Is Rafael "Ted" Cruz a "Natural Born Citizen"? I'd Vote No.

Compare

https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html

with

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/yes-ted-cruz-is-a-natural-born-citizen/


So, as I have said in the past, I believe that Ted Cruz's argument to be a "natural born citizen" is a 50-50% shot.  Now, if you read the cases on the issue, it is pretty clear that virtually no one has standing to get a court to rule on the issue, so the gatekeepers on this sort of thing are:  1) voters; 2) Electoral Congress delegates; and 3) Congress, which may, I would think, impeach and remove a President for violating the Constitution by serving as a non-NBC.

That said, it is an important issue, so let me tell you why I would vote no. that Cruz cannot be President.

         1) If you read the two articles linked to above, you will see that there are arguments pro and con about whether Cruz is a "natural born citizen" (he wins) or a "naturalized citizen" (he loses) or a person who is treated as a "natural born citizen" by statute (in my opinion, he loses).

I will take Cruz at his word and state that he was born in Canada and, at the time of his birth, his mom was a U.S. citizen and his dad was a Cuban citizen.  If those are the facts, then he was clearly NOT born in the United States or a territory of the United States.  At the time of his birth, his parents were not subject to the laws of the United States.  They were both residents of another country.

          2) I think that the winning argument in such a situation is that the child's "natural born citizenship," or not, is determined by his place of birth.  What do we know about the founding fathers?  They specifically made an exception in the written Constitution to state that someone who was not a NBC could be President anyhow if that person was "a Citizen of the United States, at the time of the Adoption of this Constitution." 

The founding fathers understood that they were all born in British colonies under British rule (Alexander Hamilton was born under British rule outside of the 13 colonies) and that, should they limit the Presidential contenders to those who were not British born, they would have no one to serve as President.  (Washington, Jefferson and Adams were all born in the 13 colonies; everyone knew that Washington would be the first President, so they clearly considered him NOT to be a natural-born citizen but DID consider him to be a Citizen at the time of the Constitution).

The Constitution was ratified on June 21, 1788.  35 years prior to that was 1753.  There was no United States in 1753, and, therefore, no "natural born citizens" was available who could serve as President in 1789.  (Even if you considered someone born in late 1776 a NBC, they would have been 13 years old, not 35.) 

What this exception does tell you is that there is something important about being born in the United States.  A natural born citizen is one who, unlike George Washington, was actually born inside the U.S. after it became the U.S. (an issue could arise as to whether Martin Van Buren was the first NBC President (born after Declaration but before Constitution) or whether it was John Tyler (born 1790)).

If there is not a difference between being a "natural born citizen" and a "citizen" then why does the Constitution clearly indicate that you can be other than a NBC and qualify if you are a citizen at the time of the Constitution?  I think that this distinction defeats the argument that a "natural born citizen" is anyone who the Congress says it is.  If Congress could have just made Washington a NBC by passing a law saying, "He is a NBC" then why have the two rules?  Why not say "a NBC is any U.S. Citizen recognized as such by Congress" or state "all people born in the colonies are natural born citizens"? 

If Congress can pass a law saying someone is a natural born citizen, what, if anything, is the limitation on Congress's power?  "A natural born citizen is anyone who says they really love it here and/or who has won more than 5 Mr. Olympia titles."   Is that a NBC?  If the word "born" means "Congress says they are/were a citizen at birth" then Congress can basically write the requirement out of the Constitution.  Anyone it says is a NBC is a NBC, no matter where that person was born or to whom. 

This also creates an awful problem -- if in 2018 one Congress says that Michael J. Fox is a natural born citizen, and then in 2022 the next Congress says he is not, do we really want our qualifications for who can be President to vary from Congress to Congress?  I would say not. 

     3)  What concern is expressed by the NBC clause?  I have read a lot of books about the mood back in those days, and the big concern from Jefferson's side was that we would be taken over by the English, and Hamilton just absolutely hated the French and feared their influence.  So, what is being expressed here is that someone born in England or France should not get to be President of the United States.....ever.  You cannot trust them.

If that is the basis for the rule -- fear of people born outside of the U.S. -- then why should that fear be lessened because the person had one parent who (while a citizen) did not even care enough about the U.S. to stay here and, in fact, actually took up residency outside of the country.....with a non-citizen!  Reading the Constitution, we must assume that fear of the foreigner is justified.  That is the whole basis of the rule.  So why would Cruz - admittedly born outside of the U.S. - not be subject to the same prejudice that the founders had against the foreign born?  He would.

If someone with one citizen parent can be President, then that means that a prospective mother or father from, say Saudi Arabia, can stay in the U.S. long enough to gain naturalized citizenship, can then move to Iran, join some terrorist group, and his or her kid (born in Iran to one U.S. parent) can some day be President. Right?  We were terrified that someone from the House of Lords might move to the U.S. and run for President, but heck, the loyalties of a kid born overseas to one U.S. parent don't bother us.....?


       4) I think the 14th Amendment hurt Cruz.  Many people believe that the 14th Amendment (which bestows citizenship on anyone born in the U.S. and gives Congress the power to enforce the Amendment) helps Cruz because it gives Congress power and, if you asked Congress, they'd say that Cruz should be a citizen to the maximum amount possible.  (This argument also can be bolstered by the power of Congress to make immigration and naturalization laws.)  Probably true, but....

The 14th Amendment actually does not make everyone born in the U.S. a citizen.   You also must be "subject to the jurisdiction of' the U.S."   Cruz fails on both counts - when he was born, he was not born in the U.S., and when he was born, he was not subject to the jurisdiction of the U.S.  He lived in another country.  While one could argue that his mother's citizenship rendered him somehow "subject to the jurisdiction of' the U.S." that is a stretch, particularly in light of #5......


      5)   Cruz's dad was not a U.S. citizen at the time of Cruz's birth,  Cruz is a big believer in "original intent" and the belief that the Constitution does not change with time but, rather, it must be interpreted to reflect only the time in which it was made.  When the Constitution was ratified, there is no way that someone who claimed American citizenship only through his mother could have any chance of being considered a natural born U.S. citizen.   It was the father's citizenship that mattered.  The mother was basically considered chattel as far as the law was concerned.   (Recall that women could not even vote until 50+ years after black men could vote).

Laurence Tribe (a constitutional law professor and Democrat) has opined that there are serious issues regarding Cruz's citizenship.  Tribe points out that HIS view of the law (that the Constitution is a living document and must be interpreted differently as it ages)  would help Cruz's position.  But Cruz's actual position on the Constitution is that it NEVER evolves and it NEVER can be changed.  It meant something in 1788 and it will mean that forever.  Well, if so, then the founders clearly understood that someone born in Canada who claimed citizenship only through his mother was, in no way, a "natural born citizen."  Sorry, Ted, you are stuck with that understanding from 228 years ago. 


I would vote that Cruz is not a natural born citizen, and I would say he is ineligible to be President.