Is Ted Cruz a “Natural Born Citizen”?

by Peter Spiro

cruz imageShort answer: yes. Ted Cruz is constitutionally eligible to run for President. As he moves to announce his candidacy tomorrow, the question is sure to flare up again. As most will know, Cruz was born in Canada. He had U.S. citizenship at birth through his mother and the forerunner to section 301(g) of the Immigration and Nationality Act. He also had Canadian citizenship until he formally renounced it only last year.

The constitutional terrain is covered in this 2013 post and an essay of mine in the online Michigan Law Review on the question as presented in the context of John McCain’s Canal Zone birth. This is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: Neil Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law. The Katyal-Clement offering echoes a similar effort by Larry Tribe and Ted Olson with respect to McCain’s eligibility, which was also the subject of a consensus U.S. Senate resolution.

Who can’t love that the question is being raised? Birthers who have challenged Barack Obama’s constitutional eligibility (on the basis of a fictitious birth in Kenya or a lame claim that he is a dual citizen) will have to eat their words now that they have a candidate whose foreign birth/dual citizenship is documented fact. But those ironies shouldn’t distort the answer. There are lots of reasons to oppose a Ted Cruz candidacy, but his citizenship status isn’t one of them.

http://opiniojuris.org/2015/03/22/is-ted-cruz-a-natural-born-citizen/

18 Responses

  1. Ted Cruz is not eligible. Both major political parties are out to dilute and abrogate the original intent, meaning, and understanding of the term “natural born Citizen” in Article II of our Constitution and why it was put there. Being simply ‘born a Citizen’ was proposed and not accepted. The founders and framers added the adjective “natural”. And that adjective comes from natural law. See section 212 of this legal treatise written in 1758 and used by the founders and framers: http://lonang.com/library/reference/vattel-law-of-nations/vatt-119/ Read http://www.art2superpac.com/html and http://jimsjustsayin.blogspot.com/2015/03/ina-post-on-harvard-law-review-forum.html and http://puzo1.blogspot.com/2015/03/a-response-to-neil-katyal-and-paul.html CDR Kerchner (Ret) – ProtectOurLiberty.org

  2. Agree completely. This is one of those legal myths that just refuses to die, like embassies being the territory of the sending state. Glad to see bipartisan support for it too, although I also appreciate the irony. Wasn’t the same issues raised long ago with Goldwater being born in Arizona Territory?

    But I have always wondered why this issue is raised as a justiciable constitutional one, and thus an issue at all. Would it not be possible to view the qualifications for office in the Constitution as qualifications to be judged by the public in voting? Not a matter for election registrars with no clear injured party. (I am not expressly thinking about the 22nd Amendment though.) In this way there might another process to have Constitutional evolution by practice of the governed. So, for example, if a 25 year old ran for President and was elected … who is to say?

  3. I would argue that such a question wouldn’t be at all appropriate for the federal courts, that the Constitution gives the decision over to Congress. If Congress decides when counting the electoral college votes that someone is qualified that settles the issue no matter what gross deficiencies might be present. Congress could choose to entirely ignore the natural born citizen clause and I still would not see the courts having any place to get involved (much like there is no place for the federal courts to involve themselves in impeachment proceedings).

    Now, I could see there being reasons for state courts to get involved regarding ballot access but I believe that to be an entirely separate question from federal court involvement.

    Of course I would also say that if we ever reach the point that Congress ignores truly gross deficiencies that there would likely be other, much more serious, problems going on as well.

  4. Don’t refer to US Code as it is today, refer to the statute in force at the time of birth. Then examine any subsequent statute that amends with retroactive effect the original statute.

    The law applicable to Cruz declares him to be a “citizen”.

  5. Ray is absolutely correct that the forerunner to 301(g) is determinative. Doesn’t change the result, since Cruz’s mother satisfied the then-applicable residency requirements. See the chart here: http://www.uscis.gov/policymanual/PDF/NationalityChart1.pdf

    As for the courts, they absolutely should and will stay out of this. No need for them to get involved. If the people want a 25-year-old for president, why should we let the courts stop them?

  6. If Ted Cruz does indeed run for President, then Ted Cruz is an Enemy to the United States Constitution.

    The U.S. Constitution requires the President be a natural born citizen or a citizen of the United States at its adoption, 35 years old, and 14 years a resident.

    Congress possesses only those powers delegated to it by the Constitution.

    The U.S. Constitution gives Congress the Power to create a uniform rule of Naturalization. From this Power and only this Power does Congress have authority over U.S. citizenship.

