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.”

[Nero Germanicus]

When eligibility challengers stop appealing to the authority of the judiciary to resolve the issue, I’ll stop referencing the rulings. Thus far there have been 311 appeals to the authority of the judiciary and there are still a few more yet to be resolved.

“Might makes right” is not your finest attempt at using a cliche’. There is not much “might” in the deliberative process of American civil jurisprudence.
To paraphrase Popeye the Sailor man, you pays your fees, you files your briefs and you takes your chances.
But hey, I understand your frustration. When you’re on the losing side of an issue 311 times in a row, it’s hard not to take that personally.

[Sun]

rxsid says: “The children of citizenS of the United States ..”

But it also says:

“persons whose fatherS (also plural) have never been resident in the United States”

Many people seem to be getting hung up on plurals. When you see parents, they are assuming it means both parents, but what they mean are all parents who are Natural Born Citizens. Note in above quote the word “fathers.” Do you think a child has two fathers? Again, they are talking about ALL fathers of a GROUP, if you will, who are Natural Born Citizens.

[DiogenesLamp]

When eligibility challengers stop appealing to the authority of the judiciary to resolve the issue, I’ll stop referencing the rulings.

They were suffering under the common place illusion that Judges are objective and reasonable. It was an honest mistake on their part. It has long been a widespread fallacy.

“Might makes right” is not your finest attempt at using a cliche’. There is not much “might” in the deliberative process of American civil jurisprudence.

Au contraire. There is not much "deliberative process" in the might of American civil jurisprudence.

To paraphrase Popeye the Sailor man, you pays your fees, you files your briefs and you takes your chances.

If you are suggesting that going to a modern court is a lot like flipping a coin, then you may have a point. It often appears that their "deliberative process" is little more than this, with the added aspect that the coin often has two heads while the Judges have none.

But hey, I understand your frustration. When you’re on the losing side of an issue 311 times in a row, it’s hard not to take that personally.

The losing side is truth; The discernment of which you seemingly lack the ability to perceive. I don't find it remarkable at all that the Judiciary is the enemy of truth. They have a long record of it.

But it is not surprising that you champion falsity. I must again point out that you DISHONESTLY count refusals to hear cases as loses when the merits were never addressed. (They aren't addressed even when they are heard.) Those refusals to hear cases is another manifestation of that "Might makes right" aspect of the court system, but I suspect you regard that as a feature and not a bug.

The Courts really are a residue of the Monarchical system.

A court system based on Republican principles would operate much more in line with the principles of a Free Republic.

[elengr]

Natural or naturalized; nothing else is possible, yet, your kind think there various other citizenship types.

Actually, there is only one type of citizen. You either are one or you are not. The Constitution recognizes no greater or lessor class of citizen - no royal citizens, no ruling class citizens - our citizens are recognized by our founding documents as endowed by our Creator as a free people who are all equal, sovereign members of our great nation.

What the Constitution does do, however, is set out protective restrictions to whom we may entrust with various political powers in service of "We the People." The list of limitations on who may serve as our president is not to delineate differing classes of citizenship. Rather, the presidential eligibility requirements are simply job restrictions that attempt to increase the odds that our presidents be wise, seasoned, loyal citizens who, by their very nature, are most likely to have our nation's (and only our nation's) best interests at heart.

The Constitution does not set separate classes of citizen based on age. Thirty-four year olds are every bit equal citizens to those who happen to be thirty-five years old. Citizens who have been long term residents are not special in any way to newly minted citizens. Similarly, no separate class of citizen exists based on whether one became a citizen by swearing an exclusive oath of allegiance to our great nation, or whether, through happenstance of birth to existing citizens, one naturally had no other choice but to be an American citizen.

It is disingenuous to attempt to pair as opposites legal post-birth naturalization granted by legislation with the presidential eligibility restriction of having been by one's very nature always exclusively an American and nothing but an American, i.e., a natural born Citizen. To conclude that being naturalized sometime beyond birth is the polar opposite being "natural born" is simply a false dichotomy with regard to the job requirements placed on our commander-in-chief. If you must think in such binary terms, then simply realize that naturalization (i.e., citizenship via legislation) can occur at birth (just ask any Puerto Rican citizen).

[Nero Germanicus]

Lawsuits are summarily dismissed when they have no merit. The number one reason for dismissals is that none of the people with Article Three standing to bring suit, the opposing candidates to Obama, were interested in being plaintiffs.

Not one well known, respected, conservative constitutional attorney has gone near any of those 311 eligibility lawsuits. The best attorneys from the top law firms and conservative legal foundations know how to write briefs that will get their lawsuits beyond pre-trial dispositive motions.

[Crazy ole coot]

Cruz is a Cuban, Canadian, American citizen and is not a Natural Born Citizen. This old vet will NOT support or vote for him as President or Vice President.

Never, No how, No way!!

[rxsid]

"Under today”s laws, one American citizen parent who meets the residency requirement is enough"

That's simply a lie.

Congress has tried to change the "natural born Citizen" requirement, many times in recent years, to include those "citizens" born in foreign countries to be eligible. Their efforts have failed.

One example:

Constitutional amendment to allow foreign-born citizens to be president : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Sixth Congress, second session on H.J.Res. 88.
Published: Washington, D.C. : U.S. G.P.O. : 2000.

This show that Congress knows full well that "citizens" who are born in a foreign country are not "natural born Citizens," else there would be zero need for their efforts such as this.

