When Texas Sen. Ted Cruz landed on top of the Iowa polls in December, a new campaign message emerged from Donald Trump: Is he eligible?
Cruz, who was elected to the U.S. Senate in 2012, was born in Canada to an American woman and a Cuban man. When he was five, his family relocated to Texas. And while the circumstances of his foreign birth (his parents were working in Canada for an oil company) have not called into question his citizenship, the quirky nature of the Founding Fathers have.
“Republicans are going to have to ask themselves the question ‘Do we want a candidate who could be tied up in court for two years?'” Trump told the Washington Post. “That’d be a big problem.”
This point of contention has been somewhat effective for Trump, whose standing against Cruz has recovered a bit since he launched his new version of a “birther” attack. The businessman made headlines years earlier by questioning the legality of President Barack Obama’s occupation of the White House. Harvard law professor Larry Tribe wrote this week that Cruz’ standing as a legal candidate for president is not settled, especially since the Supreme Court has never ruled on the matter. Tribe even went so far to say that by his former student’s own originalist standards, Cruz is not a natural born citizen, one of the few requirements laid out in the U.S. Constitution.
The argument stems from what is meant by natural born citizen. The phrase was used in the late 1700s, the time when Washington, Madison, Monroe, and others, were debating and creating the Constitution, the notion of citizenship was based on English common law. That dictated that anyone born in the territory of crown was subject to the king’s laws and “blessed” with his protection. However, when the founders were actually writing the Constitution, they were not only resting on that definition but also on the addendum that allowed those born outside of the kingdom to ambassadors and nobles, and later regular British citizens.
The concept of inherited citizenship, though, was popular even among the framers as Congress passed a law stating parents could pass on American citizenship when their children were born abroad. That was in 1790.
But this is about natural born citizen and not just American citizen. As a large number of legal scholars have been saying since Trump questioned Cruz’ eligibility, natural born citizen is anyone who was a citizen from birth. This make Cruz qualified.
“I find Cruz’s political beliefs reprehensible, but I think it’s clear that he’s eligible to be president,” said Erwin Chemerinsky, dean of the University of California’s law school in Irvine.
Not everyone agrees, though. Those, like Tribe, believe the common-law definition from the 18th Century would be what more conservative justices would depend on when rendering a decision if it landed in the courts.
The reason for the odd language in the Constitution was for protection of a young nation, according to Sarah Helene Duggin and Mary Beth Collins in the Boston University Law Review. The language was installed to prevent foreigners, specifically British nobles, from taking the infant republic’s presidency. The phrase did not have a concrete definition and doesn’t appear anywhere else in the Constitution. The next time citizenship was taken up in the foundation document of the United States is after the Civil War, when the 14th Amendment was passed granting freed slaves citizenship. It states that people born in the United States, and its territories, are U.S. citizens. But it did not address the adjectival phrase “natural born.”
This isn’t the first time a Republican has faced these questions, either. During the 2008 campaign, when the so-called birther movement focused on Obama’s citizenship — he was born to an American woman in Hawaii, leaving no doubt to his natural born citizenship — Arizona Sen. John McCain was dealing with a much smaller, and less impacting, movement questioning his qualifications. McCain was born in Panama in 1936 while his father, also John McCain, was stationed at the Panama Canal. The issue was put to rest by a court review and a non-binding Senate resolution that declared McCain was a natural born citizen.
The difference between the two cases lie in where the two men were born. McCain was born on a U.S. Naval base inside the Panama Canal Zone, both considered U.S. territories. Cruz was born in Canada to parents who were working in the oil business, a sovereign entity on its own.
This could be resolved with a constitutional amendment, which would likely take years, or the courts. But for the courts to weigh on the issue, someone will have to have standing. And Cruz would have to win the White House. That would make it hard for the courts to weigh in on an issue that could upend what civility remains. Chemerinsky said that if the courts actually did take up the case, chances are high they would side with the voters’ choice.
“I think the court would either decide there was no standing or decide it was a political question [and decline to intervene],” said Suzanna Sherry, a constitutional law professor at Vanderbilt University.
The standing is the hardest part of the case against Cruz, too. To have standing requires to prove direct harm that Cruz’ election caused to them, and not because of his policies. For example, the Democratic candidate could argue that the senator’s campaign prevented her or him from winning the White House or his own vice president could argue he or she should be president, instead.
It would be tough for someone to prove he had the right, or standing, to sue over Cruz’s potential ineligibility in the first place. Cruz’s vice president could make the argument, claiming that he or she should be president instead, but that sounds more like an episode of the “West Wing” than an actual possibility. Or someone who objected to following a law President Cruz had signed could try to sue, arguing that Cruz had no right to enforce laws.
Another avenue would be for states to refuse to put Cruz on the ballot, forcing legal action from the campaign. But that is also unlikely.