with you.
I respect each sides opinion but, maintain my own.
If Cruz can be born to an American Mother and a non-American father, outside of the country and not in a soveriegn territory or military base then he is not NBC.
Swear to God I want him to be. Brilliant? He is in his own category and the scale to measure hasn’t been invented.
Fact is, if Barry was bored to an underage chick who, at the time was unable to confer citizenship, by virtue of age and the status of the so called father, then it follows Cruz’s birth is at least dissolutive of specific definition.
I feel confident I could enlist the help of an anti-birther, Buckeye Texan, who would likely agree with cogent arguments.
Cruz was not born on American soil.
Cruz was born of one parent not an American Citizen.
Cruz was born of a divided citizenship.
That he will renounce his Canadian citizenship and has not addressed his Cuban citizenship ought to be note worthy.
He didn’t have a choice in those facts nor the events but, they exist.
One is Wholly one thing or another or parts of two feet in different areas.
Cruz is incredible and amazing. I’d want him as much as Rubio(maybe), as well Nicki Halley and Jindahl.
Maybe I’m falling to hard on the sword but, if I hold my standard for the opposition I find it difficult to act contrarily to my own desires.
Is my opinion only validated by some pedigree?
I note that many of us are not legal scholars, unlike the P resent occupying our White House.
Is he more qualified to express an opinion, while mine is marginal?
He isn’t a partial foreigner.
You (we) just have to laugh sometimes.
Legally or commonsensically.
Being born over a line because of temporary circumstances that put the fully American birth mother over that line does NOT make a partial foreigner.
Whatever Canada deems him to be affects only Canada. It has no legal effect whatever on the fact that he has a birth certificate designating him as an American citizen at his birth.
That he grew up from age 4 in Houston, TX and calls Houston, TX his home from then until this day.
Has argued 9 cases before the Supreme Court and has done massive behind-the-scenes legal work in America and clerked for Chief Justice William Rehnquist and argued Texas’s case before the Court, and won, when GWBUSH listed to Condi Rice and tried to say Texas couldn’t execute a Mexican murderer in Texas because Mexico objected under its own, and international, law.
And had been duly elected Senator from the great state of Texas.
Nope, Canadian legalities are not germane to the facts and law here, never making Ted a “partial foreigner” - to quote you.
Obama isn’t natural born and neither is Cruz. If you’re willing to throw away that requirement because it suits you now, then you have no right to complain later when the next far left ineligible comes along and is crowned POTUS.
With the indications of voter fraud in the 2012 elections, why would you have any hope of a conservative ever winning again? You’re walking straight into a trap, and I couldn’t care less, except that you’re clamping the jaws down on the rest of us too.
“neither is Cruz.”
So, Cruz was naturalized? I mean, either he is natural born or naturalize, there is no other choice in the matter.
Cruz does indeed tell a good story. He can run with the big dogs in that dept. so not to fear. He talks without notes. Once he gets a mike on a stage he pretty much owns it. Marines call it “command presence” and he’s got it-——Semper Fi
Yep
THANK YOU and AMEN!! Our Constitution has been ignored
and subverted in many ways lately. It would be wonderful if
it was followed to the ‘T’, but it hasn’t been for a while
now. The rules have changed and the hour is late. I do not
want another conservative to slip through our fingers.
Fight like a GGRRRRLL! and fight dirty, if need be.
If Ted Cruz is in, I’m in. Thanks to Sarah Palin and Mark
Levin for backing and promoting him, too.
“If Cruz can be born to an American Mother and a non-American father, outside of the country and not in a soveriegn territory or military base then he is not NBC.”
Got a legal citation for that? I do, and it says he is a natural born citizen:
8 USC § 1401 - Nationals and citizens of United States at birth:
The following shall be nationals and citizens of the United States at birth:
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States.
We are worried about cruz when we have an imposter already seated in the white hut
b
Looks like he’s a natural born citizen according to this author and I like his credentials as opposed to the usual internet blogger. Mark Levin likes him too. And I have much more faith in Mark Levin than your average anonymous sea lawyer/blogger.
CATO’s Ilya Shapiro:
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/advisor to the Multi-National Force in Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs and Cleary Gottlieb. Shapiro has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, National Law Journal, Weekly Standard, New York Time Online, and National Review Online, and from 2004 to 2007 wrote the “Dispatches from Purple America” column for TCS Daily.com. He also regularly provides commentary for various media outlets, including CNN, Fox News, ABC, CBS, NBC, Univision and Telemundo, The Colbert Report, NPR, and American Public Media’s Marketplace. Shapiro has provided testimony to Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 100 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society and other groups, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute, and has been an adjunct professor at the George Washington University Law School. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit, while living in Mississippi and traveling around the Deep South. He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a member of the bars of New York, the District of Columbia, and the U.S. Supreme Court. He is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.
I have three NBC grandchildren who were all born to my American citizen daughter and her Caymanian husband on Grand Cayman Island. Each carries two passports: one is American, the other is Caymanian. They are NBC of each country.
Should one of them ever seek the office of POTUS, that one would simply need to renounce his or her Caymanian citizenship.
:: is defined based on at least one parent who is an American citizen ::
Here is where I depart. The founders included the NBC phrase as was common knowledge among the citizens of the colonies. NBC meant born of citizens parentS[sic-plural] on US soil or abroad while in service to the US.
When born to a parent of different nationality, does that confer citizenship to the other country?
Look at it in the inverse, what is the ^full^ citizenship status of a child born in New York City in 1776 of a father who is a US citizen and a mother who is a French colonialist from New Orleans?
Don’t we recognize the Frencgh citizenship of that child (dual citizenship) and, at some point, have that child accept or renounce their French rights?
Do you consider this child eligible for POTUS?
Someone who knows the inside said he has a problem - He can not win. And the goal is to win.
Maybe R’s have quit trying to win.
Actually, the early laws don't say that. If you study the wording, you'll realize that only the father had to be a US citizen.
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