As everyone knows, Ted Cruz was born in Canada to a Cuban father and an American mother, yet the Constitution says that only a “natural born Citizen” can be president. Up until now, most respectable observers have dismissed questions about Cruz’s eligibility to serve as president as a form of “birtherism” and have declared that the constitutional eligibility of a person in Cruz’s position to be president isn’t open to serious question.
It turns out that that’s not really the case. Constitutional law professor Laurence Tribe and legal historian Mary Brigid McManamon have both published op-eds making the case that, in fact, the best understanding of what the phrase “natural born Citizen” meant to the people who wrote it in 1789 is that it restricted eligibility to persons born on U.S. soil. Read McManamon’s article for a good summary of the case against Cruz; those in search of more scholarly treatments of the subject might consider this article from the Boston University Law Review, or this one from the Illinois Public Law Research series.
How will this unexpectedly difficult question be resolved? Tribe thinks it unlikely that any court would act either to keep Cruz off the ballot or out of the White House on eligibility grounds. I’m not so sure about that; of course there’s no way to know for sure until someone sues. But in any event, the solution may be political. A recent poll showing a very tight Cruz-Trump race in Iowa also shows that only 46% of likely Iowa GOP voters are aware of Cruz’s foreign birth, and that a substantial subset of those, when told, become much less likely to vote for him. With Trump going all-in on Cruz’s place of birth and the media now interested in the issue, the number of voters in Iowa (and elsewhere) unaware of Cruz’s Canadian roots seems likely to fall quickly, which can only help Trump now that there is respectable academic commentary backing up Trump’s position. And if Trump wins Iowa, he seems to me to have an excellent shot at sweeping the first four contests (IA, NH, SC, NV), which is great for him and terrible for Cruz (and the rest of the field).
From Cruz’s perspective, the timing could hardly have been worse for this issue to emerge as a serious one. He’d have been much better advised to have dealt with it long ago.
On the one hand you have to be a citizen to be a US Senator. Ted Cruz was never naturalized prior to election so he must be considered natural-born. OTOH, I did think that you had to be born within the jurisdiction of the United States to qualify. In fact, when I was growing up a neighbor and his wife were overseas longterm for his business, but his wife was pregnant, so she came back to have her baby precisely so it could be born on US soil. Have we never come up with a firm definition of natural-born? From my history and civics I was definitely under the impression that the doctrine of ius soli prevailed. Also the 14th amendment defines citizens as all persons born or naturalized in the US.
Barry Goldwater was born in the Territory of Arizona. This fact is raised by the BU Law Review when presenting people who may or may not be “natural born citizens.”
My question: why not raise George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, Andrew Jackson, or William Henry Harrison, all of whom were born before the establishment of the United States. Their situations seem remarkably similar to Barry Goldwater. Surely Barry Goldwater would have been eligible to be POTUS in the eyes of the framers since, after all, the framers were eligible in the eyes of the framers.
What am I missing?
(note: Mr. Cruz was born in a location that is not presently a part of the United States. I’m not arguing that Mr. Cruz is eligible; I’m trying to understand why BULR raise Mr. Goldwater but ignore our first handful of PsOTUS.
…was part of the US at the time of Goldwater’s birth, just not a state yet. The same can be said for John McCain, born in the Panama Canal Zone when that was within US jurisdiction. The first few Presidents are covered by the rest of the natural-born clause which says something like “or a citizen of the United States at the time of the adoption of this Constitution”.
but the case for them is stronger than for another country. The only situation that seems directly analogous to Cruz is George Romney – born in Mexico to American parents – whose campaign for president never got very far.
They are governed by the United States and no other country. Heck if a pregnant American woman were abroad and went into labor sooner than expected I’d advise her to get to an embassy or consulate of ours rather than a hospital if possible so the baby could be born within US jurisdiction.
(a) consulates probably don’t have the greatest on-site medical facilities; (b) the rules for ambassadors are not analogous to US territories; and (c) whether a person born in a US territory is eligible for the presidency is, in fact, not resolved and not straightforward. The BU Law Review article linked in the post delves into the details, if you’re interested.
