What's the most crucial issue when deciding Senator Cruz's citizenship?

Question

Donald Trump is threatening to sue Senator Cruz for his citizenship issue. I understand Senator Cruz was born to an American mother and Cuban father in Canada .

I understand it would not be an issue if he had been born in the U.S. or its territory or if he had been born to both American citizens. But because he was born in Canada and his father was Cuban, there could be some legal issues.

I have searched for a clue and read the related article, but I don't fully understand what the real issue is. I mean, he must have a birth certificate as an American citizen, and ran for the Senate and lawfully elected senator. What is the real issue now?

Other related articles: A New Challenge to Cruz's Eligibility, Memorandum: Is Ted Cruz Eligible for the Presidency?

[Source: theAtlantic.com]

Answer 1

At time of answering, the question is: What's the most crucial issue when deciding Senator Cruz's citizenship?

The 14th Amendment to the US Constitution, Section 1, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States[.]

Cruz did not go through a naturalization process. He was also not born within the territorial limits of the US. If either of those facts were different, those would be the crucial issue.

Since they are not, we then look to the Naturalization Act of 1790, passed by the first Congress, which states that children born to citizen parents outside the United States are also citizens, specifically:

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[.]
(emphasis added)

According to the Wikipedia article and/or sources it cites, this is the only legislation to use the phrase "natural born citizens" and it seems clear this is intended to refer to Article II, Section 1 of the Constitution which states a requirement:

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.
(emphasis added)

The 1790 Act was repealed and replaced in 1795, but the new law also contained the language (lacking "natural born"):

The children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States[.]

The specific laws have been further changed, as the naturalization process has, reintroducing ambiguity about the "natural born" requirement, but birthright citizenship from parents is not in question and the "natural born" aspect is not in this question.

So, to answer the question directly, the most crucial issue is: Were Cruz's parents citizens when Cruz was born?

Cruz's Wikipedia page says his father was not naturalized until later, but his mother was born in Wilmington, DE, which is in the United States, and so unless she renounced her citizenship she would have been a US citizen at the time of Cruz's birth. This means there's a crucial issue: Did Cruz's mother renounce her US citizenship before Cruz was born? "Kaithar" commented on this answer with speculation that she voted in a Canadian election at a time (1947-1977) when Canada didn't recognize dual citizenship in that it required its own citizens to give that up if they acquired foreign citizenship; "user102008" refutes that. However, if we don't want to end this issue-identifying answer at that question, let's assume the answer is "no" and that Cruz's mother was a US citizen when Cruz was born.

Then we have to see if birthright citizenship from parents extends to Cruz. For this, we can look to Public Law 414 (66 Stat. 236), passed June 27, 1952, especially section 301(a)(7):

The following shall be nationals and citizens of the United States at birth:
[…]
A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

Side note: Section (4) (modern (d)) would matter if Cruz's father were considered a noncitizen national of the US, slightly relaxing the requirements so that the mother only had to spend only one continuous year in the US prior to the birth.

The armed forces exemption was broadened Nov. 6, 1966 to cover the parent (or their parent's) nonmilitary employment by the US government or certain international organizations. If that's relevant, this answer can be edited to expand on this point.

Section 309 of that law addresses children born out of wedlock, and says that section 301(a)(7) (quoted above) applies directly as if the parents were married, "if the paternity of such child is established while such child is under the age of twenty-one years by legitimation." To the best of my knowledge, section 301(a)(7) applies to Cruz. If I were wrong on that, we'd look to Section 309(c):

A person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

The equivalent of the first quote today is in 8 U.S. Code § 1401(g) if parents are married at the time of a child's birth, replacing "ten years, at least five" with "five years, at least two" (Nov. 14, 1986; see Section 12 in this law). The quote from 309(c) is now 8 U.S. Code § 1409(c).

So then the crucial question is: Did Cruz's mother spent the requisite period of time in the US before Cruz was born? Apparently she did, regardless of marital status, and if that's true it means Ted Cruz is a US citizen and has been since at least birth*. Again, the "natural born" aspect is omitted from this now-answered question.

The answer to the question you meant to ask (perhaps "What's the most crucial issue when deciding if Senator Cruz's citizenship makes him eligible for the Presidency?") is "What does the phrase 'natural born citizen' mean in context of Article II, Section 1 of the US Constitution?"

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(*) Which may mean that he hasn't been a citizen his whole life, using a Cruz definition for when life begins. That's a separate discussion, though, and not very relevant to this one.

Answer 2

The issue is that the Constitution places an additional requirement on candidates for the Presidency: that they be not just a citizen, but a natural born citizen. The Constitution does not exhaustively explain the requirements to be considered natural born, so there is some debate. Some options that I have heard include:

• Anyone who received US citizenship at the moment they were born. This would exclude naturalized citizens - people who became citizens at some point after being born. This is the most inclusive interpretation.

• Anyone born in the continental US, Hawaii or Alaska to parents who were US citizens at the time the child was born. This is the most exclusive interpretation.

You can also take a stance somewhere in between the two extremes, e.g., you have to be a US citizen when born and you have to be born on US soil.

Answer 3

The issue is whether Senator Cruz is a "natural born Citizen" under Article II, Section 1, Clause 5 of the U.S. Constitution.

This provision reads:

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 debate is centered around what natural born citizen means in this context. Do you have to be a U.S. Citizen? Do you have to be born in the U.S. or it territories? Etc.

