The Eligibility Question

So, Ted Cruz has started surging into Donald Trump’s self-declared country, the land of the public opinion poll, and the Donald isn’t happy. As is his wont, the Donald unleashed an ad hominem attack on Senator Cruz. Unlike poor Jeb Bush (weak! low energy!) or Rand Paul, Trump couldn’t  attack Cruz based on any outward attributes. He can’t somehow claim that poor polling should relegate Cruz to being a “loser.” In fact, Trump was forced to admit that Cruz is gaining in the polls – something that galls the GOP’s favorite narcissist to no end.

No, Trump decided to attack Cruz on the only thing he can hope to make stick: that because Cruz wasn’t born in a state, he is ineligible for the Presidency. Never mind that only 3 months ago Trump was saying it was a non-issue. Donald has gone full “birther” before on a political opponent, one whom he once fully supported: Barack Obama. That he’s going down that path again shouldn’t surprise anyone.

Trump (and the other birthers, who this time largely reside in the Democrat Party) are focusing their attention on Article 2, Section 1 of the Constitution. The applicable part reads as follows:

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.

The contention lies in the phrase, “natural born citizen.” What exactly does that mean?

Regardless of Trump’s reason for raising this as an issue, he inadvertently has brought up a question that needs to be answered. The fact that there is any doubt over who is a natural born citizen highlights how the lack of civics education in our schools has left even the most basic knowledge of how our government is designed to work untaught. No wonder we keep electing would-be petty dictators who prefer executive orders to actually working within the Constitutional framework.

People rightly point out that the Constitution does not define who qualifies as a natural born citizen. Not unlike other areas in our founding document, the framers sought to leave grey areas for future Congresses to address, modify and change as time went along. They were pretty prescient, for a bunch of 18th century farmer-philosophers, in recognizing that as the country grew we might well need to change the mechanics of citizenship. This is why they granted Congress, in Article 1, Section 8, the final say over citizenship matters.

So, the question of who is a natural born citizen is not a Constitutional matter. It is a statutory one. Congress has the ability to define who is born  a citizen, and it has the ability to define who is a naturalized citizen. In one important aspect, the Constitution was amended to define anyone born in the United States a citizen, regardless of parentage or circumstance:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now the entire question of Senator Cruz’ eligibility comes down to this: his mother was an American citizen who birthed Ted in another country; Canada, to be exact. Has Congress ever enacted a statute that defines someone of that circumstance as a citizen?

Well, sorry conspiracy nuts and Trumpsters. Yes, in 1952, the Congress enacted 8 US Code 1401, “Nationals and Citizens of United States at Birth.” It covers the exigencies of Ted Cruz’ birth: his mother was a US citizen, his father a legal alien, both had resided in the United States prior to the birth.

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) 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;
(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…

Question closed. Ted Cruz is eligible, by statute and under Article 2 of the US Constitution, to be President of the United States.