Term Paper for Election Law

Ted Cruz's Eligibility

I. Introduction

Mostly since Presidential candidate Donald Trump first raised the issue in January1, the topic of
Senator Ted Cruz's citizenship and whether or not it has any bearing on his eligibility for the office of
President has been good copy for newspapers. Cruz was by his own admission born in Canada, to an
American-born mother and a Cuban-born father. The question existing today is whether or not that
makes him enough of a citizen for the purposes of being elected President.
The main issue is whether or not Cruz is a Natural Born Citizen according to the language in
the US Constitution that is largely viewed to be a prerequisite for holding the office. There is also a side
issue of Cruz's Birthright Citizenship that stems from this main issue. Some who perhaps may be
more radical raise questions about whether or not Cruz attained American citizenship at all the day he
was born, as his birth certificate is Canadian.

A. Chronological Development of the Cruz Issue

We know from Cruz's own admission and that of his parents that only one of them was ever an
American citizen before Cruz's birth. His mother was born in Delaware in 19342, and his father five
years later in Cuba. His father held a green card in the United States before marrying Ted's mother, then
1. Tracing the evolution of Donald Trump's birther attack on Ted Cruz, https://www.washingtonpost.com/news/thefix/wp/2016/01/13/tracing-the-evolution-of-donald-trumps-birther-attack-on-ted-cruz/,
2 Pollak, Joel B., Exclusive: Birth Certificate for Ted Cruzs Mother, Breitbart News (Online), 8 January 2016,
http://www.breitbart.com/big-government/2016/01/08/ted-cruz-mother-birth-certificate/.

the pair left for Canada; it is unclear what arrangements were made by the Senior Cruz regarding his
American status. Four years later Ted was born, ostensibly a citizen of Canada at that time, but perhaps
as well still an American citizen. Relevant Canadian law might prohibit such an arrangement, or would
have at the time, and is pertinent in the analysis.
The family moved back to America when Ted was four, and he settled into school life in Texas
without much drama. He attended and graduated from Princeton University in 1992 and Harvard Law
School in 1995, having won major accolades on the collegiate debate circuit. His success led into high
level legal work quickly, and soon he was arguing cases before the Supreme Court as the Texas
Solicitor General.
In 2012 he mounted a successful run for the Senate seat for Texas and won as the Tea Party
Republican favorite. His attention-grabbing floor demeanor in the early going had pundits asking if he
could repeat Obama's move and go from Junior Senator to serious White House candidate. It was at this
time that he began to be questioned as to his background, specifically his citizenship. At the time, in
2013, Cruz flatly denied that he had any issue with being a Natural Born Citizen, which set the tone for
his treatment of the question.
Things changed in January 2016 when Republican presidential candidate Donald Trump, at that
time the front-runner in the polls, asserted that Cruz's citizenship was problematic and needed to be
addressed. Given the massive media attention surrounding Trump and Cruz, the second-place candidate
at the time, and the upcoming primary vote, it served as a lightning rod for commentary.
Cruz had to answer questions all over again about his background and his citizenship status.
Constitutional and legal scholars all over weighed in with their take on Natural Born Citizenship and
whether Cruz had attained it. Several citizens filed lawsuits at every level of government, including
election boards of two different states.
As of today the lawsuits have been a losing effort, all have been either dismissed for lack of

standing, dismissed on procedural grounds, or lost in open court3. In the New Jersey suit the judge
wrote, The more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother,
or both, is indeed a natural born citizen within the contemplation of the Constitution. This rather
open-ended yet still somewhat expansive language is the closest thing we have to a judicial
proclamation on what exactly it means for Ted Cruz to have been a Natural Born Citizen eligible for
the presidency at birth. As we will see, it is far from clear or conclusive.

B. Constitutional Issues

Article II, Section 1, Clause 5 of the United States Constitution states: "No Person except a
natural born Citizen ... shall be eligible to the Office of President. This is important because nowhere
else is it so explicitly stated who may or may not be an elected official. Article I makes it clear that US
Representatives and Senators must be citizens for at least a term of years, and inhabitants of the
state in which they vie for office4. No obvious geographical category exists in the Constitution for a
President, leading some to assume that inhabitant would be implied up the chain to him or her. This
is a main lynchpin of an originalist constitutional argument against Cruz, that if the test is Natural
born, in the State (country) of office, then he fails as having been born outside the territorial bounds
of America.

