Ted Cruz

Could Ted Cruz Be Disqualified?

The issue of who counts as a 'natural born citizen' is not settled.

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Credit: Gage Skidmore / photo on flickr

If you attend a presidential campaign event, you may come across someone wearing colonial garb or an Uncle Sam costume or body paint. But a Ted Cruz rally in Iowa last weekend featured something possibly unprecedented: guys dressed up as Royal Canadian Mounted Police. 

This was not a random choice of attire. The guys in scarlet tunics were protesters, who passed out copies of Cruz's Canadian birth certificate to highlight the questions about his eligibility for the American presidency. The Constitution says the president must be "a natural born citizen" of the United States. 

There is no dispute that the Texas senator was a U.S. citizen from birth, since his mother was an American. Donald Trump has raised questions, though, about whether Cruz, being born in the great state of Alberta, qualifies as "a natural born citizen." 

Cruz dismisses the issue. "It's settled law," he says. "As a legal matter it's quite straightforward." In fact, it's never been settled, it's not straightforward and some experts don't agree with his reading. 

The fact that it was Trump who raised the issue made it deeply suspect. But though it's unlikely that anything coming out of Trump's mouth is true, it's not impossible. And his claim that this is an unresolved question that could end up throwing the election into doubt happens to be correct. 

When it comes to parsing the crucial phrase, Harvard law professor Laurence Tribe has noted, "No Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a 'natural born citizen' is completely unsettled." 

Tribe says that under an originalist interpretation of the Constitution—the type Cruz champions—he "wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on U.S. soil to be a 'natural born citizen.'" 

Cruz retorted that this is just what you'd expect from a "left-wing judicial activist." But Tribe, an eminent constitutional scholar, is not so predictable. He surprised gun-rights advocates years ago, before the landmark Supreme Court decisions on the Second Amendment, when he said it protects an individual right to own firearms. 

Even if he's a judicial activist, the Supreme Court might agree with him. Cruz should know as much, because he has denounced the court for its "lawlessness," "imperial tendencies" and, yes, "judicial activism." 

Nor is Tribe alone among experts. University of Chicago law professor Eric Posner says, "The ordinary meaning of the language suggests to me that one must be born on U.S. territory." Chapman University's Ronald Rotunda, co-author of a widely used constitutional law textbook, told me a couple of weeks ago he had no doubt that Cruz is eligible. But when he investigated the issue, he concluded that under the relevant Supreme Court precedents, "Cruz simply is not a natural born citizen." 

Catholic University law professor Sarah Helene Duggin wrote in 2005, "Natural born citizenship is absolutely certain only for United States citizens born post-statehood in one of the fifty states, provided that they are not members of Native American tribes." 

Steven Lubet, a Northwestern University law professor, spies another possible land mine. Cruz qualified for citizenship because his mother was an American citizen (unlike his father). But "under the law in effect in 1970, Cruz would only have acquired U.S. citizenship if his mother had been 'physically present' in the United States for ten years prior to his birth, including five years after she reached the age of fourteen," Lubet wrote in Salon. 

That raises two questions: Did she live in this country for the required amount of time? And can the Cruz family prove it? 

Whether the justices would take the case is another question. Unless some state election official bars him from the ballot on constitutional grounds or a rival candidate goes to court, it's unlikely a lawsuit would get a hearing. But if that happens, the Court may elect to resolve the matter—and no one can be confident of the ultimate verdict. 

Trump, believe it or not, is onto something. Cruz's candidacy suffers a potentially fatal defect. If Cruz is nominated or elected, he could be disqualified. When Republican voters cast their ballots, they have to ask themselves: Is he worth the risk?

© Copyright 2016 by Creators Syndicate Inc. 

NEXT: Trump and the Conservative Establishment Deserve Each Other

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  1. Ah yes, Steve Chapman, the great Cap and Trade libertarian is back with another one of his expert takes.

    1. Chapman isn’t a libertarian. He’s the token Progressive that reason publishes articles by for … some reason that’s never been clear.

