The Curious Question of Who Can Be President

Ted Cruz’s candidacy is once again causing the question of just who is eligible to become President of the United States to appear in the media.  To help frame this question for anyone who is genuinely interested in the complex legal issues at play, I’ll provide a brief summary of the Byzantine, internally-inconsistent and constantly changing mess that is American citizenship law.

Before I begin, let me say three things up front.  First, I am not a Ted Cruz supporter.  Secondly, my own analysis of the issue leads me to believe that Ted Cruz is almost certainly eligible to become President.  I am not a lawyer, but I was a trained U.S. Consular Officer for many years during a period when Consular Officers were expected to be able to cite chapter and verse of relevant citizenship laws, regulation and procedures.  I do not support Mr. Cruz, but I certainly do not doubt his eligibility to become President.  Thirdly– and most importantly – anyone who purports to have the definitive answer as to Mr. Cruz’s eligibility falls within my definition of  spin-doctors propgating “lies and damn lies” because there is no definitive answer.  That answer can only come from the court system, perhaps even the Supreme Court itself, and federal courts will not entertain hypothetical cases.  We will only have the final answer if Mr. Cruz, or some future candidate born outside the USA, is elected President.

For a formal yet succinct explanation of why there is no definitive answer to the question of whether Ted Cruz is eligible to become President of the United States, I turned to the Foreign Affairs Manual (the FAM), a massive, dense and often incomprehensible set of rules and guidelines that were created to translate literally thousands of (often inconsistent if not contradictory) U.S. laws and regulations into one comprehensive manual that governs the day-to-day operation of civilian American government operations abroad.    According to Section 1131.6-2, subparagraph a, of the seventh volume of the Foreign Affairs Manual (usually cited as 7 FAM 1131.6-2a), “[i]t has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.”  Just in case anyone is tempted to read nefarious political intentions into that language, it is worth noting that that particular section of the FAM has not changed since April 1, 1998, so it could not possibly have been written with any current Presidential candidate in mind.

Why is This Question So Complicated?

The question of who is eligible to become President of the United States is complex for two primary reasons.  First, the Constitution is unclear.  Section 1 of Article Two, Clause 5 of the U.S. 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 […].”  That is the only place that the term “natural born Citizen” appears in the Constitution, so it has been up to the Congress and the courts to determine what the words mean.

Second, both Congress and the courts have changed their mind many times over the course of U.S. history and have used all types of confusing language.  While some citizenship laws included language making them retroactive, others applied only to persons born after the law was passed.  It is therefore possible (although I am not sure if it ever really happened) for identical twins who were born just before and just after midnight on a date when the law changed to have different citizenship status.

Starting with the basics, there are three ways to become a U.S. citizen today: (1) being born in the United States, (2) being born outside the United States to parent(s) who are U.S. citizens, or (3) being naturalized at some point after birth.  Each of these three paths to citizenship has its own peculiarities that could impact the ability of a person to be considered a “natural born citizen” for the purpose of becoming President.

The Easiest Cases First: Naturalized Citizens

Of the three routes to becoming a U.S. citizen, the easiest one to understand is the third: naturalization.  Lawmakers, lawyers and courts are in almost universal agreement that persons who became a U.S. citizen via naturalization are not “natural born citizens” and thus cannot become President of the United States.

Even for naturalized citizens, however, the situation may not be set in stone.  A potential ambiguity arises because over the long history of frequently-changing U.S. citizenship law, the Congress has, in some but not all citizenship laws, included language stating that persons who became U.S. citizens under the provisions of such-and-such law are “considered natural born citizens.”  While Congress has not yet used that language in any law governing naturalized citizens, the fact that it has used such language in laws governing the citizenship of persons born overseas to one or two American citizen parents has led various legal experts to opine that Congress could pass a law with a similar provision for some group of naturalized citizens.  This possibility attracted some attention in 2013 when the Austrian-born actor and former Governor of California, Arnold Schwarzenegger, was reportedly considering (or being urged to consider) a run for the presidency.