…is that the grounds of embassies and consulates are considered the sovereign soil of the country they represent. I realize that they aren’t medical facilities and of course may not be geographically convenient, hence the “if possible”. I read the relevant portion of the BU article which in some instances only says SCOTUS hasn’t ruled on the matter, but does cite a couple of instances where they have ruled in a way that surprised me. My own opinion is that there should be a simple principle of if you were born under US jurisdiction in any form (the 50 states, DC, outlying territories, military or diplomatic outposts) you should be considered a natural born citizen with all the rights, privileges, and immunities pertaining thereto except franchise where Congressional representation is tied to statehood. I was especially surprised to see the article say that the status of native DCers was uncertain, which I believe calls Al Gore’s eligibility into question.
Embassies are indeed considered territory of the country they represent, Consulates generally are not.
… the home of the plenipotentiary ambassador: the duly appointed emmissary from the head of state.
Whereas consulates are just a presence whose only real purpose is to provide recourse for citizen travellers in instances of emergency.
From the US Constitution, Article II, Section 1 (emphasis added):
I figured that out myself a few hours after my post. It’s been omitted from most “MSM” discussion of the issue because it’s not relevant to today’s POTUS eligibility questions. It is there in the original though!
Because that would cinch it: nothing natural about that for this originalist!
He was told he needed only to fear someone “of woman born” which he took to mean not Macduff since the latter was “untimely ripped” from his mother’s womb.
The best progressive response to this issue is to endorse an amendment to the Constitution allowing any citizen the opportunity to run for the highest office in the land. In my own lifetime there was a push to change this by Republicans back when a certain Austrian born immigrant had won the governorship of our nations largest state. His candidacy and record is certainly less laughable than the current native born frontrunner for the GOP, and there are many fine citizens on our side of the fence who are similarly barred from running.
Naturalized immigrants have to jump through considerable hoops and wait an agonizingly long time to finally become full citizens. They have to pass a comprehensive civics test most native born Americans would probably fail. We have already had citizens born on foreign soil serve with distinction as national security advisors, secretaries of state, generals including a Joint Chief of Staff, intelligence officers, and likely had hundreds of thousands of foreign born soldiers serve with distinction and even die for our country throughout the years. Yet none of them are entrusted with the office of the Presidency? I say let’s end this last vestige of institutionalized nativism in our Constitution and put the birthers of all stripe to bed once and for all.
it hasn’t happened yet, so it doesn’t solve Cruz’s 2016 problem.
I firmly think, especially since we want to win over Latinos this year, that Bernie and Hillary should endorse that amendment flat out in public and say the whole birther discussion is anti-immigrant. Colin Powell had the best response to the Obama is a Muslim crap by saying ‘so what if he was?’. I think that’s the higher road to take here. Let Trump be Trump and make the case against Cruz, progressives should be forward thinking and looking to get past this nativist clause.
Colin Powell of course was exactly right in his response to the Muslim question – but he’s right legally (“no religious test”) as well as morally and ethically. In the case of Cruz, the “right” thing may actually not be the legal thing. We don’t have to agree that the clause as it currently stands is a good thing to also agree that, well, rules are rules.
I do think it’s important to remind the public that it’s a stupid rule, especially as we are a nation and increasingly a party composed of immigrants. But yeah, Cruz by his own strict constructionist interpretation doesn’t meet the eligibility requirements. Nothing hypocritical about pointing both aspects out to the public.
I believe one has to be a citizen for seven years for the House and nine for the Senate. Maybe 14 to match the existing residency requirement? It’s there as an ironclad guarantee of no conflicting loyalties. I see your point, but I can’t work up the outrage and would not champ at the bit to amend it out.
don’t we all have to be enjoying the sweet irony of xenophobic, nativist birthers turning their fire on one of their own ? I know I am.
I listened to Harvard Law Professor Lawrence Tribe tear into his former student Ted ‘Originalist’ Cruz’s (NOTE: Tribe also taught Barack Hussein Obama) assertion that his Canadian birth was “settled law” because his mother was American born. Not so fast, Ted, according to legal scholars like Tribe who assert that the ‘original intent’ of the Founders for the Article 2 ‘natural born citizen’ clause was to prevent a foreign born tyrant from undermining our democratic constitutional republic by moving to America and usurping power.
