An argument has been made that since Ted Cruz was born in Canada (of an American mother and a Cuban father) he is not a “natural born citizen,” and therefore ineligible under Article II of the United States Constitution for the Presidency. This question was addressed at some length by Daniel Jack Williamson, whose “Buckeye RINO” blog always makes interesting reading, whether I agree or not with his positions.
The key to the discussion is the provision in the United States Constitution, in Section 1 of Article II, which spells out the eligibility of presidential candidates:
The problem is that the Constitution never defines “natural born citizen.” It is true that Congress passed, in 1790, the Naturalization Act, which contains the following passage:
Under the terms of this statute, Senator Cruz is demonstrably a citizen of the United States. His Cuban-born father did reside in the United States for a few years in advance of Ted Cruz’s birth in Canada. But what does the phrase “shall be considered as natural born citizens” mean? If it were “are natural born citizens,” this would settle the question, or so it would seem. However there is even an ambiguity there. Does Congress, after the fact, have the right to change the meaning of a passage in the Constitution (other than by amendment, which requires a two thirds vote and ratification by three fourths of the States)? Actually, the key there is whether this is a change. I would maintain that, since the Constitution does not have a definition of “natural born citizen,” Congress is acting within its rights, merely clarifying the Constitution's specification of eligibility. But, as Williamson points out, “shall be considered as natural born citizens” is not the same as “are natural born citizens.”
In fact, this is a question that could only be settled by the Supreme Court. And the Supreme Court never gives advisory opinions. A court case would have to be raised, and this could only take place after Cruz were nominated and elected, because the Court does not rule on hypotheticals. This in turn raises a question: who would raise a case? Some might say the Democrats. But in that situation, even if Cruz were ruled ineligible, this would simply make his vice-presidential nominee the President — not a very satisfactory outcome for a Democrat!
In any case, even if a Court case were to be set up, what would the Court do? Remember that in 2012 the Supreme Court (in the case Department of Health and Human Services v. Florida) upheld the individual mandate in the Affordable Care Act, a.k.a. Obamacare, because the Constitution gives Congress the right to levy taxes, even though the Adminstration maintained that the penalty was not a tax.
Note the words “the court's duty to defer to the elected branches when possible.” I believe that in a challenge to ine eligibility of Ted Cruz, Congress's right to define “natural born citizen” would be upheld. So the question of Cruz's ineligibility is really a non-starter.
The key to the discussion is the provision in the United States Constitution, in Section 1 of Article II, which spells out the eligibility of presidential candidates:
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 problem is that the Constitution never defines “natural born citizen.” It is true that Congress passed, in 1790, the Naturalization Act, which contains the following passage:
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States […]
Under the terms of this statute, Senator Cruz is demonstrably a citizen of the United States. His Cuban-born father did reside in the United States for a few years in advance of Ted Cruz’s birth in Canada. But what does the phrase “shall be considered as natural born citizens” mean? If it were “are natural born citizens,” this would settle the question, or so it would seem. However there is even an ambiguity there. Does Congress, after the fact, have the right to change the meaning of a passage in the Constitution (other than by amendment, which requires a two thirds vote and ratification by three fourths of the States)? Actually, the key there is whether this is a change. I would maintain that, since the Constitution does not have a definition of “natural born citizen,” Congress is acting within its rights, merely clarifying the Constitution's specification of eligibility. But, as Williamson points out, “shall be considered as natural born citizens” is not the same as “are natural born citizens.”
But why say “shall be considered as” rather than “are?” If the statute were to read, “And the children of citizens of the United States … are natural born citizens,” then no question would remain about Cruz’s eligibility. But “shall be considered as” might signify that a person in such circumstances is naturalized at birth, not needing to follow the same processes of naturalization that others born off of U.S. soil must go through, but it still falls under the auspices of naturalization law. Does this statute create a “naturalized at birth” citizen separate from a “natural born” citizen, with the one being “considered as” the other? Is there a distinction there? Or does “shall be considered as” equal to “are,” relegating the concept of “naturalized at birth,” in an instance such as this, to mythology?
In fact, this is a question that could only be settled by the Supreme Court. And the Supreme Court never gives advisory opinions. A court case would have to be raised, and this could only take place after Cruz were nominated and elected, because the Court does not rule on hypotheticals. This in turn raises a question: who would raise a case? Some might say the Democrats. But in that situation, even if Cruz were ruled ineligible, this would simply make his vice-presidential nominee the President — not a very satisfactory outcome for a Democrat!
In any case, even if a Court case were to be set up, what would the Court do? Remember that in 2012 the Supreme Court (in the case Department of Health and Human Services v. Florida) upheld the individual mandate in the Affordable Care Act, a.k.a. Obamacare, because the Constitution gives Congress the right to levy taxes, even though the Adminstration maintained that the penalty was not a tax.
Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax. Because of the court's duty to defer to the elected branches when possible, the mandate must be upheld, he wrote.
Neither the label of "penalty" nor the fact it was intended to influence behavior mattered, he wrote. The penalty functioned like a tax—and other taxes, such as those on cigarettes, are enacted principally to create incentives rather than raise revenue, he said.
Note the words “the court's duty to defer to the elected branches when possible.” I believe that in a challenge to ine eligibility of Ted Cruz, Congress's right to define “natural born citizen” would be upheld. So the question of Cruz's ineligibility is really a non-starter.
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