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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.”
Did they meet the residency requirement set by congress for naturalized citizens?
If they are still citizens of the US they must have.
nbCs do not have such a requirement.
All that having been said, is it possible for FR to meaningfully participate by organizing for Ted Cruz? There are other candidates (always) who I could support but I would just as soon get the primary contest over as soon as possible to avoid the 2012 disaster of having all too many good candidates to dilute the vote and allow Mittler to be nominated.
This time, Job #1 is destroying the GOP-E $$$ stranglehold on nominations. Let's send them and their well-funded lies packing. Let us encourage militant conservative populism as our standard for 2016. For POTUS. For Senate. For Congress. For governorships. For state legislators.
God bless you and FR. Thanks for being you.
Since you cited a Congressional law this is easy - not a natural citizen.
They depend on positive (vs. natural) law for citizenship.
Does everyone just want to strike the word natural from Article II, Section 1?
1401 describe a ‘born citizen’. That is only half the equation.
Ditto. Cruz’s mom was/is an American that makes him a citizen wherever he was born and qualifyied for the presidency.
I’m glad Levin didn’t jump on the NB bandwagon since it was liberals who started this as a distraction.
There it is. It's not complicated at all. Yet I'm beginning to think folks would still argue Ted's status if an angel came down from heaven affirming his eligibility.
(Thanks for the ping, SoConPubbie)
What on earth are you talking about?
They are natural born US citizens.
Period.
I’ll not discount your conclusion but...
Are conservatives willing to suffer the “whipping post” when the communistas make their cry “not eligible, not eleigible”?
To the commies, Obamugabe will be past history and the “fault” of conservatives for not being more aggressive in determining his eligibility. In the words of Rachel Jeantel, “That be old school!”
We keep holding out our pecker for the communistas to take a whack at.
You are correct because of the simple "grandfathered" sentence that appears in [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.
Thus....according to the framers...... there indeed was a difference between NBC and a "plain" ole' citizen....otherwise they would not have differentiated the two.
Natural born = two citizen parents.... born where ever; Native born = born within the territorial limits of the country to non-citizen parents or born abroad to one citizen parent; Naturalized = Citizenship by statute. Three types.....always has been!
FWIW..............I think Ted Cruz would be a magnificent President. He's a magnificent Senator....already! But.....he is not a Natural Born Citizen. So what? Neither is the clown who sits there now!
I believe a precedent has been set.
“They depend on positive (vs. natural) law for citizenship.”
So such thing as “positive law”. See my previous post about the needed use of “natural” in the Constitution.
“1401 describe a ‘born citizen’. That is only half the equation.”
Nope. “natural born citizen” = “citizen at birth”.
Thank you very much. I’m hoping Cruz decides to run. Also like you, I’m hoping that the FReepers and the tea party and all grassroots conservatives can settle quickly on the strongest conservative running so we don’t split our vote six ways to Sunday.
God bless.
Emmerich de Vattel, author of the Law of Nations was Swiss, not French. You know, like Michele Bachman! :-)
“As I’ve stated elsewhere on this forum many times, I have infinitely more confidence in Mark Levin and the CATO Institute than I do in legions of internet sea lawyers and bloggers.”
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.
"In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
http://www.state.gov/documents/organization/86757.pdf
Statutory citizenship does not automatically render one Constitutionally eligible for president.
(I was sworn in as an honorary Texan by Hayden Fry.)
Bump that again.
“does not necessarily imply “
Meaning that it also does not imply the converse, either, that a statute does not guarantee citizenship for constitutional purposes, either. This is a State Department document, not one of controlling legal authority. It was written by a State Department employee. That was a lawyer statement claiming that other controlling legal authorities settle the matter and not that document.
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