Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review
As the 2016 presidential hopefuls are making their way across the campaign trail, accusations about credibility, experience, and beliefs have been thrown at each candidate. One such accusation is that Ted Cruz may not be constitutionally eligible to run for President. Cruz was born in Canada to an American mother and Cuban father.[1] While this makes him a citizen at birth, there are questions about whether this makes him a “natural born citizen”. Article II, Section 1 of the Constitution of the United States provides that “[n]o 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.”[2] Many citizens feel that, because Cruz was born outside the United States, he is not a “natural born citizen”, making him ineligible to be President. Citizen suits have been filed in Illinois, New Hampshire, and Alabama questioning Cruz’s ability to run for President.[3] While the Supreme Court has yet to rule on this specific issue, a review of existing case law, law review articles, constitutional interpretation, and public policy indicates that Ted Cruz should be allowed to run for President of the United States.
The People v. Senator Ted Cruz
Citizens in Illinois, Alabama, and New Hampshire have filed suit against Cruz stating that he should not be allowed on the ballot in their state because of his birthplace.[4] While Alabama has yet to decide the issue, both the Illinois Election Board and New Hampshire’s Ballot Law Commission have found that Cruz is eligible to be on the ballot for the General Primary Elections in those states.[5]
In Illinois, two citizens filed suit against Cruz alleging that his candidate papers did not comply with the state’s Election Code since he had been born in Canada and was, therefore, not a “natural born citizen”.[6] The Hearing Officer overseeing the Illinois Election Board found that Cruz was, “a ‘natural born citizen’ by virtue of having been born in Canada to a United States citizen, thereby not causing the Candidate to have to take any steps or undergo a naturalization process to become a United States citizen.”[7] The Illinois Election Board chose to use the generally understood meaning of “natural born citizen” in their ruling that Cruz was eligible to run for President. In New Hampshire, however, the Ballot Commission was less willing to say for certain whether Cruz is to be considered a “natural born citizen”. Instead, the decision of the New Hampshire Ballot Commission stated that, “clearly, there is no final decision on the meaning of ‘natural born citizen’, and this Commission is not the appropriate forum for the determination of major Constitutional questions.”[8] In the absence of any definitive answer on this question, the Ballot Commission found there was no obvious issue with Cruz’s filing, and thus his name should be allowed on the New Hampshire Republican Presidential Primary Ballot.[9]
The Meaning of ‘Natural Born Citizen’ in Existing Law and Statutes
The Naturalization Act of 1790 provided that:
[T]he 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: Provided, [t]hat the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.[10]
Because his father was a resident of the United States, Cruz would have been considered a “natural born citizen” under the Naturalization Act of 1790; however, the act was repealed by the Naturalization Act of 1795.[11] This Act replaced the clause about children born outside of the United States with the following language: “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”.[12] The language of the new Act does not explicitly state that foreign-born children of American citizens are not “natural born citizens;” rather, it leaves the question open to be determined by subsequent legislation or case law.
In United States v. Wong Kim Ark, plaintiffs asked the Supreme Court to address the issue of whether an individual born within the United States to foreign parents was a “natural born citizen”.[13] The Court found that the defendant was an American natural born citizen by virtue of being born within the United States, regardless of the nationality of his parents.[14] However, the Court recognized that “a person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty…or by authority of Congress…as in enactments conferring citizenship upon foreign-born children of citizens…”[15] The majority’s holding in Wong Kim Ark makes it seem that foreign-born children of United States citizens should not be considered “natural born citizens;” however, many lawyers, scholars, and judges disagree with this holding.
Historical Context: The Intent of the Framers and the First Congress
In determining the meaning of “natural born citizen” as it relates to presidential eligibility requirements, many scholars emphasize the intent of the Framers of the Constitution and the First Congress in creating that provision.[16] Likewise, the Supreme Court has found that “an Act passed by the First Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, is contemporaneous and weighty evidence of its true meaning.”[17] The First Congress established that foreign-born children of American citizens were “natural born citizens” through the ratification of the Naturalization Act of 1790.[18] The act is especially persuasive in this case because eight of the eleven members of the committee that proposed the Constitution’s “natural born citizen” requirement were part of that First Congress, and none of them objected to the foreign-born children provision in the Act.[19]
John Jay—future Chief Justice of the Supreme Court of the United States—wrote a letter to George Washington shortly before the first draft of the Constitution was written, in which he stated that he wanted only ‘natural born citizens’ to be eligible for the office of President.[20] A number of John Jay’s own children were born outside of the United States while he served in the diplomatic corps, and while slightly more speculative, many legal historians have argued that a reasonable person would not assume he intended to exclude his own children from becoming President.[21] Thus, the Framers of the Constitution and the First Congress most likely understood “natural born citizens” to include foreign-born children of United States citizens.
