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.”

[SoConPubbie]

Kawakita v. United States, 1952

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

So point us to the relevant ruling in that case that proves your point.

[elengr]

LJ, you are right that some people are such zealots that rational discussion of any issue perceived as threatening is impossible for them.

And LF, in my opinion, you are right in that we are much closer to the edge than most people think. How bad could it get? Think about Kim Jung Un having had his ex-girl friend arrested and machine-gunned to death. Although I doubt that extent of evil chaos will ever become the norm here, North Korea represents the end station of the rule of man over the rule of law.

Here is a well known bit of history from the founding:

Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen. — John Jay

When John Jay wrote this to George Washington, notice how he spelled the words - "born" underlined and "Citizen" capitalized. That alone strongly suggests that "born" and "natural" were functionally separate in his mind. Anyway, his statement and the way he wrote it are historical facts and are generally accepted as being a key part of the push to include the phrase as part of the Constitution's eligibility clause.

John Jay also clearly stated the intended purpose and effect of the clause, that is to restrict the presidency to only those who by their very inborn nature and being were 100 percent red-blooded Americans.

Of course, any such rule, even if generally successful in effect, will have its exceptions and exclude non-nbC's who are the very essence of patriots and allow anti-American traitors who ancestors all may well have arrived on the Mayflower.

From the personal experience of having lived and worked in foreign countries on two separate occasions, the longest stint having been three years when my children were in grade school, it is my personal opinion that very young children are shaped very little by anything other than their parents. It is only when (and if) they enter school within the local community that this begins to change. Where Ted Cruz was born and raised to the age of four had zero influence on his present day mentality, one way or the other. But like I noted earlier, rules are not perfect and I agree with your worry that the dems will use this eligibility doubt about Cruz to their full advantage, should he be nominated.

When well over 90 percent of the population meets the strictest definition of natural born Citizen, why can't we just choose one of those and simply avoid all doubt? However, if it comes down to Cruz versus Hillary, I am casting my vote for Cruz, just like I cast my vote for Palin in spite of McLame.

Ted Cruz no doubt meets the spirit of the nbC clause in that he is a 100 percent red-blooded pro-American patriot at heart, but I would be lying if I were to say that I believe he truly meets the letter of the eligibility law as set forth in the Constitution as envisioned by the founders.

My children were born in America but while I was working in a foreign (western) land my son attended the local school for three years. He learned to speak a foreign tongue and learned to behave in foreign ways in order to be accepted by his peers (which he very much was). One of the reasons we returned when we did is because he was becoming a hybrid young citizen of two lands. This would not be an issue for most service personnel stationed overseas as their children typically attend American schools. McLame was probably completely "undiluted" by have been born in Panama (but he still turned out to be a rino weasel). But the law cannot have clauses for every conceivable exception. It can only attempt to improve the odds of ending up with a pro America president. And without the rule-of-law we have nothing.

[Sun]

Thank you.

[Sun]

“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. ....”

It’s living history to be able to talk with immigrants from behind the Iron curtain. If we had a decent news media, they would do interviews with these folks, and educate the public.

The only way the bubble heads will wake up is if the results of socialism/communism personally hit them HARD. But then it could be too late.

Like your pix!

[Sun]

“..This must be countered every step of the way with the facts. ..”

If half of Cruz supporters talked with everyone they know, wrote a letter to the editor, and called a local or national talk show, that would go a long way. Each of us has to do our part to counter LMSM.

[DiogenesLamp]

It’s living history to be able to talk with immigrants from behind the Iron curtain. If we had a decent news media, they would do interviews with these folks, and educate the public.

Agreed. You know Ayn Rand was one of these people. She never forgot how bad communism was and she did her best to convey it to others.

The only way the bubble heads will wake up is if the results of socialism/communism personally hit them HARD. But then it could be too late.

I think that is a given. It wouldn't bother me for these people to get what they asked for, but the problem is, I have to go along for the ride.

As Walter Williams says, "The Problem I have with Communism is that they always want to include me in it. "

[little jeremiah]

Yes indeed.

But to management, we are crackpot kooks.