      1. Because it’s ok to consider differing viewpoints sometimes?

        1. Why bother to consider ANY progressive viewpoints. It’s all just communism.

  2. So, born in Alberta, you say?

    Huh.

    Better than Kenya, I guess… 😉

  3. I keed, I keed. Mebbe.

  4. So suddenly out of nowhere we’re going to claim fidelity to the United States Constitution is important.

    1. Oh you know it. Only used as needed, ignored as needed.

  5. Chapman and Richman on the same day. I can already feel the brain cells croaking.

    1. The AM Links link says this one is Richman. I guess even the Reason staffers can’t tell them apart any more.

      1. Ha! I thought I was seeing things

  6. It most certainly would get to the SC if a state election official took Cruz off the ballot, because then it would be Cruz who would bring a lawsuit. And there is a real chance such an event would occur.

    One additional point…when McCain was deciding to run, he went to a couple of constitutional scholars ( including Tribe) and asked for their opinion as to whether or not he would be eligible, because he wanted to be more sure he was on good legal footing. Cruz, of course, didn’t feel the need to do so. He’s Ted Cruz.

    1. Well there’s that and there’s the fact that he knew the answer McCain got.

      1. Always a mistake when you are writing an essay to do your own proof reading. Same here.

    2. McCain allowed himself to be vetted. Obama said “trust me” and spent hundreds of thousands of dollars in legal fees to not produce his documents, giving the appearance of something to hide.

      If John McCain and George Romney could run, why not Cruz?

  7. it might not be “settled”, but it is straightforward. the fact that you can find people who disagree isn’t really indicative of anything. i’ve never met an issue yet that polled at 100%.

    1. It’s not at all straightforward.

    2. Even big tits don’t poll at 100%.

  8. There are numerous legal experts to counter Tribe and all. Jonathan Adler and Randy Barnett have posts on Volokh supporting Cruz’s natural born status with links to other supporting experts.

    1. That’s all true. But that just means it is unsettled.

      1. Just like your supposed climate science then…

      2. As are drone strikes on US citizens without due process.

  9. A thought experiment. If John and Abigail Adams, traveling abroad as a consular representative of the US, had had a child abroad, that child would have been ineligible for the presidency…unlike the child’s full brother John Quincy?

    Another: a child born of a Mexican citizen — here illegally — but born on US soil has a right to the office of the presidency that the child of an American citizen born abroad does not?

    There are a few issues here that should be ironed out over the next several years–just so we’re clear–but for purposes of this election (and on general principal), no, Donald Trump does NOT have a point.

    1. Article II removes the NBC qualification for “those alive at the signing of the constitution.”

      See my comment below about the citations in settled SCOTUS law and Founding documents per your second scenario

    2. Another thought experiment. Would George Washington Adams, the son of John Quincy Adams, born in Berlin (the one in what was then Prussia and is now Germany, not any of the multitudinous US cities named after it), have been ineligible for the presidency, unlike his father and grandfather? Of course, this one is clouded by the fact that JQA’s wife Louisa was born in London, the daughter of an American and an Englishwoman.

    3. If you are abroad on government business your kids are nbCs.

      If the definition is “born in a country to citizen parents” there is no problem with illegal babies.

      1. No. US code clearly defines who is a US citizen at birth and who is not. Children born of at least ONE US citizen abroad are US citizens at birth under very specific stipulations about the US parent. According to that same code, also, any child born on US soil (the 50 states plus US territories) are US citizens at birth regardless of the legal status and/or citizenships of his/her parents.

        1. I didn’t say expat children weren’t citizens. As for birthright citizenship, which I also didn’t mention, it depends on what “jurisdiction” means. Is it born within a territory or born within a territory and not owing allegiance to any foreign power.

  10. It’s gonna be really interesting watching all the progressives who dismissed Obama “birtherism” as a bunch of conspiracy theorists/ racists suddenly make a 180 on Ted Cruz and turn into foaming at the mouth loons.