Numerous challenges have arisen to this interpretation, namely on the definitions of

territoriality and officials going abroad for state business or military duty. Other challenges have
cropped up more recently to do with the parentage of the candidate, both of his mother and father, and
3
4

Terkel, Amanda. New Jersey Judge rejects birther lawsuit against Ted Cruz, Huffington Post (Online), April 14, 2016.
http://www.huffingtonpost.com/entry/ted-cruz-citizen_us_570e5716e4b08a2d32b880f0.
Curiously, Article I, Section 3 regarding the Vice President is absolutely silent on the issue. This would lend credence to
the thought that we must infer requirements for some from others; the Framers must have left such spots blank in the
sake of brevity.

the citizenship status of both of them, which will be covered later. As it stands now, the Constitution
gives little affirmative direction, and all but the most harsh of analysis must be conducted with
supplementary reading. We begin with the historical context of the issue.

II. History

A. Founding Fathers and their Contemporaries

The America of 1787 that saw the Constitution drafted had little idea what this country would
become. Including provisions for a population that would eventually become extremely mobile and
have a global presence was not on the minds of the drafters. Instead, being fresh off the war against
England, their aim in making the natural born clause would have been protectionist, to prevent an
outsider, internationalist carpetbagger from taking the reigns of the country through the electoral
process.
But this isnt to say we could just shut ourselves off. Questions still existed as to what to do
with our allies and enemies both foreign and domestic. Having been a longtime diplomat himself, Ben
Franklin wanted to make sure to give foreigners who had fought on our side the option to move here
after the war5 and keep options open for diplomats to travel abroad. Thus the Congress was given
explicit power to enact laws to cover the naturalization of foreigners.
The debate was well encapsulated by the differing opinions of James Madison and Alexander
Hamilton. In addressing the Constitutional Convention on his vision for government, Hamilton said,
No person shall be eligible to the office of President of the United States unless he be now a citizen of
one of the States or hereafter be born a citizen of the United States, thus cleanly omitting the problem
5

Clinton, Robert, Cruz not eligible, US News (Online), January 27, 2016,
http://www.politico.com/magazine/story/2016/02/ted-cruz-citizenship-fight-president-2016-213660.

of whether that person be born IN the States themselves. James Madison, perhaps more concerned with
the issue, wrote in one of his papers, dated 1789, It is an established maxim that birth is a criterion of
allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in
general place is the most certain criterion; it is what applies in the United States; it will therefore be
unnecessary to investigate any other. One before and the other after the convention, both men clearly
had it on their minds as an issue.
Britain had similar intentions. Their Nationality Act of 1730 prescribed that people born in
Crown territory were natural-born subjects (of the Crown)6. Children born out of the ligeance of
the Crown (outside of the territory ruled by the sovereign) to a father who himself was a natural born
citizen were still conferred the subject-hood. Summarizing the statutes and jurisprudence on the subjet
in 1759, seminal British legal scholar Sir William Blackstone wrote "all children, born out of the king's
ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all
intents and purposes, without any exception; unless their said fathers were attainted (deemed
criminals)...7.
This rather direct one-to-one passing and the language used served as part of the base model for
some of the clauses in the United States Constitution. Later additions in British parliament made
further, distinct exceptions for diplomats and military personnel living abroad in territories not
controlled by the Crown, allowing them still yet to be natural-born subjects8.
This does not however mean that the United States took natural born the same way exactly,
especially when considering the office of the presidency. The sovereign of England at the time of
independence, King George III, was of German ancestry. His family preceding him was almost all
foreign-born, and yet still ruled England. This was a common, recurring theme all over Europe at the
6
7
8

British Nationality Act of 1730, http://www.uniset.ca/naty/BNA1730.htm.

Blackstone, William, Blackstone's Commentaries on the Laws of England.
http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp.
Posner, Eric, Ted cruz not eligible to be president, Slate (Online), February 8, 2016
http://www.slate.com/articles/news_and_politics/view_from_chicago/2016/02/trump_is_right_ted_cruz_is_not_eligible
_to_be_president.html.

