Donald Trump

Trump Is Right About Cruz's Presidential Eligibility

The meaning of "natural born citizen" remains unsettled.

|

During the Republican presidential debate on January 14, Ted Cruz said it's "really quite clear" he is eligible to run for president even though he was born in Canada, because his mother was a U.S. citizen. His rival Donald Trump insisted "there is a serious question" as to whether Cruz qualifies as "a natural born citizen," one of the constitutional requirements for the presidency.

Here is a sentence I never thought I'd type: Donald Trump is right. Cruz sees a consensus that does not exist.

The Texas senator is not alone. In a 2015 Harvard Law Review essay, Neal Katyal and Paul Clement—solicitors general under Barack Obama and George W. Bush, respectively—say "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." They call claims to the contrary "specious" and "spurious."

No doubt Mary Brigid McManamon, a legal historian at Delaware Law School, would object to those adjectives. In a Washington Post op-ed piece published in January, she says it's "clear and unambiguous," based on British common law during the Founding era, that Cruz is not a "natural born citizen."

As Catholic University law professor Sarah Helene Duggin and Maryland lawyer Mary Beth Collins show in a 2005 Boston University Law Review article, these dueling perspectives are the latest installment of a long-running scholarly debate about the meaning of "natural born citizen." Contrary to Cruz, Katyal, Clement, and McManamon, Duggin and Collins view the phrase as "opaque" and dangerously "ambiguous" (as well as outdated, unfair, and antidemocratic), arguing that it should be excised by amendment.

Harvard law professor Laurence Tribe, whom Trump likes to cite, has taken both sides in this debate. In 2008 Tribe and former Solicitor General Ted Olson coauthored a memo that said John McCain, the GOP nominee that year, was eligible for the presidency even though he was born in the Panama Canal Zone.

Since the Constitution does not define "natural born citizen," Tribe and Olson wrote, to illuminate the term's meaning we must look to the context in which it is used, legislation enacted by the First Congress, and "the common law at the time of the Founding." They said "these sources all confirm that the phrase 'natural born' includes…"birth abroad to parents who were citizens."

Writing in The Boston Globe last January, by contrast, Tribe said "the constitutional definition of a 'natural born citizen' is completely unsettled." He added that based on the originalist approach Cruz favors, he "ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a 'natural born' citizen." Fordham law professor Thomas Lee made a similar argument in the Los Angeles Times.

Satisfying as it may be for Cruz's opponents to see him hoist by his own interpretive petard, this way of framing the issue is misleading, because the debate about the meaning of "natural born citizen" is mainly about what the original understanding was, as opposed to whether the original understanding should prevail. Originalists such as Georgetown law professor Randy Barnett and University of San Diego law professor Michael Ramsey argue that their approach favors Cruz.

Another originalist, Independence Institute senior fellow Rob Natelson, who describes himself as an "admirer of Senator Cruz," is not so sure. "Although Senator Cruz's belief that he is natural born may ultimately be vindicated," Natelson writes on The Originalism Blog, "the case against him is very respectable."

Case Western law professor Jonathan Adler, who initially said "there is no question about Ted Cruz's constitutional eligibility to be elected president," later conceded he "may have been too quick to suggest that this issue is completely settled." I was similarly chastened to realize it's not safe to assume everything Donald Trump says is a lie.

NEXT: Brickbat: You Have a Right to Your Opinion

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Some fun with exponents and a follow up question: Assume 300 million people in the U.S, 4 people per family health care plan, and an average health care cost of that family’s health care plan at 17,000/yr. Those numbers translate to

    (3.0*10^8)*(1/4)*(1.7*10^4) = (1.27*10^12/yr) = 1.27 trillion dollars/yr.

    Obvious Question: if we examine the implications of a tax increase to pay for single payer health care how can we do this without considering how many 10^6 kulaks were killed by Josef Stalin? Non serious answers not containing references to the Holomodor or Robert conquest books will be ignored.

    1. You are an imbecile and as such don’t deserve a serious answer.

      Who the fuck is this “we” you mention? Will “we” all be contributing equally also? Go peddle your theft somewhere else.

