CATO Institute: Yes, Ted Cruz Can be President

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.”

Ted Cruz is pro-life, pro-family, pro-gun, pro-drilling, pro-borders, pro-America, pro-freedom. He’s against abortion, against partial birth abortion, against federal funding for abortion, against forcing insurance companies or religious institutions to cover abortion, etc. against their will. Is against gay marriage, against ObamaCare, against amnesty, against “immigration reform.” He champions individual rights, religious freedom and states rights (federalism). He’s an experienced state attorney general who has argued and won many key battles in the Supreme Court.

I like him a lot. And if he runs I believe he will be one of our strongest, if not the best conservative running.

From the Federalist Society:

http://www.fed-soc.org/publications/id.475/author.asp

Hon. R. Ted Cruz
United States Senator, Texas

In 2012, Ted Cruz was elected as the 34th U.S. Senator from Texas. A passionate fighter for limited government, economic growth, and the Constitution, Ted won a decisive victory in both the Republican primary and the general election, despite having never before been elected to office.

Propelled by tens of thousands of grassroots activists across Texas, Ted’s election has been described by the Washington Post as “the biggest upset of 2012 . . . a true grassroots victory against very long odds.”

National Review has described Ted as “a great Reaganite hope,” columnist George Will has described him as “as good as it gets,” and the National Federation of Independent Business characterized his election as “critical to the small-business owners in [Texas, and], also to protecting free enterprise across America,”

Ted’s calling to public service is inspired largely by his first-hand observation of the pursuit of freedom and opportunity in America. Ted’s mother was born in Delaware to an Irish and Italian working-class family; she became the first in her family to go to college, graduated from Rice University with a degree in mathematics, and became a pioneering computer programmer in the 1950s.

Ted’s father was born in Cuba, fought in the revolution, and was imprisoned and tortured. He fled to Texas in 1957, penniless and not speaking a word of English. He washed dishes for 50 cents an hour, paid his way through the University of Texas, and started a small business in the oil and gas industry. Today, Ted’s father is a pastor in Dallas.

In the Senate, Ted serves on the Committee on Commerce, Science, and Transportation; the Committee on Armed Services; the Committee on the Judiciary; the Special Committee on Aging; and the Committee on Rules and Administration.

Before being elected, Ted received national acclaim as the Solicitor General of Texas, the State’s chief lawyer before the U.S. Supreme Court. Serving under Attorney General Greg Abbott, Ted was the nation’s youngest Solicitor General, the longest serving Solicitor General in Texas, and the first Hispanic Solicitor General of Texas.

In private practice in Houston, Ted spent five years as a partner at one of the nation’s largest law firms, where he led the firm’s U.S. Supreme Court and national Appellate Litigation practice.

Ted has authored more than 80 U.S. Supreme Court briefs and argued 43 oral arguments, including nine before the U.S. Supreme Court. During Ted’s service as Solicitor General, Texas achieved an unprecedented series of landmark national victories, including successfully defending:

U.S. sovereignty against the UN and the World Court in Medellin v. Texas;

The Second Amendment right to keep and bear arms;

The constitutionality of the Texas Ten Commandments monument;

The constitutionality of the words “under God” in the Pledge of Allegiance;

The constitutionality of the Texas Sexually Violent Predator Civil Commitment law; and

The Texas congressional redistricting plan.

The National Law Journal has called Ted “a key voice” to whom “the [U.S. Supreme Court] Justices listen.” Ted has been named by American Lawyer magazine as one of the 50 Best Litigators under 45 in America, by the National Law Journal as one of the 50 Most Influential Minority Lawyers in America, and by Texas Lawyer as one of the 25 Greatest Texas Lawyers of the Past Quarter Century.

From 2004-09, he taught U.S. Supreme Court Litigation as an Adjunct Professor of Law at the University of Texas School of Law.

Prior to becoming Solicitor General, he served as the Director of the Office of Policy Planning at the Federal Trade Commission, as Associate Deputy Attorney General at the U.S. Department of Justice, and as Domestic Policy Advisor on the 2000 Bush-Cheney campaign.

Ted graduated with honors from Princeton University and with high honors from Harvard Law School. He served as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court. He was the first Hispanic ever to clerk for the Chief Justice of the United States.

Ted and his wife Heidi live in his hometown of Houston, Texas, with their two young daughters Caroline and Catherine.

Education
Harvard Law School, 1995, J.D., Magna Cum Laude
Princeton University, 1992, A.B., Cum Laude

Publications
Is the Administrative State on the Rise? - Event Audio/Video
First Annual Executive Branch Review Conference
June 13, 2013

Address by Senator-Elect Ted Cruz - Event Audio/Video
2012 National Lawyers Convention
November 20, 2012

Enumerated Powers, the Tenth Amendment, and Limited Government - Event Audio/Video
2010 National Lawyers Convention
November 18, 2010

The Role of the State Attorney General - Podcast
Federalism & Separation of Powers Practice Group
May 20, 2010

Salazar v. Buono and the Establishment Clause - Podcast
Religious Liberties Practice Group
April 6, 2010

A Look Back at the October Supreme Court 2007 Term - Event Audio/Video
July 1, 2008

SCOTUScast 10-11-07 featuring Ted Cruz
Medellin v. Texas
October 11, 2007

Medellin v. Texas: Presidential Power and International Tribunals - Event Audio/Video
September 27, 2007

A Preview of the Supreme Court October 2007 Term, With a Look Back at the October 2006 Term - Event Audio/Video
September 26, 2007

Government—Friend or Foe of E-Commerce? - Transcript
Fight The Future? Government Regulation and Technological Progress
October 18, 2001

Debates
District of Columbia v. Heller
June 26, 2008

Medellin v. Texas
Part I: Self-Execution
March 28, 2008

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