time, and was exceedingly unpopular with the rank-and-file Parliament of the time. In fact, English
Parliament went as far as to ban Catholics on the throne, in a move to keep foreign influence out, and
later passed a law invalidating any call to war if it involved the land holdings of a king not native of
(the) Kingdom of England.9 Clearly, they had been used as a personal army before and were tiring of
meddlesome outsiders.
But if England were growing tired of outsiders, America was extremely fearful, and rightly so.
Theirs was essentially a unique situation at the time. Representative democracy on any large scale
without monarchy attached simply wasn't practiced at the time, and there was no reason to think that a
powerful monarch from across the oceans would not show up at any moment and return them to what
was considered the normal order of the day (and in 1812 in fact another English monarch did return to
invade, and almost succeeded). Infiltration of the political process by outsiders would be a rational fear,
and indeed it materialized right around the time of the Constitutional Convention; a cabal of
businessmen in Philadelphia were rumored to be plotting to plant a British noble on the American
throne. The Bishop of Osnaburgh, second son of King George III, was widely thought to be their
man, and the threatening shadow he cast over the delegates was a large factor in them adding the
natural born requirement of the office of president10.
Just as the natural born language was borrowed but not adopted in its literal entirety, neither
was the whole of the English common law11, rather it could be seen as a mother sauce to the
intellectual soup. Numerous people commented on the subject at length in surrounding time period. St.
George Tucker, a lawyer, a professor at the College of William and Mary, judge on Virginias high
court, and U.S. district judge for Virginia, wrote this in 1803 in his work on Blackstones
Commentaries on English law: That provision in the constitution which requires that the president
9 Id.
10 Primus, Richard, The Ted Cruz citizenship fight is bogus but still matters, Politico (Online), February 20, 2016
http://www.politico.com/magazine/story/2016/02/ted-cruz-citizenship-fight-president-2016-213660.
11The common law of England is not the common law of these States, George Mason, one of
Virginias delegates to the Constitutional Convention.

shall be a native-born citizen (unless he were a citizen of the United States when the constitution was
adopted) is a happy means of security against foreign influence
James Kent, American jurist and legal scholar, wrote in his massive treatise on American law,
concerning the qualifications to become president: Considering the greatness of the trust, and that this
department is the ultimately efficient executive power in government, these restrictions will not appear
altogether useless or unimportant. As the President is required to be a native citizen of the United
States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all
those inducements from abroad to corruption, negotiation, and war. Later he wrote on just who
qualified as a native, Of Natives. Natives are all persons born within the jurisdiction and allegiance
of the United States.
If there was but one person as a contemporary who influenced the founders on their drafting of
the citizenship law it was the Swiss German legal expert, Emerich de Vattel. His magnum opus The
Law of Nations, written in 1758, absolutely revolutionized the field of international relations, so much
as perhaps inventing the intellectual space of international law study. It sought to codify existing laws
concerning a variety of subjects, and the definitions he laid down for citizenship and birthright
would have held great sway with the drafters12.
Quoting Chapter 19, Section 212 of Nations, Vattel wrote that a citizen is a member of civil
society, but the natives were natural-born citizens, defined as those born in the country, of
parents who are citizens. He saw it as a lineage, where children naturally follow the condition of their
fathers. This tracks much more closely with the language set down in the United States Constitution.
Notably, it is also a much more nativist and restrictionist policy than what is in effect today in America,
as it makes no mention of birthright citizenship and probably contradicts it. But it does not resolve the
question of children of natural born citizens born abroad, and nevertheless, the laws on naturalization
and citizenship would change again very soon by acts of congress. They would change yet again in
12 Several first-run copies of the book were found amongst the effects of Benjamin Franklin, chief among many of the
Founding Fathers who championed the book.

revolutionary manners in the 19th and 20th centuries.

B. Nationality Law Over Time (1790, 1795, 1868, 1952)

The Naturalization Act of 1790 set down the first rules from Congress on citizenship and
birthright. Naturalization was limited to free white persons of good character who had lived in the
country for two or more years and made good application for citizenship13. Importantly, it provided that
children of citizens of the United States, born out of the limits of the United States may be
considered natural-born citizens. Further, the Act states that the right of citizenship shall not descend
to persons whose fathers have never been resident in the United States.
It was a short verse, and did not cover the intricacies of whether the citizen born abroad needed
to have natural-born or naturalized citizen parents. It also left ambiguous the meaning of the father
having been a resident of the United States. It would be repealed and replaced by the Naturalization Act
of 1795, but it remains notable as the only piece of statutory writing in our record to explicitly use the
language natural-born citizen, tracking the Constitution's words. The Naturalization Act of 1795
increased the residency period to five years and made other minor changes, but most notably did away
with the natural-born language, leaving a whole in statutory provisions that exists to this day.
The next groundswell in naturalization and citizenship law was not a statute but an amendment
to the Constitution, the 14th. The very first sentence (usually referred to as the Citizenship Clause) read
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. This introduced the idea of birthright
citizenship. Although there is ambiguity as to whether the second part and subject to the jurisdiction
thereof establishes protection (and THUS subject to the jurisdiction) or makes it a precondition
(BUT STILL MUST BE subject to the jurisdiction), it has been widely litigated and accepted as the
13 A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 1875, Library of
Congress (Online), http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=226.