      1. Bowling costs $16/night for 30 weeks. If I pay the government $480 in taxes for universal bowling insurance how much does the current free market system save me?

        1. The problem with your scenario is almost nobody would actually pay $480 for bowling insurance. Many would bowl for free or near free while many others would pay $2000+ a year for bowling insurance.

          Not sure what happens to the word “fair” in the socialist’s mind when it comes to such things.

          1. Don Carter Lanes is up the street from me. How am I affected?

            Will you still be able to buy a Rubin sandwich at the Rose Bowl in Omaha?

    2. The average family spends about $11,310/year on food.

      Assume 300 million people in the US, 4 people per family, and an average food cost of $11,310/year. Those numbers translate to

      (3.0*10^8)*(1/4)*(1.131*10^4) = 8.4825*10^11 = $.848 trillion/year

      Obvious Question: If we examine the implications of a tax increase to pay for single payer food care, are we ignoring the obvious costs and trade-offs associated with reducing all of our individual food choices to a government budget item and a social justice issue, in which we allow all of society, through government bureaucracy, to ostensibly dictate exactly what, how much, and how expensive our food is, because we’re all in this together, whether we want to be, or not?

      1. *applause*

  2. Honestly this whole thing is getting as tiresome as the shit with Obama was. Frankly i think all that should matter is that at least one of his parents was a US citizen. By the logic espoused in this article, if a military family is stationed in Germany, and is out on the town and the wife goes into labor and they take her to a German hospital to give birth, suddenly that child is not a naturally born citizen?

    This whole thing is turning into a legal historian circle jerk. Nobody fucking cares. Nobody cared about Obama (that wasn’t a fucking nut job) and no one cares about Cruz (that isn’t Trump or Trump supporters, who are fucking nut jobs).

    Here’s an idea, what if we *gasp* let the people win or lose based on the merits of their ideas???!!!! OMFG What a concept!

    1. All true. But the Obama issue was largely driven by Trump himself. And he is now leading the GOP pack and is raising the issue again.

      Who woulda thunk it.

    2. They deserve it.

    3. “Frankly i think all that should matter is that at least one of his parents was a US citizen. By the logic espoused in this article, if a military family is stationed in Germany, and is out on the town and the wife goes into labor and they take her to a German hospital to give birth, suddenly that child is not a naturally born citizen?”

      Yes, that is exactly what it could mean. While it certainly doesn’t make a lot of sense, it would be nice to have an official ruling from SCOTUS defining the term “Natural Born Citizen” once and for all.

      1. Trump is just tapping into passion within the GOP, which is fear of the outsider. That fear is stoked each and every day by right wing media, like Hannity and Limbaugh. And they have done it for years.

        And now the leading candidate echoes it? What a surprise.

        1. You’re right about the xenophobia, but c’mon these clowns are planning on dying on the hill that Cruz is a Crypto-Freakin-Canadian.

          Like Cruz will get secret marching orders from Justin Trudeau, Dudley Do-Right, and Wayne Gretzky.

          1. If I were a betting man, I would bet that he would be ruled eligible. But that doesn’t mean there wouldn’t be a lawsuit…one that HE would have to initiate (for example, if one states board of elections ruled him ineligible). And then there is a mess.

            And yes, Trump is playing that. It’s in his DNA.

    4. “ere’s an idea, what if we *gasp* let the people win or lose based on the merits of their ideas???!!!! OMFG What a concept!”

      Uh, no thanks. I’m a constitutional libertarian so I worship a document written by 18th century slavers. Natural borne means natural born.

      I can think of a number of particularly awful scenarios come 1/20/2017, but the most awful is to be ruled by a pompous, bellicose, and disingenuous Canuckistanian, who is totally full of shit. Please God, give me Trump any day over that.

      1. I worship a document written by 18th century slavers

        FOS.

  3. This article is pure crap. Birther nonsense. The Koch brothers deserve a refund.

    1. This issue is quite a bit different from the Birther nonsense, since Obama definitively had a birth certificate stating that he was born in the US and people just refused to acknowledge it. This particular issue really is a constitutional question which has never really been answered. Now mostly likely if it went to the SCOTUS they would rule in favor of Cruz (particularly with the current makeup) but it isn’t a guarantee, and I personally would like the Court to give their opinion just to close the matter once and for all.

