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.”

[Tau Food]

I never noticed that particular “determination” advanced by those you denigrate as “birthers”. Really, that is the very first I have heard of that.

You didn't know that the birthers have been requesting the courts to assist them? You've got some catching up to do!

In post 626 (above) Nero Germanicus has compiled a list of some of the lawsuits that have been filed. In general, the birther lawsuits have urged the judiciary to intervene into our presidential selection system either to disqualify a candidate from running for president or to overrule the eligibility decisions of presidential electors. The text of the Constitution does not provide the federal judiciary with any role in our presidential election system. There are no provisions authorizing judicial review of elector decisions. The federal courts have consistently declined to accept this new judicial role that the birthers proposed.

Ted Cruz - 2016

[little jeremiah]

There is no aspect of historical evidence about NBC that I haven’t read, that has been posted on FR.

[little jeremiah]

BTW, I don’t value the constitutional acumen of anyone who supports homo marriage. If you want to know what I mean, Ilya Shapiro fileda brief to SCOTUS in favor of homo marriage.

[xzins]

Who is Ilya Shapiro?

[little jeremiah]

The author of the article this thread is commenting on, the noted Constitutional scholar who thinks a person born in CA to a foreign father is a NBC. Same guy. Also thinks homo marriage is the right thing to do under the Constitution.

[little jeremiah]

The CATO institute is full bore libertarian, btw. I used to think they were okay about 25 years ago.

[DiogenesLamp]

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.

I have spoken with immigrants from behind the Iron curtain. I have read what others have said (Edward Teller, for example.) They HATE communists with a blue purple passion. They KNOW what communism is like, and they want to destroy it.

What we have nowadays are bubble heads who get their false life experiences by watching made up nonsense on television. They spend so much time living vicariously through the fake lives of actors that they have little in the way of real life experience of their own.

They have no idea how bad is socialism in full flower.

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

He is someone who has experienced the horror first hand, and through the lives of his friends and relatives. He knows that America is a blessed place, and he sees the contrast all too starkly.

I have no concerns that he did not impart these ideas to his son. I only wish he had applied to naturalize back in the 1960s. It would certainly have helped to calm the waters.

[Nero Germanicus]

The Cato Institute’s website states, “The mission of the Cato Institute is to originate, disseminate, and increase understanding of public policies based on the principles of individual liberty, limited government, free markets, and peace.”

The Cato Institute officially resists being labeled as part of the conservative movement because “’conservative’ smacks of an unwillingness to change, of a desire to preserve the status quo”.

[little jeremiah]

I’m not taking the bait.

Thanks anyway.

[Ladysforest]

Oh, those things. Orly Tizzy-Tatz stuff. That stuff wasn’t my bag. Neither was obama being born in Kenya, or having a dozen different daddy candidates.

Funny thing about the judiciary you mentioned. In those Joint Resolutions the elected officials tried to get passed to do away with clause 5 in Art. 2, some mention is made about needing the AMENDMENT to Art. 2 because if the Constitution isn’t amended and the SCOTUS rules on the eligibility thing in the future for say, one individual at a time, the rulings will be open to court challenges.

I’m guessing they knew what they were talking about. So, SCOTUS could be appealed to to “handle it”, but IF they did so any ruling could/would instantly be challenged in court. I think it was the erstwhile Barney Frank who made that statement. Waaaaaayyyy before any hint of obama “birtherism” came along. And it takes forever to get anything through the courts. So, presumably they were were trying to pave the way for Arnold S. and didn’t want the risk of challenges if SCOTUS didn’t rule their way. It didn’t work out for them, but they kept trying.

[Tau Food]

Well, I find that empathy sometimes helps. If you were on the Supreme Court and someone asked you the overrule the decision of a majority of electors based upon a clause in the Constitution that is so intrinsically uncertain and indefinite that it lends itself to more than one reasonable interpretation, how would you feel about intervening in the electoral process? Would it matter that the Constitution clearly provides that presidents are to be selected by electors and that there is no textual support for judicial review of the electors' decisions? Would it matter to you that any Supreme Court decision is likely to be based upon an opinion that is not unanimous (like, say, 5-4)?

I trust the Founders and the Founders trusted the electors to select our presidents. The electors are every bit as capable as Supreme Court justices in interpreting and applying the Constitution's eligibility provisions. The standards aren't particularly complicated. Reasonable variations in interpretation are minor variations. Every interpretation that I have heard respects the need for a president to have a close political connection to the United States by heritage and by experience (the residency clause). There just isn't anything to get that excited about.

