Is Ted Cruz a natural-born citizen
eligible to serve as president?
By Sarah Helene Duggin | National Constitution Center
Sarah Helene Duggin from the
Catholic University of America looks at potential foreign-born presidential
candidates like Ted Cruz and a possible emerging consensus among scholars about
their eligibility for the White House.
The 2016 presidential election is
more than three years away, but potential candidates and their supporters are
already contemplating the next campaign. Senator Ted Cruz of Texas—now
well-known for his role in the recent federal shutdown—and California’s
celebrity former Governor Arnold Schwarzenegger are among those whose names are
circulating. But neither Cruz nor Schwarzenegger was born in the United States,
and the Constitution provides that “[n]o person except a natural born citizen,
or a Citizen at the time of the Adoption of this Constitution, shall be
eligible to the Office of President.”
For Cruz, Schwarzenegger, and a
number of other potential candidates, the Natural Born Citizenship Clause
raises a critical question: Is anyone born outside the United States
constitutionally eligible to serve as president?
Senator John McCain, who was born
in the Panama Canal Zone, faced the same
question with respect to his natural-born citizenship status in his 2008
presidential bid, and purported concerns about President Obama’s constitutional
qualifications led “birthers” to file lawsuits challenging his natural-born
credentials on the basis of a variety of far-fetched theories during the last
several years. A new natural-born citizenship debate is already simmering, and
it seems likely to heat up a great deal before the 2016 election takes place.
The Constitution does not define
the term natural born citizen. Even so, Governor Schwarzenegger is clearly out
of the running. Given that he was born in Austria
to Austrian parents, there is no basis for arguing that he is a natural-born
citizen of the United States.
For Senator Cruz—who was born in Calgary, Alberta,
to an American mother and a Cuban father—the question is more complicated.
There is a strong argument that anyone who acquires United States citizenship at birth,
whether by virtue of the 14th Amendment or by operation of federal statute,
qualifies as natural born. The Supreme Court, however, has never ruled on the
meaning of the natural-born citizenship requirement. In the absence of a
definitive Supreme Court ruling—or a constitutional amendment—the parameters of
the clause remain uncertain.
The origins of the Natural Born
Citizenship Clause date back to a letter John Jay (who later authored several
of the Federalist Papers and served as our first chief justice) wrote to George
Washington, then president of the Constitutional Convention, on July 25, 1787.
At the time, as Justice Joseph Story later explained in his influential
Commentaries on the Constitution, many of the framers worried about “ambitious
foreigners who might otherwise be intriguing for the office.”
“Permit me to hint, whether it
would not be wise & seasonable to provide a strong check to the admission
of Foreigners into the administration of our national Government; and to
declare expressly that the Command in chief of the American army shall not be
given to nor devolve on, any but a natural born Citizen,” Jay wrote.
Washington thanked Jay for his hints in a reply dated September 2,
1787. Shortly thereafter, the natural-born citizenship language appeared in the
draft Constitution the Committee of Eleven presented to the Convention. There
is no record of any debate on the clause.
While it is possible to trace the
origins of the Natural Born Citizenship Clause, it is harder to determine its
intended scope—who did the framers mean to exclude from the presidency by this
language? The Naturalization Act of 1790 probably constitutes the most
significant evidence available. Congress enacted this legislation just three
years after the drafting of the Constitution, and many of those who voted on it
had participated in the Constitutional Convention. The act provided that
“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.”
There is no record of discussion
of the term natural born citizen, but it is reasonable to conclude that the
drafters believed that foreign-born children of American parents who acquired
citizenship at birth could and should be deemed natural born citizens.
Although subsequent naturalization
acts dropped the natural born language, members of later Congresses proposed
many bills and resolutions designed to clarify, limit, or eliminate the Natural
Born Citizenship Clause; none succeeded. In April 2008, however, amid
challenges to Senator McCain’s eligibility to serve as president, the Senate
passed a resolution declaring that “John Sidney McCain, III, is a ‘natural born
Citizen” under Article II, Section 1, of the Constitution of the United
States.”
The resolution—co-sponsored by a
number of McCain’s Senate colleagues, including rival presidential hopefuls
Hillary Clinton and Barack Obama—undoubtedly offered Senator McCain some
comfort, but it had no real constitutional significance.
Challenges to presidential
qualifications are not new. In 1964, for example, questions arose as to the
natural-born credentials of Republican nominee Senator Barry Goldwater, because
he was born in Arizona
prior to statehood. In 1968, legal actions were threatened against former
Michigan Governor George Romney, who was born to American parents in Mexico, when he
sought the Republican nomination.
Despite the shadow that lawsuits
may cast over a presidential bid, the obstacles to successful litigation of natural-born
citizenship challenges are formidable. These matters raise a wide array of
justiciability concerns. Standing issues led to the dismissal of lawsuits filed
in federal courts in New Hampshire and California challenging Senator McCain’s
natural-born status in 2008 (Hollander v. McCain, Robinson v. Bowen), as well
as to the dismissal of claims brought by a Guyana-born naturalized citizen who
argued that the Fifth and 14th Amendments effectively repealed the natural born
citizenship clause (Hassan v. Federal Election Committee).
Standing is not the only obstacle
to adjudication of natural-born citizenship issues. Claims that a candidate
lacks the requisite natural-born citizenship credentials are unlikely to ripen
until a nominee is chosen, or perhaps even elected, and federal courts may be
reluctant to delve into the merits of challenges to a candidate’s natural-born
citizenship status on political question grounds.
What can we expect if Senator Cruz
or another similarly situated candidate runs for president in 2016?
Undoubtedly, the controversy will continue with passionate advocates on both
sides of the issue. A scholarly consensus is emerging, however, that anyone who
acquires citizenship at birth is natural born for purposes of Article II.
This consensus rests on firm
foundations. First, given Jay’s letter and the language of the 1790
naturalization act, it seems evident that the framers were worried about
foreign princes, not children born to American citizens living abroad. Second,
the 14-year residency requirement Article II also imposes as a presidential
prerequisite ensures that, regardless of their place of birth, would-be
presidents must spend a significant time living in the United States
before they can run for office.
Finally, the natural born
citizenship clause is both an anomaly and an anachronism. The way in which the
clause differentiates among United States citizens is contrary to the overall
spirit of the Constitution; the risk that foreign nobility will infiltrate our
government is long past; and place of birth is a poor surrogate for loyalty to
one’s homeland in our increasingly mobile society and our ever more
interconnected world. The best solution would be to amend the Constitution, as
many legislators on both sides of the aisle have proposed over the years. In
the absence of an amendment, the clause should be narrowly interpreted.
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