Iowa Republican presidential caucuses winner Ted Cruz was born in Canada. His mother was an American, having been born in the United States, who had never renounced her American citizenship. His father was born in Cuba.
Donald Trump, loser in Iowa (but winner in New Hampshire and leading the polls in South Carolina prior to Saturday’s pivotal primary), began trumpeting his latest justification for his election before he lost in Iowa: Ted Cruz was born in Canada. Democrats will take Cruz to court, so vote for The Donald.
The evidence that Barack Hussein Obama was born in Hawaii was always clear to most given the birth announcement in a Honolulu newspaper, but even had the 44th president been born in Kenya, he would still have likely been deemed eligible for the Chief Executive’s office.
Article 3, Section 1 of the U.S. Constitution provides that:
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.
The U.S. Supreme Court has never been ruled upon the meaning of the phrase “natural born” (which occurs no where else in the founding document) and in most conceivable lawsuit-challenge contexts would likely deem the issue a “political question” and defer the issue to the Electoral College and/or the Congress when they approve or disapprove electoral votes after receipt from the states.
But, what if a state executive official empowered to approve or disapprove candidates for inclusion on primary, caucus or general election ballots were to rule Ted Cruz as not natural born and thus ineligible to serve as President of the United States? In that instance, the nation’s highest court may have to interject itself, much as in the 2000 Florida recount.
Constitutional attorney Andrew McCarthy provides needed insight including from a 2015 Harvard Law Review article, “On the Meaning of ‘Natural Born Citizen,” [by] Neal Katyal and Paul Clement (former Solicitors-General in, respectively, the Obama and George W. Bush admininistrations), [in which they] explain that:
British law explicitly used the term “natural born” to describe children born outside the British empire to parents who were subjects of the Crown. Such children were deemed British by birth, “Subjects … to all Intents, Constructions and Purposes whatsoever.” The Constitution’s invocation of “natural born citizen” incorporates this principle of citizenship derived from parentage. That this is the original meaning is obvious from the Naturalization Act of 1790. It was enacted by the first Congress, which included several of the framers, and signed into law by President George Washington, who had presided over the constitutional convention. The Act provided that children born outside the United States to American citizens were “natural born” U.S. citizens at birth, “Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
It is likely, given 14th Amendment Equal Protection clause jurisprudence that residency would be applied to either parent, but in the case of Ted Cruz, his father has resided in the United States for many years.
Birthers also mistakenly cite Section 1 of the 14th Amendment to restrict the definition of “natural born” and “citizenship” even though the clause never mention the former and doesn’t purport to restrict the latter:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
There was no question at the time of the ratification of the Constitution nor of any of the amendments that the children of Americans born abroad were also American citizens at birth. What the post-Civil War 14th Amendment sought to make clear was that former slaves born in United States were citizens equal to non-slave citizens.
So maybe Donald Trump would do better to return to the issues of building of a border security wall that would save us so much in money now spent to house, educate and medicate illegal aliens that Mexico would in effect “pay for it” and ending the cheap labor/Chamber of Commerce Free trade absolutism policy? We think so.
“One man with courage makes a majority.” – Andrew Jackson