    The Constitution does not delegate Congress the Power over who is or who is not a Constitutional natural born citizen.

    Ted Cruz was born in Canada to a U.S. citizen Mother and a non U.S. citizen Father.

    At birth Ted Cruz became a citizen of the United States by fulfilling an Act of Congress, an Act that Congress enacted by expressing its Power to establish an uniform rule of Naturalization. If Congress had not enacted these naturalization rules, Ted Cruz would not of been born a citizen of the United States.

    As far as the Constitution is concerned Ted Cruz is a citizen of the United States by Naturalization.

    Therefore, Ted Cruz is not a Constitutional natural born citizen, and since he was not a citizen of the United States when the Constitution was adopted, Ted Cruz is ineligible to President.

  7. Response…

    The Framers drafted and adopted the Constitution and its natural born citizen clause in 1787. The Constitution does not define the clause. We therefore need to look to see what their definition of the clause was then, unless there is some evidence that the clause was ever amended by a duly ratified constitutional amendment. The only constitutional amendment that defines citizenship is the Fourteenth Amendment. Both Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) have both explained that the meaning of a natural born citizen is not found in the Fourteenth Amendment. Hence, Article II’s natural born citizen clause has never been amended by our Constitution.

    Our U.S. Supreme Court has informed that one way to learn what meanings the Framers gave to terms or clauses they put into the Constitution at that time is to look to the state of things and meanings that existed at that time. Both Minor and Wong Kim Ark have explained that one significant piece of evidence to look at is the common law that existed at the time of the Framing. Both Minor and Wong Kim Ark defined a natural born citizen under the common law with which the Framers were familiar when they drafted and adopted the Constitution. The unanimous U.S. Supreme Court explained in Minor that that common law defined a natural born citizen as a child born in country to parents who were its citizens at the time of the child’s birth and that all the rest of the people were “aliens or foreigners” who needed to be naturalized under Acts of Congress or treaties. Minor even added that “there have been doubts” whether children born in the United States to alien parents were even “citizens” under the Fourteenth Amendment. Since Virginia Minor was a natural born citizen and a fortiori a citizen, there was no need for Minor to address and answer the Fourteenth Amendment question. Wong was not a natural born citizen under the Framers’ common law, but he was born in the United States. Wong Kim Ark had to therefore to address and answer the Fourteenth Amendment question of whether he was born “subject to the jurisdiction.” Relying on the colonial English common law as and aid to interpret and apply that clause, it held that children born in the United States to alien parents who were permanently domiciled and resident in the United States and neither foreign diplomats nor military invaders were also “citizens” of the United States from the moment of birth by virtue of the Fourteenth Amendment. The Court did not need to nor did it hold that Wong was an Article II natural born citizen. Hence, not only did Acts of Congress and treaties make more citizens of the United States of people who would otherwise not be citizens, but so did the Fourteenth Amendment. And Wong Kim Ark informed that persons born in the United States to qualifying alien parents were included at “citizens” by the force of the Fourteenth Amendment.

    Senator Ted Cruz was born in Canada to a U.S. citizen mother and non-U.S. citizen father. He cannot be a citizen under the common law relied upon by the Framers to define a natural born citizen. He therefore does not meet this constitutional common law definition of a natural born citizen which would a fortiori make him a “citizen” also. Nor can he be a “citizen” of the United States “at birth” under the Fourteenth Amendment, which status is reserved only for children who are born in the United States and “subject to the jurisdiction thereof” and who, not meeting the requirements of the common law which defines a natural born citizen, are not natural born citizens. Rather, he falls into that class of persons who at common law, because they were born in a foreign country, needed to be naturalized by an Act of Congress or treaty. Since he was born out of the United States, although to one U.S. citizen parent, Congress saw fit to naturalize him as a “citizen” of the United States “at birth.” Without such naturalization act, Cruz would be an alien at common law. If Cruz needed such naturalization act to be a citizen and if without such act he would be an alien at common law, he simply is not and cannot be a natural born citizen, for such a citizen does not need any positive law in order to be a citizen. See Wong Kim Ark (considered children born out of the United States to U.S. citizen parents to be naturalized by acts of Congress and explained that under the English common law, only children born in the King’s dominion and under his jurisdiction were natural born subjects and that any child born out of that dominion needed an act of Parliament to naturalize him or her); and Rogers v. Bellei, 401 U.S. 815 (1971) (both majority and dissent said the same as Wong Kim Ark which was that children born out of the United States to U.S. citizen parents become citizens of the United States only through the grace of Congress who made them citizens through a naturalization Act without which those children would be aliens). It simply defies logic and good reason and renders the natural born citizen clause a nullity to conclude that a person who would not be a citizen at all without a naturalization act of Congress is a natural born citizen. Including such a person as a natural born citizen effectively reads the natural born citizen clause out of the Constitution, but does so without constitutional amendment.