beginning of birthright citizenship. More importantly for this issue and the particular snapshot in time,
it represented a turn towards the liberalization and expansion of the circle of civil rights, and an
emphatic declaration that citizenship, until that time the domain of the several states in terms of
standards, was now and finally a federal issue.
Naturalization law in the 20th century turned its focus outward and mostly affected immigration
and the quotas regarding those of certain national origins. The most pertinent legislation was the
Immigration and Nationality Act of 1952, which codified and set forth the legal requirements for
gaining and losing citizenship.
The last piece of legislation bearing on this issue14, is Canadian naturalization law. The United
States has its own ideas of citizenship, and many including birthright citizenship are very unique. But at
the same time, Canada also has its own version of birthright citizenship, and the United States has
always made a point of respecting the laws of other countries when a dispute crosses boundaries. The
law in question here is the Canadian Citizenship Act of 1946.

C. Court Cases in SCOTUS

Beginning around the turn of the century, the Supreme Court started to address the issue of
nationality, tracking the statutes emerging that sought to regulate foreign workers in America, namely
Chinese men. In United States V. Wong Kim Ark and Luria v. United States, while expounding on the
meaning of being an American citizen, the justices found time to give definitions of American
citizenhood, while also making a distinction between becoming a citizen and having been born one
naturally, noting that this was necessary for eligibility to presidential office.
The 1960s and 1970s court cases also tracked the statutes in that they covered globe-trotting
people who held multiple addresses and citizenships. An instructive case was Schneider V. Rusk, in
14 Which is admittedly a sub-issue as we are exploring whether Cruz attained citizenship at all when he was born.

which the defendant was basically given the go-ahead to be the first duly recognized dual-citizen, yet
still the court found it prudent to remind everyone that he was equal only so far as he did not seek to
become President.
Since then the Supreme Court has not deemed fit a real discussion on the issue of presidential
eligibility, nor has it had to. While many candidates have tried to stand for office who were obviously
foreign-born, none have been egregiously foreign. John McCain was born in Panama to a military
family, but faced no serious challenge. Charles Evans Hughes, who lost to Woodrow Wilson, was
viewed as suspect for having a father born in the British Empire, but he was born in New York himself.
Chester A. Arthur actually sat as president while he was challenged over citizenship, but that
amounted to little more than unsubstantiated rumors about his birthplace. The most interesting
challenge was to George Romney, Mitt's father, who was born in Mexico to Mormon parents living
there in a religious colony. While George's parents were American-born, and the colonies were English
speaking and made up of Americans, they were in another country, and there was no indication that
these people had any intention of coming back to America. Political pressure soon forced them fleeing
back to the states, however, and George Romney was raised for the most part in this country. It still
could have been an issue, but as is the recurring theme with this question, as close as it got to being
relevant, Romney never did immediately threaten to take office, and his case was never litigated15.

III. Analysis

A. Constitutional Issue: Natural-Born vs. Naturalized

The main shape of the issue thus centers around the language in the Constitution separating the
President's citizenship requirements from those of Senators and Representatives. Firstly, we must make
15 Bomboy, Scott. Past and Future Candidates and birthplace, website, March 25, 2015,
http://blog.constitutioncenter.org/2015/03/other-past-and-future-presidential-candidates-and-birthplace-issues/.

