"Natural Born Citizen:" A Question of Qualification, An Exercise in Construction

I have watched his perambulations toward the race for the Republican nomination, his toe tests of the presidential electoral waters, and his swan dive into the Republican nomination race.

He shares many of my political opinions, so far as a man's written and spoken record can be trusted as evidence of such things. He supports a Constitution of fixed and determinable meaning. He recognizes decisions of the Supreme Court that have gone far afield from the boundaries of the Court's legitimate jurisdiction. He recognizes the dangerous tendencies toward tyranny in a Chief Magistrate that rules by executive order. He confronts a Republican Caucus on Capitol Hill that more resembles a chorus of Castrati than principled opponents of that tyrant.

Yet, I have concluded that I cannot support his pursuit of the Republican nomination for the Presidency in 2016. Given more than eight years of birtherism -- birthed first in the 2008 Hillary Clinton campaign headquarters and raised into a cottage industry of muddled thinking and less than definitively supported charges against Barack Obama -- I could choose to forego further contemplations about, or contests of, Ted Cruz's eligibility to serve as President. 

Oh, there's plenty of uncomfortable company on this side of the question, from Congressman Alan Grayson, who has threatened litigation if Republicans nominate Cruz, to the same cadre of birthers still convinced that Obama's term in office stains the Constitution due to his ineligibility on either of two grounds: that he was born to a British father, and therefore, could not be an native born citizen; or, that he was born in Kenya. And the supporters of Cruz's constitutional eligibility include some heavyweights in the world of constitutional construction, including one former Solicitor General, Paul Clement, with whom I have worked on cases before the Supreme Court and one former Acting Solicitor, Neal Katyal.

I have taken several stabs at discussing the question of the qualification of Ted Cruz to be elected President. In the process, Here, I offer a brief summation of each of those posts, and hope that you find them a helpful guide to my strict constitutional constructionist view that Ted should end his bid for the Republican nomination and continue to focus his efforts on changing the culture of Republican vacillation and weakness on Capitol Hill.

My first post offered an imagined candidates' debate. In But What If Ted Can't Be President? I proposed that such a debate might involve the following participants:

White Tail, a Native American, born on a Native American reservation, in the United States to parents that were, as well, and have always been, registered members of their federally recognized tribes and citizens of the United States. 

Freddie Fox, born in the United States to Canadian parents, both of whom were born in Canada, claim Canadian citizenship, travel on Canadian passports, but who work in Hollywood. 

Bethany Depp, born in France to married parents then living in France but who were born in the United States to parents also born in the United States and that have always been citizens of the United States. 

Odala Olama, born in Kenya to an unmarried mother visiting Kenya from her native United States, of which she claims to be a citizen since birth not yet 21 years of age, and to his father, a native born citizen of Kenya.

Omama Osama, born in the United States to an unmarried mother, a native born citizen of the United States, not yet 21 years of age, and his father, a native born citizen of Kenya.

In that imaginary debate, a moderator asks each participant to answer the question whether they are eligible under the Qualifications Clause of the Constitution, on what basis their eligibility rests, and whether their eligibility depends on Congressional action. I offered those questions because it drills into the core of this dispute. Does the Constitution define "natural born citizen?" If not, what meaning (or source of it) should be ascribed to the term? And, finally, does Congress have power to provide -- by legislation -- meaning for that constitutional term.

While the question of eligibility fed discussions among law professors on various blog posts, until Ted Cruz was well and truly into the race for the Republican nomination, the subject hovered well below the horizon. That was true until two legal heavyweights, former Solicitor General of the United States Paul Clement and former Acting Solicitor General Neal Katyal, posted a breezy and informal defense of eligibility to be elected President for persons who, like Cruz, were born outside the territorial United States. In Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars I dispute the conclusion reached by the two former Solicitors General.

Not everyone practices law at the Supreme Court. 

You may not even have ever heard of the position of Solicitor General. If you haven't, you should know that the Supreme Court reposes great respect in the office. The Solicitor General is often referred to as the Tenth Justice due to role played by the Solicitor General in providing to the Court the views of the United States government on questions before the Court. Still, if the holders of high office are assumed right because of the office they hold, rather than because their positions are defensible, then disputing the conclusion drawn by Clement and Katyal is pointless. If, however, the propriety of their conclusions is to be measured by constitutional text, then these former SGs are, in my view, shooting a blank on eligibility.


In the case of "natural born citizen" status, a status prerequisite to eligibility to serve as President of the United States, elemental constitutional fairness requires that the language of the Constitution -- not preferences personal or political -- should govern. In Deuces Wild ... and Foreign Born Americans Too!, I note that the obvious answer to the plain meaning of "natural born citizen," that being "one who is born within the Nation," led the Congress of the United States, in 1790, to grant "natural born citizen" status to certain offspring of American citizens living abroad. Doing so, Congress provided heady evidence that the Eligibility Clause did not lend itself naturally to a reading that extends status as "natural born citizens" to persons born abroad. Whether one disputes the eligibility of a Ted Cruz or a Barack Obama, the Constitution should still be trump.