      1. Obama definitively had a birth certificate stating

        If you have the right connections those are not difficult to get. And alter.

        1. Obama definitively had a birth certificate…
          Which one?
          He produced two and either one could have been shown to be phony.

  4. Lets take someone else’s personal opinion on this subject, based on their own personal experience, other than Sen Cruz’s friends on his presidential eligibility,

    Recently, when asked why he chose to throw his support behind Trump, Gov. LePage responded that his decision was rather simple. LePage, a U.S. citizen born in Maine, revealed that two of his adult daughters were born in Canada during the 70’s when LePage was living and employed there. LePage told Carr that he and his wife were required to have their daughters naturalized. LePage continued, stating that he had sought an answer as to whether or not either of his Canadian-born daughters could ever become President.” LePage told Carr that his inquiry resulted in an unequivocal “No”!

    LePage’s daughters, born in Canada to two U.S. citizen parents, are not natural-born citizens. As such, LePage was told that neither daughter is eligible to hold the office of President of the United States.*
    * Source: http://www.birtherreport.com/2…..orsed.html

    1. Anecdotal. Has nothing to do with the constitutional question at hand.

    2. Explain exactly what he meant by “naturalized.”

      Did they take the citizenship test, for example?

      Right now you just report a birth abroad to the consulate.

    3. It’s good to know that both you and LePage believe that being born abroad to two United States citizens means their child isn’t a citizen of the United States. I suppose that means that LePage’s children are here illegally, and should therefore be deported to their home country of Canada. (Unless they pass their exams, that is, as a baby I presume? How would that even work?)

      I’m also super curious about his children going through the Naturalization process. What scores did they get on their tests, I wonder? How has U.S. law changes so much since the 70’s, considering children born aboard don’t need to go through that process right now.

      Last point, if you want to use a particular source because they aren’t ‘for’ Cruz, you might want to select some asshat that isn’t also ‘for’ Trump.

      Also, I really want to know where I can submit questions about my children’s eligibility for future Presidential elections and get definitive answers back. Is there a hotline, website, or does it involve paperwork I wonder?

      1. Also, I really want to know where I can submit questions about my children’s eligibility for future Presidential elections and get definitive answers back. Is there a hotline, website, or does it involve paperwork I wonder?

        E-Verify?

        1. One of the few things I agree with Neal Katyal and Paul Clement (N&C) on is that fact that “All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning.”…N&C After that, their construct got a little harder to follow when they simply observe, [since] Senator Cruz has been a “US citizen from birth”, he is a ‘natural born Citizen.

          A general clause: such as all “US citizens from birth” (the 14th Amendment) cannot usurp a specific, exclusionary clause, such as: “only natural born citizens are eligible to run for the President,” unless Congress has specifically made it clear that all US citizens from birth are Art. II, ?I, Cl. 5 natural born citizens, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific clause.

          1. How about this, passed by many of the same people, who wrote and ratified the Constitution:
            “…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:…”
            From:”An act to establish an uniform Rule of Naturalization” (March 26, 1790).
            It should be noted that the term “natural born citizen” is never, again used in U.S. law.

      2. They are all US citizens from birth. They are not Art. II, ?I, Cl. 5 natural born citizens.

      3. The only way Lepage’s story is true is if his wife was not a citizen and if he moved to Canada before he was nineteen.

        According to Wikipedia, Lepage married his wife “in New Brunswick, where LePage worked…”. It seems quite likely that she was not a US citizen.

        Lepage’s children seem to have run afoul of this provision in the law.

        Birth Abroad to One Citizen and One Alien Parent in Wedlock

        A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.)

        The relevant portion is bolded.

        1. What you quote is why 0blama, if born in Kenya, wouldn’t have had U.S. citizenship at birth, thus not a natural born citizen.
          His mother hadn’t had a physical presence in the United States for five years after the age of fourteen.
          She was only four years past that age and, if true, in Kenya, at the time of his birth.

