Ted Cruz and Natural Born Citizenship

For some time now, I’ve wondered whether Ted Cruz is, in fact, eligible to sit as President of the United States in the (hopefully unlikely) event he is elected President.  The question arises because of a clause in the United States Constitution, Art. II, Sect. 1(5) which reads in relevant part:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

To the best of my knowledge, this clause has never been adjudicated in any court.  That means that any comments on this clause are pure speculation.  Let me state at the outset this is not me speaking from my perspective as a lawyer; I am not a constitutional scholar and have not studied the issue at any great length.  In short, then, anything I say is to be taken with a grain of salt  – as should any opinion outside of the courts.

Before I get to a more serious evaluation of the issue, I’ll try to address some of the comments I’ve read in newspapers, heard from talking heads on radio and TV, and seen and read on the ‘net.  Many of those views are from people endorsing or at least favoring Cruz.  Those statements are that other men have run for President, indeed even been nominated for that office by their parties, who were not born in the United States proper.  Those comparisons fail for any number of reasons.

One person mentioned Barry Goldwater, Republican nominee for President in 1964, who was born in the Arizona Territory, sometime before Arizona became a state.  When Goldwater was born, Arizona was an American territory and both of his parents were American citizens, born in the United States themselves.  In contrast, Ted Cruz was born in Canada to a father who was a Canadian citizen, naturalized from Cuba (he became an American citizen in 2005), and an American citizen mother.  That his mother is an American citizen gives Cruz his American citizenship.  But the big difference is that, unless something’s changed that I have yet to hear about, Canada is not a United States territory or possession (such as Guam, Puerto Rico, and the American Virgin Islands are). This is, then, an imperfect comparison.

Another comparison is to John McCain.  McCain, the Republican nominee for President in 2008, was born in Panama, to two American citizens.  He thus has American citizenship via both parents.  My understanding, and I could be wrong, is that he was born on American property (aka the Canal Zone), specifically in a naval hospital.  American property as opposed to Canadian, two United States citizen parents and not one.  This comparison also fails.

The only comparison that I don’t fully understand relates to Mitt Romney’s run in 2012. My confusion stems from the fact that it is even mentioned; Mr. Romney was born in Michigan to two United States citizens who were themselves born of United States citizens.  His mother was born over a decade after Utah became a state and his father was born to United States citizens in a Latter Day Saints colony in Mexico (George Romney’s bona fides thus differ from Cruz’ only in that both Romney Senior’s parents were US citizens as opposed to one for Cruz).  This is important as apparently some of the commentators have conflated the Senior and younger Romney’s birthplaces – and George Romney ran for President himself in 1968.

It’s also important to note for the record that Ted Cruz renounced his Canadian citizenship in 2014 – not even 2 full years ago.  Think about that – he happily went for some 40+ years as a citizen of both Canada and the United States and then started thinking about running for President.  Why didn’t he renounce the citizenship earlier, like when he first won elected office in Texas? Why did he set aside his Canadian citizenship when he decided (or started to decide) that he was going to run for United States President?  He surely knew he was a dual citizen; the decision seems more than a little cynical to me.

Those preliminaries aside, we can now move to the more serious evaluation of the issue presented: Is Ted Cruz a natural born Citizen of the United States as described in Art. II, Sect. 1(5) of the United States Constitution?  A plain reading of the clause in question is no, Ted Cruz is not a “natural born Citizen” as the Constitution defines the term.

When evaluating laws, you have to parse the words used very carefully.  The relevant words in the clause state “”No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, . . . .”.  We need to look carefully at the words used and the sentence structure.  We have no definition given of what a “natural born Citizen” and it then falls to the next part of the sentence to determine if Cruz qualifies.  Is he a Citizen of the United States?  Yes, he is – via his mother.

But look at the clause following “a Citizen of the United States.”  That clause reads “at the time of the Adoption of this Constitution” (emphasis mine).  Cruz clearly was not a Citizen at the time the Constitution was adopted: he was born in 1970.  The italicized phrase refers back to “Citizen of the United States,” and not to natural born Citizen.  Based on that, the plain facial reading would lead one to conclude that anyone seeking the Presidential office needs to be 35, a resident of the United States for the 14 years preceding election, and have been born in the United States proper.  Cruz meets the first 2: he’s 46, and has lived in the United States for some 30+ years.  However, he was not born in the United States proper; his citizenship is via his mother.

However – and this is crucial – the understanding is that he would qualify.  If we look at the United States Congress’ annotated Constitution (at pp. 28-29), the explanation is pretty clear.  Based on the framers’ intent, all people born of American citizens, whether in the United States or abroad, are natural born citizens as understood by the phrase in question.  That of itself is likely dispositive; whatever the ‘intent of the framers’ is found to be is how the Constitution will be interpreted.  When the framers leave a trail, as here, of what they meant by certain phrases or terms used, that will decide any case.

The footnotes in the Congressional annotated Constitution point to a pair of cases interpreting clauses in legislation.  One case explained in the note held that courts should not rely on constitutional amendments added after the Constitution was ratified in order to interpret a constitutional phrase in question; courts may, but should not do so (p. 29, n. 101).  Some questions may exist as to whether Cruz is a citizen by statute (i.e., the 14th Amendment, Sect. I).  Is he a citizen due to his mother’s citizenship?  If so, he is a naturalized citizen (the same as someone who emigrated to the United States from abroad, say, England or Lichtenstein and went through the formal process of obtaining citizenship). He is not eligible to become President if that is the case.  These questions would be answered by the 14th Amendment, which was added after the phrase in question, so couldn’t be used to disqualify Cruz from the presidency.

Clear as mud, right?

In sum, regardless of whatever I or talking heads or constitutional scholars might state on the matter, the unfortunate fact is that Donald Trump is right: if Cruz gets the Republican nomination and if he wins the subsequent election (please be to God, no!), suits would be filed and the United States Supreme Court would have to decide the matter.  And that would be all to the good – we need this matter finally decided, because Cruz will not be the last person to run for office about whom these questions will arise.

My belief is that if that happened (Cruz elected), based on the framer’s intent as noted subsequent to the Constitution’s ratification, we would have to conclude that the Court would hold the election valid, Cruz is a “natural born citizen” as understood by the clause.  In my view, though that would be appear to be an improper reading of the plain language of the Constitution, it would be the correct decision.  But I do not sit on the Court and my viewpoint is pretty much irrelevant.

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About flatpickingjd

Just your average, liberal vegetarian redneck. Yes, I'm a liberal. Proudly so. I see nothing wrong with that and wear that label with pride. Yes, I'm a vegetarian. I used to be fat, very fat. Then I started taking care of myself, lost a bunch of weight and found it easier to keep that weight off by not eating meat. Or cheese. Or eggs. Or any good stuff. Man, I miss pizza. And, yes, I'm a redneck. I like camping and fishing, listen to bluegrass music and live (from time to time) in the south(west). So, yup, I'm just your average, liberal vegetarian redneck. Serious details about me: I make my living as a lawyer. My practice focus is business law, but I've dabbled in other areas including personal injury, family law, real estate, and water law. I also hold three master's degrees with plans to earn a doctorate. I hope you enjoy your time here, and feel free to comment!
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