Persons Born in the United States: Not as Simple as You May Think

With very few exceptions, legal experts agree that anyone born in the United States is a natural born American citizen.  While the actual legal situation is not as simple as most people believe, the fact is that more that 99.9% of persons born in the USA over the past 70 years are citizens by birth.  If anyone who fell into the remaining 0.1% decided to run for President, the case would almost certainly have to be decided by the courts.  The same would probably be true if someone over 70 who fell into racial or ethnic groups previously subject to discriminatory “exclusion” laws were to run for President.

The primary exception to the general rule that persons born in the USA are natural born citizens of the USA concerns children born to diplomatic staff and their spouses. Children born in the USA to parents who are duly accredited foreign diplomats on assignment to the United States do not become U.S. citizens at birth.  Interestingly, the same exclusion generally does not apply to children born to foreign consular officials working here.  This distinction arises due to the varying level of immunity diplomats and consular officers receive.  Diplomatic immunity is so extensive that children born to foreign diplomats are viewed as not being subject to U.S. law and, as such, do not meet the requirements for citizenship by birth as set out in the 14th Amendment and further defined in 8 U.S.C. § 1401.  Consular immunity is much more limited than diplomatic immunity, so children born in the USA to accredited foreign consular officials are usually considered American citizens.  The same is true for children born to support staff who are generally subject to U.S. laws even though they enjoy some level of administrative or “official acts” immunity in conjunction with their official functions.  Just in case someone feels that those rules are not complicated enough, rest assured that there are small numbers of other exceptions to the exceptions that have been created by laws and treaties, such as one between the USA and Canada concerning the citizenship of the children of consular officials born to parents from one country serving in the other.   The collection of laws and regulations is complicated enough that there is an office in the State Department that makes individual determinations for each and every child born to foreign diplomats, consular officials and other government representatives working in the USA.

Citizenship by birth has not always been nearly so universal.  For much of American history, laws passed by Congress, various state laws and a multitude of court rulings limited who could become a citizen by being born in the United States.  Among the most significant such provisions were those that denied citizenship to persons of African origin and those that denied citizenship to persons of Asian origin.  In 1857, for example, the majority opinion in the Supreme Court’s Dred Scott decision held that anyone whose origins could be traced to Africa could never be a citizen, even if the person or his/her parents came to the USA freely rather than as slaves and had lived here for generations.  While the prohibition against African-Americans being citizens was eliminated by the passage of the Civil Rights Act of 1866 and then the 14th Amendment in 1868, other exceptions lasted much longer.  Native Americans, for example, did not automatically become citizens at birth until 1924.  Many persons of Asian origin were prohibited from being citizens for any reason, including birth in the USA, due to a whole range of laws passed by Congress between the 1880’s and the 1930’s specifically targeting persons whose families came from China, Japan and other Asian countries.  Those exclusions were not lifted until the passage of the Magnuson Act in 1943, so it is theoretically possible that an Asian-American who was born in the USA prior to 1943 could be barred from becoming President.  I say “theoretically” because no such case has ever been decided by the courts so it is not yet 100% clear whether an American politician with Asian roots could successfully challenge the constitutionality of the law(s) that prohibited him/her from becoming a natural born citizen.

None of the exceptions described above apply to President Barack Obama, who was born in Hawaii in 1961, two years after it became a U.S. State.  While most proponents of the politically and racially charged “birther movement” asserted that President Obama was born outside the USA, those contentions were so obviously false that they never even reached a court.  Amid the easily discredited nonsense, however, one more nuanced legal argument did emerge.  The basis of that argument was that President Obama was not a “natural born citizen” despite the fact that he was born in the USA.  Central to the case was the contention that to be a “natural born citizen,” it was not enough to be born in the USA; both parents had to be Americans citizens as well.  While the case was decided in President Obama’s favor by the Court of Appeals in Indiana, the fact that a court even agreed to hear the case demonstrates that the question was worth thinking about, which is not surprising given that past Presidential candidates had been challenged on the same grounds.  In 1896, Christopher Schürmann’s inability to win the Labor Party nomination for President was largely attributed to concerns that his parents were both German citizens, a fact that (his opponents contended) would render Schürmann ineligible to serve as President even though Schürmann himself had clearly been born in the USA.  While the case never went to court, the charges nonetheless appear to have served their political purpose by sabotaging Schürmann’s candidacy.

