CATO Institute: Yes, Ted Cruz Can be President

CATO Institute ^ | Aug 26, 2013 | By Ilya Shapiro, Senior Fellow In Constitutional Studies, Cato

[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.”

[Diego1618]

They never used “plain ole citizen”.............

Good grief! LOL

[P-Marlowe]

To me, unless or until the SCOTUS rules otherwise, in this voter REBELLION, that’s the end of the argument.

Jim, there is not a snowball's chance in Hell that SCOTUS would take up the case or rule otherwise. With that said, I will go one step further and state that even if SCOTUS ruled otherwise, that would not be the end of tha argument. I am not going to surrender my graddaughter's liberty to a bunch of old senile communists who wouldn't know the original intent of the framers if it hit them in the @$$.

None other than George Washington signed a declaration into law that confirmed that the children of citizens born abroad would be considered as Natural Born Citizens. That was not an illegal amendment to the constitution , but a restatement of its original meaning.

Anyone who argues differently must be willing to state that one of the first acts of George Washington after he took office was to sign into law an unconstitutional attempt to amend the constitution.

I say that anyone who would accuse George Washington of such a vile deed is either a complete idiot who knows nothing about the man, or they are so invested in their birther arguments that they are completely blind to reality.

Early Voting starts in exactly three years. We have no time to waste on this stupid issue. We must come to unity on this issue as it is clear that if we cannot all hang together, we will almost certainly all hang separately.

Three years. It took Reagan over six years to build his coalition. I don't see anyone on the horizon who is more ready to the task ahead than Ted Cruz.

The constitution is lying in tatters on the side of the road and yet there are people so invested in this NBC thing that they would be willing to let the entire rest of the constitution blow away into the wind rather than take a more realistic interpretive stand on this issue.

Anyone who belived that a strict unbending interpretation of those three words is more important than rescuing the rest of the document is no lover of the constitution and no patriot.

The constitution was established in order to secure the blessings of liberty. It should never be interpreted as a suicide pact. Some, however would rather the rest of the constitution be destroyed than to give up their strict and unreasonable interpretation of no more than three words in that document.

God help us all.

[MHGinTN]

I'm a birther. Insult me all you like. The reality is that the Constitution is not being enforced now anyway. But here's a nother way of pondering this issue, especially where Ted Cruz is the issue:

Why did the founders include an exception clause for themselves when writing the qualifications for eligibility? ... Because they could not meet the stated requirements at that time in the early History of the new Republic! Well, I intend to apply that exception clause to Ted Cruz, should he get the nomination, and for the same reason the founders included it in the Constitution ... namely, the patriotic fervor of the founders (who could not meet the requirement) made them the best men for the job of running the new Republic.

With the placing of little barry bastard boy in the White House, despite his ineligibility, his fraudulent criminal behavior (that 'birth certificate' he claimed as his real one is as phony as a three dollar bill), and impeachable offenses, the exception has been made to have a pResident outside of Constitutional requirements.

Now we will use that same strategy/tactic to end the leftists stranglehold on the Republic, if we get the chance. [Frankly, PM, I do not expect the globalist who now run this nation and the nations throughout this planet, to allow conservatism to arise again in America. It is too much threat to their globalist oligarchical agenda.]

[Ladysforest]

Bless your heart. I am NOT trying to torpedo anyone, Cruz, you, or anyone.

How on earth is linking the words of our own Congresspeople - Republicans and Democrats alike - making statements before Committee on the exact same topic you posted an article on, an “attempt to torpedo someone”? I didn’t go off on some interpretation or opinionated rant.

I get that you are devoted to the man, and why. I am not trying to convince anyone of anything, nor am I attempting to shut down others. Yes, you can tell all of us to jump off a bridge if we don’t support your hoped for candidate, but those that caused the McCain and Romney fiasco were the establishment who pushed them to the fore. I didn’t like Romney at all, but I sucked it up and donated and voted for him.

