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.”
Amen to that!!
I see no evidence that the Founders changed their mind in Article II.
Who said anybody changed their mind?? They wrote a short-term provision into Article II. Do you think that the provision of being a citizen at the time of the adoption of the Constitution is still in effect today??
Left wing talking head... "your guy Ted Cruz is not even eligible"
Conservative guy... """Neither was Obama !!!"""
Left wing talking head... " Oh another birther... Where is your tin foil hat Ha Ha HA... Everybody knows Obama was born in Hawaii!!! Your guy was not even born in the United States!!! Ha HA HA"""
Conservative guy... "But But But"
CNN Host... " We need to cut this conversation short for now However, it is very interesting that after 8 years of fringe republicans claiming Obama was foreign born they now present a candidate who was not even born in the USA.""""
Conservative guy... "But that is not accurate"
CNN Host interrupts... "Sorry we need to go. Next segment after words from our sponsor will be our panel discussion addressing the issue ,,,, child abuse in the tea party.....
We'll be right back""""
I agree. Unless somebody can show me respectable historical materials which indicate that Cruz is NBC, I will reluctantly support him if Obama guard dog Fx News chooses Cruz as its poster child to win Republican nomination.
I understand your argument but unfortunately it wont fly in the media. The left wing will simply ignore what you say and keep repeating that Cruz, unlike Obummer, was foreign born. The target of this will not be to convince us who are informed but to simplify the issue into a talking point for the unwashed. (Alinsky)
Which didn't seem to be a problem for McCain, which can also be pointed out. But the idea is not to defend Cruz, but that both Cruz and Obama are ineligible. The reasons that make Cruz ineligible are the same for Obama.
Does that mean that if the choice in your primary is between Christie and Cruz, that you would feel duty bound to vote for Christie?
Senator Leahy>>>>>
“Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen,” .
“I expect that this will be a unanimous resolution of the Senate.”
Senator Chertoff>>>>
“My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,”
Chew on that
What about it?? You were asking how to respond in the media regarding Cruz. The media isn’t going to go into detail about what makes a difference between McCain and Cruz. If they do, then they open up Obama to the same flaw that Cruz has, as I’ve already said.
If Cruz is the most conservative candidate, at this point, I will support him.... It is a matter of survival.... But my eyes will be wide open... I will not take the position that he is natural born... I will choose not to engage... </:-)
Yes they will. They will say that Ted Cruz was foreign born and Obama was not. AND that we are hypocrites for making eligibility an issue in the first place. They will just dismiss your argument about the fathers.... Watch.... and the lame stream media will assist them.
Yes. By the 1790’s law, it is arguable that even Rafael Cruz was a US citizen able to pass along US citizenship to his children. I’m betting a good lawyer could demonstrate, by using the processes current in the 1790s about swearing to any magistrate anyplace on the frontier after 2 years of residing in a state, that Cruz Sr. had appeared and indicated his intent.
Question! What/where is the 1790 law that would make a Cuban citizen in the 1900s a USA citizen automatically?
Of course the clause is still in effect, it has not been altered or abolished via the only means available to alter or abolish it. There has been no Constitutional Amendment affecting that clause.
As to the existence of any individual to whom that clause may apply, there are no longer any who are known to exist. He or she would certainly have had to be born before the conclusion of the Revolutionary War and quite possibly before that war began, in order for that clause to have applicability.
Barring time travel becoming science fact rather than science fiction, or a US citizen having reached the truly astounding advanced age of 238 years, unheard of outside the Old Testament, they’re all long since turned to dust, in this world at least.
Relying upon this Act can be problematic, since such a declaration via Nationality Act only existed for five years, being rescinded and replaced in 1795, with language identical save the removal of the critical phrase “natural-born,” meaning that by law individuals born “beyond sea” ie in a foreign land to a US citizen father with certain residency restrictions were to be regarded as “citizens.”
That the 1790 Act existed at all does speak to Original Intent however, since the first Congress was largely comprised of Founders. I've taken the existence of it to mean that the Founders did not originally intend to preclude Presidential eligibility to all individuals born to a citizen father abroad.
I've also taken the 1795 Act that replaced it to mean that a blanket attempt to do so was a problem. I believe that was a result of jurisdictional claims in the form of foreign citizenship upon children born with the geographic territories of nations following “jus soli” law.
Others have pointed out that Congress was constrained by the Constitution upon the matter, limited to the creation of a uniform set of naturalization laws across the Several States.
Read the 1790 law and look at the very non-specific way it refers to the father simply residing in the USA.
Then look at the very loose methodology around the nation, and particularly in western Viginia, Pennsylvania, etc. — the frontier — regarding fulfilling any citizenship requirements. It called for simply swearing before any magistrate, any place, any time.
Prove that he did do this and you're a long way toward resolving any doubt regarding the existence of internationally accepted claims of jurisdiction by Cuba upon children of the senior Cruz.
Everybody has been so caught up, looking for “the” definitive rule or law, when it's been reasonably clear from various courts that the answer is, it depends. There are doubts regarding certain circumstances of birth, however these doubts can be resolved, in the affirmative or in the negative. Birth circumstance varies widely from one individual to the next. A single law covering them all was not feasible.
Eligibility was clearly to be determined on a case by case basis, for those in a position of doubt. The only individuals for whom there was and is no doubt, are those born under the full jurisdiction of the United States, to citizen parents. There is no other avenue possible for a foreign jurisdiction to make any internationally recognized legal claim of jurisdiction upon such individuals. Others not born in this circumstance can be found to be free of foreign jurisdictional claims, but it just isn't clear cut.
FWIW..............I think Ted Cruz would be a magnificent President. He's a magnificent Senator....already! But.....he is not a Natural Born Citizen. So what? Neither is the clown who sits there now!
I believe a precedent has been set."
I agree with all of the above! (Though Allen West and Sarah Palin are favorites of mine as well).
I have a question that I have been attempting to get answered and I get no response. That question is: If a Canadian woman marries an American man on American soil, and they have children - are those children American because they were born here? Or are they Canadian because of their mother's Canadian citizenship?
And, FWIW, even though I still believe Cruz has questionable eligibility, I love the man and will support him 100% if he is our nominee. I agree with Diego 1618: A precedent has been set. Congress has chosen to do nothing about Obama's ineligibility, and that has opened a pandora's box
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