No, Ted Cruz ‘birthers’ are not the same as Obama birthers (dispute about law not facts?)

Questions about Cruz’s eligibility have everything to do with interpretation of the law; the questions about Obama’s eligibility had everything to do with a dispute over the underlying facts — more specifically, conspiracy theories about whether the president was actually born in the United States, as he claimed, and whether he somehow forged a birth certificate that said he was born in Hawaii.

Obama was also born to a mother who was a U.S. citizen, meaning if he was in fact born outside the United States, the situations might be parallel. But birthers weren’t making a legal argument about Obama; they were arguing the facts about where he was born and accusing him of perpetrating a massive fraud.

In Cruz’s case, nobody is disputing the underlying facts of the case — that Cruz was born in Canada to a Cuban father and a mother who was a United States citizen. As we wrote back in March, that makes him a U.S. citizen himself, but it’s not 100 percent clear that that is the same thing as a “natural born citizen” — the requirement for becoming president.

Most scholars think it’s the same thing, and the Congressional Research Service said in 2011 that someone like Cruz “most likely” qualifies to run for president. But to this point, there is no final word from the courts, because while foreign-born candidates have run — including George Romney and John McCain — none of them has actually won and had his eligibility challenged.

Having significant familiarity with the authorities, background, and history of the Natural Born Clause in Article II, Sec. 1, as well as with the views of the Constitutional Law Bar on the question, I can tell you what the consensus is about the current state of the law.

It is generally believed that the Supreme Court would rule that any person born in the United States would be treated as Natural Born; any person not born in the United States would be treated as not Natural Born, no matter what their citizenship status was as a result of birth.

The parent and grandparent citizenship status questions are not viewed as affecting the outcome.

And that is a generally reliable forecast of the Supreme Court outcome by lawyers who practice before the Court on a regular basis.

All that said, the Court is increasingly drifting in the direction of political resolution of this kind of issue and even though the lawyers are in general agreement about what the law is, there is no conclusive precedent that controls and it would not be surprisng to find the Court on a decision that upheld eligibility even for someone born outside the US.

Personally, I strongly support Cruz—I think he would make the most effective candidate.

But, on the current state of the law, I am of the legal opinion that he is not eligible. To date, I have not seen anything that conclusively demonstrates that he was even born a citizen of the United States.

His mother was a citizen? Sure. But the child of a US Citizen mother and non Citizen father born outside the US is a US Citizen at birth only if the mother meets very specific tests set out in the Citizenship statutes.

In order to know whether Cruz passes, you need to know his birth date; his mother’s birth date; the period in which her primary residence was in the geographical limits of the US.

The statutory requirements were amended from time to time with amendments being effective with respect to children born after a specified date.

Further, the consensus of the Constitutional Bar is that the Mother Citizenship statute is not constitutional because there is no equal provision for a Father Citizenship.

Finally, I am concerned that what will happen is that the media will lead Conservatives down the path of support for Cruz until other Conservative candidates are out; then the media will discover that he is not eligible and will send the Republican’s off to nominate Bush or Christie; leaving us with a choice of the Liberal Democrat or a Liberal Republican.

What should be done is to force an effort to identify the place of birth of the present occupant of the White House and use his ineligibility as leverage to get a statutory resolution validating Cruz. That needs to be done now while there is still leverage which will disappear at the end of the current term.

The fact that his citizenship was based on (Congressional) statutory requirements is in itself a demonstration that he is not a ‘natural Citizen’. A requirement of Article II, Section 1.

Any dependency on any law passed by Congress is a form of Naturalization. And a citizen’s source of citizenship must be natural or naturalized - but not both.

The Constitution granted Congress a role in the question of citizenship - it was (and is) charged with defining rules of naturalization - period. It has no role in defining natural citizenship. The one time they have attempted to do so lasted only 5 years. They then backed off - since it was likely pointed out to the them that they had overstepped their bounds.

Citizenship based on statutes passed by Congress = naturalization. A naturalized citizen is not a natural Citizen and is thus obviously not a natural born Citizen.

We seem to be making this much harder than it needs to be - maybe by design....

Thanks David.

Question: When you say "political solution," do you mean an Amendment to clarify eligibility?

Another question: The SCOTUS hasn't the power to remove a sitting President. However, they sure as hell have the power to take an appeal that would allow them to clarify the various citizenship issues that are bedeviling our faltering republic right now. Why the hell don't they do their job?

The SCOTUS' failure to make the effort is a disgrace that will live in infamy (to coin a phrase). Opining on eligibility is NOT a usurpation of Congress' powers because after all, Congress can decide to act on their ruling, whatever that might be, or not act on it.

This has little or nothing to do with Obama and everything to do with who is eligible to run for POTUS in the future.

The very fact that we are discussing this and airing various opinions proves (to me anyway) that SCOTUS authority is needed. It is the Constitution.

The fact that his citizenship was based on (Congressional) statutory requirements is in itself a demonstration that he is not a ‘natural Citizen’. A requirement of Article II, Section 1.
Any dependency on any law passed by Congress is a form of Naturalization. And a citizen’s source of citizenship must be natural or naturalized - but not both.
Citizenship based on statutes passed by Congress = naturalization. A naturalized citizen is not a natural Citizen and is thus obviously not a natural born Citizen.
We seem to be making this much harder than it needs to be - maybe by design....

You are technically correct.

The people making the pro eligibility argument tend to base their position on Citizenship at Birth under the Citizenship statutes. But, as you say, that really wouldn't count under the Natural Born requirement.

In Bari's case (the guy who presently lives in the White House); if the issue was birth in Kenya, which I believe it is not, if his mother was Stanley Ann, which I believe she was not; he would still lose the argument because she couldn't pass citizenship for the reason that she was too young at birth to have lived in the US for five years after age 14.

Unlike most lawyers, although I view myself as a hired gun first; I am also interested in the result from a personal objective perspective.

If, for example, I were retained on behalf of Cruz, I might be thinking about a Constitutional Amendment that validated his position--maybe a provision that said something like Citizen at birth under the citizenship statutes with at least two grandparents who were US Citizens at birth who were born in the US. Maybe I would add other qualifications.

I say that on the assumption (because all the facts necessary to reach a legal conclusion as to the actual condition are not on the record) that under the statute as in effect at Cruz's birth, his mother qualified to pass US Citizenship to a child born outside the US with a non-US Father. If not, I would think about other alternatives.

I would then add a provision to the Citizenship statute that retroactively made children born to a US Father and a non-citizen mother citizens at birth as long as the Father's paternity were established conclusively under regulations promulgated by the Secretary (DNA) on the same basis on which a child born to a US Citizen Mother would become a citizen at birth.

I might also add qualifications to the citizenship provision.

I would consider the merits of doing that on the basis that such an amendment would on the true facts of Bari's parentage validate his eligibility as a trade for the validation of Cruz.

You would get there by using Bari's vulnerability as leverage. That leverage is out there and effective for only a couple of years so if that were the objective to be pursued on behalf of Cruz, someone should start finishing the work on Bari's historical parentage and place of birth.

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