If you think I am wrong for posting facts from our lawmakers on the topic, if you think that makes me a torpedo launcher, then I fail to understand your position. I have not may one single statement against Cruz.

Rebellion huh?

[Nero Germanicus]

My dream ticket would be Palin/Cruz, primarily because I don’t think Sarah would run for V.P .again, been there done that. But it were to be Cruz/Palin,
then Hallelujah!

[Moorings]

My website (FR) will not be used in an attempt to torpedo our very best conservative fighters and candidates!!

They know that they cannot promote their liberal/progressive candidates on this site. So they try to do what they can to bring down conservatives.

[DiogenesLamp]

Keep up the good work for the other side, but I sure wish you would do it somewhere else.

We are on the same side. I was at that Massive Tea Party Rally in Washington DC on April 15, 2009. I traveled quite a long ways and contributed quite a bit of money to support the Tea Party in all of our efforts to reign in out of control government.

I have been active in Conservative politics since 1992 when the thought of having Bill Clinton as President sickened me to the point where I had to do something. I became active, and I campaigned Hard for George HW Bush (Whom I was still mad at because he broke his "No New Taxes" pledge, and thereby handed the election to the Democrats.) and subsequent Representatives and Senators.

I was so successful in my efforts at attacking a Democrat candidate for US Senate that he filed FEC charges against me. Fortunately, Republicans took over the Congress that year, and the FEC dropped the matter.

I've had Liberal Activists set my field on fire in the middle of the night to protest the signs I had on my property. Fortunately the Fire Fighters were alerted in time by a passerby to put it out before it reached the house.

You can look at my address and see where i'm from, then ask yourself if someone from THAT state is going to be anything but a conservative.

We are on the same side.

We’re in the middle of a rebellion here.

I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical."

Your house, Your rules.

[P-Marlowe]

Fwiw, I numbered myself among te “birthers “ back in 2008. I was desperate to find some reason to keep Obama out of that sacred office. I came to realize that the whole issue was a red herring meant only to distract conservatives from the battle to defeat him at the ballot box, a battle we have now lost twice.

I have since done some study on the issue and I am completely satisfied that a man in the shoes of Ted Cruz would be considered by none other than George Washington yo fit the original intended definition of that term.

There are a whole lot of Freepers who still long for the day when the Supreme Court will undue the last election and declare Obama to be ineligible. That will never happen and there is no court that will do the same for Cruz. It’s not a legitimate issue and clearly not worth anyone’s effort.

We are at war here. We ought not be taking pot shots at our generals.

[Sun]

“It is my opinion that some people, who after having lived through tyrannical governments, come to the United States and now love it more than the people who were born here. ..”

I would not be surprised.

My bro talked w/an immigrant, who lived under communism, and she said that even people who don’t like communism, just don’t know how bad it is.

If you’ve read Rafael Cruz’s speeches, there is absolutely no doubt about his passionate love for America.

[P-Marlowe]

In addition, no Act or law that has passed has amended the Article ll eligibility requirement.

The 1790 provision that the children of Citizens born overseas shall be considered Natual Born Citizens was not an attempt to amend the constitution, but a restatement of the founders intended definition of the term Natural Born Citizen.

To say that Washington and the other drafters of the constitution attempted to amend the constitution by inserting unconstitutional language into a law that was passed before the ink on the parchment had even dried is an insult to the Father of our Country and to the founders who included that restatement of law in that bill.

You did finish law school, didn't you?

You do understand the statutory principles of restatements of law, don't you?

[Jim Robinson]

Rebellion, yes. A tea party voter rebellion. And I don’t think you quite appreciate the meaning and intent of the movement. Read the words of the Declaration. Understand that the Declaration precedes the states and the states precede the US and the constitution. The founders clearly spelled out our recourse to a despotic runaway central government. We do not choose to abolish the government, but we do wish to alter it. Alter it to the extent of fully restoring the constitutional restrictions on government, the constitutional separation of powers, and the constitutional balance of powers between the central government and the states and we the people per the original intent of the founders.