Cruz went on a rant today against ‘ The Donald ‘ for quoting that ‘liberal HARVARD intellectual’. 🙂 You can’t make this stuff up, folks. Just enjoy it while it lasts. I say a curse on all the birthers especially their founder, Donald Trump. After all the slander and hate they attacked President Obama with on this non-issue I say let them all writhe in the justice of their self-inflicted karma.
Oh, and don’t forget the popcorn !
Fred Rich LaRiccia
To be clear, I have next to no sympathy for him since he peddled in this toxic crap himself during his campaign for Senate and even during this campaign. He absolutely put a ‘kick me’ sign on his back for that. But the GOP candidates have all self disqualified themselves in my book.
But we know that won’t happen if we let foreign born citizens be President, there is next to zero risk of that. And I think it is important to use this opportunity to fight that noxious idea and let Trump shiv Cruz all on his own.
The “birther” movement was a high-profile voice in the emerging Tea Party movement. It was absurd because Mr. Obama was clearly born in Hawaii. It appears that there are significant doubts about Mr. Cruz. Unlike Mr. Obama, those doubts are increased (rather than erased) by simple examination of the circumstances of his birth.
I put this in the goes-around-comes-around category. I’m happy to see Mr. Cruz eliminated from contention if that is the outcome.
is exactly why no one should get involved in this stuff. Tribe included.
There is a delicious side of schadenfreude to this story, especially in Tribe’s extended remarks, basically that the type of judge Cruz professes to admire would be the type most likely to rule him ineligible.
It’s one of these things that was always going to come up…no surprise that it’s amidst a Cruz surge of sorts.
Tribe’s whole spiel strikes me a him taking a switch to an unruly former student. Hey Ted, ironically your view of our legal system makes you ineligible to be President.
As with Obama, the particulars probably don’t matter. The issue takes on a life of its own. Ted Cruz is a Cuban sleeper agent.
http://www.memeorandum.com/160112/p94#a160112p94
it makes me want to throw up when “birther” bull shit is mixed with the “natural born” discussion. The president was born in Hawaii. No contrary evidence exists. It’s all legal and factual fiction repeated ad nauseum because the president is African-American and has a name that sounds Muslin to right wing freaks (there, I said it). That comment wasn’t addressed to anyone on here; but it happens all the time. The issues are not even remotely similar.
On Cruz, there’s a legitimate debate and argument on both sides. There are some things that we do know–the words in the Constitution, and the lack of directly controlling legal authority (little Al Gore there) from the USSC on what’s meant by “natural born”, to name two. I suspect that the framers could have written “born in the United States.” The fact that they didn’t probably means that presidential eligibility extends in some circumstances to those born out-side of the United States. Certainly, the framers were well aware that presidents might not be born here. But, in what circumstances? And, that’s where it gets murky. Children born to: Americans travelling abroad? Americans in the foreign service? Americans in military service? What about an American mom, and Cuban dad in Canada? We just don’t know for sure. I’ve read that, over the years, there were federal statutes enacted that have addressed parallel issues. But the key words are in the constitution, so federal legislation can’t definitively answer the question. What’s sad, is that we can’t even rely on the USSC to render a legal opinion on this because so much of what they do is as overtly political as a presidential campaign.
…but I think the 14th amendment, whether intentional or not, provides the best clarity. It says that ALL persons born or naturalized in the US and subject to the jurisdiction thereof are citizens of the US. Subject to the jurisdiction originally meant to exclude Native Americans, but they have since been granted citizenship rendering that exception moot. It now mostly refers to children born to foreign diplomats. If you are born in any territory, current/future state or otherwise, governed by the US you are subject to our jurisdiction and therefore to me the obvious only reasonable interpretation is you are eligible for the presidency.
and won’t be for 17 more years. So clearly the Constitution applies additional criteria for the presidency than citizenship. (What those are exactly I can’t say, but I don’t really get the 14th Amendment argument here.)
Yes, there are additional criteria, but the natural-born citizen piece is the only part in question here. You have to also be 35 years old and a resident for 14 years. The 14th amendment defines citizenship as born or naturalized in the US. To me that’s pretty clear.
the 14th amendment was adopted quite a few years after the “natural born citizen” language was. And it’s a stretch to argue that the 14th amendment amended the “natural born” language by implication, since (a) it could have done so explicitly but didn’t, and (b) it uses quite different language. Needless to say, there are lots of people who are “citizens of the United States” but are not “natural born.”
