The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Donald Trump has recently begun to raise questions about whether Sen. Ted Cruz (R-Tex.) is constitutionally eligible to be president of the United States. Specifically, Trump has revived concerns that Cruz is not a "natural born citizen" under the Constitution. While stopping short of claiming Cruz is ineligible, Trump suggests that litigation over Cruz's eligibility could be a problem. These concerns are misplaced.
Article II, section 1 of the Constitution provides:
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. (emphasis added)
Ted Cruz was born in Canada. His mother was a U.S. citizen. His father, a Cuban, was not. Under U.S. law, the fact that Cruz was born to a U.S. citizen mother makes him a citizen from birth. In other words, he is a "natural born citizen" (as opposed to a naturalized citizen) and is constitutionally eligible.
This is not a particularly controversial interpretation of Article II, section 1. Here is an excerpt from a recent article by Neal Katyal and Paul Clement, "On the Meaning of 'Natural Born Citizen,' " in the Harvard Law Review Forum:
All the sources routinely used to interpret the Constitution confirm that the phrase "natural born Citizen" has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.
While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a "natural born Citizen" means a citizen from birth with no need to go through naturalization proceedings. . . .
Katyal and Clement also directly address the question of Cruz's eligibility:
Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a "natural born Citizen" within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a "natural born Citizen" even under the Naturalization Act of 1790
What about the threat of litigation? Does the fact that some folks on the fringe question Cruz's eligibility mean that his candidacy could be threatened by litigation? Unlikely. There is not much doubt about Cruz's constitutional eligibility, so any ballot access dispute would almost certainly be resolved quickly and decisively in his favor. As readers no doubt recall, some people (including Trump) raised questions about President Obama's eligibility, too. Even though some so-called "birthers" were quite insistent and went to court, the resulting lawsuits were scarcely a hiccup for either Obama campaign, let alone for his ability to carry out the functions of his office. Questions about Sen. John McCain's eligibility (he was born in the Panama Canal Zone) were hardly a problem for his presidential campaign either.
The bottom line: There is no question about Ted Cruz's constitutional eligibility to be elected president. Whether Cruz should be elected president, on the other hand, is another matter, and one that voters will get to decide.
UPDATE: Several readers object that this post simplifies what is, in actuality, a very difficult constitutional question. The precise original public meaning of "natural born citizen" may not be as clear as my post or the Katyal-Clement article suggests. For reasons why, see this 2010 essay by Lawrence Solum.
I agree that the precise contours of what "natural born citizen" meant in 1787 is somewhat murky. For instance, I think it is unclear whether this phrase connotes those who are citizens at the time of their birth, as opposed to those who are citizens as a consequence of their birth. I agree with Randy, however, that there is little reason to read the phrase as equivalent to "natural born subject," nor do I think these questions change the bottom line as a practical matter. For the same reasons that no court disqualified John McCain for having been born in the Panama Canal Zone—and it was accepted that George Romney could run for President despite having been born in Mexico—I am confident no Court will question Senator Cruz's credibility. (Senator McCain, on the other hand, has joined Trump in questioning Cruz's eligibility.)
Derek Muller has more at Election Law Blog here.