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Is Ted Cruz a “Natural Born Citizen”?
Fortune
Roger Parloff
1/19/2016
Excerpts:
Just because Donald Trump’s raising the issue, don’t assume it’s frivolous.
Could Donald Trump be right? Could Ted Cruz be ineligible for the Presidency? What exactly is a “natural born citizen,” anyway?
In our highly mobile nation of immigrants, the last question is one we are confronting with growing frequency. The Constitution (article II, section 1, clause 5) says our President has to be one, and each election cycle we seem to be surprised anew at the knotty, anachronistic, inequitable repercussions of the restriction.
The scholars who are most deeply schooled in the question agree that the answer is anything but simple.
In modern times the “natural born citizen” issue has arisen with respect to John McCain in 2008 (born on a Navy air base in the Panama Canal Zone), Mitt Romney’s father, George, in 1968 (Mexico), and Barry Goldwater in 1964 (Arizona territory prior to statehood); hypothetically with respect to potential candidates like former California governor Arnold Schwarzenegger (Germany) and former Michigan governor Jennifer Granholm (Canada); and contingently vis-à-vis statesmen in the line of Presidential succession, like former secretaries of state Madeline Albright (Czechoslovakia) and Henry Kissinger (Germany). (Imagine a crisis in which President became incapacitated and, due to unsettled, Constitutional obscurities, we don’t even know who’s in charge.)
Cruz was born in Canada in December 1970 to a U.S. citizen mother and a Cuban-born, Canadian citizen father. He was himself a dual citizen until 2014, when he relinquished his Canadian citizenship.
Constitutional scholars have served up two main contenders for what “natural born citizen” might mean. First, it could refer to people who were actually born in this country, with only a very few exceptions that were established by the British common law (i.e., judge-made precedents) as of 1787 and 1788, when our Constitution was drafted and ratified.
Proponents of this view then disagree among themselves over whether the stingy British common law definition should also be widened to include certain eighteenth century Parliamentary statutes also in effect at the time.
Professor Mary Brigid McManamon, of Widener University Delaware Law School, may be the leading proponent of the first school of thought, see here and here, while professor Sarah Helene Duggin, of Catholic University, has reached some similar conclusions. McManamon cites writings suggesting that no less an authority than James Madison was also among those who understood the clause in this fashion.
Under these interpretations, Cruz seems to be excluded, for reasons we’ll discuss shortly.
Then there’s the more permissive alternative. “Natural born citizen” might simply refer to anyone who, thanks to whatever immigration laws happened to be in effect at the time of his or her birth, was automatically considered a U.S. citizen without having to go through the rigamarole of naturalization. If this is the correct interpretation, the Constitution actually provides no single, immutable, citizenship requirement applicable to all presidential hopefuls. Instead, it delegates to each Congress the power to define and redefine precisely which people it thinks should be encompassed by the phrase “natural born citizen.”
This is the interpretation that has been advocated by, among others, former solicitor generals Paul Clement and Ted Olson; former acting solicitor general Neal Katyal; University of Baltimore law professor Garrett Epps; Yale law’s Akhil Reed Amar and Jack Balkin; Harvard’s Cass Sunstein; a Congressional Research Service monograph produced in 2011; and—after wrenching internal debate and a deep scholastic dive—University of San Diego law professor Michael Ramsey.
Under this second approach, McCain, Romney, and Goldwater sail through, and Cruz sneaks in under the wire as well. It’s a close call in Cruz’s case because, oddly enough, his U.S. citizenship hinges on the nooks and crannies of his mother’s resume. According to professor Steven Lubet of Northwestern University , under the laws in effect at the time of Cruz’s birth, a baby born beyond our borders was eligible for automatic U.S. citizenship only so long as at least one of his or her parents had been not only a citizen, but had also been “physically present” in the U.S. for at least 10 years prior to the birth, including five after the age of 14. Cruz’s father, a noncitizen, fails the test, but his mother, born in Delaware and reportedly a graduate of Rice University, appears to meet it. (Lubet tweaks Cruz for once having sought to introduce an amendment to an immigration bill that would have required would-be voters to provide documentary proof of their citizenship. In Cruz’s own case, Lubet argues, that would have required a substantial dossier.)
