coming back to life.jpg[Blogger's Note:  Today's post comes from the prodigious and talented Careen Shannon,  a frequest guest blogger and blogger in her own right, who is Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. Careen Shannon . I've covered similar terrain before with my co-author, Ted Chiappari: "Republicans’ Mexican-American Presidential Candidate:  Mitt Romney?." See also, Chiappari and Paparelli, “Natural-Born Citizenship - McCain OK for Presidency?”, New York Law Journal (Aug. 22, 2008) and Chiappari and Paparelli, "President-Elect Obama, Dual Citizenship and the Constitution," New York Law Journal (Dec. 30, 2008).  It seems every presidential election cycle the topic comes back to life.] 

Stop the Birther Nonsense Now 

by Careen Shannon

There has been altogether too much attention paid in the press lately to the question of Ted Cruz’s citizenship. This is all the more surprising since there is not really much of a left wing counterpart to the anti-Obama birther movement, apart from some fringe-worthy online commentary by people in no position to make a judgment on what is essentially a question of law. But headlines of the type that have appeared here, and here, and even here—not to mention speculation by the likes of noted constitutional scholar Donald Trump—risk fueling an embarrassing lefty birther movement that would be destructive, distracting and completely beside the point. I don’t know Ted Cruz. Ted Cruz is not a friend of mine. And were he to secure the Republican presidential nomination, there is no amount of money you could pay me to vote for him. But the fact that Ted Cruz was born in Canada does not render him ineligible to be President. So please, let’s nip this in the bud before it gets out of control. Seriously, we all have more important things to do. 

The U.S. Constitution provides that only a “natural born” citizen is eligible to be President of the United States. Ted Cruz, who was born in Canada in 1970 while his parents—his mother, a U.S. citizen who was born in Delaware, and his father, a native of Cuba who at that time was not yet a U.S. citizen—were living and working in Calgary, was presumably a U.S. citizen at birth. I say “presumably” because at the time he was born, a baby born abroad to a U.S. citizen mother only acquired U.S. citizenship at birth if the mother was physically present in the United States for at least ten years before the child’s birth, at least five of which were after the mother was age 14 or older. I do not know the facts about his mother’s prior residence in the United States, but assume that she fulfilled these residence requirements or Cruz would be smart enough never to indicate a desire to run for President and potentially raise the issue of whether he is a U.S. citizen at all. 

Assuming that Cruz acquired U.S. citizenship at birth, there is no reason to believe that he is not a natural born citizen eligible to be President. The United States recognizes two forms of birthright citizenship: jus soli (Latin for “right of the land”), meaning citizenship by right conferred on anyone born on U.S. soil, and jus sanguinis (“right of the blood”), or citizenship by descent, i.e., by virtue of the U.S. citizenship of one’s mother or father, regardless of one’s place of birth. While opinion is not unanimous—and the Supreme Court has never definitively ruled on what constitutes a natural born citizen—the consensus among legal scholars is that a natural born citizen need not have been born on U.S. soil, but that the term should be understood more broadly to mean being a citizen at birth. The non-partisan Congressional Research Service agrees. On the other hand, it seems clear that a person who acquired U.S. citizenship through naturalization is not a natural born citizen and would therefore not be eligible to be President. 

Because Canada also recognizes both jus soli and jus sanguinis citizenship, Cruz acquired Canadian citizenship at birth by virtue of his birth on Canadian soil. Politically, it makes sense for him to renounce his Canadian citizenship—many Americans would probably be uncomfortable with a President who might potentially also owe allegiance to another sovereign nation—but as a matter of law it really should not matter one way or the other. As a practical matter, our increasingly mobile and multicultural society means that many Americans have two or even three citizenships, and this will become even more widespread in the future. (For example, is it possible that Cruz is also a Cuban citizen? I’ll leave it to experts on Cuban nationality law to express an opinion on that topic. Or not. Why don’t we just leave this alone?) 

To the extent that Cruz’s dual citizenship has become a topic of conversation at all, it does provide a delightful moment of schadenfreude to the left after years of right wing birther nonsense about President Obama, who after all was born in the United States and was therefore a U.S. citizen at birth, end of story. (See the Fourteenth Amendment.) The closer call was always John McCain, who due to an odd gap in the law was actually not a U.S. citizen at birth, but acquired U.S. citizenship retroactively thanks to Congressional action granting citizenship to certain children born of U.S. citizen parents in the unincorporated Panama Canal Zone before it was an official U.S. territory. I actually think this was part of the genesis of the birther movement against Obama: it was a deliberate attempt to deflect attention from McCain’s potential ineligibility for the presidency by pointing to the black guy with the Muslim middle name and the Kenyan father. 

Assuming that Ted Cruz officially announces his intention to run for President, his own crazy political antics should guarantee that his candidacy dies a natural death. We don’t need a birther movement to ensure that there is no President Cruz in our future, and directing any further focus on this red herring simply encourages the crazies and deflects attention from the real issues.  Can we please move on?