    *pops popcorn, sits back to enjoy the shit show*

    1. Well it was Hillary supporters that started the Obama birther movement, so no change for them.

      1. actually it was Obama who started the birther thing with his publisher’s biography, that he proof read and approved, staing that he was born in Kenya

        1. Obama says whatever he thinks will benefit him at the time.

    2. I think their glee here is more watching those who picked up the birther banner from Clintonites burn someone in the GOP…

    3. Not really. Progressives are incredible hypocrites. Consistency is a meaningless concept for them. Except as a means to antagonize those that are not part of their groupthink.

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  12. The idea is that you can’t immigrate from another country and then be president. In the spirit of the law, I wonder the reason they moved to Canada. Were they seriously considering settling there? In that case I don’t think he qualifies. On the other hand if it’s just like a temporary post for a job or something then I would feel differently. It’s amazing this issue isn’t settled. But this issue is discussed in high school sparking discussions of where everyone was born to determine if they could be president. It’s not really a shocker.

  13. I saw this and thought “Even Chapman couldn’t screw this one up.” But nope, he did.

    I’m not even a Cruz supporter and am well aware that the obvious interpretation, and the interpretation supported by pretty much all legal experts, except for the two or three he cherry picked, is that being a citizen from birth is exactly what being a natural-born citizen means.

    Reason needs to dump this clown.

    1. It’s a term of art that hasn’t been defined by the courts, especially the Supreme Court. Any claim that it’s “settled” until that happens is just blowing hot air.

      1. You have a good point. When judges can read the constitution to say that it says women have the right to get an abortion, or that gays have the right to get married, we had better wait for the courts to settle everything. I don’t remember the supreme court deciding whether or not I can leave my car running for more than 10 minutes before going to work… that might be destroying the world with excess CO2 emissions which would not coincide with securing “the Blessings of Liberty to ourselves and our Posterity”

        Hopefully you were able to catch my sarcasm. I am not trying to argue as pro- or anti- abortion or pro- or anti- gay. I am only arguing that the constitution says nothing about those matters and we should have resolved those issues through legislation. My point is that just because the supreme court can make awful decisions, it doesn’t mean that we should appeal to them in all matters… especially matters that are very clear. The constitution was written to be clear enough to constrain the government. If we allow the government to distort the words and make it mean whatever they want, then those constraints aren’t very effective. We only empower the court to distort the constitution further when we feign confusion and ignorance on matters that are plain and clear.

        1. But the definition of nbC is not plain and clear.

  14. Is reason going to post this nonsense every week? By law, Cruz was born a citizen. That’s what natural born means.

    1. How can a law make you a natural anything?

  15. I’m making $86 an hour working from home. I was shocked when my neighbour told me she was averaging $95 but I see how it works now. I feel so much freedom now that I’m my own boss. This is what I do,

    ——————— http://www.richi8.com

  16. While I think the facts in the case of his birth should make him eligible, I do like the idea of Cruz being legally barred from ever being President.

  17. The Constitution, Vattel, and “Natural Born Citizen”: What Our Framers Knew ? Publius-Huldah’s Blog

    https://publiushuldah.wordpress.com/2012/07/19/
    the-constitution-vattel- and-natural-born-citizen-what
    -our-framers-knew/

  18. 1. Neither Obama, Marco Rubio, or Ted Cruz are natural born citizens. At the times they were born, their Fathers were not citizens. Location of birth is irrelevant. Those who insist that a person must be born within the US point to Section 212 of Vattel. But one must read all that Vattel wrote on the subject and which is contained in Sections 213-217.
    5. Our Country would be so much better off if people would stop spouting off about this subject until after they become well-informed. And they can’t become well-informed until they have studied this carefully using original source documents and read all the original source documents I cite in my first paper.
    And you must detach the result you want from your thinking when you are studying. TRUTH sheds its own Light ? and you will NEVER get that Light until you love TRUTH above all things including the outcome you want. I am well aware of the disgraceful cases where peoples’ views on this issue are determined by whom THEY want for President.
    https://publiushuldah.wordpress.com/2016/01/17/ natural-born-citizen- status-is-inherited-its-not-bestowed- by-the-constitution-or-acts- of-congress/