Charles Evans Hughes managed to win the Republican nomination for President in 1916 despite concerns that the fact that both of his parents were British, and not American, could render him ineligible to become President.  Because Hughes lost to Woodrow Wilson, the question never made it to court.

It is hard to say for certain if there was ever a serious legal question as to whether someone born in the USA must also have two American citizen parents in order to be eligible to be President; it may have always been a political ploy.  In any event, thanks to the suit brought against President Obama in 2008, that question has now been settled.  To turn legalese into plain English, the court conclude that President Obama was born in Hawaii two years after Hawaii became a U.S. state, so he was born in the USA and is therefore a natural born citizen.  Period.  The citizenship of his parents is irrelevant.

The Really Tricky Question: Persons Born Outside the United States

The class of citizenship cases that is most complex includes the case of Republican Presidential contender Ted Cruz, who was born in Canada in 1970 to an American mother and Cuban father and who held dual U.S.-Canadian citizenship until 2014, when he formally renounced his Canadian citizenship. The fact that Mr. Cruz was elected to the U.S. Senate after having been born in Canada and while still holding Canadian citizenship did not raise any constitutional questions for the simple reason that the “natural born citizen” language of the U.S. Constitution refers exclusively to the President.

The question of whether someone born outside the United States can become President, even if he/she is born to two American citizen parents, has never been definitively decided.  This legal limbo persists despite the fact that the first citizenship law passed by Congress, the Naturalization Act of 1790, stated that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”  (Emphasis added.)

That first citizenship law also included follow-on provisions that codified gender discrimination by denying citizenship to children born to American citizen mothers who gave birth after having married a foreigner who had never lived in the USA while granting citizenship to the children born to American men in analogous circumstances.  Yet another provision in early U.S. citizenship law reversed the tables somewhat by granting U.S. citizenship to children born overseas to unmarried American women but denying it to children born out of wedlock to American men.  Those 18th century citizenship laws established a legal precedent for official gender-based discrimination that continue to this day.  Driven by concerns that “fake” illegitimate children of American soldiers in Vietnam and Korea would claim an American father as a means of coming the USA, for example, Congress has made it much harder for the illegitimate children of American men resident abroad to be recognized as citizens than the illegitimate children of American women.

Despite these few continuing vestiges of gender-based citizenship law, by 1970, the year that Ted Cruz was born, U.S. citizenship law had evolved to the point where he clearly fell into the category of persons “considered as natural born citizens” even though only his mother was an American citizen at the time of his birth.  In 1970, the only way someone born outside the USA to a U.S. citizen mother could have been excluded from being “considered as a natural born citizen” would have been if his mother had also been born abroad and had not been physically present in the USA for more than five years, two of which had to be after her 14th birthday.  Because Mr. Cruz’s mother was born and grew up in the USA, that exclusion clearly does not pertain to him.

The Thin LIne Between Law and Politics

Despite the seeming clarity of Ted Cruz’s case – and my own opinions – I have to admit that his legal ability to become President of the United States is not 100% clear.  The most common argument against Ted Cruz’s eligibility centers on whether the term “considered as natural born citizen” is legally equivalent to “is a natural born citizen.”  This question was at the heart of Constitutional Law Professor Mary Brigid McManamon’s piece in the January 12 edition of the Washington Post.   Prof. McManamon concluded, in language construed to broke no argument, that Ted Cruz is not eligible to be President since the (implied or intended) Constitutional meaning of “natural born citizen” was “born in the USA.”  She only presented information that supports that view.  Just a week prior to when Prof. McManamon’s opinion piece appeared, however, Washington Post columnist Ruth Marcus, who is both a Pulitzer Prize winner and Harvard Law graduate, concluded in equally authoritative language that Ted Cruz clearly meets the constitutional requirements to be President.  Like McManamon, Ms. Marcus presented ony one side of the issue and did not address the counter-arguments.  Both of those eminent experts were wrong and for the same reason: they chose to present their own views as unassailable truths rather than opinion and to simply ignore all facts and opinions that did not support their chosen position.  While I agree with Ms. Marcus that Senator Cruz almost certainly meets the constitutional requirements to become President, I also realize that my beliefs do not matter.  As I noted at the start, what matters is how courts interpret both the Constitution and applicable citizenship laws — and the courts have not yet spoken.