Politics makes strange bedfellows. 

I concluded that Ted Cruz is ineligible to be elected president because I believe the relevant questions are answered in the legal principle of jus soli (essentially meaning that persons born within the territorial boundaries of a nation are its natural born citizens). When I expressed my view that Ted was not eligible to be elected, I found welcoming voices from birthers who were beginning to pay attention to this coming controversy ... until they discovered my rejection of a competing legal principle, jus sanguinus (essentially meaning that children take the citizenship of their parents). 

In Vattelic Fetishism, I examine their view of my heresy, as they see it, in rejecting the significance of "The Law of Nations." The Law of Nations, a work in legal philosophy, written by an 18th century European legal philosopher, Emerich Vattel, spells out one approach to the origin of one's "citizenship." In Vattel's view, one's citizenship is derived from one's parents. So, without regard to where one's parents reside at the time of one's birth, the offspring take the citizenship of the parents. 

To me, their slavish, blind following of Vattel is fetishistic.

Let's face it, just because folks have done wrong before is no justification for continuing to do wrong. In 2008, Republicans nominated Senator John McCain to run against Barack Obama for the presidency. In the run up to that event, the question of whether McCain met the Qualifications Clause requirement that he be a "natural born citizen" came before United s Senate. The Senate passed a nonbinding resoluthere, asserting its view that McCain, born while his parents resided in the Panama Canal Zone during his father's naval tour of duty there, was, in fact, a natural born citizen.

As it turns out, McCain is just one of several candidates in our history that took their party's nomination, or sought it, although constitutionally disqualified from office. Mitt Romney's father, George Romney, was a leading candidate for the Republican nomination at one time. The elder Romney's parents, Americans by birth, served as Mormon missionaries in Mexico where and when he was born. Romney withdrew from the Republican race without his eligibility ever being tested. In Cruz, McCain, George Romney, Ineligible Candidates for President: Drilling Down into the Natural Born Citizen Qualification for the Presidency, I do exactly that, drill down into the meaning of "natural born citizen." 

As I mentioned above, there are those that agree with my conclusion regarding Ted's eligibility, but disagree with my reasoning. Theirs rests on their exegesis and application of an 18th century legal treatise, "The Law of Nations." In A Treatise on Law is Not the Law, I examine briefly another of Vattel's legal principles -- one countenancing the seizure of private property (crops) -- to show why Vattel's treatise, while a valuable discussion of the legal principles related to the governing of nations, does not determine the meaning or application of the American Constitution.

Let's pretend, shall we, that Ted Cruz is eligible. Clement and Katyal argued that persons born in like circumstances to Ted's are "natural born citizens" because they acquire that citizenship at birth with no positive act required on their part. The only possible reasons why that would be so are either that the term, "natural born citizen" always included such persons born abroad to American presidents or that Congress possessed, and used, constitutional authority to extend that status in law to them. 

In Ted Cruz Still Isn't Eligible to Be President ... Or Is He?, I offer another point for consideration. If Ted is eligible to be elected president based on Congress having extended the status of citizen to him at birth by terms of the Naturalization Act, then there are others that Congress might also choose to make "natural born citizens." Suppose Congress chose to grant "natural born citizen" status to any person previously elected to serve as the governor of one of the fifty States? If it did so, would America be ready for the Governator to become the Presidentinator? 

No one could be more surprised than me when our lately departed cat, Sam, visited me the night that CNBC hosted the Republican candidates' debate. In Sam, A Natural Born Catizen, for President?, I share his request that I support him for the Republican nomination (I wasn't surprised to learn he was a Republican with political aspirations: he hasn't had testicles for some time.) 

Carrying forward the theme that for Ted to be eligible Congress must possess the power to grant status as "natural born citizens" to others not born within the United States, I examined the possibility of a President Putin in Ladies and Gentlemen, the President of the United States, Vladimir Putin. In some ways, Putin has made an oratorical case for greater fidelity to the culture and history of our Nation than the current occupant of the Oval Office. Could Congress reach so far out in granting "natural born citizen" status?

Language matters. If it does not, then take the Declaration of Independence, the Constitution, and other historical documents of our history from their places of hallowed display and set them afire. Words have meaning and their meaning matters, or there is no need for paper and ink. Courts closely examine words chosen by legislatures, words changed by legislatures, and words omitted by legislatures in probing searches for meaning. 

What would you say about these notions if you learned that, once upon a time, the Congress passed a law that specifically granted "natural born citizen" status to the offspring born abroad of certain American citizens, but that Congress subsequently repealed that statute and never again enacted a statute with such language? In Is He, or Isn’t He: Only Cruz’s Constitution Interpreter Knows for Sure, I bring my ruminations on Ted's eligibility to an end with this post ... subject to further provocations.