Citizenship and the Presidency

Senator Ted Cruz of Texas announced his candidacy for US President. The thought that went through my mind was, how can he run? He was born in Canada. For most lay people who are into such things, we believe that in order to be eligible to run for US President, one has to have been born on US soil, either in a state or a US territory. From that standpoint, Senator Cruz would clearly not qualify. Ah, but the constitutional language is not that clear. Enter the world of legalistic nuance.

Article Two, Clause Five of the US Constitution states:

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.
(from Wikipedia)

So, one has to be (a) a “natural born citizen” or a citizen at the time the constitution was adopted, in 1789; (b) one has to be at least 35 years old; (c) and one has to have lived in the US at least 14 years.

Point (c) is fairly easy. If you were born here, and then travel and live abroad for an extended period, say 20 years, then when you return, you have to live in the US for at least 14 consecutive years before you can run for president or vice-president. Point (b) is the simplest point: you have to be 35 years old. I’m sure it’s possible to get legalistic about this. For example, does one have to be 35 during the election or only at the point when one has to take the oath of office, that is, by January 20 at 12:00 noon? I can see people niggling over something like that, but to date it hasn’t happened.

But because the Constitution does not define a “natural born citizen,” point (a) becomes subject to interpretation and has fed legal discourse for years. Indeed, the “Natural-born-citizen clause” article in Wikipedia cites interpretations of this clause dating back to the 19th century. Congressman John Bingham argued in 1862 and 1868 that anyone, black or white, who is born within the boundaries of the US are by default US citizens. The question of race would have been a pressing one during the Civil War years; the Dred Scott decision famously disenfranchised all blacks, free or slave.

Murmurs about citizenship and qualification for the presidency arose in 2000 when Senator John McCain first ran for president. He was born in the Panama Canal Zone in 1936. At the time of his birth, he would not have been a US citizen, because the PCZ was unincorporated territory. However an addendum to the US Code of Laws passed in 1937 retroactively granted citizenship to those born in the PCZ back to February, 1904.

Citizenship and qualification famously for came to fore when Barak Obama won the Democratic nomination and later the presidency in 2008. Questions about his citizenship continue to this day, alas. At this point it is fair to say that all such speculations are based on racist assertions that because President Obama is a black man, he is not qualified to be president. President Obama was born in Hawaii in 1962, three years after Hawaiian statehood. His mother was a US citizen and his father was a subject of the British realm; Kenya was a territory of Britain until 1963 when it gained independence. But because he was born on US soil, that settles the issue for all but the most hardened racists.

So back to Senator Cruz, then. How can he run for the presidency when he was born in Canada? The US Code, specifically 8 U.S. Code §1401, defines who are nationals and citizens of the United States at birth. Specifically, part (c) states:

a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person
(from Cornell Law School’s Legal Information Institute)

Senator Cruz’s mother was born in the US, his father in Cuba. His family moved to Texas when he was four years old. Several scholars believe that because his mother was a US citizen, Senator Cruz is a “natural born citizen” and thus can run for president. But most scholars also believe that without a US Supreme Court ruling on the subject, the question of who is a “natural born citizen” remains legally squishy.

It’s interesting to note that Senator Cruz has thus far not faced his own form of “birther-gate” of the sort that has bedeviled President Obama, even though Cruz is a Hispanic-American born outside the country. Had President Obama actually been born on non-US soil, could you imagine the hackles? I wonder, in fact, if more serious actions would have been taken to disqualify him from running back in 2007, when he announced his candidacy. This smacks to me of a double-standard. Either because Cruz is conservative or because he has fair skin, and can thus “pass” as white, he has escaped this type of bigoted scrutiny.

If established legal scholars generally agree that the Senator can run, based on the US Code or other legal doctrine, then I’m fine with that. Even though I likely disagree with Ted Cruz on a variety of issues and think he would make a disastrous president, I do not think he should be disqualified over the citizenship issue. There are plenty of other reasons to disqualify him. But it still sticks in my craw a bit that he is allowed a free pass and President Obama, six-plus years into the job, still faces questions about his citizenship and “legitimacy.”

© 2015, gar. All rights reserved.

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