Ted Cruz is not the first candidate born outside the USA to face scrutiny over his eligibility to become President.  The most recent similar cases involved Republican Presidential candidates George Romney and John McCain.  While he was born in Mexico rather than Canada, Mr. Romney’s legal citizenship status is somewhat similar to Mr. Cruz’s in that Mr. Romney clearly falls into the category of persons “considered to be natural born citizens” of the USA by virtue of being born to American citizen parents residing overseas.  Had he been elected, someone probably would have challenged Mr. Romney’s eligibility to become President, most likely with the result that the courts would rule in his favor.  But that’s just my opinion.

John McCain’s situation was somewhat more complex, primarily because he was born in 1936 and thus potentially could have come under the more restrictive version of citizenship law that was in effect at that time.  From 1795 until 1940, being born overseas to American parents did not automatically convey citizenship.  Instead, there were numerous (and changing) limitations on the citizenship of persons born overseas as well as tests to be met after birth.   Under the particular version of U.S. citizenship law in effect at the time of Mr. McCain’s birth in Panama, the key legal question was not only in which country he was born, but also in which hospital.  Under provisions specific to the Panama Canal Zone, persons born in a U.S. facility in the Canal Zone were “considered natural born citizens” while persons born in private facilities were not.  While Mr. McCain has always maintained that he was born in the U.S. military hospital, which certainly seems likely given that his grandfather was the base commander and his father was assigned to a submarine stationed at the U.S. base there, some of Senator McCain’s political opponents nonetheless tried to mount a challenge to his eligibility to become President.  In a bipartisan gesture, the U.S. Congress passed a non-binding resolution affirming that Senator McCain is a natural born American.  Despite this, if he had won the election there is a good chance that someone would have mounted a legal challenge to his eligibility to become President.  This challenge could have been based on the question of the exact hospital where he was born or on the broader question of whether persons “considered to be natural born citizens” according to laws passed by Congress meet the Constitutional definition of “natural born citizens.”  The arguments presented by Professor McManamon in the January 12 edition of the Washington Post would apply equally to both John McCain and Mitt Romney.

Claiming that political opponents are somehow ineligible to become President is nothing new.  The first “birther” movement arose with the election of President Chester A. Arthur in 1881.   In President Arthur’s case, this was due to the fact that his father was a traveling minister who served towns on both sides of the U.S.-Canada border.  President Arthur’s political opponents contended that he actually born on the Canadian side.  Because Arthur’s father was an Irish citizen at the time of Arthur’s birth in 1829 (or 1830), he would not have been a citizen at birth if he were born in Canada even though his mother was undeniably a natural born American citizen from Vermont.  While the challenge to Chester Arthur’s citizenship never reached federal court, it does provide an interesting insight into the how laws change over time.  If we assume solely for the sake of argument that Chester Arthur’s opponents were correct and he was born in Canada, then all that would separate Chester Arthur from Ted Cruz is the date of their birth.  Both had American mothers and foreign fathers.  When Chester Arthur was born, children born outside the USA to American citizen mothers and foreign fathers were not necessarily American citizens.  By the time Ted Cruz was born 140 years later, the law had changed so that he mother transmitted citizenship.  Because a number of Presidential candidates are proposing changes to U.S. citizenship law, including to birthright citizenship, the comparison of the cases of Ted Cruz and Chester Arthur may be more than just an historical mind game.