    1. Why quote Vattel, when the first Congress considered “natural born citizens” as “children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States”, in the naturalization Act of 1790?
      Considering it was drafted by some of the very men who wrote the Constitution, drawing the definition from a source, not involved in the wording, at all, seems dumb.
      Yes the law was repealed and re-drafted without “natural born” qualifier but nowhere since does the term become defined, thus the only reference in OUR law, within close memory of the drafting of Article II, makes Cruz natural born.
      What makes Vattel more relevant than OUR founding document or OUR Congress’s legislation?

      1. Nice misqoute. The Act of 1790 says children born abroad “shall be considered as natural born citizens”. Not quite the same thing.

  19. The Cruz eligibility question also raises another specter, namely the qualification of the present POTUS. In other words, if Cruz is disqualified on “Natural born citizenship”, will BO also be disqualified under the same criteria? I am no lawyer, but a simple citizen with a simple question. I will let others get the proverbial panties in a wad.

    1. I’m sure the Left would be happy to agree that Obama is disqualified from being POTUS given he’s about to step down anyway if that would prevent Cruz from stepping up.

    2. Because he claims Hawaii as his birth place he would at least be born on US soil. However, NBC defined in Vattel and elsewhere mandates BOTH parents be US citizens (NOT as Ted Cruz lied – born on US soil).

      So if that standard was upheld, no. He would not be eligible. (He is also ineligible due to no Selective Service card).

      However, there seems to be no remedy since undoubtedly the case woudn’t be decided until after he left office.

      1. Please direct me to where one’s Selective Service card is mentioned in the Constitution. My copy doesn’t seem to have it. Maybe, you could also show me where Vattel’s definitions are the ones recognized by the Framers. Can’t seem to find that one, either.

        1. It has nothing to do with the Constitution. It came from a law signed by Jimmy Carter (I believe) and prohibits anyone holding a Federal position without one being executed by their 18th birthday.

          There are far more damning reasons why O is illegally in office – this is a minor one.

          (He provided a forged one and the originals mysteriously disappeared.)

          1. Jim, Jim, there are MANY reasons to convict Obama of treason and execute him. Let’s not dwell on this one.

      2. Obama’s birthplace is irrelevant. His mother was an American citizen (for many generations). His father had been a resident of the US. Therefore Obama is a natural-born citizen by the only legislation (1790) that has ever used the phrase ‘natural-born citizen’. As is Obama’s step-sister (who was born in Indonesia).

        1. His father was here on a student visa he was never a legal resident. A law can’t make you a natural anything. A law is the direct opposite of natural.

          1. There is nothing ‘natural’ about Obama. He is an unclean, unholy thing.

            1. you’re just jealous that you couldn’t move camp david to maui for eight years.

  20. Who would have “standing” to bring the lawsuit that seems to be a requirement of getting anything to the SCOTUS?

  21. There IS a debate about Cruz’s citizenship from birth but it is less compelling.

    Natural Born Citizen HAS actually been settled in numerous SCOTUS cases and other acts.

    – The 1st draft of the constitution did not designate “natural born” citizen (NBC) but was changed following a letter from inaugural Supreme Court Chief Justice John Jay to Geo Washington arguing that foreign powers could easily find ways to take over the Presidency if they weren’t NBC.

    – The immigration of Act of 1790 was REPEALED, because it erroneously legitimized foreign born kids to US parents (plural) as NBC. It specifically corrected this in the Act of 1795 and we have the House Committee notes explicitly explaining that it was because of this very issue.

    – the Supreme Court DID explicitly address the issue of NBC in Minor v. Happersett, 88 U.S. 162, 167 (1875) (“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.”);

    – a second SCOTUS case (U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898)), citied Minor and quoting without criticism its common law definition of a natural born citizen

    1. Ironically we have testimony of an infamous foreign-born leader whose mother was American, and his father foreign. He was granted honorary citizenship and was asked by reporters if he would run for President of the United States. He said, “I am, as you know, half American by blood, and the story of my association with that mighty and benevolent nation goes back nearly ninety years to the day of my father’s marriage. There are various little difficulties in the way. However, I have been treated so splendidly in the United States that I should be disposed, if you can amend the Constitution, seriously to consider the matter.” You know him as, Winston Churchill.