And if Ted Cruz runs and is given the nod by the grassroots to head the tea party voter rebellion, I’m in 100%!! And I will not appreciate people working on the same side as Tokyo Rove & GOP-e, Inc. to torpedo his chances—whether intended or NOT!

[ObligedFriend]

http://www.huffingtonpost.com/doug-kendall/the-constitutional-case-f_b_2781874.html

[xzins]

It is you who are confused about the issue.

You are either natural.

or

You are MADE natural...naturalized.

The early Congress saw that and decreed that those born overseas to a US citizen parent are “natural born citizens.”

[Ladysforest]

I can read and comprehend at least as well as you. And I do not feel the compulsion to insult people who point out that I have left out a piece of information.

A portion of the 1790 law was specifically to address the problem of children being born to traveling U.S. citizens. There is a lot of information on why that law was written, but I have never read before your post that it was to address that term natural born citizen. Cool, you can link that please. The part of the 1790 Act that addresses the citizenship of those children born out of the U.S., was to make the children of U.S. citizens U.S. citizens as well. Horace Binney wrote on this in 1853, saying in the preface: “The following law paper was written for the satisfaction of some fellow-citizens and friends, one or more of whose children were born in foreign parts, during occasional visits by their parents to Europe. Such children are Aliens, notwithstanding their parents are natural born citizens of the United States.” http://babel.hathitrust.org/cgi/pt?id=mdp.35112102633445;view=1up;seq=9

You claim that I implied:
“To say that Washington and the other drafters of the constitution attempted to amend the constitution by inserting unconstitutional language into a law that was passed before the ink on the parchment had even dried is an insult to the Father of our Country and to the founders who included that restatement of law in that bill.”

I did not. I implied nothing at all of the sort. I provided the link to the image of the 1795 bill that replaced the 1790 bill, specifically because the language had been changed and no longer included the term “natural born citizen”. Please be accurate when you “quote” me.

[xzins]

Obviously, the Founders in that 1790 law recognized one parent providing citizenship to the child. They would not allow it to pass through the mother, the mother who was in that era a non-voting, appurtenance of her husband.

[trisham]

The early Congress saw that and decreed that those born overseas to a US citizen parent are “natural born citizens.”

************************

Correct. Half of my siblings were born overseas. It has always been my understanding that they are "natural born citizens".

[C. Edmund Wright]

Laugh all you want you bureaucratic smarm....you brought it into this discussion as an official term......to make a point....so I called you on it.

[Jim Robinson]

Very clever, but retreads should keep their heads down. We already know your idea of the “kind” of people in your mind the founders were referring to as natural born.

[C. Edmund Wright]

You just hung yourself with your own argument you arrogant jack ass.....written in a day when women, ie, mothers, had no citizenship standing....which was clearly not the case with Ted Cruz was born. Thus, when women gained a standing, their kids, including Ted, could get citizenship from their mothers as well as their fathers.

And in case you haven’t heard, a lot of court rulings since 1814 are no longer the law of the land.

[Ladysforest]

I happen to be a Tea Party member. I attended the first two rallies in DC, as well as a ton of smaller ones. I am going down next week for the defund obamacare rally. The Tea Party really changed me forever I think.

If we want these elected lawmakers/Governors/citizens with potential legal (Constitutional) challenges to be able to hold on to the office we elect them to without risk of law suits and every sort of challenge imaginable, why not amend the requirement? I personally am against amending it mostly because the thing is important and secondly because the dems wanted it amended sooooo badly. When they start their “it’s for the children” riff, I get chills.

See, what if Cruz runs against Hillary but it’s a little close. Then all of the Hillary people go to work on Article ll, clause 5 - and maybe Cruz gets the mitten and Hillary gets sworn in by disqualifying him this way.

Their side is incredibly nasty and will stop at nothing. It’s something that we have to consider no matter our personal feeling on Cruz.

Look at Palin for example. Look what they threw at that poor family, and how they still hound her. She had to leave office so that AK could operate without the distractions and constant outrageous attacks.