          P.S. I think LePage got hold of some less-that-well-educated-on-the-matter government employee, who steered him wrong. It is a safe bet he didn’t move to Canada before he was nineteen.

          1. Well, sure, except for the fact that there’s zero evidence that BHO’s mama was anywhere but in Honolulu, HI in 1961 etc and so on.

            OTOH, we don’t know anything about where LePage was in 1966-69. My guess is that at some point he realized that to avoid going to Vietnam he had to move to Canada, the land of his forefathers, before he became eligible for the draft and thus ended up in New Brunswick before he turned eighteen in 1966.

            1. IOW, my bullshit speculation is every bit as good as yours.

              As to, “LePage got hold of some less-that-well-educated-on-the-matter government employee”, everyone of these decisions can be appealed. I would expect that someone with M. Lepage’s connections could get a favorable ruling if one was to be had.

              Of course that does not address the issue covered by TFA; viz, is “citizen at birth” identically equal to “Natural Born Citizen”? I always assumed that the answer was “yes” and assumed that “everybody” – ie the overwhelming mass of the population – agreed. I have sinced found out that thinking on this issue is far more complex.

              Nevertheless, I am confident that if ever the SCOTUS ruled on this issue, the would rule on the “most people believe this” side. Which, I believe is “citizen at birth” is identically equal to “Natural Born Citizen”.

  5. I thought that was the “Worst Argument Ever”

    https://reason.com/blog/2016/01…..ed-cruz-is

  6. Rather than getting worked into a tizzy about the meaning of “is” or such, how bout we look at a different issue that has to do with Trump’s character (or lack thereof). Specifically, when Cruz’s eligibility was not a problem for Trump, then Trump was ok with Cruz being POTUS. However, as Cruz has become the primary “other” candidate, Trump has found it more advantageous to state that Cruz is not eligible. None of this should be news, these guys are all politicians and can argue out of both sides of their mouths as a function of whatever the momentary gain appears to be.

    1. Did Cruz ever say “I want to deschedule cannabis so the States can decide” ?

      Or will the treatment of this issue depend on what Cruz instructs his AG?

      Rumor has it that Christie has made a deal to be Trump’s AG. How will that work?

  7. Since a general clause can never govern the specific clause, the court must look at ‘US citizens from birth’ and ‘natural born US Citizen’ as having two separate legal effects, with the separate legal effect bring superior to the general. This is to say that while all natural born US Citizens are ‘US citizens from birth’, not all ‘US citizens from birth’ are ‘natural born US Citizens’.

  8. This issue and this discussion is a tremendous threat to Obama. So, what we’ve seen the last seven years on the Internet is a relentless attempt to complicate and confuse the issue of eligibility.

    The first thing to realize is that citizenship and eligibility are two separate things. Second, Obama knows he’s not eligible, Cruz knows he’s not eligible, and Rubio knows he is not eligible. But the media won’t touch the subject because Obama is so vulnerable. So all these political opportunists think they have a green light to cut corners.

    Cruz, the constitutionalist, offends me most. In an interview a few years ago, he summed up the whole thing by saying a potential president must be: born on the soil, with two American parents. That’s all there is to it.

    1. You’ll have to provide a link to that quote.
      And the link “pulledfrommyass”, dot com, doesn’t work.

      1. You are right. I tried it and it doesn’t work.

  9. This article was crap when I read it a few months ago too.

  10. because the debate about the meaning of “natural born citizen” is mainly about what the original understanding was, as opposed to whether the original understanding should prevail

    The original understanding should prevail until the Constitution has been amended.

  11. As far as I know there are only two kinds of citizens, natural-born and naturalized. There is a naturalization process and Cruz has not completed it, so there are two possibilities: Either Cruz is a natural-born citizen or he is not a citizen at all. You would have to show that he has not been treated as a citizen by the government to date to establish that the government does not consider him a citizen. If he has been treated as a citizen, then he is a citizen. Is he registered to vote? Then he must be a citizen. And since he is not a naturalized citizen, he must be a natural born citizen. Am I missing something?

Please to post comments

Comments are closed.