*****So, in my last post, (since deleted) I narrated my worries that developed when trying to research a reliable answer on Ted Cruz’s presidential eligibility. I put out my worry and asked to be proven wrong. I was proven wrong. Really wrong. My reading of a law was completely off. I felt compelled to take it down so as not to spread misinformation, so I deleted text of the post. I am keeping the deleted post as a monument to my mistake. Thank you to those who corrected me. Here is an updated attempt to cover the same ground. ******

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Now, I am not an expert on immigration and naturalization. But my guess is (except for a select few readers I have in my mind) neither are you. But since everybody is talking about Ted Cruz’s eligibility to be president, I thought I could offer a service. Some have said they don’t know about Ted Cruz’s eligibility for the presidency. Most have said this is an unresolved question of law. Some have said the law is solidly on Ted Cruz’s side. I hope to give you some solid info and facts so that you can speak on the issue with more than just “I think.”

Now, others have noted that other presidential candidates (Mitt Romney, John McCain, and Barry Goldwater) have all been born outside the United States, and that this did not even raise the question of eligibility for the presidency. All true. But individual facts matter, and those facts are not like the current facts.

This is my effort to look up some hard law, connect the facts to that law, put it out there, and put it to rest.

The Constitution

The Constitution states:

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.

This gives a short checklist of what it takes to run for president.

You MUST be:

1. 35 years old, and
2. a resident within the united states for 14 of those years, and…

You must EITHER be:

1. a citizen of the United States at the time of the adoption of the Constitution (which applies to no one born after 1787), or
2. a natural born citizen.

Ted Cruz is 35. He has lived at least 14 of those 35 years within the United States. Since he did not exist in 1787, he must therefore be a natural born citizen if he wants to be president.

But what does it MEAN when you say “natural born citizen”? Here is where I have found many discussions lacking. Some have made the claim that the “original intent” of the term was anyone born in the United States. (Some of those claims seem politically motivated.) This is not satisfactory. I am explicitly discounting any direct “original intent” argument about the natural born citizenship clause for two reasons.

First, if we are to pretend that this was the original intent, we have to note that this was NOT the case at the time. There were many people born in the United States who were not even citizens (slaves, children of ambassadors, Indians, and sojourners giving birth in ships in American harbors), much less eligible to be President. To pretend that that the phrase “natural born” provides a firm rule in all of those cases is to stretch credulity. We need statutory substance to that Constitutional framework.

Another problem with original intent is a problem of consistency. There is another issue going on about the original intent of what it means to be born in the United States. Does the United States Constitution automatically grant citizenship based on the location of your birth? I and many others do not necessarily believe that the location of your birth the United States is a Constitutional guarantee of citizenship. Instead, it is the location of your birth AND the object of your “permanent allegiance” that gives the Constitutionally guaranteed citizenship. Just as the 14^th Amendment is a Constitutional framework provision that requires a legislature-passed statutory substance, Article II’s natural born citizenship clause is a constitutional framework that requires statutory substance. You can’t say “original intent” on one hand and “legislature-passed statute” on the other. Plausible interpretation requires consistency.

As an example of this framework/substance issue, the Constitution’s 12th Amendment does not define what it means to be an “inhabitant of the same state.” But we still allow lower-forms of residency laws to fill in the meaning of that constitutional provision. We didn’t have any “original intent” arguments about Dick Cheney and George W. Bush. We instead just looked to basic “residency” law.

So, the Constitution uses the term “natural born” but does not define exactly what it is. Who defines what that means? Congress, through its laws.

The Statutes

So…. What do the statutes say?      

Title 8 of the U.S. Code, Section 1401 is what tells us who is a “national and a citizen at birth” and who is not. That is: a “natural born” citizen. (A “national” of the United States is a person owing permanent allegiance to the United States, and an “alien” is someone who is not a national and not a citizen. If wonder if it is possible to be a U.S. national and not a U.S. Citizen, the answer is yes. It means you’re from American Samoa. See John Oliver for a brief, humorous, profane, and disapproving explanation). You can click on the link to see the text, but I would like to give a basic break down of 8 U.S.C. § 1401 in its 8 sections here.

As of the law today, you ARE a natural born citizen IF:

1. …you were born in the United States and not the child of an ambassador (the anchor-baby debate is deliberately put on hold in this description).
2. …you are an Indian (of the Native American sort).
3. …both your parents are citizens, and at least one of them has lived in the United States before you were born.
4. …no matter where you’re born, one of your parents is a citizen and the other is from American Samoa, AND your citizen parent has lived on U.S. territory for one continuous year prior to your birth.
5. …you were born in an outlying possession of the U.S. (like the Panama Canal Zone before 1979), AND one of your parents is a citizen who has lived on U.S. territory for 1 year for any before your birth.
6. …you were found in the United States, you are less than five years old, and no one proves you were born elsewhere before you turn twenty-one.
7. …you were born completely outside the United States and its possessions, AND one of your parents is a citizen and one is not, AND the citizen-parent lived within the United States for at least five years and two of those five years were after the parent turned 14 (with exceptions for military and diplomatic service).
8. …you were born to a non-citizen father and a citizen-mother who lived in the United States at some point in time, IF you were born before noon of May 24, 1934 Eastern Standard Time.

There are some other sundry exceptions and clarifications in regulations for posthumous children, and children born out of wedlock, but except for those, this is the exhaustive list.

Now, you can see many problems solved. Mitt Romney, born in Mexico to U.S. citizen parents, fits into slot three. He’s a natural born citizen. Barry Goldwater, Born in Arizona Territory also fits into slot 3. John McCain, born in the Panama Canal Zone, fits into slot five.

But Ted Cruz? It’s complicated. He was born in Calgary, Alberta, Canada on December 22, 1970. His mother was a naturalized U.S. Citizen. His father was originally a Cuban citizen, but he gained asylum in the U.S. after fleeing from Castro. But he did not get U.S. citizenship. Instead, he gained Canadian citizenship in his 8-year stay in that country. Only in 2005 did he become a naturalized U.S. Citizen. She moved to Canada in the 1960s oil boom, and there gave birth to Ted Cruz.

This means that Cruz does not fit into slot 1, slot 2, slot 3, slot 4, slot 5, slot 6, or slot 8. He looks like he could fit into slot 7.

But that’s not the end of the statutory story with slot seven! Slot seven has changed since the applicable law when Ted Cruz was born. At the time, the requirements were the same, except the time period was different. You had to live in the United States for 10 years, and 5 of those years must be after the parent turns fourteen.

The Facts and Consequences

So does Ted Cruz’s mother fit the bill of slot 7?

Yes. His mother was born in Wilmington, Delaware. She went to highschool at St. Joseph’s Academy in Baton Rouge, LA. She graduated from Rice University in Houston in 1956. High school and college add up to 8 years. So long as she spent 2 years of her life before highschool in the United States, she fits the bill. Assuming she entered college after turning 15, five of those ten years were after she attained the age of fourteen. I think those are safe assumptions.

Therefore, Ted Cruz is a natural born U.S. Citizen. Over and done. Put it to rest.