    In short, Mr. Cruz is a “citizen” of the United States “at birth” by virtue of a naturalization Act of Congress since his birth in 1970. As such, he is not and cannot be an Article II “natural born citizen.” Since he is neither “a natural born Citizen, [n]or a Citizen of the United States, at the time of the Adoption of this Constitution,” he is not eligible to be President and Commander in Chief of the Military.

    For my response to Neal Katyal and Paul Clement article, see Mario Apuzzo, A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen , accessed at http://puzo1.blogspot.com/2015/03/a-response-to-neil-katyal-and-paul.html .

    Mario Apuzzo, Esq.

  8. Peter Spiro at 3.22.2015 3:06 pm EST – “If the people want a 25-year-old for president, why should we let the courts stop them?”

    You have destroyed whatever credibility you may have had.

  9. Response…a native or natural born citizen is a child born in a country of parents who are it’s citizens, Chief Justice Morrison Waite in the unanimous SC opinion minor v happersett. So let’s just ignore article 2 and let a 25 year old run for president or someone who is not a nbc? Last I checked the US Constitution is supreme law of US. Article 2 can be amended by We the People but until then it stands as written back in 1787

  10. I’m looking forward to the debate when someone born by c-section runs for president.

  11. So nobody conceived with in vitro fertilization (clearly not existing in the common law relied upon by the Framers to define a natural born citizen) can be President?

  12. Singular Citizenship vs. Dual Citizenship

    The opinion is offered about Obama and Cruz that to contest dual U.S./foreign citizenship is “(…a lame claim that he is a dual citizen).”

    It seems that some people still refuse to consider and adduce “natural born Citizen” author John Jay, who became the first Supreme Court Chief Justice in President Washington’s first administration, and who knew something about the original intent of words and the legal implications of those words.

    The issue, no pun intended, is not positive law but natural law; not “how” a child is born, head first or c-section, but “what” a child is “at” birth “by” birth, by simply being born.

    If a child is born c-section OR head first, the child is a “natural born Citizen by birth when born with ONLY singular U.S. citizenship of ONLY one nation which is possible by ONLY being born on U.S. soil ONLY to two U.S. citizen married parents.

    Dual U.S./foreign citizenship, which is the citizenship status that Sen. Cruz acquired “at” birth in Canada by being born to ONLY one U.S. citizen parent definitely was not John Jay’s “original genesis original intent” for underlining the word “born” in “natural born Citizen” to this friend George Washington.

    Dual U.S./foreign citizenship would have been incongruent and incoherent to the 1787 framers of Article II Section 1 Clause 5, and to the states’ ratifiers, including “natural born Citizen” author and New York ratifier John Jay.

    When will the “natural born Citizen” new meaning neo-birthers admit that John Jay’s “natural born Citizen” original meaning was intended to be perpetual, and the perpetual original meaning ONLY singular U.S. citizenship can not be changed by any statute from 1790 to 2015 such as the 1952 Immigration and Nationality Act–INA: ACT Sec. 301 [8 U.S.C. 1401], clauses “a” and “g”–NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH; it was not changed by the 1868 Amendment 14 and the first six words the first sentence of Section 1, “All persons born or naturalized in….”; it was not changed by the 1898 U.S. v. Wong Kim Ark Court decision that opined and held that the original intent of Amendment 14 included, the Court simply “declared,” that Wong Kim Ark was a “citizen” with the ability to vote, and as some 2008-2015 Obama new meaning neo-birthers and 2014-2015 Cruz new meaning neo-birthers assert, eligible to be POTUS.

    The “natural born Citizen” new meaning neo-birthers don’t have John Jay’s “original genesis original intent” as a defense so they simply ignore the “nbC” author. That is par for the course from 2008 to 2015.

    But, hey, we’re still friends and fellow Americans, even if the “nbC” new meaning neo-birthers have a lame defense for dual U.S./foreign citizenship.

    Right?