accommodations that this is an issue at all. There is of course the immediate tack to take that natural
born is no different than naturalized, but this would be reading the Constitution as being brief in the
extreme.
Also, two things get in the way of this: the Presidential requirements are given after those of the
lower offices in the sequence of Article I, making the extra language seem more important, and second,
no one in the immediate case of Senator Cruz (himself included) or recent past of litigating this issue
has thought to challenge the singularity of the Natural Born requirement. All challenges and defenses
so far center on what the definition of natural born is as opposed to some other standard of
citizenship.
That other standard is naturalized citizen. We know that the Framers considered this problem
when we look at Article I, Section 8, Clause 4: Congress shall have the power to establish a uniform
rule of naturalization. This has led the many camps opposing Ted Cruz to bifurcate the means of
getting citizenship as naturally acquired, or acquired by an act of Congress. The dividing line is
razor thin in that case. He either was an American citizen at the time of his birth, and thus natural
born forever thereafter, or he was not, and claimed citizenship at some other point (such as when he
crossed back over from Canada at 4 years of age), and his claim is hollow.
There is another school of thought that naturalized itself should be bifurcated. Thus
there is a distinction between those naturalized after birth and those naturalized at birth by statute.
Those naturalized at birth would be naturalized only in the mechanical sense of the law and should be
duly considered natural-born. It is a logical sentiment that cuts through the over-literal readings of
many earlier scholars. However, as we shall see later, it also cuts directly against some Supreme Court
jurisprudence.

B. Citizenship in Statutes

As stated in the introduction, a minor issue exists as to Cruz's birthright citizenship, or whether
he became an American at all when he was born. While it may seem excessively harsh a challenge, it is
actually illuminating and ties in nicely to the overall question of Natural Born status and presidential
eligibility. First, to the United States Nationality Act of 1952. From 8 U.S.C. 1401, a citizen at birth is:

(d)
a person born outside of the United States and its outlying possessions of parents one of whom is a
citizen of the United States who has been physically present in the United States or one of its outlying
possessions for a continuous period of one year prior to the birth of such person, and the other of
whom is a national, but not a citizen of the United States;

(e)
a person born in an outlying possession of the United States of parents one of whom is a citizen of the
United States who has been physically present in the United States or one of its outlying possessions
for a continuous period of one year at any time prior to the birth of such person;

(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:

Provided, That any periods of honorable service in the Armed Forces of the United States, or
periods of employment with the United States Government or with an international organization as that
term is defined in section 288 of title 22 by such citizen parent, or any periods during which such
citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of
the household of a person (A) honorably serving with the Armed Forces of the United States, or (B)
employed by the United States Government or an international organization as defined in section 288
of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This
proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it
had become effective in its present form on that date; and

(h)
a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction
of the United States of an alien father and a mother who is a citizen of the United States who, prior
to the birth of such person, had resided in the United States.

Here we may start to chart a coherent path towards birthright citizenship for Senator Cruz.
Taking things in the light most favorable to him, he could be a birth citizen under clause (d), if (1) his
mother was still a citizen at time of his birth, and (2) his father was a national, but not a citizen at the
same time. Clause (e) seems redundant.
However, the second parent seems to be relevant in the mix because in clause (g), a path to birth
citizenship is given to those with a parentage of one alien, and one citizen. An addendum for exceptions
given to government workers and military does not apply to Cruz, but seems to mean that the situation
described in (g) is only okay if the citizen parent is an honorable military member. It seems apparent
that this a capitulation to so-called war brides and their military husbands.

But most tellingly, the last clause (h) gives exception to those born before 1934 (who would
have been over 18 at the time of passage of the bill) who were born outside the States to an alien
father and a mother who is a citizen. This is fairly plain language that minus the exception, which
Cruz fails to capture on age, if he could not prove the national status of his father (who only ever had
a green card before his move back to the United States), he would fail the birth citizenship test on
having exactly the combination contemplated. This does not attack the natural born status but is
indicative of the question of citizenship overall.
For the Green card question, we refer to the administrative Form I-551, which would have been
called a Resident Alien Card. It likely would have been printed without an expiration date16 but with the
identifier Alien clearly on it. According to the Immigration and Nationality Act Sections 212 and
237, a permanent resident alien can lose their status if they leave the country for an extended period of
time without good showing that they mean it to be temporary. This is hard to prove, however easier is
that you lose the card if you do not file taxes while away (which merits further investigation).
It seems like a tossup question at this point, but the last issue that may pin Cruz's father to
United States national status is whether he was granted political asylum. He came here from Cuba on
a student visa but once it ran out, he claims he was granted political asylum for being an exile from the
new regime of Fidel Castro, a claim which also merit further investigation (not realistic in this scenario
but well within the purview of a court were they to decide to do so).
The last statutes relevant to the discussion are Canadian. In the Nationalization Act of 1946 the
Canadian government granted citizenship to all those born in Canada. Exceptions were to be had for
foreign diplomats or other government employees, which Cruz did not satisfy. Further, dual citizenship
was generally not allowed. Exceptions were to be had for children born to non-Canadian citizens, and
there is where question arises.
Internet news outlet Breitbart obtained a copy of a document purporting to show both of Ted
16 Citation needed, but based upon how cards between 1977 and 1989 are treated, if it was not printed with an expiration
date, it was good indefinitely.