One problem with this second, more permissive approach to defining “natural born citizen” is that, as professor Ramsay has acknowledged, it seems to render the word “natural” superfluous. If anyone is eligible to whom the law confers citizenship at birth, why didn’t the Framers of the Constitution just say “born citizens”?
Finally, there’s a camp that seems to want to use Cruz’s judicial philosophy against him. Harvard’s Laurence Tribe has suggested that while he personally favors the second approach, more conservative jurists, who advance orthodox “originalist” approaches to constitutional interpretation, ought to find themselves stuck with the first. Since Cruz has pledged to appoint just such originalists to the Supreme Court, Tribe is, in essence, attempting to shove Cruz’s jurisprudence up his—well, strike that. Tribe is accentuating what he sees as an irony in Cruz’s position. Similar sentiments have been expressed by such academicians as Fordham’s Thomas Lee, and Cornell’s Michael Dorf. (Nevertheless, professors Amar and Ramsey have each offered originalist analyses that conclude that Cruz is eligible.)
.................................................. ..
So which side of the debate does this law support? Some say it actually favors the restrictive theory: If, as a constitutional matter, babies born to citizens outside the borders were already considered “natural born citizens,” why would this statute even have been necessary? The more permissive camp, on the other hand, says the law shows that, at the time, everyone understood that Congress was empowered to define what “natural born citizenship” meant, and the first Congress was, therefore, doing just that. But those who favor the more restrictive reading protest that the law did no such thing. It simply specified who had to go through the naturalization process, they contend, and had nothing to do with eligibility to become President, which was subject to an independent, immutable Constitutional standard.
What’s the upshot? First, many more authorities end up favoring the second, more permissive view, so perhaps there is a consensus.
But nothing is truly “settled” until the Supreme Court has ruled on it. Which leads to the final question: Will it ever do so? Several lower courts have ruled that voters don’t have the requisite personal stake—or standing—to raise the issue. (A voter suit relating to Cruz’s candidacy was filed in federal court in Houston last week.)
.................................................. ...
View the complete article, including image, at:
http://fortune.com/2016/01/19/ted-cruz-natural-born/
Fortune
Roger Parloff
1/19/2016
Excerpts:
Just because Donald Trump’s raising the issue, don’t assume it’s frivolous.
Could Donald Trump be right? Could Ted Cruz be ineligible for the Presidency? What exactly is a “natural born citizen,” anyway?
In our highly mobile nation of immigrants, the last question is one we are confronting with growing frequency. The Constitution (article II, section 1, clause 5) says our President has to be one, and each election cycle we seem to be surprised anew at the knotty, anachronistic, inequitable repercussions of the restriction.
The scholars who are most deeply schooled in the question agree that the answer is anything but simple.
In modern times the “natural born citizen” issue has arisen with respect to John McCain in 2008 (born on a Navy air base in the Panama Canal Zone), Mitt Romney’s father, George, in 1968 (Mexico), and Barry Goldwater in 1964 (Arizona territory prior to statehood); hypothetically with respect to potential candidates like former California governor Arnold Schwarzenegger (Germany) and former Michigan governor Jennifer Granholm (Canada); and contingently vis-à-vis statesmen in the line of Presidential succession, like former secretaries of state Madeline Albright (Czechoslovakia) and Henry Kissinger (Germany). (Imagine a crisis in which President became incapacitated and, due to unsettled, Constitutional obscurities, we don’t even know who’s in charge.)
Cruz was born in Canada in December 1970 to a U.S. citizen mother and a Cuban-born, Canadian citizen father. He was himself a dual citizen until 2014, when he relinquished his Canadian citizenship.
Constitutional scholars have served up two main contenders for what “natural born citizen” might mean. First, it could refer to people who were actually born in this country, with only a very few exceptions that were established by the British common law (i.e., judge-made precedents) as of 1787 and 1788, when our Constitution was drafted and ratified.
Proponents of this view then disagree among themselves over whether the stingy British common law definition should also be widened to include certain eighteenth century Parliamentary statutes also in effect at the time.
