Birthright vs. Natural Born: Having some fun with Ted Cruz

Now that Ted Cruz is officially running for president, we get to go through the whole fun "birther" controversy again, because Like John McCain, Cruz was born abroad – in Calgary in his case (Panama in McCain’s).

It’s a bit different from the Obama issue in that no one disputes the facts of Ted Cruz’s claim to citizenship. He was definitely born in Calgary to a citizen mother and alien resident father. (Cruz’ father did not become a US citizen until 2005.) Under any definition of citizenship, he therefore qualifies. The rub is whether this counts as being a "natural born" citizen for the purposes of Article II Section 1 of the Constitution, which has – conveniently or frustratingly, depending on your preferences – never been directly tested in court.

The relevant passage of Article II Section 1 is this:

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.

Now, on any common sense understanding of "natural born Citizen," it would be a person who obtained citizenship by virtue of his birth without having to go through a naturalization process. Ted Cruz did not have to go through any naturalization process – so in that sense he counts. But owing to a quirk of citizenship law at the time he was born, someone with more money than sense (Donald Trump?) could still try to make a(n admittedly flimsy) case.

A bit of a history lesson. Originally, under the Naturalization Act of 1790, people born abroad to US citizens were also US citizens if their father was a US citizen. Later, this was narrowed to require that the father had also resided in the US at some point (so, you can’t be a citizen by virtue of a father that was born to a father that was a US citizen at your birth, I guess). For over 100 years, even a brief stayover was enough to meet the residence requirement.

In 1934, mothers were given equal status. So, you could get citizenship from either parent, provided they’d been to the US at some point.

In 1940, "resided in" became much stricter. Now it meant 10 years of the transmitting parent’s life had been spent in the US, at least 5 of which were after the age of 14. This would be tinkered with quite a bit in the years leading up to 1978.

It isn’t the residency requirement that could potentially be a problem for Cruz. His mother was born in Delaware and lived her life in the US up to that move to Canada, so there’s no question she can transmit US citizenship to him. The wrinkle comes with the "retention requirement" that existed for foreign born citizens in one form or another from 1952 to 1978. The details varied, but the idea was that having gotten citizenship at birth, you then had to "retain" it by residing in the US for a number of consecutive years. At the time Cruz was born (1970), this requirement was a cumulative 5 year period between the ages of 14 and 28 interrupted by no more than 12 months at a time. In 1972 this was relaxed to two years, compensated by lowering the maximum interruption period to 60 days.

In 1978, the retention requirement was removed, but removal was not made retroactive, so Cruz was still subject to it. Critically to the (specious) claim I’m hypothesizing, the 1978 law also allowed for someone who had failed to "retain" their citizenship to reclaim it by simply taking the Oath of Allegiance – but with the catch that citizenship commenced from the moment the oath was taken – i.e. it was crucially not retroactive to the moment of birth. That, obviously, creates an ambiguity with regard to the constitutional requirement for Presidency. On the one hand, since the right of citizenship was obtained at birth, it would seem plausible to consider such a person a "natural born citizen" for the purposes of Article II Section 1. On the other, since the right was not exercised until later, and since the statute expressly doesn’t confer citizenship until the right is exercised, it seems equally plausible to interpret it the other way: such a person is not a "natural born citizen" for the purposes of Article II Section 1 since it wasn’t birth alone that confered citizenship.

In 1994 this was clarified by an Act of Congress which applied the revocation of the "retention" requirement retroactively. So, at least as of 1994, Ted Cruz did not need to meet a "retention" requirement to keep his citizenship.

He would meet it anyway – he went to high school and college in the US, which totals more than the 5 years required at the year of his birth. But in a way, that’s the problem.

The specious case I have in mind works like this: someone could claim that Ted Cruz’ citizenship was conferred under the retention statutes because he met the requirements while they were still in effect. Under that interpretation, even though Ted Cruz was a birthright citizen, he didn’t actually fully become a citizen until some point in high school or college. So, the 1994 law notwithstanding, Ted Cruz was not a "natural born" citizen since the laws that would have made him one were not passed until after he had fulfilled his citizenship requirements. The argument would take the tack that the provision making the revocation of the retention requirement is only applicable as relief for people who did not manage to meet the retention requirement whilst it was in effect. To wit, that it does not apply to people who did meet it, since they already have citizenship without having to take advantage of the 1994 revision. It makes a distinction between "birthright" and "natural born" that the text of the law may or may not – but probably does not – support – namely that you can have the right, owing to your circumstances at birth, to claim citizenship without being born into citizenship.

I keep describing this line of reasoning as "specious" because I think it’s pretty clearly at odds with what was intended by the 1994 statute. This is pure technical exegesis – for sport, not for principle. But obviously no politically-motivated lawsuit will stop to split that hair. The point is just that the pieces are there to construct a lawsuit challenging Ted Cruz’ elligibility for the presidency if anyone wants to put them together. It would have to be someone with more money than sense, since the process would be expensive and, I should think, extremely unlikely to succeed. But you know, there are a lot of people in the world with more money than sense, and some of them are interested in partisan politics, so I won’t be surprised to find exactly this claim being made if Cruz gets anywhere near the nomination.

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