Is Cruz Eligible to Serve as President?

| published January 13, 2016 |

By Keith H Roberts, Thursday Review contributor

Questions of eligibility to run for U.S. President have always been largely unresolved. The U.S. Constitution says merely that in order to serve as American President, one need merely be a natural born U.S. citizen. But therein lies the rub: what defines, specifically, citizenship?

According to at least one well-known and respected constitutional scholar, Texas Senator Ted Cruz cannot legally become President of the United States.

Widener University Delaware Law School professor Mary McManamom wrote in the Washington Post that Cruz is not a natural-born U.S. citizen, and “therefore is not eligible to be President or Vice-President of the United States.”

Cruz was born in Calgary, Canada, the son of a Cuban-American father and an American mother. His parents were working in Canada at the time of his birth, both self-employed as seismic data analysts for an American oil drilling company. His mother was born in Delaware, but his father—Rafael Bienvenido Cruz—was born in Cuba. The elder Cruz did not become an American citizen until 2004. Enter the constitutional experts and opinion-makers.

The question of Cruz’s eligibility is now front and center in an increasingly complex and bitter battle between Republican candidates now fighting for position in a crowded field. GOP front- runner Donald Trump has opened up much of his firepower on Cruz, in effect calling Cruz unqualified to run for President.

Wednesday morning, Trump fired off this message on Twitter: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue!”

Cruz’s own team cites the opinions and prognostications of its own reservoir of legal scholars. The Cruz campaign argues that since Cruz’s mother was an American by birth, Cruz was “natural-born” by any standard definition. Natural-born citizenship, most constitutional scholars agree, is very different from “naturalized” citizenship, which is the legal framework applied to someone who was born in another country but has eventually made the U.S. their permanent home. Cruz has recently been displaying his birth certificate, and that of his mother’s, to prove his eligibility to serve as President.

Similar arguments were bandied about in 2008 regarding the citizenship of Barack Obama. Records show that Obama was born in Honolulu, Hawaii, which would make him automatically an American citizen. His mother was a U.S. citizen. But since Obama’s father was African, a movement sprang up—centered around a group called loosely the Birthers—which contested (some still do) Obama’s legal status as a U.S. citizen.

Trump was once a vocal advocate of that movement which called into question Obama’s legal status, and for several years suggested that Obama was ineligible to serve as President. But Trump tamped down that rhetoric more than a year ago, months before he entered the Presidential contest, and the billionaire has since stayed away from any further discussion of whether Obama is qualified under the U.S. constitution to serve as President. The birther movement lost much of its steam when the state of Hawaii produced Obama’s birth certificate as evidence that the state records were complete.

Cruz’s situation may be different, say some legal scholars. Renowned Harvard Law School professor Lawrence Tribe agrees with McManamom’s assessment of Cruz’s situation, and he expressed as much in his own lengthy piece in the Boston Globe only a week earlier. Tribe’s position tossed fuel on the notion that Cruz may be ineligible to run for President, but add to that the voice of McManamon, and the chorus has grown louder.

Cruz himself says he is unfazed, and suggests that the hubbub and the questions of his eligibility are merely the desperate political acts of people who do not want to see him get the Republican nomination, and still more who do not want him to run for President. Cruz’s campaign can also cite a Congressional Research Service report prepared in 2011 which concluded that natural born citizen meant that you were a citizen at birth (which Cruz claims he was), and that the precise country where a birth takes place is irrelevant to the status as citizenship. Under this guideline, past candidates were clearly qualified even though they were born in other countries to American parents.

John McCain, for example, was born in Panama to U.S. citizens, one of whom was serving in the U.S. military. George Romney (father to Mitt Romney, and a Presidential contender in 1968), to cite another variant on this theory, was born in Mexico, to parents who were missionaries.

McCain himself however sees a distinction, and has said that Cruz’s eligibility should “be looked at.”

“I assume he’s eligible,” McCain said on Monday, “but all of these things need to be looked at.” McCain suggested that the question need not become a formal battle which lands in some federal court somewhere, and could likely be easily resolved after careful discussion with legal scholars. Still, this was McCain’s way of saying that his own military birth in the Panama Canal Zone hardly compares to Cruz’s situation of having been born in Canada to civilian parents working as oil contractors—especially since one parent was not, at that time, a U.S. citizen.

But the Cruz campaign was also quick to retort that any pontification from McCain must be regarded with a grain of salt: there have been rumors that McCain is strongly considering endorsing Cruz’s arch-rival, Florida Senator Marco Rubio. Those rumors have persisted this week despite McCain’s insistence that he has made no personal pick in the GOP contest, and has not even decided whether to endorse anyone at this time.

In the meantime, what was once a footnote in the Cruz biography may soon become a nuisance issue, at least as long as Trump continues to pound away at Cruz and as long as reporters continue to feed the citizenship question back into the daily news conversation. Current polling seems to show Cruz maintaining a modest lead in Iowa, meaning he may best Trump in that all-important caucus state. Trump, however, maintains a strong lead in New Hampshire, with little sign that the Granite State will slip from his column.

The question of Cruz’s citizenship may be—oddly—a moot point until he is officially nominated by the Republican Party, at which point, some legal scholars suggest, then, and only then, could the matter could be kicked up to the door of the Supreme Court. Just how messy that question then becomes will be a matter of the nation’s top Justices trying to sort out what the authors of the constitution had in mind when they referred to natural born citizen.

Related Thursday Review articles:

Rand Paul, Carly Fiorina Demoted to Undercard by Fox News; R. Alan Clanton; Thursday Review; January 12, 2016.

Bloomberg Weighing Third Party Chances; Keith H. Roberts; Thursday Review; January 11, 2016.