Ted Cruz - 2016

[Jacquerie]

Would it matter that the Constitution clearly provides that presidents are to be selected by electors and that there is no textual support for judicial review of the electors' decisions? Finally, the voice of reason.

I oppose judicial interference with the Presidential election process. Nothing is more political than elections, and as per Article II Section I and the Twelfth Amendment, the duty to give us a President resides with State legislatures and Congress.

Federal courts can no more legitimately interfere with the vote of State electors than they can interfere with the President’s power to nominate ambassadors. Both acts are non-justiciable. Unfortunately, all liberals and too many Freepers have fallen into a rat trap concocted these past 80 years that any dispute must be settled by a branch of government unaccountable to the people. It simply isn’t true and Scotus cannot legitimately “fill in” when some people become disgusted with the other branches.

But unlike the President, the Constitution is silent as to ambassador qualifications. So who or what body is responsible for keeping an unqualified individual out of the White House?

The responsibility can only be with the parties charged with giving us a President: State Legislatures which are responsible for the appointment of electors, the electors themselves and perhaps the Senate which counts the votes. That is why it was not unimportant for the Senate in 2008 to find that McCain met the Constitutional requirements. Our Senate must ultimately count the electoral votes and that Senate decided McCain was qualified. Very simple, and no court can interfere with State electoral votes, nor the Senate in its duty to count the votes as directed by the Constitution.

The place to stop Constitutionally unqualified candidates is our State legislatures. These are the institutions our Constitution charged with exercising electoral judgment.

[4Zoltan]

“Absolutely incorrect!”

St. George Tucker:

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague.” View of the Constitution of the United States with Selected Writings [1803]

James Kent:

“The Constitution requires (a) that the President shall be a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war” Commentaries on American Law (1826)

Minor v. Happersett () 100 U.S. 1

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

Luria v. United States - 231 U.S. 9 (1913)

“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827.

Can you cite any court causes where the court said that native born and natural born are different or that the meaning changed between the Founding era and today?

[Ladysforest]

Here is what I took away from reading the resolutions.

I think those lawmakers seeking to amend Art. 2 were not anxious to have to go to the SCOTUS after the fact, but to do away with the entire issue ahead of time so as to prevent anyone from appealing to SCOTUS to block Arnold S. or any future candidate with a similar citizenship handicap.

So, no - going to SCOTUS after all is said and done, votes counted, is not ever likely to happen. That’s the whole “We the People” / will of the people angle here. There is no actual vetting for Presidential candidates except by the people. If they don’t vet thoroughly, as in the case of obama, tough crapola, you get stuck with what you voted for. “Nobodys’ fault but yer own” kind of a thing.

So, those that seek the Art. 2 amendment don’t want this to go to SCOTUS, because there is a damn good chance that SCOTUS will rule to restrict the Presidency to those born here. Then the progressives would have to do a long and messy battle to change or challenge the ruling. Lets face it, it is primarily the left who want to open the US Presidency specifically to allow naturalized people to run. The left have more means to install a chosen mole than our Forefathers could ever have imagined. Yet they claim the exact opposite is true. And they keep saying “it’s for the children”.

Makes ones blood run cold to read some of that stuff. Such deep and devious people mean no go for this country.

[Uncle Chip]

Labor Day Pop Quiz:

What terms are used to refer to these different classes of citizenship by the US Government:

1]Both parents US citizens and birth on American soil: ________________________

2]Both parents US citizens in the military/government service and birth on foreign soil: _________________________

3]Both parents US citizens and birth on foreign soil:
________________________

4]Neither parent US citizens but birth on American soil: ________________________

5]Only one parent US citizen and birth on American soil: ________________________

6]Only one parent US citizen and birth on foreign soil: ________________________

7]A naturalized citizen: ________________________

8]A person undergoing naturalization: ________________________

9]Children born to a person undergoing naturalization: ________________________

[Ladysforest]

AND if the resolution to amend Art. 2 ever passes it goes to the states, where if passed, would mean the individual states would no longer have any grounds to challenge Presidential candidates eligibility. Not that they seem to be anxious to do so anyway, but it least it’s an option now.

[Red Steel]

Can you cite any court causes where the court said that native born and natural born are different or that the meaning changed between the Founding era and today?

Kawakita v. United States, 1952

Duel national Kawakita who was stripped of his US native born citizenship.

[Peter Libra]

The left have more means to install a chosen mole than our Forefathers could ever have imagined.

Just my humble opinion, but they have already installed a mole.

[Ladysforest]

I am of the same opinion. I think he is the stepping stone.

[Uncle Chip]

Can you cite any court causes where the court said that native born and natural born are different

You just did -- Minor vs Happersett.