Modern Scholars’ Interpretation of ‘Natural Born Citizen’
This general understanding of “natural born citizen” was revisited in 2008 when John McCain was running for president. McCain was born on a U.S. military base in the Panama Canal Zone.[22] In response to the public outcry that McCain was not eligible to run for President, he hired Laurence Tribe and Theodore Olson to research the history of ‘natural born citizens’ and deduce if he was able to run for President. In their report, Tribe and Olson reaffirmed “that the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”[23] In 2011, the Congressional Research Service issued a report about the “natural born citizen” requirement to become President, concluding that the “weight of legal and historical authority indicates that the term ‘natural born’ citizen would mean a person who is entitled to U.S. citizenship ‘by birth’ or ‘at birth’…including by being born abroad to a U.S. citizen-parent.”[24]
The Supreme Court has never directly addressed this common understanding of “natural born citizen;” however, in his concurring opinion in Zivotofsky v. Kerry, Justice Thomas stated that “children born abroad to U.S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process.”[25] This acknowledgement by a Supreme Court Justice supports that a “natural born citizen” means an individual who is a citizen at birth. Therefore, under this generally accepted understanding, John McCain was eligible to run for President in 2008, and Ted Cruz is eligible to run for President in 2016.
What Does this Mean for the 2016 Election?
The overwhelming historical support, case law, and Congressional findings support the decisions of the Illinois Election Board and the New Hampshire Ballot Commission. Ted Cruz should be allowed to run for President in the 2016 election. Regardless of political values, the American electorate should agree with this decision. The purpose of a democratic election is for the people to voice their opinion through their vote. If someone does not feel that Ted Cruz would make an effective President, then they have the right to exercise that belief through voting for one of his opponents. Paul Clement and Neal Katyal, one liberal and one conservative, said it most effectively in their joint law review article on the topic. The two stated that while they have different ideas about the ideal candidate in the upcoming presidential election, voters should be allowed to exercise those ideas by choosing from all constitutionally eligible candidates.[26]
[1] Jonathan H. Adler, Yes, Ted Cruz is a ‘natural born citizen’, Washington Post (Jan. 7, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/yes-ted-cruz-is-a-natural-born-citizen/.
[2] U.S. Const. art. I, § 2, cl. 5.
[3] Daniel John Sobieski, Illinois and New Hampshire Agree Cruz is a Natural Born Citizen, American Thinker (Feb. 5, 2016), http://www.americanthinker.com/articles/2016/02/illinois_and_new_hampshire_agree_cruz_is_a_natural_born_citizen.html.; Howard Koplowitz, Alabama residents’ lawsuit claims Ted Cruz ineligible to run for president, AL.com (Feb. 5, 2016), http://www.al.com/news/index.ssf/2016/02/is_ted_cruz_eligible_for_potus.html.
[4] Supra note 3.
[5] See generally Joyce v. Cruz, 16 SOEBGP 526 (2016).; see generally Carmon Elliott v. Ted Cruz, BLC 2015-2 (2015).
[6] Joyce v. Cruz, 16 SOEBGP 526 (2016).
[7] Id at 3.
[8] Carmon Elliott v. Ted Cruz, BLC 2015-2, 2 (2015).
[9] Id at 3.
[10] Ch. 3, I Stat. 103 (repealed 1795).
[11] Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen”, 128 Harv. L. Rev. F. 161 (Mar. 11, 2015).
[12] Ch. 3, I Stat. 414 (1795)
[13] See generally United States v. Wong Kim Ark, 169 U.S. 649 (1898).
[14] Id at 703.
[15] Id at 702-703.
[16] Clement, supra note 5, at 161.
[17] Marsh v. Chambers, 463 U.S. 783, 790 (1983).
[18] Clement, supra note 5, at 162.
[19] Id.
[20] Id at 163.
[21] Id at 163.
[22] Laurence H. Tribe & Theodore B. Olson, Presidents and Citizenship (Mar. 19, 2008), reprinted in 2 Pub. L. Misc. 509 (2012).
[23] Id.
[24] Jack Maskell, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, Congressional Research Service, Report No. 7-5700, Nov. 14, 2011, https://fas.org/sgp/crs/misc/R42097.pdf.
[25] 135 S. Ct. 2076, 2110 (2015).
[26] Clement, supra note 5, at 161.
