U.S. Senator Ted Cruz (R-Texas) was born in Canada to an American-born mother and a Cuban-born father. That Senator Cruz is an American citizen from his birth is not a question posed here. He was a citizen at birth . . . period.
Senator Cruz is now seeking the Republican Party’s nomination for President of the United States in this 2016 election cycle. Another Republican candidate, Donald Trump, has called into question whether Senator Cruz, under the US Constitution, is eligible to be President. Trump warned that if Cruz is not eligible, the Republican Party would find itself in an awkward situation if Cruz were the nominee.
The US Constitution, approximately midway through Section 1, of Article II, spells out the eligibility of presidential candidates:
“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.”
The US Constitution, just by itself, in isolation from acts of Congress, confers citizenship to those born on U.S. soil. For those who may be citizens at birth not born on U.S. soil, one must look to the acts of Congress. Citizenship by parentage was not an issue tackled until the Naturalization Act of 1790, three years after the ratification of the US Constitution. See where this is headed? At the time of the writing of the US Constitution, citizenship by location of birth was fairly well defined. Birth citizenship through a parent or parents off of U.S. soil was an open question not yet taken up. Congress, not the Constitution, bestowed Ted Cruz with citizenship at birth. The 14th Amendment to the Constitution expanded upon who was to be enumerated as a citizen, but that amendment has little to no bearing upon the case of Ted Cruz.
The following passage is excerpted from the Naturalization Act of 1790:
“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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States [ . . . ]”
Clearly, Senator Cruz is a citizen of the United States based upon this statute. His Cuban-born father did reside in the United States for a few years in advance of Ted Cruz’s birth in Canada. The phrase within the statute that reads “shall be considered as natural born citizens” seems to settle the matter of Ted Cruz’s eligibility to become POTUS, does it not?
Or does it?
The use of the helping verb “shall” is binding upon the government, so that bodes well for Cruz, along with the phrase “natural born.”
But why say “shall be considered as” rather than “are?” If the statute were to read, “And the children of citizens of the United States . . . are natural born citizens,” then no question would remain about Cruz’s eligibility. But “shall be considered as” might signify that a person in such circumstances is naturalized at birth, not needing to follow the same processes of naturalization that others born off of U.S. soil must go through, but it still falls under the auspices of naturalization law. Does this statute create a “naturalized at birth” citizen separate from a “natural born” citizen, with the one being “considered as” the other? Is there a distinction there? Or does “shall be considered as” equal to “are,” relegating the concept of “naturalized at birth,” in an instance such as this, to mythology?
Clearly, Ted Cruz is convinced that there is no “naturalized at birth” in play concerning his own citizenship. Donald Trump isn’t convinced otherwise, it’s just that, as he pointed out, questions might be raised. Any other time this question might have been put to the test in our presidential races, it never was. Those who might have come under questioning were never the eventual nominees of the major parties, anyway. Ted Cruz, however, stands a chance to be the Republican nominee. Though no caucuses have been conducted and no primary election votes counted, the two frontrunners of the GOP appear to be Trump and Cruz. The other GOP candidates appear to be trailing badly.
Trump’s question, in a backhanded way, could be taken as a compliment, for Trump is implicitly acknowledging that Cruz could become the party’s nominee. Aside from posing the question, Trump has always asserted that he, himself would be the nominee. But if Cruz does become the nominee, I think Donald Trump is absolutely right that the question over natural born citizenship will loom much larger than the so-called “birther” issue that tried to nip at Obama’s heels.
You may have heard Democrats that have openly expressed a desire for either Trump or Cruz to be the GOP nominee. Why? Because they think the election of the Democrat nominee to the presidency is a slam dunk if one of those two happens to be the GOP nominee. What if the Democrats get what they wished for in a GOP nominee, but the general election picture appears to be much less of a slam dunk? What if the Democrat nominee is not faring well and the prospect of a President Trump or a President Cruz is becoming a very real one? Will the Democrats pull out all the stops? Will they seize at any straw they can? Of course, they will. If Ted Cruz is the nominee, and the matter of his eligibility has not been settled definitively, the GOP may have a real mess on its hands because if the Democrats are not faring well, they will seize at that straw. That’s all Donald Trump is pointing out.
I believe that, if Cruz is nominated and stands a real chance of winning the general election, the Democrats will seize upon this, and it won’t be resolved until after Election Day. If the Democrat nominee wins, then the question goes by the wayside. If Cruz wins, I think his inauguration in January will be hijacked by the Democrats and hauled into the courts. I think they will seek a court injunction barring Cruz from taking office until after the question is settled in court. If the Democrats’ injunction is granted and, under that scenario, if Cruz wins in court, then how many months will it take to do so? When would Cruz be allowed to take office? Who would be acting as POTUS until that point in time?
What if Cruz loses such a suit months after winning an election? Do we reconvene the electoral college with another GOP nominee? Does the VP candidate, who won just as many electoral votes as Cruz, the winning presidential nominee, get to take office as POTUS? Would the electoral votes have to be vacated, leaving no nominee with a majority of electoral votes, and then get decided in the U.S. House of Representatives? Or, scarier still, does the electoral college reconvene without a GOP nominee? I think it’s the scarier scenario that would prevail. Alternate Republican hopefuls will be bombarding electors with sales pitches while Cruz’s case drags through court. But unless GOP electors uniformly embrace the VP nominee, I think the electoral college vote would be a mishmash, perhaps landing the decision in the US House, or perhaps by flipping the majority of electors over to the Democrat nominee.
If you are a staunch Cruz supporter, steel yourself, because emerging victorious will likely be a rougher ride than you’d ever imagined.
January 31, 2016 at 5:23 pm
I believe the answer to this specific case will ultimately be determined by statute, not by the constitution itself. There is no definition of a natural born citizen. Why do we then grant citizenship to those born within the territory of the United States to foreign citizens? The constitution does not obligate us to do so. The reason is because at some point congress addressed the issue and rightly so. The constitution says in Article I, Section 8 that congress has the authority “To establish an uniform Rule of Naturalization”. Presumably since they establish the rules on naturalization they also would determine who does not need to be naturalized.
January 31, 2016 at 5:24 pm
I meant to say there is no definition of a natural born citizen in the constitution itself.
January 31, 2016 at 5:28 pm
You could also read “fathers” to mean parents. Language use changes over time. I presume they would need to clarify to prevent grandchildren of american citizens gaining citizenship if neither they nor their parents were ever residents of the US. In other words they did not want perpetual citizenship for multiple generations of descendants born outside the US.
February 3, 2016 at 7:56 pm
Thanks for commenting. In terms of “natural born,” being born within the territory of the United States is a slam dunk. Being born elsewhere to American parents may also be a slam dunk, but then . . . maybe not. It all depends. This case, I think, falls short of a slam dunk.