Cruz's parents on the voter rolls for the 1974 federal election17. This would have necessitated them both
being Canadian citizens at the time. If they had achieved this by 1970, before the date of Cruz's birth,
by any account they would have given up their American citizenship and Ted's as well18. Even if they
had not, they would have been well on the path to citizenship already at that time, so an official would
have asked them to declare one nationality for Ted's birth certificate, which presumably would have
been binding and precluded him from another citizenship. It's a viable question, but impossible to
conclude within a research paper (probably needs the investigative power of a judge or Congress). Let
us assume for the moment then that he has birthright citizenship, we then must go back to the question
of whether it is natural-born, for which we need to turn to the jurisprudence.

C. Court Cases

In 1898 the Supreme Court saw argued United States V. Wong Kim Ark, in which Justice Gray
wrote, A person born out of the jurisdiction of the United States can only become a citizen by
being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority
of Congress19. This seeming retraction of liberal currents was prodded on by the scare of the day of
Chinese labor and the efforts to reverse the flow on non-white immigration. However, the natural
language popped up again in Luria v. United States, in which Justice Van Delanter wrote that Under
our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects
save that of eligibility to the Presidency.20
The court did not rule plainly on the issue of whether or not foreign-born birth citizens could be

17 Pollak, Joel B., Ted Cruz mother birth certificate, Breitbart (Online), 8 January 2016, http://www.breitbart.com/biggovernment/2016/01/08/ted-cruz-mother-birth-certificate/.
18 Id., further requests for citizenship documents of Cruz's parents have so far been rebuked based on Canadian privacy
laws, though it stands to reason that wanting to stay out of the election fight of another country aids that decision.
19 United States V. Wong Kim Ark, 169 U.S. 649 (1898).

20 Luria v. United States, 231 U.S. 9 (1913).

natural-born, but not for the lack of interest in the subject. In 1964 they issued a ruling seeming to go
right back against the isolationist and protectionist 1900s. In 1967 the court in Afroyim v. Rusk ruled
that a man born in Poland who had cast a vote in a foreign election after naturalizing in the United
States was still a citizen21. Justice Black found that citizenship was too strong a right to be revoked so
easily, because it was protected in the instant case by the Citizenship Clause of the 14th Amendment.
This is the seminal case in the normalizing of dual-citizenship privileges within United States
law, but it had already been checked by the earlier case of Schneider V. Rusk, where in 1964 Justice
Douglas reaffirmed that natural born was a different classification when he wrote, We start from the
premise that the rights of citizenship of the native born and of the naturalized person are of the same
dignity, and are coextensive. The only difference drawn by the Constitution is that only the natural
born citizen is eligible to be President. Art. II, 1.22
The issue being decided that natural-born means something more than naturalized, the
question narrows to whether someone born abroad, to citizen parents in a way that confers to him birth
citizenship by law but not by soil, is a natural born citizen. The most direct ruling came from Justice
Black again, a few years later in Rogers v. Bellei. On the mechanism of becoming naturalized, he
wrote:

Although those Americans who acquire their citizenship under statutes conferring citizenship
on the foreign-born

children of citizens are not popularly thought of as naturalized citizens, the use of

the word naturalize in this way

has a considerable constitutional history. Congress is empowered

by the Constitution to establish a uniform Rule

of Naturalization, Art. I, 8. Anyone acquiring

citizenship solely under the exercise of this power is,

constitutionally speaking, a naturalized

citizen. Congress is empowered by the Constitution to establish a uniform Rule of Naturalization,

21 Afroyim v. Rusk, 387 U.S. 253 (1967).

22 Schneider v. Rusk, 377 U.S. 163 (1964).

Art. I, Sec 8. Anyone acquiring citizenship solely under the exercise of this power is, Constitutionally
speaking, a naturalized citizen.23

Although a member of the court that earlier had liberalized citizenship requirements to a
previously unseen low, Justice Black apparently thought it important to point out just how much more
involved a requirement it is to be natural born, underscoring the vital importance of the office of the
presidency. This reading of his is the most strict on judicial record. Indeed, it would seem to imply that
short of military officers having a child on an American base or in occupied enemy territory (under the
jurisdiction even if temporarily), no one would be eligible if born outside the States and associated
territories. Such a reading would even preclude diplomats abroad if caught between countries for the
delivery of the child, so surely it is an extreme view, and likely would be swept aside in a subsequent
ruling if one ever came down on the issue of the presidency.
However, the precedent stands, that the President must be someone held to higher standards
than a normal citizen, even in requirements that he or she has no control over themselves.

