Is Ted Cruz a natural-born citizen eligible to serve as president? (Commentary)

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By Professor Sarah Helene Duggin
Yahoo! News

The 2016 presidential election is more than three years away, but potential candidates and their supporters are already contemplating the next campaign. Senator Ted Cruz of Texas—now well-known for his role in the recent federal shutdown—and California’s celebrity former Governor Arnold Schwarzenegger are among those whose names are circulating. But neither Cruz nor Schwarzenegger was born in the United States, and the Constitution provides that “[n]o person except a natural born citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

For Cruz, Schwarzenegger, and a number of other potential candidates, the Natural Born Citizenship Clause raises a critical question: Is anyone born outside the United States constitutionally eligible to serve as president?

Senator John McCain, who was born in the Panama Canal Zone, faced the same question with respect to his natural-born citizenship status in his 2008 presidential bid, and purported concerns about President Obama’s constitutional qualifications led “birthers” to file lawsuits challenging his natural-born credentials on the basis of a variety of far-fetched theories during the last several years. A new natural-born citizenship debate is already simmering, and it seems likely to heat up a great deal before the 2016 election takes place.

The Constitution does not define the term natural born citizen. Even so, Governor Schwarzenegger is clearly out of the running. Given that he was born in Austria to Austrian parents, there is no basis for arguing that he is a natural-born citizen of the United States.

For Senator Cruz—who was born in Calgary, Alberta, to an American mother and a Cuban father—the question is more complicated. There is a strong argument that anyone who acquires United States citizenship at birth, whether by virtue of the 14th Amendment or by operation of federal statute, qualifies as natural born. The Supreme Court, however, has never ruled on the meaning of the natural-born citizenship requirement. In the absence of a definitive Supreme Court ruling—or a constitutional amendment—the parameters of the clause remain uncertain.

The origins of the Natural Born Citizenship Clause date back to a letter John Jay (who later authored several of the Federalist Papers and served as our first chief justice) wrote to George Washington, then president of the Constitutional Convention, on July 25, 1787. At the time, as Justice Joseph Story later explained in his influential Commentaries on the Constitution, many of the framers worried about “ambitious foreigners who might otherwise be intriguing for the office.”

“Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to nor devolve on, any but a natural born Citizen,” Jay wrote.

Washington thanked Jay for his hints in a reply dated September 2, 1787. Shortly thereafter, the natural-born citizenship language appeared in the draft Constitution the Committee of Eleven presented to the Convention. There is no record of any debate on the clause.

While it is possible to trace the origins of the Natural Born Citizenship Clause, it is harder to determine its intended scope—who did the framers mean to exclude from the presidency by this language? The Naturalization Act of 1790 probably constitutes the most significant evidence available. Congress enacted this legislation just three years after the drafting of the Constitution, and many of those who voted on it had participated in the Constitutional Convention. The act provided that “children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens.”

There is no record of discussion of the term natural born citizen, but it is reasonable to conclude that the drafters believed that foreign-born children of American parents who acquired citizenship at birth could and should be deemed natural born citizens.

Although subsequent naturalization acts dropped the natural born language, members of later Congresses proposed many bills and resolutions designed to clarify, limit, or eliminate the Natural Born Citizenship Clause; none succeeded. In April 2008, however, amid challenges to Senator McCain’s eligibility to serve as president, the Senate passed a resolution declaring that “John Sidney McCain, III, is a ‘natural born Citizen” under Article II, Section 1, of the Constitution of the United States.”

The resolution—co-sponsored by a number of McCain’s Senate colleagues, including rival presidential hopefuls Hillary Clinton and Barack Obama—undoubtedly offered Senator McCain some comfort, but it had no real constitutional significance.

Challenges to presidential qualifications are not new. In 1964, for example, questions arose as to the natural-born credentials of Republican nominee Senator Barry Goldwater, because he was born in Arizona prior to statehood. In 1968, legal actions were threatened against former Michigan Governor George Romney, who was born to American parents in Mexico, when he sought the Republican nomination.

Despite the shadow that lawsuits may cast over a presidential bid, the obstacles to successful litigation of natural-born citizenship challenges are formidable. These matters raise a wide array of justiciability concerns. Standing issues led to the dismissal of lawsuits filed in federal courts in New Hampshire and California challenging Senator McCain’s natural-born status in 2008 (Hollander v. McCainRobinson v. Bowen), as well as to the dismissal of claims brought by a Guyana-born naturalized citizen who argued that the Fifth and 14th Amendments effectively repealed the natural born citizenship clause (Hassan v. Federal Election Committee).

Standing is not the only obstacle to adjudication of natural-born citizenship issues. Claims that a candidate lacks the requisite natural-born citizenship credentials are unlikely to ripen until a nominee is chosen, or perhaps even elected, and federal courts may be reluctant to delve into the merits of challenges to a candidate’s natural-born citizenship status on political question grounds.

