Is Ted Cruz, born in Canada, eligible for the presidency? Legal experts say yes

Republican presidential candidate Ted Cruz, campaigning here in Iowa, says questions about his birthplace are a "nonissue."

Jan. 8, 2016 3 AM PT

reporting from WASHINGTON — Texas Sen. Rafael Edward “Ted” Cruz was born in Calgary, Canada, on Dec. 22, 1970, the son of Eleanor Darragh, from Wilmington, Del., and Rafael Cruz, a native of Cuba.

If he’s elected president this fall, he would become the nation’s first chief executive born outside the United States.

But his foreign birth is raising questions — most notably from Republican rival Donald Trump — about whether Cruz is eligible for the presidency under the Constitution.

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Article II says: “No person except a natural born Citizen, or a Citizen of the United States, at time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Trump says it could be “a big problem” and “very precarious” for the Republican Party if Cruz wins its nomination this summer. For his part, Cruz has dismissed it as a “nonissue” and said it is settled as a legal matter that a child born abroad to a U.S. parent is a citizen at birth. Legal experts — including prominent liberals — overwhelmingly agree with Cruz.

But the dispute has raised many questions about this constitutional requirement.

Why did the founders add this qualification in 1787?

Framers of the Constitution feared a foreign monarch might try to take power in the new nation, said Yale University law professor Akhil Amar, a constitutional historian. Meeting in Philadelphia, they agreed no “title of nobility” may be granted, and they barred taking gifts or titles “of any kind whatever, from any king, prince or foreign state.”

But there were rumors that summer that the second son of England’s King George III was about to sail to America.

“They were worried about a foreign duke arriving with a boatload of gold and bribing his way to take power,” Amar said. So to make sure the highest office could not be held by a foreign monarch, they decided the president must be a “natural born citizen.”

What’s the definition of “natural born citizen”?

It is not entirely clear because the Supreme Court has never ruled on the issue. But legal experts say a child’s citizenship can be determined based on where he or she is born and who the parents are.

Birthplace is the simplest test. The Constitution was amended after the Civil War to make clear, as the 14th Amendment says, “All persons born or naturalized in the United States … are citizens of the United States.”

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But prior to that time and continuing ever since, federal law has also said a child’s citizenship is derived from his or her parents. Lawyers point to the Naturalization Act of 1790 adopted by the first Congress. It said that “the children of citizens of the United States, that may born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.”

More recent immigration laws say a child born abroad to an American parent is a citizen by birth, but the phrase “natural born” has been dropped.

Two prominent lawyers who served as U.S. solicitor general, one under President Obama and the other under President George W. Bush, said the history of the Constitution and the first naturalization law resolved any doubts.

“Despite the happenstance of a birth across the border, there is no question that Sen. Cruz has been a citizen from birth and is thus a ‘natural born citizen’ within the meaning of the Constitution,” Neal Katyal and Paul Clement wrote in the Harvard Law Review in March.

If Cruz is nominated, could someone go to court and challenge his qualifications?

Yes, but most lawyers predict they will not get far. In 2008, several “birthers” filed suits contesting Obama’s qualifications, even though he was born in Hawaii in 1961. Those suits were dismissed. One obstacle is finding a plaintiff with standing to sue. “The courts won’t touch this,” said Temple University law professor Peter J. Spiro.

Has this issue arisen before?

Yes, but only as a matter of discussion. Sen. John McCain of Arizona was the GOP nominee in 2008, and it was noted then he was born in 1936 in the Panama Canal zone, where his father was stationed with the Navy. The Republican Party’s 1964 presidential nominee, Sen. Barry Goldwater, was born in the territory of Arizona before it became a state.

When Michigan Gov. George Romney sought the GOP nomination in 1968, news stories noted he had been born in Mexico, his Mormon parents having fled there. The 21st president, Chester A. Arthur, was said to be born in northern Vermont, but when he succeeded to office in 1881 after the death of President James A. Garfield, there were rumors he had been born on the Canadian side of the border.

So who is excluded by this qualification?

Naturalized Americans who were born abroad to parents who were not U.S. citizens. For example, former California Gov. Arnold Schwarzenegger, who was born in Austria, and former Michigan Gov. Jennifer Granholm, who was born in Vancouver, Canada, and grew up in California, were seen as ineligible to run for president because they did not qualify as “natural born citizens.”

Is Cruz’s Canadian birth likely to affect his candidacy?

Not in a legal sense, but it could pose a political problem if Trump and others continue to raise the issue. UC Davis law professor Gabriel Chin says questions about a person’s eligibility are “designed to insinuate that the candidate might really be a foreigner or, in any event, that their background is odd, unusual and possibly suspicious.”

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