Ted Cruz Isn’t Eligible to Be President

Senator Ted Cruz’s formal announcement on March 23 that he is running for President raises the question of whether he is eligible for the office. Although born in Canada, he acquired American citizenship at birth through his American mother. Thus far only a few people, including Donald Trump, have questioned whether Senator Cruz is a “natural born citizen” as required to be President of the United States.

The Constitution provides that “No Person except a natural born Citizen … shall be eligible to the Office of President” “Natural born citizen” is not defined in the Constitution. Most people assume that anyone who acquires US citizenship at birth must be a “natural born citizen.” This was the conclusion that an attorney for the Congressional Research Service reached in 2011. The question cannot, however, be resolved so easily. Just because there is no definitive Supreme Court decision on the meaning of “natural born citizen” as a qualification for serving as President does not mean there are no legal sources to allow us to evaluate the meaning of this term.

The requirement that a President be a “natural born citizen” was added to the Constitution at the very end of the drafting process in 1787, with no recorded discussion or debate. Apparently the requirement was added to ensure that only persons of unquestioned attachment to the United States could ever be commander-in-chief. Some then feared that a foreign agent might become President and subvert the nation. (This, of course, is a stock allegation in certain circles against President Obama, although he is unquestionably a “natural born citizen.”) Apparently the drafters of the Constitution thought the meaning of “natural born citizen” was so clear that it needed neither explanation nor definition.

Congress, exercising its power to enact a uniform rule of naturalization, enacted a statute in 1790 to provide that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens,” at least if the father had been a resident of the United States. Some consider this to be proof of the “original” meaning of “natural born citizen.” The statute, however, does not indicate that such children are “natural born citizens,” but only that they are to be “considered” as “natural born citizens”—peculiar wording if the point was to declare such children to be “natural born citizens.” If that is the correct reading, the statute cannot, of course, alter the constitutional qualifications for President. Furthermore, this statute was replaced in 1795 with a statute that declared such children to be citizens, but omitted the phrase “natural born.” That earlier language never reappeared.

The next important bit of evidence is the Fourteenth Amendment to the Constitution, which came into effect in 1868. The amendment did not say anything about the citizenship qualification for President; it defined who is a citizen: “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.” The Supreme Court alluded to this language in 1874 in Minor v. Happersett, declaring in passing on the citizenship of women that there were two ways one could become a citizen: by birth or by naturalization. The Court did not indicate whether foreign-born children of US citizens fell into the one category or the other. The Court did hold in United States v. Wong Kim Ark in 1898 that any person born in the United States was, as the Fourteenth Amendment declares, by that fact alone (except for the children of diplomats) a citizen of the United States, and indeed a “natural born citizen.” This was true even though Mr. Wong’s parents were not citizens. (Chinese immigrants in fact were ineligible to become citizens in 1898 because of the Chinese Exclusion Act although Mr. Wong was born before that statute was enacted.)

The Supreme Court finally considered the status of foreign-born children of US citizens in Rogers v. Bellei in 1971. Mr. Bellei, born in Italy to an Italian father and an American mother, was both an Italian and an American citizen at birth. The statute governing his US citizenship required him to live at least five consecutive years in the United States between the ages of 14 and 28 in order to retain his citizenship. The US embassy in Rome informed him when he turned 24 that he was no longer a US citizen because of the five-year residency requirement. When he challenged that decision, the Court held that Mr. Bellei was “naturalized by descent.” Because he was not naturalized in the United States, his citizenship was not conferred by the Fourteenth Amendment but rather by the statute and therefore was subject to the conditions attached by the statute.

Curiously, the aforementioned Congressional Research Service report, while it mentions Rogers v. Bellei repeatedly, never considered this feature of the majority analysis, arguing that the case was not relevant because it was not a case about eligibility to serve as President. Yet the case actually tells us the status of Senator Cruz: He was naturalized at birth; he is not a “natural born citizen.” Without addressing this judicial holding, the report’s conclusion that “natural born citizen” includes any person who becomes a citizen at birth is insupportable. If the foregoing analysis is correct, Senator Cruz is simply not eligible. Indeed, it seems likely that a candidate was on the ballot in 2008 who was not eligible. John McCain was born in Panama (and not the Canal Zone). There is a certain irony given the campaign against President Obama’s eligibility to be President, that the ineligible candidate in 2008 wasn’t Barak Obama.

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