[Jim Robinson]

Cruz was born to a fully qualified U.S. citizen living temporarily in Canada. He’s a natural born American citizen and constitution defending patriot in every sense of the word (look up his record). If he runs and IF he’s the strongest conservative running, I will support him 100%. And so will the majority of the grassroots conservative movement. You betcha.

[Nero Germanicus]

I’m putting my money on the courts’ ruling that the following statute is definitive, just as there have been eighteen rulings that explicitedly state that Obama is a natural born citizen.

8 U.S.C. § 1401
“The following shall be nationals and citizens of the United States at birth:
(g) a person born OUTSIDE the geographical limits of the United States and its outlying possessions of parents ONE OF WHOM IS AN ALIEN, and the OTHER A CITIZEN of the United States who, prior to the birth of such person, was PHYSICALLY PRESENT in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years...”

---

Purpura & Moran v. Obama: New Jersey Administrative Law Judge Jeff S. Masin: “No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here. … The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.” April 10, 2012
http://www.scribd.com/doc/88936737/2012-04-10-NJ-Purpura-Moran-v-Obama-Initial-Decision-of-ALJ-Masin-Apuzzo

[Crazy ole coot]

UF just being a citizen is all that is required, then “why” did the Founding Fathers add the grandfather clause since they were citizens upon the adoption of the Constitution.

AND I will not support a Cuban, Canadian, American for President. I took an oath to defend and support the Constitution too many times and refuse to dishonor my oath.

Last comment on this subject .. two American citizen parents and be born in this country is required in order to be a Natural Born Citizen!!!!!

[Jim Robinson]

I just told you he IS a natural born citizen! Period!

[Sun]

“United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
snip

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:

Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.”

It doesn’t say that the Father has to be a citizen; it says the father only has to be a resident.

Also, please read the entire article from OP link.

[entropy12]

JR, that is your best post ever IMO.
Romney waltzed in by dividing the more conservative voters.
Santorum and Newt fought to the bloody end.
I hope the lesson was learned and not forgotten in 2016.
This country is literally on the brink if Hillary or other
leftist wins in 2016.

[entropy12]

Stop pouring gasoline on any “the Cruz is not eligible” embers. Stop posting such unproductive posts.

[entropy12]

So you would be OK with the natural born citizen Hillary Clinton?

[arthurus]

Stop spinning fantasies.

[entropy12]

Stop looking in the mirror. You are beyond help anyways.

[catfish1957]

.......and where did you get your constitutional law degree?

Cruz is considered one of the best minds on law in this country already. His entry into the race should pretty much answer the citizenship issue.

[elengr]

Coot, I agree with you with regard to the founders' understanding of natural born Citizen, i.e, one born to citizen parents AND born free of any other country's legitimate claim of foreign citizenship (as recognized by U.S. law or treaty). However, if Cruz ends up running as the republican candidate, I definitely will be voting for him (unless Palin or some other electably viable natural born Citizen conservative is running as a separate Tea Party candidate). No way will I indirectly be voting for Hillary or some other anti-American leftist.

That stated, I think it is useful to examine the implications of the founders' intent in crafting the natural born Citizen eligibility requirement. Clearly, they wanted to protect the nation by restricting the presidency to only those most likely to be 100 percent pro-America with no conflicting foreign allegiances or foreign citizenship ties. Adhering to the strictest definition of natural born Citizen (born of two citizen parents within our national boundaries) definitely achieves this goal. However, it also excludes individuals who meet the spirit of the requirement, but otherwise fail the stricter standard.

No doubt the founders knew that a few good people would be excluded by such a narrow standard, but probably felt that the percentage of actual "tweener" cases would be so very, very small that it would not present the nation with an undue burden in selecting qualified leaders. Thus, for the sake of providing a simple immutable standard, a few good, 100 percent American patriots could be afforded to be excluded. I think Cruz is one of those cases. He exceeds in meeting the spirit of the natural born Citizen requirement, but fails the letter of the law in my opinion.

Simply flouting an inconvenient requirement invites charges of hypocrisy, mocks of the rule of law, diminishes its moral force and ultimately opens the door to the tyranny of the rule of men. It is a dangerous business, but it is probably even more dangerous to indirectly support Hillary or someone like her by not voting for Cruz - if he runs and manages to win a spot on the ticket (in spite the inevitable questions about his Constitutional eligibility).

That Cruz was born and then raised for four years in Canada had and has no effect on his ultimate qualification as a 100 percent patriot in my opinion, since he moved to the USA well before he was old enough to have schoolmates and be significantly influenced by them or by attending foreign schools. What troubles me more is that his father took so long to naturalize as an American. My father-in-law, who came from Sweden, naturalized after only five years (the earliest possible time he could). He embraced America to the point that he even refused to teach his children any Swedish.

Many emigrants come here absolutely lusting to be Americans. From having escaped the tyranny of their old lives, they know first hand how to truly appreciate what freedom means, willingly embrace their new country and enthusiastically take the oath of exclusive allegiance to America. Such fresh-eyed patriotism can't help but influence their children to also love America and its founding principles. Bobbie Jindal's parents were this way (but he also is not a nbC, imo).

So, why did the elder Cruz (who only bothered to become an American citizen in 2005) wait so long? It raises serious doubts about his interest in being an American and dedication to America and may possibly have influenced his son to be more sympathetic to a "globalist" perspective, something we surely don't want in a commander-in-chief (as we currently are learning all too well with anti-American usurper aka obama, our criminal identity fraud-in-chief).

[boatbums]

So far I’m quite impressed with Ted Cruz. All things considered, he would be my choice for President, too! At least we’d finally get someone we wouldn’t have to hold our collective noses for to vote.