Professor Mary Brigid McManamon, of Widener University Delaware Law School, may be the leading proponent of the first school of thought, see here and here, while professor Sarah Helene Duggin, of Catholic University, has reached some similar conclusions. McManamon cites writings suggesting that no less an authority than James Madison was also among those who understood the clause in this fashion.
Under these interpretations, Cruz seems to be excluded, for reasons we’ll discuss shortly.
Then there’s the more permissive alternative. “Natural born citizen” might simply refer to anyone who, thanks to whatever immigration laws happened to be in effect at the time of his or her birth, was automatically considered a U.S. citizen without having to go through the rigamarole of naturalization. If this is the correct interpretation, the Constitution actually provides no single, immutable, citizenship requirement applicable to all presidential hopefuls. Instead, it delegates to each Congress the power to define and redefine precisely which people it thinks should be encompassed by the phrase “natural born citizen.”
This is the interpretation that has been advocated by, among others, former solicitor generals Paul Clement and Ted Olson; former acting solicitor general Neal Katyal; University of Baltimore law professor Garrett Epps; Yale law’s Akhil Reed Amar and Jack Balkin; Harvard’s Cass Sunstein; a Congressional Research Service monograph produced in 2011; and—after wrenching internal debate and a deep scholastic dive—University of San Diego law professor Michael Ramsey.
Under this second approach, McCain, Romney, and Goldwater sail through, and Cruz sneaks in under the wire as well. It’s a close call in Cruz’s case because, oddly enough, his U.S. citizenship hinges on the nooks and crannies of his mother’s resume. According to professor Steven Lubet of Northwestern University , under the laws in effect at the time of Cruz’s birth, a baby born beyond our borders was eligible for automatic U.S. citizenship only so long as at least one of his or her parents had been not only a citizen, but had also been “physically present” in the U.S. for at least 10 years prior to the birth, including five after the age of 14. Cruz’s father, a noncitizen, fails the test, but his mother, born in Delaware and reportedly a graduate of Rice University, appears to meet it. (Lubet tweaks Cruz for once having sought to introduce an amendment to an immigration bill that would have required would-be voters to provide documentary proof of their citizenship. In Cruz’s own case, Lubet argues, that would have required a substantial dossier.)
One problem with this second, more permissive approach to defining “natural born citizen” is that, as professor Ramsay has acknowledged, it seems to render the word “natural” superfluous. If anyone is eligible to whom the law confers citizenship at birth, why didn’t the Framers of the Constitution just say “born citizens”?
Finally, there’s a camp that seems to want to use Cruz’s judicial philosophy against him. Harvard’s Laurence Tribe has suggested that while he personally favors the second approach, more conservative jurists, who advance orthodox “originalist” approaches to constitutional interpretation, ought to find themselves stuck with the first. Since Cruz has pledged to appoint just such originalists to the Supreme Court, Tribe is, in essence, attempting to shove Cruz’s jurisprudence up his—well, strike that. Tribe is accentuating what he sees as an irony in Cruz’s position. Similar sentiments have been expressed by such academicians as Fordham’s Thomas Lee, and Cornell’s Michael Dorf. (Nevertheless, professors Amar and Ramsey have each offered originalist analyses that conclude that Cruz is eligible.)
.................................................. ..
So which side of the debate does this law support? Some say it actually favors the restrictive theory: If, as a constitutional matter, babies born to citizens outside the borders were already considered “natural born citizens,” why would this statute even have been necessary? The more permissive camp, on the other hand, says the law shows that, at the time, everyone understood that Congress was empowered to define what “natural born citizenship” meant, and the first Congress was, therefore, doing just that. But those who favor the more restrictive reading protest that the law did no such thing. It simply specified who had to go through the naturalization process, they contend, and had nothing to do with eligibility to become President, which was subject to an independent, immutable Constitutional standard.
What’s the upshot? First, many more authorities end up favoring the second, more permissive view, so perhaps there is a consensus.
But nothing is truly “settled” until the Supreme Court has ruled on it. Which leads to the final question: Will it ever do so? Several lower courts have ruled that voters don’t have the requisite personal stake—or standing—to raise the issue. (A voter suit relating to Cruz’s candidacy was filed in federal court in Houston last week.)
.................................................. ...
View the complete article, including image, at:
http://fortune.com/2016/01/19/ted-cruz-natural-born/