Can Canadian-born Ted Cruz run for president? (Yes.)


March 23, 2015

Senator Ted Cruz, who is expected to declare his candidacy for the Presidency of the United States today, was born in Canada (Calgary, to be exact).

March 23, 2015

Senator Ted Cruz, who is expected to declare his candidacy for the Presidency of the United States today, was born in Canada (Calgary, to be exact).

This inevitably means that, in the 19 months between now and 2016 election, someone will argue that Ted Cruz is not actually eligible to serve as president — because the Constitution restricts the presidency to "natural born citizens" of the United States. Someone might even sue Cruz in federal court over his eligibility. That's what happened to John McCain (who was also born outside the US) in 2008.

It's pretty clear that Cruz can run for president — smart legal minds have looked at the relevant laws, and generally agree that an American born in Canada is still eligible to run the country. Of the many obstacles that stand between Cruz and the White House, his Canadian birth will near-certainly not be his campaign's death knell.

Cruz was born a citizen of the United States

Even though Cruz was born in Canada, he was American from the moment of his birth.

Cruz' mother, Eleanor Darragh, was a US citizen from Delaware. His father, Rafael Cruz, was a Cuban national who had received a green card while living in the US (he eventually became a US citizen in 2005). Under American law, Cruz would be born an American despite having only one US citizen parent as long as that parent — his mother — had physically lived in the United States for at least five years, and two of those years had been after her 15th birthday. Cruz's mother easily cleared that bar, so his citizenship is not debatable.

Cruz also gained Canadian citizenship at birth, the same way anyone born in the United States is automatically a citizen. Cruz eventually renounced his Canadian citizenship, after he was already in the Senate, to make it clear that America was his only love. But his eligibility to run for president didn't hinge on that; there's nothing saying that dual citizens don't count as natural-born.

The problem for Cruz is that there's actually nothing saying what does count as "natural-born." While it's common sense to assume that anyone who's born a citizen of the US is a "natural born" citizen, the law doesn't officially spell that out. And that's what creates just a little bit of doubt.

Will Congress have to pass a resolution to settle the question?

There used to be a law on the books defining a "natural-born citizen." The Naturalization Act of 1790 specified that "children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens."

That's pretty cut and dried — and it obviously includes Ted Cruz. Furthermore, the fact that the law was passed so soon after the Constitution was written, by many of the men who had written the Constitution, indicates that it's pretty close to the "Founders' intent" of what "natural-born citizen" was. One problem: Congress repealed the 1790 Act in 1795, and replaced it with another law that specified that people in Cruz' situation would be "citizens" — but not whether they'd be "natural-born citizens."

Most lawyers agree that this would be pretty thin case against. On March 11, former Solicitors General Neal Katyal and Paul Clement published an article in the Harvard Law Review that argued that Cruz' eligibility was an open-and-shut case. "While some constitutional issues are truly difficult," they wrote, this one isn't; "the relevant materials clearly indicate" that Cruz counts as natural-born.

The Congressional Research Service doesn't think it's quite as obvious as all that; in a 2011 report, they concluded that there are "legitimate legal issues" regarding whether people born outside the US count as "natural born. But the CRS concluded that "the weight of historical and legal authority" weighs on the side that they do.

But just because the legal question is settled doesn't mean Cruz's citizenship won't get challenged at all. In April 2008, the Senate felt the need to pass a resolution declaring that John McCain was definitely for sure a "natural-born citizen" of the US; the resolution was bipartisan, and both Barack Obama and Hillary Clinton were original co-sponsors.

Meanwhile, a man named John Hollander, who'd voted against McCain in the New Hampshire primary, filed a federal suit against McCain and the Republican National Committee for disenfranchising his vote by running an ineligible candidate for president. Hollander represented himself in court, and doesn't appear to have made the most impressive argument; the judge dismissed the case that summer because Hollander had no standing to sue.

The moral of the story: just because it's pretty darn clear that Ted Cruz is eligible to run for president. At the same time, that doesn't mean that no one in this country of 300 million Americans will be crazy enough to say he isn't.