Note: I have neither donated to, nor intend to vote for, Senator Cruz in the primary.
With Ted Cruz doing well in the polls the ever popular question of eligibility to run for President issue raises it’s ugly head. Again. This dangerous trend started with John McCain and President Obama, and now the mantle has passed on to Senator Cruz. Regardless of where you stand on the candidates, anyone running for office, be it dog catcher, President, or something in between, deserves to be judged on the merits of their positions and content of their character rather than superfluous, specious allegations regarding their eligibility for office. Statesmanship is a lost art, and for that reason it’s important to examine the question of eligibility for office. Not because of partiality or dislike towards a candidate, but because it’s the right thing to do for the county. To that end, let’s take a look at what leaves a person eligible for the Presidency.
In order to run for President two conditions must be met.
1) The person must be eligible to run for office.
2) The person must not have been disqualified from running for office.
Although the second issue may come into play in the election depending on how the Clinton email investigation concludes, since it is not at issue at this time only Senator Cruz and eligibility will be discussed. The Constitution establishes in order to run for the Presidency a candidate must:
1) Be at least 35 years old.
2) Have 14 years of residency.
3) Be a natural born citizen.
Those alleging Cruz is ineligible to run for office attack the third requirement as not being met. This is a nearly identical charge as was made against McCain and Obama. And just like peeling and cutting a pineapple, no matter how many times it’s done it’s a sticky, messy proposition. While legal scholars have opined both for and against the eligibility the question is very clearly answered that Senator Cruz is a natural born citizen. The Harvard Law Review has an excellent analysis of the issue and presents a compelling case as to why Cruz is eligible, so I will rather focus on the difficulties with the argument against as set forth in the Los Angeles Times Op-Ed piece which gives a good breakdown of the argument against eligibility. While I do not disagree with the Harvard article, I would argue that the case against eligibility fails for a different reason.
The crux of the argument against Cruz being a natural born citizen is that he was born in Canada to a US citizen mother and a Cuban citizen father. Had both parents been US citizens, there would be no question. Had he been born in the US, there would be no question. But he was born abroad to a noncitizen father, and the original rubric for natural born citizen is suggestive of using paternal lineage to establish natural born citizenship. Had the father been a US citizen the question would be resolved, but because the claim to natural born citizenship flows through maternal lineage, and the original intent was for paternal lineage he is ineligible to run for office.
At face value, this argument is logically consistent and seems facially valid. Where then does it fail? The problem is that the Constitution doesn’t directly address the issue of what constitutes a natural born citizenship. In United States v. Wong Kim Ark, 169 U.S. 649, the Supreme Court noted, “The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” With the terms undefined, intent is the proper method to determine the meaning of the terms. Seems like the Cruz is ineligible argument has support. However, this fails when viewed in light of the Fourteenth Amendment. Although the Fourteenth amendment facially only deals with persons born within the territory of the United States, it establishes a break from the original intent of the Constitution. The Amendment was written, in part, to ensure the Civil Rights Act of 1866 would not be struck down by the Supreme Court or repealed by a future Congress. In addition to breaking away from the original intent of the Constitution the Fourteenth Amendment also contained the Equal Protection Clause. The Equal Protection Clause, in a nutshell, states that two individuals, otherwise identically situated, cannot be treated unequally on the basis of inalienable characteristics. Gender is an inalienable characteristic, and so the distinction between natural born status based on paternity versus maternity now fails Constitutional muster and Senator Cruz is a natural born citizen based upon being born to a US citizen mother.
You may be thinking the Fourteenth Amendment only holds true to the states and the federal government is not bound by the Amendment; therefore, Senator Cruz is still ineligible since the original intent holds. As a technical matter, this is correct. However, the eligibility is established through the Fifth Amendment. Historically, the Equal Protection clause was frowned upon by the Supreme Court. However, in modern jurisprudence the federal government has been bound to the Equal Protection Clause via the Fifth Amendment. In Bolling v Sharpe (347 U.S. 947) the Supreme Court stated, “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law[.]” As the Fifth Amendment binds the Equal Protection Clause to the federal government the discrimination of natural born citizenship based on paternity versus maternity would never survive a strict scrutiny analysis and Senator Cruz is eligible to run.
Those who argue the issue is not settled are correct. The issue has not been definitively addressed by the courts, and technically could be a live dispute if someone with standing were to raise the issue. This brings us to the good of the country aspect. Who can raise a dispute? A voter cannot. Neither can a PAC or similarly situated organization. However, it’s conceivable that a state party, or less likely a county party, could seek a declaratory judgment that allowing Senator Cruz on the ballot is proper. A state party has the obligation to ensure that the candidates on the ballot are eligible for the position they seek. Seeking to declare they can put Senator Cruz on the ballot is an easy way to resolve the issue. As the state party is acting to include the candidate the legal action would be friendly, with only the state party and Senator Cruz being able to present evidence. Or Senator Cruz himself could seek such a judgment.
Please note that I am NOT advocating for a county or state party to initiate such an action. The purpose of this entry is simply to explain why Senator Cruz is eligible to hold the office of President, to establish how he is, and give an avenue for how the question can be definitively settled.