How could anyone even debate the meaning of a term included in the original U.S. Constitution adopted in 1787? Believe it or not, the federal courts have never decided the meaning of "natural born citizen" in the context of deciding a person's eligibility to serve as president of the United States. More importantly, most people arguing the issue fail to understand the legal distinction between a person defined by an act of Congress as being a citizen at birth as opposed to a person who is a natural born citizen. The two terms are not synonymous despite the overt attempts by many to blend the two terms.
Let me begin by making this point clear. There is no question that Rafael Edward Cruz, his true birth name, was conferred U.S. citizenship at birth by virtue of the U.S. citizenship status of his mother, Eleanor Cruz. Ted, as he prefers to be called, was born in Calgary, Canada on December 22, 1970. His mother was married to Rafael Bienvenido Cruz, a Cuban citizen, who became a naturalized Canadian citizen during the eight years he lived in Canada with Ted and his mother. Under Canadian law, Ted also acquired Canadian citizenship at birth because of his birth within the country. Thus, Cruz was a dual citizen of both Canada and the United States until someone pointed this fact out to the Harvard Law educated Cruz in 2014. Cruz ceased to be a Canadian citizen on May 14, 2014 after he made formal application with the Canadian government to renounce his citizenship.
The term "natural born citizen" is used only once in the United States Constitution in Article II, Section 1, which defined who was eligible to serve as president. Only a natural born citizen, or a person who was already a citizen of the United States at the time of the adoption of the Constitution, and who was at least 35 years of age was eligible to serve as president. Article I, Section 8 conferred to Congress the power "to establish a uniform rule of naturalization." This power grants only Congress the right to decide the admission of aliens to this country and the process for resident aliens to become naturalized citizens. The Fourteenth Amendment adopted after the Civil War declared that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States so that the newly-freed slaves would be accorded citizenship. The important distinction here is that persons are deemed by the 14th Amendment to be "citizens" and not "natural born citizens" because they are born in the United States and subject to the jurisdiction thereof.
All legal scholars agree that a person born to U.S. citizen parents within the jurisdiction of the United States is a natural born citizen within the meaning of the U.S. Constitution. Where they differ is whether persons who are only deemed citizens at birth by virtue of the 14th Amendment or an act of Congress are also natural born citizens. Cruz did not acquire citizenship at birth under the 14th Amendment; rather, he acquired citizenship by virtue of a law enacted by Congress that has been changed many times over the years. Specifically, his mother transmitted citizenship to him at birth because of 8 U.S.C. 1401(g). At the time of his birth, this statute allowed his U.S. citizen mother to transmit citizenship to him only if she had resided within the U.S. for a period of at least ten (10) years after she attained the age of 14 years. That law was later amended to lower the residency period to five (5) years.
So what does this mean? It means Ted's mother could only transmit citizenship to him at birth because the law Congress enacted at the time of his birth said she could do so by taking the step of registering with the consular post in Calgary a Consular Report of Birth Abroad ("CRBA") establishing to the satisfaction of the State Department that she was: a U.S. citizen; his birth mother; and satisfying the minimum 10-year residency requirement following her 14th birthday. If she had resided just nine years in the U.S. after reaching the age of 14 prior to his birth in Canada, she could not have transmitted citizenship to him. My question is how can someone who relies on an act of Congress to deem them a citizen at birth be a "natural born citizen" within the meaning that term is used to define one's eligibility to be president. Additionally, the fact he was born with dual allegiance to both Canada and the United States, how can he satisfy the natural born citizen requirement, which is premised upon owing one's allegiance and loyalty to this nation alone? Those are two questions that have never been answered by the Supreme Court. Anyone who professes to know with certainty that Cruz is eligible to serve as president is only proffering their opinion of how the Supreme Court will rule if the matter ever presents itself.
This issue of eligibility is not confined to Cruz. Marco Rubio's eligibility is also uncertain. He was deemed a citizen at birth by virtue of the 14th Amendment. His parents were both legal resident nationals at the time of his birth in Miami. His parents later became naturalized citizens four years following his birth under the naturalization law enacted by Congress, but his natural born citizenship status is determined at birth; it's not a moving target that suddenly springs into existence by the future citizenship status of your parents. The fact Rubio was a citizen at birth does not answer the question of whether he is a natural born citizen. It's a shame that we're unable to know with certainty such a fundamental issue of great importance. The blame for that uncertainty lies squarely with the federal courts and, specifically, the U.S. Supreme Court, which turned down dozens of opportunities over the past eight years to decide that question once and for all.
Barack Obama's eligibility was rightfully raised in 2008. By his own admission, he held dual citizenship at birth by virtue of his supposed Kenyan father. Despite contrary media reports, the original birther was Obama himself. The agent he hired to promote his book touted the fact that he was born in Kenya and raised in Indonesia and Hawaii for more than ten years before the narrative changed to claim birth in Honolulu. His Indonesian school records claimed he was an Indonesian citizen, who went by the name Barry Soetoro. When his Republican opponent in his Illinois Senate race in 2004 noted his ineligibility to run for president because of his birth in Kenya, Obama remarkably didn't question the assertion regarding in Kenyan birth. His campaign mantra that promoted him as a "citizen of the world" was spot on.
John McCain's eligibility in 2008 was challenged because he was born in a hospital in Panama where his father was serving as an admiral in the U.S. Navy. He was not born on a military base as many claimed. The 5th Circuit Court of Appeals recently rejected a claim of birthright citizen made by a child of U.S. citizen father, who was serving on a military base in Germany at the time his alien mother gave birth to him, by virtue of his birth at a hospital on that U.S. military base. The U.S. Senate passed a resolution declaring McCain a natural born citizen, which was all well and good, but that was an issue that rightfully should have been decided by the courts applying principles of constitutional interpretation. If Congress really wanted to help out, it should enact a uniform law requiring all candidates for president of the United States to present evidence of their natural born citizenship status in order to appear on a state ballot for election. But it's not politically correct to ask someone to prove their citizenship status in this day and age.
UPDATE: Sen. John McCain (R-AZ), who is no fan of Trump or Cruz, thinks the issue of Cruz' natural born status is worth a look:
"I know that came up in my race because I was born in Panama, but I was born in the Canal Zone which is a territory. Barry Goldwater was born in Arizona when it was territory when he ran in 1964," McCain said.
McCain added that he was born on a U.S. military base, which he said is not the same as being born in Canada.
"That's different from being born on foreign soil. I think there is a question. I'm not a constitutional scholar on that, but I think it's worth looking into. I don't think it's illegitimate to look into it."
Asked if the Supreme Court might have to weigh in on the "natural born citizen" issue, McCain said, "It may be, that may be the case."Actually, the recent 5th Circuit Court of Appeals opinion differs with McCain's assertion that he had birthright citizenship by virtue of his birth on a military base in Panama. McCain first mentions that the Panama Canal zone was a U.S. territory at the time of his birth; however, the federal courts have distinguished between incorporated and unincorporated territories. Incorporated territories like Arizona were destined for statehood, while an unincorporated territory like the Panama Canal zone or the Philippines were never destined for statehood and, thus, no birthright citizenship was conferred to those born there. McCain also claims he was born at a military hospital on the base in Panama. Other researchers claim McCain's mother gave birth to him in a local hospital, not a military hospital. Nonetheless, the recent 5th Circuit opinion makes clear that birth on a military base is akin to birth in an unincorporated territory and so no birthright citizenship is conferred to a child born at a military hospital. Clearly, McCain was a citizen at birth, though, by virtue of the immigration law enacted by Congress at the time of his birth.