What can we expect if Senator Cruz or another similarly situated candidate runs for president in 2016? Undoubtedly, the controversy will continue with passionate advocates on both sides of the issue. A scholarly consensus is emerging, however, that anyone who acquires citizenship at birth is natural born for purposes of Article II.

This consensus rests on firm foundations. First, given Jay’s letter and the language of the 1790 naturalization act, it seems evident that the framers were worried about foreign princes, not children born to American citizens living abroad. Second, the 14-year residency requirement Article II also imposes as a presidential prerequisite ensures that, regardless of their place of birth, would-be presidents must spend a significant time living in the United States before they can run for office.

Finally, the natural born citizenship clause is both an anomaly and an anachronism. The way in which the clause differentiates among United States citizens is contrary to the overall spirit of the Constitution; the risk that foreign nobility will infiltrate our government is long past; and place of birth is a poor surrogate for loyalty to one’s homeland in our increasingly mobile society and our ever more interconnected world. The best solution would be to amend the Constitution, as many legislators on both sides of the aisle have proposed over the years. In the absence of an amendment, the clause should be narrowly interpreted.

(Sarah Helene Duggin is a professor of law and director of the Law and Public Policy Program. Her article originally appeared on Yahoo! News.)

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4 comments

  1. If one parent is an American citizen, that child is natural born. That made Obama natural born. Most birthers accept that. It seems their issues was that Obama was later adopted by a non-American, taking his surname, and becoming a citizen of that nation. Indonesia has conscription, meaning every legal citizen is sworn to defend the nation and part of it’s military. His Mother took a job with that government and became a citizen, with such loyalty perhaps being grounds for denaturalization. But since Obama was under 18, he would have kept his American citizenship status uunless he specifically denounced it. We don’t have records to prove that happened (or at least they haven’t been released). Most of the birther non-sense is really a reflection of Obama refusing to give disclosure……

  2. Anonymous · · Reply

    Obama was born in Hawaii you nitwit.

  3. The fact that a definition of a natural born Citizen is missing from the US Const. wasn’t an oversight, or a simple laps in judgement. The fact is, a natural born citizen is defined by natural law, not by positive law. While de Vattel, in his seminal work: ‘The Laws of Nations’, articulated what he observed to be natural born citizens in the society of their fathers, but only the American electorate can decide what is a natural born US Citizen.

    At present, our courts say an Art. II, §1, cl. 4 natural born US Citizen, by English common law, is no different than a natural born English subject of the Crown. By this definition, the offspring of illegal aliens are also recognized as natural born US citizens. This definition also allows for those acquiring US citizenship by positive law, rather than natural law, to qualify under Art. II, §1, cl. 4.

    Lastly, for 171 years, since the 1837 election of Martin Van Burn, the American electorate have said the definition of an Art. II, §1, cl. 4 natural born Citizen is that of a person born within the jurisdiction of two US citizen-parents.

    Is Sen. Ted Cruz, eligible to stand for the office of the presidency or vice-presidency of the United States? Only the American electorate can decide.

    ex animo
    davidfarrar

  4. Fuzz T. Was · · Reply

    The Supreme Court has said a lot about the term natural-born citizen?

    In the Supreme Court decision, The Venus, 1814, Justice John Marshall defined “natural-born citizen” citing Vattel, but using his own words stated “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’

    In U.S. v. Wong Kim Ark (1898), the Supreme Court held children born in the United States, of permanently-domiciled alien (permanent legal resident) parents, are native-born citizens. But the Court did not hold these children to be natural-born citizens. To the contrary, the Court has consistently used the term “natural born citizen’ to apply only to persons born on U.S. soil, to citizen parents (plural).

    The decision was based on the 14th Amendment. This case is often used by some as evidence that any citizen born in the U.S. can be President. However, the 14th Amendment only stated, “all persons born in the United States…excluding Indians not taxed….” were citizens and were to be given “full and equal benefit of all laws.” The Ark decision did not assert or imply the definition of natural-born citizen in the Constitution had changed.

    In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the plaintiff was born in the United States, of a father owing allegiance to sovereignty other than the United States. In each case, the Court determined that the plaintiff did not acquire U.S. citizenship at birth: his nationality at the time of birth was that of his father, not his birthplace.

    In Dred Scott v. Sandford (1856), Justice Daniels’s concurring opinion characterized the view that:” natural -born citizens are those born in the country to parents who are citizens”.

    In Minor v. Happerset (1874), the decision most on-point, the Court defined two classes of citizens. The first consisted of citizen children born in the United States to U.S.-citizen parents (plural). The second consisted of U.S. born children of non-U.S.-citizen parents. The Court used the term “natural-born citizen’ to apply to members of the first class. While both classes are citizens, only persons in the first class are natural-born.

    In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural-born citizen. He was born in the United States to a father who was a native-born citizen and a mother who was a U.S. citizen by marriage.

    In Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural-born citizen. She was born in the U.S. to a father who was a naturalized citizen and a mother who was a U.S. citizen by marriage.

    Whenever the Supreme Court has referred to a person as a natural-born citizen, that person was always born in the United States to U.S. citizen parents.

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