Legislation, Presidential & Congressional Politics/Eligibility

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QUESTION: At what point must a candidate have their eligibility confirmed before they can become president? Apparently not before running or else Ted Cruz wouldn't have decided to run thinking there is no doubt he could win.

Different sources say different things, but what does natural born citizen mean, and how would it likely be interpreted in his case?

ANSWER: There is no enforcement mechanism in the Constitution to create a process to determine the eligibility of any candidate.  Indeed, early on in the nation's history, several Congressmen and Senators were seated without meeting the age requirements set in the Constitution.

Some States have ballot requirements that state that a candidate must be eligible for the office for which he/she is seeking election in order to appear on the ballot.  In that case, the State official responsible for creating the ballot could, in his her own discretion, leave a candidate off the ballot who was deemed ineligible.  This would, of course, be challengable in court.

The next place it might be questioned would be at the national party convention.  A point of order could be raised challenging the eligibility of someone seeking the party's nomination.  That would likely be decided by a vote of the delegates.  Since the candidate in question would likely have the most delegates at the convention already, there is probably little quesiton of the result.

If the candidate got through all that and won the election, the attorney general could probably bring suit in court seeking an injunction against the President-elect from taking office.  Even in a clear open and shut case, a court might be reluctant to get into that.  There is a court doctrine called "justicability" meaning that courts are supposed to stay out of deciding inherently political questions.  While courts tend to invoke or ignore that doctrine at will, they might in this case, since refusing to seat a President elect might kick off a Constitutional crisis or even a civil war.

The question of Ted Cruz's eligibility in particular is far from open and shut.  Most people consider a "natural born citizen" to be someone who is born as a citizen.  There is no question that Cruz was a citizen at birth because his mother was a US Citizen.  Under US law, since the passage of the first citizenship law in 1790, children of US citizens have always been US citizens unless the parent citizen never lived in the US.  Cruz unquestionably meets that standard.  He was not naturalized later in life.

Some have now argued that the term "natural born citizen" to have a specific meeting under British Common Law, meaning that one must have been born within the country.  Otherwise, the person in question is "naturalized at birth" by right of a statute.  A statute may grant citizenship at birth, but such a grant does not make the citizen "natural born."

The problem with this argument is that it is not really a proper analysis of British Common Law.  Unlike statutory law, common law is really just an unwritten code of agreed upon government practices that judges or other government officials try to follow in order to enforce government functions in a consistant way.  For this reason, common law can often be contradictory or applied in different ways.  Legal commentators have tried to write out codes of common law.  Some of these written commentaries, which are really just the opinions of particular scholars, define "natuaral born citizen" as someone born within the country.  In fact, many of those commentators were not focused on children of citizens born abroad.  They were commenting on arguments that held that some children born within a country to foreign parents should not be recognized as citizens.  In other words the commentaries were designed to be more inclusive of granting citizenship.

The reality is that British law typically recognized the children of British subject born abroad to be British subjects themselves.  This was the practice at the time the Constitution was written, and would likley be the standard applied by any court.

The Harvard Law Review published a note on this issue last year which you might find interesting:

http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

All that said, because legal scholars may come to different conclusions, there is no single definitive answer to the question.  Several candidates in the past have been born outside the US, including George Romney, Barry Goldwater, and John McCain.  But none of them ever won office and no court ever ruled on their eligibility.  There is some evidence that President Chester A. Arthur was born in Canada, although this fact is disputed and also was never challenged.  

Personally, I think the eligibility question is not much of a question at all.  A person who is a citizen at birth is almost certainly eligible to be President.  I think the question was only raised in order to scare some segment of voters away from one candidate and toward another.

---------- FOLLOW-UP ----------

QUESTION: Ted Cruz is plenty scary on his own. So to sum up you'd say the interpretation when the constitution was written is that because Cruz was born within another countries borders he would not qualify. I had read the Harvard review article before and another article I'd read specifically rejects that article on over simplifying and ignoring important points. I don't think Cruz will win so it doesn't likely matter, but if he does I'd be curious to know what can happen. I'd be tickled if he spent a lot and couldn't get the office. lol.

Answer
I think that Constitutionally, Cruz would qualify for the Presidency but that the case is not completely clear on the matter.  It is possible a court could find differently.  Personally, I am no fan of Mr. Cruz personally, nor most of his policies.  However, as someone who believes in democracy, I would be disappointed to see the will of the people thwarted because of a controversial reading of a relatively obscure Constitutional requirement.  

If it were up to me, I wish the "natural born" requirement was not in the Constitution.  The original purpose of the clause was to prevent the people from bringing in a foreign monarch at some point of crisis to rule the country.  That never really proved a danger.  I would rather see the requirement be that the President have lived in the Us for a certain number of years, much like the requirement for Senators or Representatives.  

Legislation, Presidential & Congressional Politics

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Michael Troy

Expertise

I can answer just about any question about U.S. Political history, Constitutional law, the legislative process, elections, etc. I enjoy Presidential and Congressional historical trivia, but can answer more substantive questions too.

Experience

Former Staff member for a Congressman and Senator. I also worked on about 10 Congressional and Presidential campaigns (only one that won). For a short time, I worked in the legal department of the Federal Election Commission.    I have a B.A. in Political Science.

Organizations
Former LBJ Fellow (paid fellowship for Congressional Staff).
Pi Sigma Alpha (Political Science Honorary Society).

Publications
Washington Post
Washington Times

Education/Credentials
J.D. University of Michigan
B.A. George Washington University (Poli. Sci. major).

Awards and Honors
LBJ Fellow
Truman Scholar

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