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Every four years or so, the same issue is raised: can a person born of an American parent outside the United States become President? In 2008 the focus was on John McCain, who was born in Panama in a US base. This time, it may be Ted Cruz, born in Canada of a Cuban father and American mother. This is because only “natural born” citizens are eligible to be president.

Ted Cruz Eligible

There is no Supreme Court (or even lower court) decision that decides this thorny issue. The standard argument is that a person such as Ted Cruz is a “natural born” American citizen and thus eligible to be president. Yet the issue remains undecided, and there is at least a decent chance that Ted Cruz is not eligible.

Here's the issue in something of a nutshell. The Constitution says that “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 the President.” Unfortunately, nothing in the Constitution defines who is a natural born Citizen, and there is no record of discussion at the Constitutional Convention as to what “natural born” means.

On the other hand, senators and representatives only need to be citizens, not “natural born” ones, so “natural born” must have a special meaning. While the Constitutional Convention's Committee on Detail originally proposed that the President must be merely a citizen as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen" without recorded explanation, and the Convention accepted the change without further recorded debate.

Later, the Fourteenth Amendment provided that “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.” Even before the Fourteenth Amendment was adopted following the Civil War, people born in the United States were automatically citizens, even if neither of their parents were. This is because the US follows the rule of English common law known as “jus soli,” meaning that birth within the jurisdiction confers citizenship. Civil law countries (those not descended from English common law) only confer citizenship by statute and not automatically by birth.

And Congress has the power to naturalize persons who are not citizens. “The Congress shall have Power To...establish an uniform Rule of Naturalization....” So there are really no sources of power to confer citizenship under US law other than the “jus soli” rule (confirmed by the Fourteenth amendment) and the specific power of naturalization granted to Congress.

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No one doubts that a person born within the United States is a “natural born” citizen. It is clearly “natural,” because the birth itself results in citizenship, and no Congressional statute is even required to achieve that result. But what about people born outside the United States?

Since 1790, persons born outside the United States of US citizen parents have been declared American citizens, because Congress has created that result by statute. In fact, the 1790 statute specifically stated that persons born outside the US of citizen parents are “natural born.” But later statutes did not include the “natural born” provision, and it might be noted that before 1790 persons born outside the US of citizen parents were not citizens. It was only by virtue of the statute that this occurred.

The major argument in favor of Ted Cruz and those in his situation is that one is “natural born” if citizenship is conferred by birth, even if it takes a Congressional statute to achieve the result. And the argument against this result? That Congress' power is confer citizenship is limited to the “naturalization clause,” which at least suggests that the citizen is not “natural born” because birth alone does not result in citizenship. In fact, Congress may be “naturalizing” a person who would otherwise not be a US citizen by enacting the statute.

As noted above, prior to 1790 only persons born in the US were citizens, because Congress had not enacted any statute conferring citizenship. The statute conferring citizenship was enacted under the “naturalization power” of Congress. People naturalized after they are born are “naturalized citizens” (and are not “natural born”). And it should be noted that there is nothing in the Constitution that permits Congress to confer “natural born” status on anyone.

Thus the conundrum: does the existence of a statute, conferring citizenship at birth, confer “natural born” status? Or is the only means of obtaining “natural born” status from the “jus soli” rule, which is basically a rule of constitutional law interpretation that the rules of common law were the law of the United States when it came into existence?

Clearly, this is a problem that needs resolution, either by the Supreme Court or by a constitutional amendment. We shouldn't have a system under which candidates for President may be ineligible because there is no clear rule. Yet all the attempts to deal with the problem have failed (Senator Orrin Hatch wanted to do something about this when the issue was raised in connection with John McCain's candidacy). So for those who want Ted Cruz: beware. He may not be eligible, and if he were elected the result would certainly create chaos for many months.

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Michael T. Hertz