Wednesday, January 20, 2016

'Natural Born' Issue for Ted Cruz Is Not Settled and Not Going Away

by Pete Williams
NBC News
Jan 19 2016, 3:01 am ET

 While the nation's legal scholars differ over the exact meaning of the Constitution's requirement that a person must be a "natural born citizen" to become president, they're unanimous in saying Ted Cruz is wrong about an important point.

"As a legal matter, the question is quite straightforward and settled law," Cruz has said. "People will continue to make political noise about it, but as a legal matter it is quite straightforward."

In fact, the experts say, it is neither settled nor straightforward.

It's not settled — because the Constitution does not define "natural born," a phrase that appears in the nation's founding document only once.

And though the federal courts have chewed on it from time to time, the U.S. Supreme Court has never officially said what it means.

It's not straightforward — because at the time the Constitution was written there were different ideas about what the phrase meant and competing legal theories about where the power to confer citizenship came from.

The meaning of the term is so unsettled that scores of constitutional experts have been writing about it in the weeks since Donald Trump made it an issue in the 2016 campaign.

To review, Ted Cruz was born in Canada in 1970, where his Cuban father was working at the time. But Cruz's mother was an American citizen, so under US immigration law, that made him an American citizen, too.

So he is citizen, yes, but does the Constitution require something more to be natural born? If not, why was the term there in the first place, instead of providing simply that a person had to be born a citizen?

The simple answer is, it's impossible to know for certain. The founders devoted little time to discussing it. One day the term wasn't in the draft Constitution. The next day it was, and that was just about that.

The emerging consensus of the legal experts, however, is that being "natural born" means becoming a citizen at the moment of birth, as opposed to achieving it later through the process of naturalization.

"Natural in natural born doesn't mean biological. It means naturally, that is automatically, happening without any further intervention," said Constitutional law Professor Jack Balkin of Yale Law School.
One lawsuit has already been filed over the issue, by a retired federal prosecutor in Texas who claims to be suing on behalf of all registered voters. It will almost certainly be thrown out. The courts don't normally permit lawsuits claiming such a diffuse and abstract claim of injury.

But if a county or state official somewhere refused to put Cruz's name on the ballot, concerned he's not natural born, then Cruz could sue, and the issue would be squarely before the courts.

Federal judges then would be required to delve into the same history and struggle with the same issues that have animated legal experts over the Trump-Cruz controversy.

They will confront, said San Diego's Ramsey, a clause of the Constitution that is "mysterious and ambiguous."

And anything but settled.

Read more at:

Ted Cruz 2016

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