The Elephant in the Room

While I have tried to present a genuinely balanced, non-partisan analysis of the complex issues surrounding the question of who is eligible to become President of the United States, I cannot in good conscience end without addressing the proverbial “elephant in the room:” the anti-Obama “birther” movement.  This remains a topical issue because so many people still buy into the rhetoric.  A recent poll found that 53 percent of Republicans still doubt Obama’s citizenship. At the same time, an overwhelming 70 percent don’t have any doubt Cruz is American and eligible to be president.  In other words, 23% of Republicans profess to simultaneously holding not just inconsistent but diametrically opposing views.

First, I believe that no rational person can seriously doubt the fact that President Obama was born in Hawaii, a U.S. state.  Even if, however, someone lives is a “Man in the High Castle” style alternate reality in which history is totally rewritten and Barack Obama was born in Kenya and somehow transported (either by secret supersonic plane or even the TARDIS itself) to Hawaii to complete all requirements for a Certificate of Live Birth to be issued, then this fictional, alternate Obama would still be in exactly the same legal position as Ted Cruz.  Both men would have been born after 1952 and thus subject to the same set of citizenship requirements included in the amendments to the Immigration and Naturalization Act passed 1952.  Both men would have been born to U.S. citizen mothers who were themselves born in the USA.  Both men would have had non-citizen, foreign-born spouses.  So, I have to ask myself:  how is it possible for anyone – no matter how detached from reality their views on President Obama’s birth place may be – to consider Ted Cruz to be eligible to be President but not Barack Obama?  The sad reality is that millions of Americans evidently hold those utterly inconsistent views.  I cannot say if they are driven by ideology, racism or other base instincts.  What I can say for sure is that whatever is driving them is also blinding them to the inconsistency in their own beliefs.   That, unfortunately, is a very sad reality that makes me worry about the future of American politics.

 

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2 thoughts on “The Curious Question of Who Can Be President

  1. Very comprehensive, easy to follow commentary. A couple of comments: wasn’t it Mitt Romney’s father (George) who was born in Mexico; not Mitt?
    Also, if Obama had been born in Kenya, I’m not sure if his and Cruz’ legal situations would be the same. Doesn’t the citizen parent also have to meet certain US residency requirements by a certain age? If so, Obama’s mother may have been too young to meet them by the time she gave birth to him.

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    1. Yes, Mitt was born in Detroit but George Romney, his father, was born in Mexico. George also ran for President, but the quesion of “natural born citizen” did not come up since George’s candidacy did not go far. (Thanks for catching that… it was a total brain slip. I was thinking “Romney” so “Mitt” came out rather than “George.”)

      The residency requirement to which you referred only exists for persons born overseas. Barak Obama’s mother was born in the USA (in Wichita, Kansas )– a fact that not even the most vehement ‘birthers’ deny. As such, there was not any residency requirement for her to meet to matter what her age. So, even if Barack Obama had been born abroad, he would be every bit as eligible to be President as Ted Cruz.

      If she had been born overseas, given her age she would have been subject to the “7 in 21 rule,” which says that persons born overseas to US citizen parents must spent at least seven years physically present in the USA prior to his/her 18th birthday in order to be eligible to transmit citizenship to children born outside the USA with a non-citizen spouse. Note all the conditions in that sentence. The restriction applies only to mothers/fathers who were born oveseas, not to American-born parents. It applies only to children born overseas with a non-citizen spouse. No matter what age she was when she gave birth, no matter how long she had lived in the United States, Ann Dunham (Barak Obama’s mother) would still transmit full citizenship to her child because she was born in the USA and not subject to the residency requirements. Because Ann Dunham spent her childhood in Kansas, she would have easily satisfied that requirement even if she had been born outside the USA.

      The “7 in 21” rule is not a constant. There have been times in US history when women did not transmit citizenship at all; only the children of American men receive automatic citizenship. At other times, women could transmit citizenship and there were no residency requirements. Given Ann Dunham’s birth date (1942), she would have fallen under the “7 in 21” rule.

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