      1. If Cruz is eligible, then so is Iranian born Valarie Jarrett. You know, the current shadow president of the United States.

      2. And Churchill was NOT a natural born citizen because his father had never been resident in the US. His mother and father met in England and married in Paris

    2. Bullshit. The Naturalization Act of 1795 repeated the same phrase from the Naturalization Act of 1790

      1790 – 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

      1795 – the children of citizens of the United States, born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

      1. LOL – read line 2 on your copy. “natural born” citizens was removed and replaced with “citizens”. Moreover – we have the house committee notes (among other things) explaining why this was so critical to the House leadership at the time.

        Nice try though – please feel free to play again later!

    3. The mentions in those cases is non binding dicta.

  22. All of these “legal scholars” need a refresher course in English. The confusion of “natural born” and “native born” and the conflation of the two is precisely what Govco wants debates on, rather than which monies to take away from the lobbyists.

  23. Steve, will you kindly knock if off with this bullshit? I’m really fucking sick of it.

    -jcr

    1. If he knocked off all his bullshit he would have nothing to write about.

    2. then read some poetry by newt gingrich…..

  24. Oh, shut up.

  25. Reason going truther? FFS!

  26. Here we go again. The same uninformed comments flying all around by both sides.

    1. You might think you know what nbC means but because there is no law or federal case specifically defining it you don’t. No one does. It is literally undefined.

  27. Cruz is not a native born American. He is a Derivative Citizen of the United States., My son was born in France to two parents that are both Native Born and American Citizens but he is NOT Native Born. He can’t be President unless Obama has change the law like other laws,. He can be Vic President if anybody would have him.

  28. The 1970 statute further supports the argument that Cruz is not a natural born citizen. The U.S. citizen-parent’s residency requirement obviously pertains to the issue of granting generic U.S. citizenship?not natural born citizen status. Otherwise, in the event that the parent was (for example) one year short of the residency requirement, one would be in the absurd position of arguing that the child is not a U.S. citizen (“she didn’t live here long enough”) but is still a natural born citizen (“his mother is an American”). That is, there is no residency requirement for natural born citizen status, although there is for generic citizenship status in the case of birth outside the United States to one non-citizen parent.

  29. Those who somehow believe the 14th Amendment “proves their case” should be told that Congressman John Bingham?who authored that amendment?said on the floor of the House of Representatives in 1862, “All from other lands, who by the terms of laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty [italics added], are natural born citizens.” Read that again and let it sink in. In 1862, the members of Congress understood that a natural born citizen was someone born on U.S. soil to two U.S. citizen parents. Let it also sink in that no law has been passed since then to change the meaning of the term, nor has there been an amendment to the U.S. Constitution with regard to that issue.

    In 1866 Bingham stated, “Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty [italics added] is, in the language of your Constitution itself, a natural born citizen.” Obama supporters?including attorneys filing briefs with the U.S. Supreme Court?have intentionally omitted the words “of parents” when quoting Bingham’s statement, in a shameful effort to mislead. Ask yourself, “Why would Obama-supporting attorneys have thought it might help their client if they omitted the words ‘of parents?'”

  30. “The fact that it was Trump who raised the issue made it deeply suspect. But though it’s unlikely that anything coming out of Trump’s mouth is true, it’s not impossible. And his claim that this is an unresolved question that could end up throwing the election into doubt happens to be correct. ”

    a very disingenuous statement considering that that which comes out of the mouth of ANY political candidate is suspect and at the very least ALWAYS rhetoric with zero substance.

  31. I don’t know whether or not he is legally allowed to be President but I will support anything that gets him out of the race.

    Is there any possibility that Hillary isn’t a citizen? That would be a win-win.

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