Posted by Curt on 6 January, 2016 at 4:10 pm. 3 comments already!



A follow-up to last night’s post about Trump dipping a toe back into Birtherism. According to 8 U.S.C. §1401, the class of people considered “nationals and citizens of the United States at birth” includes the following:

(g) 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 five years, at least two of which were after attaining the age of fourteen years

I can’t find a year-by-year timeline for Cruz’s mother but she was born and raised in Delaware and graduated from Rice University in Texas, which should take care of all of the temporal requirements listed above. I’m a little surprised that Cruz didn’t mention the statute in the clip below, choosing instead to reference John McCain, George Romney, and Barry Goldwater. They were each born outside the U.S. too, but if I’m not mistaken, each was born to parents both of whom were U.S. citizens. (McCain is also a natural-born citizen under rules granting that status to children of servicemen and servicewomen born abroad while their parent is serving.) Maybe Cruz thought citing political precedent would be easier for the casual viewer to remember than citing a statute.

Legal scholars Paul Clement and Neal Katyal wrote a short note for the Harvard Law Review last year on the meaning of the “natural-born” requirement. Their conclusion:

No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 provided that “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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .” The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress…

While the field of candidates for the next presidential election is still taking shape, at least one potential candidate, Senator Ted Cruz, was born in a Canadian hospital to a U.S. citizen mother. Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution. Indeed, because his father had also been resident in the United States, Senator Cruz would have been a “natural born Citizen” even under the Naturalization Act of 1790.

If you want to insist that no one born outside the U.S. can be a “natural-born” citizen, okay, but that’s not in keeping with the original understanding per Katyal and Clement. If you want to insist that children born abroad can be “natural-born” citizens but only if both parents are citizens, okay, but I’m not sure where that conclusion is coming from. It’s obviously not coming from the statute quoted above.

And yet, Trump fans soldier on…

…even though they were known to argue otherwise in the past:

Trump spokesperson Katrina Pierson has also seen the light on Cruz’s citizenship, declaring on Facebook earlier this year that “Ted Cruz is a natural citizen by BIRTH and is eligible to be President” and then telling CNN this morning, “There’s a ton of voters who are a little uncomfortable voting for someone outside of the country.” Fancy that.

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