Donald Trump Is Right About Cruz's Presidential Eligibility

Reason.com ^ | January 20, 2016 | Jacob Sullum

[VitacoreVision]

After many years of debate, the meaning of "natural born citizen" remains unsettled.

During last week's Republican presidential debate, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.

Here is a sentence I never thought I'd type: Donald Trump is right. Cruz describes a consensus that does not exist.

The Texas senator is not alone in doing that. In a Harvard Law Review essay published last March, Neal Katyal and Paul Clement-solicitors general under Barack Obama and George W. Bush, respectively-say "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution." They call claims to the contrary "specious" and "spurious."

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published last week, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."

As Catholic University law professor Sarah Helen Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes both birth abroad to parents who were citizens, and birth within a nation's territory and allegiance."

Writing in The Boston Globe last week, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee makes a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz's belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."

Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz's constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.

[equaviator]

Never implied that Cruz was not a citizen. I don’t think he’s the kind of person to claim to be something he’s not, even in campaign mode.

[philman_36]

Jeese, that was 2011...

The year the video was made doesn't change what he's talking about.

...and what Cruz was covered under was the law at his time of birth.

Well that brings us right back to my original question which you've yet to answer...

Why would an immigration (positive) law be needed by someone who was supposed to already be a citizen through natural law?

[roamer_1]

I'm not saying Cruz isn't American. But the constitution has a requirement that president be a natural born Citizen of the US. We should follow the law.

Early 1800s: A child is born to an American couple returning to America from England on a Dutch cutter...

The technicality says the boat is Dutch soil. Is the child Natural Born?

[Cboldt]

We’ll cross that bridge when we come to it.

[biff]

Search youtube, it might be on there. It was a news report on TV. Don’t believe me, I don’t care.

[roamer_1]

We’ll cross that bridge when we come to it.

No, answer the question. It is pertinent. It happened all the time. Is a child born on a foreign ship to American citizens Natural Born, or not?

[Cboldt]

Ok, we'll cross that ocean when we get to it. Your hypo was 1800's. It's moot.

And you have some chutzpah, ordering me around. Buzz off. I think you are annoying.

[biff]

I will say one more time, the congress has changed the laws several times since 1790. Just wait and let the SC decide and drop it until then. Nothing your or I could say will change the others minds so what is the purpose? We both know it will go to court. I just hope the SC accepts it and it does not have to go thru all the lower courts for months. Find out as soon as possible.

[CodeToad]

“The technicality says the boat is Dutch soil. Is the child Natural Born? “

Yeah, but Ted Cruz was born in Canada to a mother and father that had established Canadian citizenship. Yes, both of Cruz’s parents were Canadians citizens at the time of his birth.

[roamer_1]

Ok, we'll cross that ocean when we get to it. Your hypo was 1800's. It's moot.

No, it's one of the reasons exceptions to the rule were proposed. Travel was slow and arduous. Penalizing a child for being born enroute is absurd on it's face. Such a child is native born. Citizenship was not inferred by the Dutch government. The child assumed the status of his parents.

[roamer_1]

Yes, both of Cruz’s parents were Canadians citizens at the time of his birth.

I have seen no evidence in that regard.

[philman_36]

I will say one more time, the congress has changed the laws several times since 1790.
I'm aware of that. It doesn't answer my question.

Just wait and let the SC decide and drop it until then.

Nah, you can drop it if you want, I'll keep pressing the issue.

Nothing your or I could say will change the others minds so what is the purpose?

Rhetorical question so no answer required, but I'll comment that that's rather presumptive so speak for yourself, not me.

We both know it will go to court.

I'm no prognosticator so I'll leave the guessing to you. However, no nomination no court case to bring.

I just hope the SC accepts it and it does not have to go thru all the lower courts for months.

All such hope is lost. It will have to proceed up the food chain to some extent.

[ConservativeDude]

Sadly, I think that is correct.

[ConservativeDude]

I remember years ago Senator Rudy Boschwitz (who was born somewhere outside of the US) was always saying that he was the only Senator who didn’t think he could be President.

He said he knew he couldn’t be President, b/c he was born outside of the US. His point was that he was a better Senator, b/c he wasnt looking at the next rung on the ladder.

In any event...just an anecdote that is sort of relevant here.

[so_real]

My fear is that Cruz will take your advice, biff, and just let this ruminate until such time as the SC does settle it. (Which as Cboldt noted, without pressure will be "never".) In the meantime, his avoidance of the issue appears to Constitutionally-minded conservatives as a "dodge" of a highly originalist issue from someone who has sold himself to us as a highly originalist Constitutional scholar. It encourages doubt, and raises questions as to his honor and intentions. And that is why he is not growing in the polls. Cruz should be leading in Iowa and New Hampshire at this point, and he isn't. I believe this issue is hurting him. Selfishly and for the good of the nation, I really want him to change his approach to a more winning strategy.

[biff]

I am not a lawyer, obviously, but did he have to wait for somebody to file a case like the lawyer in Houston did last week? Otherwise what process would he do in order to get a decision out of the SC? And of course, nobody is going to be satisfied by any decision by a lower court.

A so called declarotory (sp) ruling as Trump has talked about for a few weeks now would not have any authority. A SC ruling is going to be the only final ruling that nobody could appeal and it would be the end of it, one way or the other.

[I got the rope]

Oh i see. wasn’t sure about the acronym. I get it. By the way...just so you know. I don’t consider him, Rubio, Sanders, or Trump to be eligible to run for president. Not a one of them meets the “natural born” requirement.

[KGeorge]

I don’t know anything about Sanders other than he’s a confirmed communists or socialist (same difference) & a perv. Trump’s mother was naturalized, IIRC, 4 years before he was born, so not sure why you’d say him. . .

But now, I’m curious. If you’ve chosen a candidate, who is it? If you don’t mind me asking. (I kept up with Doughty One’s straw poll yesterday & it was interesting to me that Rubio got 1, Rand Paul got 5, Santorum & Ben Carson got 2 each at the point I stopped following. I could swear Bush got 1, but when I went back over the votes, I couldn’t find it.

I didn’t notice/ note who voted for them, but I kinda wish I had because I’d be interested in what they think about things beyond their candidates. What’s important to them & if it’s not obvious, why? I’m interested in their point of view
Their voices aren’t really heard (?) over the Trump/ Cruz battles going on.

[so_real]

This issue still largely falls in the "political" theater and not yet in "legal" theater, and as such can still be won using politics. All Cruz has to do is :

• signal to the People that he takes our concerns for his eligibility seriously
• make a campaign promise that once seated as POTUS he will use the influence of the Executive Branch of government to formally request the Judicial Branch of government to provide clarity as to the "original intent" in the Constitution, regardless of whether it works to his favor or not
• until then, indicate he is continuing his campaign "in good faith" that as Obama was vetted, seated, and served in office under similar circumstances, so to would he be found eligible

It's that simple. Conservative birthers get what they want -- a day in court -- and nearly all will stand down. Liberal birthers now have pause to consider the ramifications of Obama being found ineligible ex post facto, and some will stand down, because whatever penalty they demand applied to Cruz ex post facto will be applied to Obama ex post facto. And the Court receives the cover it needs to continue ducking the issue until a formal request for clarification arrives. It's a political victory and a strategy that will significantly improve Cruz's chances of getting the nod.

[WildHighlander57]

Many thanks for that info!

We have an authentic birth cert for Ted and info that his mom registered with the consulate.

So he had & has a US passport. Thus he’s a citizen.

All we have from 0 is a forged birth cert, no info as to where and with what consulate his birth was registered, and thus a bogus us passport. No way is 0 a US citizen.