Is Cruz Eligible?

Article II, Section One:

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 question of whether Ted Cruz would be eligible to be President hinges on the term “natural born”; there is no question that Ted Cruz is a U.S. citizen:

He was born in Calgary, Alberta, on Dec. 22, 1970, to a Cuban-born father, Rafael, and a Delaware-born mother, Eleanor. Both of his parents were in Canada working in the oil industry. They and Cruz moved to Texas, where his parents went to college, when the future senator was 4 years old. Federal law says that people born outside the U.S. to a parent or parents who are citizens and who have lived in the country are considered citizens at birth.

If you want to argue that Ted Cruz is not a U.S. citizen (which would make him ineligible to serve in the U.S. Senate per Article I Section 3), knock yourself out. Ted Cruz is a U.S. citizen. The question is whether Cruz meets the “natural born” requirement of Article II Section 1–not whether he is a citizen. (A question predicated on the assumption that there is or might be a difference between a citizen and a natural born citizen.)

The fundamental question is what “natural born” means in the context of original Constitutional intent and subsequent legal interpretation. (On an interesting side note, AllahPundit writes that “the Supreme Court would almost certainly end up reading ‘natural born’ in the narrowest way, excluding anyone who was born abroad of two non-citizen parents but including everyone else,” but that’s a kettle of fish of another color entirely.)

Why did the Founders use the term “natural born,” and what did they mean by it? Rather than re-invent the wheel, I will refer you to a fascinating two-part piece at RedState:

On this “Natural Born Citizen” Issue, Part I: From Alexander Hamilton to Lynch v. Clarke

On this “Natural Born Citizen” Issue, Part II: From William Learned Marcy to Wong Kim Ark

Going back to AllahPundit’s point, here’s another similar take:

The reason the Supreme Court — or any court — has never weighed in on this is because no plaintiff with standing has ever brought suit successfully in federal court. Basically, to be able to sue in federal court, a plaintiff has to be able to show that they suffered a concrete injury (or will soon suffer a concrete injury if the court does not intervene) and courts have repeatedly held that a citizen does not have standing to sue to get a candidate off the ballot for not being a natural born citizen. So, in Hollander v. McCain, a citizen brought suit in the United States District Court for the District of New Hampshire in hopes that the court would declare John McCain constitutionally ineligible to be president. The court refused to take the case, stating essentially that the only individuals who could sue John McCain were his opponents, because they were the only people who might suffer a concrete injury from McCain’s candidacy. (This is why tons of lawsuits claiming Obama is from Kenya have been tossed.)

Which brings us back to Ted Cruz. To find out for sure if he is eligible to run for president, one of Cruz’s opponents would have to bring the lawsuit. Why does this never happen? It would seem that candidates have decided that trying to get an opponent tossed out of the race would de-legitimize their own candidacy.

Back to AllahPundit:

The point of the clause was to make sure that rich foreigners couldn’t cross the ocean and buy their way into the presidency, which wasn’t a baseless concern for a group of former British subjects who worried about loyalists to the throne subverting the revolution. In practice, though, it means that someone who’s born on U.S. soil but lives their entire life abroad, only to return and run for president decades later, is constitutionally more trustworthy than someone like Cruz who was born abroad but has lived his entire life here. Does anyone question whether Ted Cruz, decades later, might be more loyal to Canada than to the U.S.?

Exactly.

And finally (emphasis added):

In short, the Constitution says that the president must be a natural-born citizen. “The weight of scholarly legal and historical opinion appears to support the notion that ‘natural born Citizen’ means one who is entitled under the Constitution or laws of the United States to U.S. citizenship ‘at birth’ or ‘by birth,’ including any child born ‘in’ the United States, the children of United States citizens born abroad, and those born abroad of one citizen parents who has met U.S. residency requirements,” the CRS’s Jack Maskell wrote. So in short: Cruz is a citizen; Cruz is not naturalized; therefore Cruz is a natural-born citizen, and in any case his mother is a citizen. You can read the CRS memo at bottom; here’s a much longer and more detailed 2011 version.

I very much look forward to the estimable William A. Jacobson’s take on the issue.

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