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FactCheck: Can Canadian-born Cruz run for president?

    by Gina Esposito, FactCheck
    Published 

Q: Is Sen. Ted Cruz, who was born in Canada, eligible to be the U.S. president?
A: Most likely. The legal consensus is that Cruz qualifies because he was born to a U.S. citizen living abroad, making him a U.S. citizen at birth.

Full Question

Is Ted Cruz eligible to run for president based on the fact he was born in Canada but his mother was American? Exactly what does the Constitution and our other laws say about this?

Full Answer

Sen. Ted Cruz announced on March 23 that he will seek the Republican nomination to be president of the United States in 2016. But, as some readers were quick to point out, Cruz wasn't born in the United States. His birth certificate shows he was born in Calgary, Alberta, on Dec. 22, 1970.

The U.S. Constitution requires a president to be a "natural born Citizen."

Article II, Section 1:
— 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.

That should disqualify him from being president, right? Not so fast.

Cruz, who came to the U.S. at age 4, is a citizen by birth because his mother was a U.S. citizen when he was born. For that reason, legal scholars argue that he can likely be president.

In 2013, Sarah Helene Duggin, a Catholic University law professor, wrote: "There is a strong argument that anyone who acquires United States citizenship at birth, whether by virtue of the 14th Amendment or by operation of federal statute, qualifies as natural born."

The nonpartisan Congressional Research Service reached a similar conclusion in 2011.

CRS, Nov. 14, 2011:
— The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

And this month, Neal Katyal and Paul Clement, two former U.S. solicitors general, writing for the Harvard Law Review, said that Cruz qualifies as a "natural born citizen."

Katyal and Clement, March 11:
— All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

Case closed? Cruz thinks so, as he told Fox News host Sean Hannity on March 23:

Cruz, March 23:
— The facts are clear. I was born in Calgary. My parents — as a legal matter, my mother is an American citizen by birth. And it’s been federal law for over two centuries that the child of an American citizen born abroad is a citizen by birth, a natural born citizen.

Indeed, the Naturalization Act of 1790, passed three years after the U.S. Constitution was written, said 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."

But as the CRS pointed out in its report, the 1790 law was superseded by the Naturalization Act of 1795, which changed the language from "natural born citizens" to just "citizens."

So there is still some lingering uncertainty about Cruz's eligibility. That's because the Supreme Court hasn't ruled on the meaning of "natural born citizen," which the Constitution doesn't define.

This is not the first time that a Republican presidential candidate faced such questions. As we have written before, John McCain, who was the Republican nominee in 2008, was born to U.S. citizens in the Panama Canal Zone, and Barry Goldwater, who was the party's nominee in 1964, was born to U.S. citizens in Arizona before it was a state. George Romney, who was born to U.S. citizens in Mexico, ran for president in 1968, but did not win the nomination.

Even Duggin, who wrote in her 2013 article that "a scholarly consensus is emerging … that anyone who acquires citizenship at birth is natural born for purposes of Article II," acknowledges that the issue may not be settled.

"In the absence of a definitive Supreme Court ruling — or a constitutional amendment — the parameters of the clause remain uncertain," she wrote.

– D'Angelo Gore

Sources

Gillman, Todd. "Dual citizenship may pose problem if Ted Cruz seeks presidency." Dallas Morning News. 18 Aug 2013.

U.S. Department of State. Acquisition of U.S. Citizenship by a Child Born Abroad. Accessed 24 Mar 2015.

Duggin, Sarah Helene. "Is Ted Cruz a natural-born citizen eligible to serve as president?" Constitution Daily. 28 Oct 2013.

Maskel, Jack. "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement." Congressional Research Service. 14 Nov 2011.

Katyal, Neal and Clement, Paul. "On the Meaning of 'Natural Born Citizen.' " Harvard Law Review. 11 Mar 2015.

U.S. Constitution. Article II, Section I.

Naturalization Act of 1790. 26 Mar 1790.

Naturalization Act of 1795. 29 Jan 1795.

Bank, Justin. "John McCain's Presidential Eligibility." FactCheck.org. 16 Jun 2008.

Hulse, Carl. "McCain's Canal Zone Birth Prompts Queries About Whether That Rules Him Out." New York Times. 28 Feb 2008.

"Hannity." Transcript. Fox News Channel. 23 Mar 2015.