This definition is something that hasn't been clarified by the courts and is debated by various legal scholars.

Wikipedia has a decent outline of the debate.

Answer 4

I have seen excellent legal analysis in other answers so far to which I have little to add. But let me add a "common man" view: it happens that I am a dual citizen (U.S. mother, German father) born in the U.S., with three siblings born in Germany. "Family wisdom" always was that I am the only one of my siblings eligible to become U.S. president (recent years let me add the qualifier "after lobotomy" but that's a different story).

U.S. citizenship tends to run a lot more by mother than by father (or did when I was young which would not be all that different from Cruz' age), so in my specific situation (U.S. mother, born in U.S.), my dual nationality, as opposed to that of my siblings, was not even "accepted" by the U.S. The main consequence being that I had to use my U.S. passport when travelling to the U.S. while my siblings could have used a visa (not that they would). The passport spelled out that U.S. citizenship could be lost when letting yourself get naturalized in a foreign state or serving in its armed forces.

So from the interactions with officials and the understanding of my mother as somebody seriously affected and interested in all the repercussions, the impression was that being born in the U.S. was a requirement for becoming a U.S. president. And this impression has stuck around for at least 50 years, and my mother had more of an interest to get herself clued in than most U.S. citizens.

I am perfectly happy with the legal analysis presented in the other answers. But since it disagrees with my bonafide somewhat substantiated decade-long beliefs, I am rather sure that Cruz will face an uphill shitstorm over this issue and people will think he's eligible due to a "technicality" at most and feel he's an usurper. Seeing how much of a ruckus the "birthers" were able to raise over Obama's birthplace by suspecting him to be born out of the U.S. against evidence, actually being born outside of the U.S. is going to be a problem for Cruz, never mind the actual legal situation.

Answer 5

In addition to the legal subtleties I'd like to take note of the intent of the constitutional requirement that only natural born citizens can be president. The obvious result of this provision is that no newcomer can become president. The president should be rooted in the United States.

This must be seen in the historical context of a young, volatile democracy which felt — not without reason — under threat of a hostile takeover, politically or culturally. The office of the president was apparently considered powerful enough that the office holder could change the country. Immigration influx was continuous and huge. The provision guaranteed that the office holder would come from relatively "established" families. Such a member of the establishment would be less likely to alter the character of the emerging nation.

Edit: After WBT pointed out that there is the 14-year residency requirement for eligibility, I think being born abroad to an American citizen actually proves closer ties to the U.S., if anything. Therefore, the intent of the provision actually supports Cruz' eligibility.

The argument is exactly that: In order to be citizen by birth abroad, one parent must be a citizen already, with a substantial period of residency within the U.S. No such requirement exists for the parents of citizens by virtue of being born on U.S soil — their parents may have immigrated the day before.

Both citizens born abroad or inside the U.S. may then spend most of their life, except for the 14 years of required residency, outside the U.S., so that the only difference is actually concerning their parents: For parents of citizens born abroad the constitution requires substantially stronger ties to their home country. By association, the children, too, of these parents have stronger constitutional "minimal ties" to the United States, matching the intent of the provision even better.

Answer 6

The following is the transcript (1:06:08 to 1:08:50) of the relevant questions and Ted Cruz's answers. Senetor Cruz appeared at GOP Town Hall night which was broadcast live on Anderson Cooper 360 Degrees on Feb. 18, 2016.

Question: In order to prevent future controversy and possible litigation, will you please justify constitutionally your legal right to be President of the United States as it relates to your natural born status.

Answer: Sure, I am happy to. The law under the Constitution and Federal Law has been clear from the very first days of the republic. The child of U.S. citizen born abroad is a natural born citizen.

What the Constitution requires for anyone to be President, they have to be a natural born citizen. So if you or I travel abroad and we have a child overseas, that child is a U.S. citizen by virtue of birth. That's true if U.S. service members are travelling abroad if they are defending this country. You know, Bobby mentioned before, if he had a couple of deployments, if he had a child overseas, that child is a natural born citizen by virtue of the child's parents.

Likewise, if American missionaries are travelling overseas, their children are a natural born citizen. That's why John McCain was a natural born citizen even though he was born in Panama because his parents were U.S. citizens. That's why Gerge Romney, Mitt Romney's dad, was a natural born citizen even though he was born in Mexico when his parents were Mormon missionaries.

And so the law is straightforward. Indeed, the very first Congress which was consisted of many of the framers of the Constitution, the authors of the Constitution, wrote the very first laws on citizenship. And they explicitly defined the child of U.S. citizen born abroad as a natural born-citizen. Now, my mother was born in Wilmington, Delaware. She's a natural born citizen. I was born in Canada as you've heard by now. But I was a citizen by birth by virtue of my mother's citizenship. So, I have never been naturalized. I've never breathed a breath of air on this planet when I was not a U.S. citizen. It was the act of being born that made me a U.S. citizen. So, under the law the question is clear.

There will still be some who try to work political mischief on it. But as a legal matter, this is clear and straightforward.

Anderson Cooper: There are some, to just follow up, legal scholars who say Donald Trump would have standing to bring a lawsuit. Is that something you would welcome just to put it to bed once and for all?

Answer: You know, you could never write off the possibility of Donald Trump suing you. He is welcome to file whatever lawsuit he likes. That lawsuit would not succeed and it is not a meritorious lawsuit. If he wants to file a lawsuit, he can file and lose. But the legal merits of the matter are clear.