III. Conclusion

The weight of authority seems to lie with the somewhat more nativist view of the office of the
Presidency. Make sure the person is loyal through whatever means both necessary and practical, and
put feelings and temporal currents of philosophy aside. Though we have changed our own definitions
of who is fit to be a leader, or even hold an official job at all, when it comes to America it seems safe to
say that playing is safe is a popular course.
Whether or not Ted Cruz is eligible to run depends on two main things. One, whether or not the
final reading of Justice Black in Bellei is final. If it is, Cruz is cast out surely, along with countless
23 Rogers v. Bellei, 401 U.S. 815 (1971).

others. Given that this is unlikely, it probably depends more upon how much towards that sentiment a
court would feel compelled to rule. In our current political climate, especially given that we have lost
Chief Justice Scalia, I would guess that a Supreme Court, if it were to rule on the issue, would include
someone like Ted Cruz as eligible, though that is simply a guess, and one towards the liberal end of the
spectrum. An equally likely though implausible scenario is that Congress rules on the issue through
statute before it gets to the Court.
The second main thing is whether or nor Cruz had birthright citizenship at all. This is far more
controversial, as it would require more investigative digging and pressuring Canada for documents.
Denying him the birthright whether legally correct or not would be a huge political step in one
direction, and require a very determined and probably small body risking a lot for seemingly little
return. Someone would have to have a major grudge against Cruz and a lot of pull behind it; I dont
know that that person exists.
The scenario I see playing out now is that things continue as they have, status quo ante. Donald Trump
continues to question legitimacy, while threatening but never filing a lawsuit. Doing so is also too risky,
as most judges would rather not rule against Cruz but instead let the nomination process determine
whether or not the claim is moot, its almost certain a Trump suit would fail. Failing even in this
symbolic effort would cost him too much in weak appearances for him to try it, I think. So the ultimate
arbiter I think will be the public. Donald will ask his questions, Ted will give his responses, pundits will
write in depth, and in the end the voters will factor it into their decision at the polls, which is perhaps
how it should be. But as Cruz is young and ambitious, I doubt this will be the last election cycle we see
the issue raised.
What this leaves uncovered is the more elusive fix, a clear and unambiguous standard that lets
anyone, even the layman know just who may and may not be president. The administrative judge in
New Jersey gave his opinion of citizen-father, or citizen-mother, or both without further
qualification. Does that child not have to live in the US at all? What of his parents? Under such a

regime, giving those born on US soil absolute citizenship as they have now, it is conceivable that a
person could 1) be born in China, live there until adulthood, then 2) take a short vacation to the United
States, and while here have a child of their own in one of our hospitals. Then 3) they could go back
immediately to China and stay forever, while 4) their child, upon reaching adulthood, moves over here,
and completes 14 years of mostly continuous residency. That child would now be a viable candidate for
the office of President.
It seems preposterous but there is a thriving trade in so-called birth tourism that brings
Chinese women over just for the birth of their child so that they can gain a valued dual citizenship here
in the US. This hardly is an act that breeds loyalty in a person, or makes this author feel at ease. I
propose a more stringent standard. If the child is not to be born in the United States, then at least one
parent must be a citizen of the United States currently. Then, when the child is born (and this is for all
cases), there must be a declaration within 30 days to the US government that the child is indeed an
American citizen and will not be seeking primary residence, citizenship, or nationality in that or any
other country. The child would be issued an American birth certificate by the local consulate and retain
eligibility. But, before the age of 18, said child would have to complete at least 10 years of residency in
the United States. Exceptions would be given for time spent on military bases, which ought to be
considered US soil.
This is less inclusive than many standards, for sure, and it does not give much sympathy to
those abroad because their parents work for the government or a private American company in some
capacity or another. But that is the point. Part and parcel of being American is being in America, and if
it takes hurting someone's feelings or excluding an otherwise very competent candidate to office, so be
it, our security is more important. But to be fair, just as with the issue of Cruz himself, I see no near
future where out legislators make any navigable standard for this a reality.