Is Ted Cruz Eligible To Be President? It's Complicated.
Is Ted Cruz a "natural born citizen" (a Constitutional term whose meaning has never been settled by the courts)? The first lawsuit questioning Cruz's eligibility was already filed, last Friday. (In response to which Donald Trump tweeted, "I told you so.")
The lawsuit is hardly a surprise, and it won't be the last, says Boies, Schiller & Flexner partner Scott Gant, who litigates, writes and teaches about constitutional law. Newton Schwartz, the Houston lawyer who filed this suit, likely does not have standing, Scott tells us, and the case will be tossed out relatively swiftly. However, the claim that Cruz is ineligible is not frivolous, Scott says. "I am 100% convinced that if Cruz became president, this would have to be resolved by a Federal Court of Appeals or the US Supreme Court."
Whether a federal court will reach the merits on the issue before the election isn't certain. The number of people who have standing is small, but the further along in the election cycle, the more likely that someone with standing will raise the issue—particularly if Cruz is the GOP nominee. (Another possibility is that a state official will deny Sen. Cruz a place on the ballot on the belief that he's not a "natural born citizen," which would probably force Cruz to go to court and raise the issue himself.)
Sen. Cruz was born in Canada to an American mother and a Cuban father (who had in the past been granted political asylum in the United States, but never citizenship; Rafael Cruz renounced his Canadian citizenship and became a naturalized US citizen in 2005).
Does that make Cruz a "natural born citizen"? Legal opinions are sharply divided, varying from: "there is no question" (former heads of the Office of the Solicitor General Neal Katyal and Paul Clement); to Cruz "is not eligible to be president or vice president" (Widener University’s Delaware Law School constitutional law prof Mary Brigid McManamon); to "it seems highly likely" (longtime Black's Law Dictionary editor Bryan Garner, a co-author of multiple books with Justice Antonin Scalia); to the surprising "The Constitution is not a séance. We are not governed by the dead" (University of Baltimore constitutional law prof Garrett Epps).
A variety of factors play into how the issue is considered: whether one takes an originalist or living constitutionalist stance when reading the Constitution; which additional historical sources to consult (British common law, Blackstone's Commentaries, the Naturalization Act of 1790 and later statutes on the right of citizenship, letters between key historical figures, Justice Joseph Story's Commentaries on the Constitution, James Kent's Commentaries on American Law, the Fourteenth Amendment's Equal Protection Clause, to name a few), how to interpret them, and how much weight to give to each; previous Supreme Court rulings that touch on topics connected to these historical sources (such as "differential treatment for blood rights on the basis of parental gender," as Garner writes); and similar situations with other presidential candidates, such as Sen. John McCain (born in the Panama Canal Zone), Sen. Barry Goldwater (born in AZ before it became a state), and Gov. George Romney (born in Mexico).
Scott taught a seminar at Georgetown Law on unresolved constitutional questions, which looked at the "natural born citizen" provision. Back when he attended Harvard Law, he was in the same constitutional law class as was Ted Cruz. Their professor, Laurence Tribe, has said in The Guardian that Cruz's eligibility is "murky and unsettled." Scott tends to agree. As someone who has read virtually everything out there on what the natural born citizen provision means, he says there are a few things of which he is sure:
- This is an important issue.
- The issue is not settled from the standpoint of judicial interpretation. Nobody can accurately contend a court has set forth an authoritative understanding of what this provision means, which would enable us to readily determine Cruz's eligibility to be president.
- Determining the legally correct answer about Cruz's eligibility is not a straightforward undertaking.
The last time we had to to determine the meaning of a constitutional provision that had gone uninterpreted (at least by the courts) for more than two centuries concerned the Second Amendment, Scott says; that was resolved by the Supreme Court in '08 after input from many parties with a variety of evidence, analyses and perspectives. He believes the legal system is also the best way to reach a conclusion about the meaning of the "natural born citizen" provision.
If the question is sidestepped by the courts in this election cycle, it'll come up again, Scott tells us, particularly as the US becomes more diverse. Whether it is now, in 16 years, or in 40, it will have to be decided.