…that the 14th amendment amended the natural born language. I’m saying it defined the term at least by very strong implication. Of course there are non-natural-born citizens; they are the naturalized citizens which no person born here has to be. The common law term for natural born as the Framers understood was as applied to the mother country anyone born under the realm of the Crown of England, and that is likely how they understood it when transferring the concept to the United States. In other words, not restricted to England proper or even Great Britain, but rather the British Empire, and likewise not restricted to the United States, but to the greater American “empire”.
meant to redefine “natural born Citizen,” it surely would have used that language. It didn’t. Seems pretty clear that the purpose of the 14th amendment was to establish citizenship for certain classes of people, not to determine who can run for president (and, of course, they’re not the same thing).
Re the British Empire, you should read McManamon’s WaPo piece. That’s her strongest argument for why someone like Cruz is *not* a “natural born Citizen.” Relatedly, as Cass Sunstein points out, “Cruz does not meet Blackstone’s test (which tracks 18th-century British law).”
He was born in Canada, which contradicts my understanding, and I believe the Framers’ of natural-born. The 14th amendment did not have the intent of defining natural-born in the context of presidential eligibility, but it could definitely be argued that it had that effect.
But this guy is looking less and less ready for primetime. He should’ve nipped both issues in the bud early.
Upthread, I uprated Bob Gardner’s comment about avoiding this. I definitely see his point.
But this morning I was thinking about 2002, and the questions about Romney’s eligibility under our state constitution. That was completely legitimate, but the scuttlebutt was that Phil Johnston didn’t want to pursue it (campaigns pushed him, it is said), and the Globe and the Herald went nuts, so we pretty much dropped it.
I know I say this too much, but we’re supposed to be the party that cares about the rules. If we can’t nominate Jennifer Granholm (born in Canada), why should we let them nominate Ted Cruz, if in fact he’s ineligible? Let’s at least figure it out; I don’t know, let the Supreme Court rule?
I know it will look nakedly political, at the moment. But who cares? It’s a serious question, and as noted upthread, they never really had a case against Obama, they just liked to say it.
PS. They’re not nominating him anyway.
It looks like the establishment is going to viewing Cruz as the anti Trump, or perhaps viewing Trump as the anti-Cruz. My choice was still Rubio, but he has to hope he places well enough in IA and NH to wipe out the other three (Christie, Bush, and Kasich) to have a prayer. Otherwise this thing is Ted’s to lose, and the prediction markets seem to be moving in his direction.
So far the Goldman loans and birther issue seem to be bouncing off.
Cruz is a skilled politician and is very good in debates, but Trump was able to go toe to toe. The other guys look like also-rans at this point. I had predicted that Trump’s support would max about 10 points and 5 months ago, and that Rubio would fill the void. I now have no confidence in either prediction.
The Obama “birther” movement never really gained any traction except among those who were already inclined to oppose Obama for whatever reason was most handy, and I suspect that the same will be true of a new Cruz birther movement. Courts would probably have to kick the question as a “political question” and his election would more or less establish the answer to the question. In addition, if Dems make an issue of this, it seems to me like it would be (1) another instance of “wait, now the filibuster is a pillar of democracy again; it was only evil and anti-democratic in the last Congress where we had the majority” and is unlikely to be taken seriously by voters not already in the choir; and (2) shows a lack of faith in what the the values of the Democratic party are supposed to be.
I suspect that HRC and BS are smart enough to treat this issue as something of a joke, and let Trump blaze away.
Josh Marshall had spot on analysis over at TPM on the dynamics of the debate.
His key takeaways:
<blockquote I think we come out of this debate with it still being a Trump/Cruz race, with Trump in a somewhat stronger position than he went in, Cruz slightly weaker and the clock running out on Marco Rubio.
Rubio’s best hope at this point is Trump and Cruz committing MAD like Dean and Gephardt did and slinking through to a surprise top 2 finish in IA, that would immediately get the moderates in NH to abandon Kasich, Jeb and Christie for him to let him be top 2 there. That said, I don’t see him winning the first three and the Rudy strategy hasn’t worked out yet.
That’s what a guy from Yale says. A friend pointed me to this.