    Art
    U.S. Constitution: The Original Birther Document of the Union
    ( http://originalbirtherdocument.blogspot.com/ )

  13. A federal statute might (or might not) provide guidance, but a federal statute cannot amend the Const. or dictate its meaning.
    Daniel: how about a test-tube baby?
    Seems like Mario has a strong argument!
    But Ted Cruz is far behind in the polls, so non-issue?

  14. The only people who think Cruz isn’t eligible to be president is the same birthers who challenged President Obama’s eligibility.

  15. Telles and Apuzzo have some persuasive arguments.

    Apuzzo, from Minor v. Happersett (1875):
    “The unanimous U.S. Supreme Court explained in Minor that that common law defined a natural born citizen as a child born in country TO PARENTS [plural] WHO WERE ITS CITIZENS at the time of the child’s birth and that all the rest of the people were “aliens or foreigners” who needed to be naturalized under Acts of Congress or treaties.”

    Telles, from John Jay:
    “If a child is born c-section OR head first, the child is a “natural born Citizen by birth when born with ONLY singular U.S. citizenship of ONLY one nation which is possible by ONLY being born on U.S. soil ONLY to two U.S. citizen married parents.”

    The only problem with these arguments is that neither of them allow Obama to serve as President. Barack Obama Sr. had an undisclosed preexisting marriage to a woman in Kenya at the time he married Stanley Ann Dunham in 1961. Polygamy laws would have made Barack Obama Sr. ineligible to marry Dunham and subsequently ineligible for US citizenship based on a marriage that was illegal in the first place.

    If the definition of “natural born citizen” requires two US citizen parents, than both Cruz AND Obama are out of luck. In Obama’s case, his Hawaiian birth certificate fixes the geography problem, but it confirms the paternal citizenship problem.

    Although I find both arguments persuasive, I don’t see how a court can reasonably adopt them without removing Obama from office.

  16. Response…if Ted Cruz can run then we should not have hassled Obama. Ted Cruz is a naturalized citizen and should not be allowed to run for the US Presidency!! God help us all. His campaign will serve only to take .one from a true candidate who might beat Hillary.
    Az

  17. “He had U.S. citizenship at birth through his mother and the forerunner to section 301(g) of the Immigration and Nationality Act. He also had Canadian citizenship until he formally renounced it only last year.” This statement proves he is ineligible. The term ‘natural born citizes” refers to ‘natural law.’ Thereby it means it refers to a universal understanding of natural born citizenship. The only understanding that we can all agree on it citizenship that flows through two citizen parents and born on U.S. soil.

    No Congress or Supreme Court can undo or change ‘natural law.’ The original authors of the U.S. Constitution did not intend that a majority decide on a legal definition, they did not intend that members of Congress determine the definition — they determined that it should be a universally accepted definition.

  18. Lack of federal clarity on the natural born citizen issue permits room for the state to act to enforce state law requiring candidates be legally qualified for the office they seek. Commonwealth Edison Company v. Montana informs, where the Montana Supreme Court ruled on the constitutionality of a state law and the US Supreme Court upheld as the nature of the regulated subject matter permitted alternate conclusions and Congress had not unmistakably ordained a conclusion. To the later point, from 2003 to 2008 there were eight different congressional attempts to alter or further define the natural born citizen requirement in the Constitution, all of them failing in committee.
    8. The federal clarity that is provided militates against the assertion of the equivalence of citizen at birth to natural born citizen. In the Venus Case, Chief Justice Marshall, in his concurring opinion, citing Vattel, noted that “The natives, or indigenes, are those born in the country, of parents who are citizens.” In the majority opinion of the same case, Vattel is cited four times as a legal authority. In his book, The Law of Nations, Vattel provides the following definition; “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The Naturalization Act of 1790 applies the term natural born citizen to children of citizen parents; “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…,” the term natural born being removed in the follow-on act of 1795 which repealed that of 1790. In Dred Scott v. Sanford, Justice Daniel cites Vattel; “The natives, or natural-born citizens, are those born in the country, of parents who are citizens,” calling this view “unexceptionable.” In Minor v. Happersett, the court used the term natural born citizen only in reference to US born children of US citizen parents. Chief Justice Morrison Waite, delivering the opinion of the court, stated; “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first.” In Kwok Jan Fat v. White, the Supreme Court referred to Mr. Kwok as a natural born citizen. He was born in the United States, his father was a native born U.S. citizen, and his mother was a U.S. citizen by marriage. In Perkins v. Elg, the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage. In U.S. v. Wong Kim Ark, Chief Justice Fuller, in his dissenting opinion, stated; “In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government.”

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