[Tau Food]

And without the rule-of-law we have nothing.

Yes, thank you for that reminder. The rule of law is what protects us from total chaos. We have procedures for selecting presidents. Let's stick to those procedures. ;-)

Ted Cruz - 2016

[Tau Food]

But to management, we are crackpot kooks.

Don't be too hard on yourself.

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.

Patience. ;-)

Ted Cruz - 2016

[Tau Food]

Nobody is going to get the Constitution amended over this issue. The electors will continue to interpret and apply the NBC clause in a reasonable way. Nobody is going to elect Prince Charles or Putin. ;-)

[Tau Food]

Yes, it is easy to forget that state legislatures control the manner in which electors are chosen. So far as I know, each state legislature now permits voters to select the electors either statewide or by congressional district, but any state can change those rules whenever it wishes to do so.

The way things now stand, with voters playing such an important role in selecting electors, people who have a preference for their own special little NBC definition should make that preference known to voters and to electors because, as should be obvious to everyone by now, they are the folks who select our presidents.

[Uncle Chip]

Take the test at post #735 and see how well you do.

You might even pass it.

[Tau Food]

I don't view this issue as being as complicated as you are making it. I view the Constitutional eligibility standards (age, residency and NBC) as instructions that electors are to employ in selecting our presidents. The text of the Constitution does not provide any precise definition for the term natural born citizen. The meaning is intrinsically uncertain and permits of a range of reasonable, acceptable definitions. I agree with Justice Scalia (see his opinion in the Heller case) that when interpreting terms in the Constitution, we should attempt to find what might have been the original understanding of "ordinary citizens" (not just society's elite) living in the founding generation.

Applying those standards, I do not feel compelled to look to eighteenth century philosophers like Vattel for special little meanings. Frankly, I don't think more than a few of the "ordinary citizens' at that time had ever heard of Vattel or the little book he wrote in French. Nor do I feel compelled to assume that most "ordinary citizens" of that generation thought it crucial that one parent or two parents or grandparents be citizens at the time of the candidate's birth. I suspect that most folks back then would have given a more natural construction to the NBC clause, such as "citizen at birth."

So, in my view, "citizen at birth" is a permissible construction for the NBC clause. I recognize that other folks might choose other definitions, but I also recognize that they arrive at their special little meanings by choice and not by compulsion. The term is inherently uncertain in meaning and I accept that reality.

Ted Cruz - 2016

[Tau Food]

I should add that, when coupled with the residence clause, all of the definitions that I have seen proposed for the NBC clause are faithful to the manifest purpose of these provisions - to ensure that our presidents have a close political connection to the United States by heritage (NBC) and by experience (residence). In that sense, all of these proposed definitions (including citizen at birth) are adequate.

We must comply with the Constitution, but we need to recognize that here is a cost incident to unnecessarily shrinking the pool of candidates, particularly for reasons that are really just partisan (and not constitutional) in nature.

Ted Cruz - 2016

[little jeremiah]

Don’t bother replying to me, I never read your comments, and didn’t read your reply to me.

Life is too short. Just letting you know.

[Jacquerie]

Well said. I looked at FL presidential election law a couple years ago. The political parties formally notify the state of their candidates, voters vote, electors vote, results counted, the results are sent to DC. The process is clearly set out, and if followed, I don't see how it can be challenged in any court.

Enforcement of presidential qualifications should be explicitly set in state law for consideration when the political parties submit their names of candidates. No political party should be able to railroad an unqualified candidate onto any state ballot.

[Uncle Chip]

It wasn’t an essay question. It was 9 simple questions.

I didn’t ask for a baloney sandwich or your excuses for not taking the test.

If you knew what you were talking about you could take the test and pass it.

Time is up — FAIL

[Tau Food]

I'm sorry to have disappointed you, Uncle Chip.

Be patient with yourself. Obama isn't running again. ;-)

[Uncle Chip]

But a natural born citizen named Hillary is running.

[Tau Food]

And, with luck, she'll be opposed by another natural born citizen named Ted Cruz.

Everything is going to be just fine. Don't beat yourself up over all this.

Ted Cruz - 2016