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.”
But how many people of today, even Texans, and ‘specially ladies, know who Hayden Fry is??
And this is no knock against ladies, since I are one.
Hayden Fry, former long-time football coach at SMU.
AND, no, I didn’t need to look it up.
“Should one of them ever seek the office of POTUS, that one would simply need to renounce his or her Caymanian citizenship.”
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Actually, I’m not sure that’s true. While most countries permit their citizens to renounce their citizenship (and I trust that the Caymanians do), “[s]ome countries” (at least according to Wikipedia, http://en.wikipedia.org/wiki/Renunciation_of_citizenship) “may not allow or do not recognize renunciation of citizenship or establish administrative procedures that are essentially impossible to complete.”
Since we would not want a foreign government’s laws to have the power to block an otherwise eligible Presidential candidate, I doubt that actual renunciation of foreign citizenship is required.
if you listen to the man speak, you know that's not true. He's one of the few that can instantly make an MSM interviewer look like a fool, and would shred any demonrat in a debate.
NBC.
Both my wife and I were born in the US. Both of my children were born in Germany while I was stationed overseas. Both of my children have US State Dept birth certificates that are headed “Record of the Birth of a US Citizen born Overseas.” It is hard for me to believe that my children are not natural born citizens.
I agree with you, if someone HAD to renounce citizenship in an additional country in order to have presidential eligibility here, that would mean that country’s laws have some influence on our laws, which they do not.
Ours operate independently of others.
But though not required, the holder of dual citizenship can certainly choose to renounce the one he does not actually want.
Thanks for the ping. Great post JR.
They are natural born citizens.
Thanks for the heads up, good article.
Nonetheless, it shows that the Founders and George Washington, were perfectly comfortable with citizenship based upon one parent rather than both.
The considered that citizenship to be at birth “by right” and “by blood descent”.
I believe that to be true as well.
Mail.
By naturalization law in 8 USC § 1401
Personally, Øbongo and the dhimmis set the bar (about ten feet underground) and we would be cheating ourselves not to exploit that to elect a true conservative.
I don’t care if he’s from Mars - if he runs I’m supporting him!
“the holder of dual citizenship can certainly choose to renounce the one he does not actually want.”
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Certainly. My point, though, was that choosing to renounce one’s (foreign) citizenship may not result in an actual renunciation if the other country doesn’t permit it.
That leads to the odd but valid conclusion that any country can declare anyone in the world to be their citizen at any time, and there may be nothing the person can do about it.
Of course, if they ever try to exercise jurisdiction over that person against his or her will, they can expect to find themselves facing a very formidable enemy.
But every country is the ultimate decision maker on the question of who its citizens are.
What did CATO Institute say about Obama’s POTUS eligibility?
I follow CATO on Twitter and have never seen them analyze Obama’s birth narrative. Did I miss it?
Sorry, but he was never naturalized. Especially not under 1401.
What people are stupidly arguing is that “natural born citizen” should have been stated as “citizen at birth” when the two under English mean the same thing.
” Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”
Ronald Reagan
Thank you, RR, and sad to say, we are on the verge of losing it all! I have looked at all the possible candidates, and Cruz is WAY ahead of anyone else, regarding
CREDIBILITY,GUTS,ORATORICAL ABILITY; ETHICS, and obvious LOVE for America. Cruz can potentially be the Ronald Reagan of our time.
Whether you’re right or wrong about his eligibility - and I’m sure that will continue to be hotly debated in many quarters - personally I still can’t support him because of his support for immoral, unconstitutional “and then you can kill the baby” “fetal pain” legislation.
If he really does run, because of where I live, I will no doubt have multiple in-person, eyeball-to-eyeball opportunities to attempt to dissuade Senator Cruz from this compromised position. Which I will take advantage of.
There’s a lot to like about the man, no doubt about it. I think he’s a decent, sincere person. But this matter is so fundamentally crucial as to be non-negotiable for me.
I’d also love to talk him out of his support for E-Verify. IMO, the last thing we need is another federal database, and a bureaucracy from which American citizens have to get permission to work and earn their daily bread.
Thanks for that. Too many people trying to claim that your family had to have come over on the Mayflower to qualify.
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