Skip to main content

Ted Cruz can be president, probably

By Gabriel "Jack" Chin, Special to CNN
updated 5:58 PM EDT, Tue August 13, 2013
STORY HIGHLIGHTS
  • Sen. Ted Cruz was born in Canada of a U.S. citizen mother and Cuban immigrant father
  • Gabriel "Jack" Chin says Constitution is vague on the exact standards to run for president
  • Chin says requirement to be a "natural born citizen" is not totally clear
  • He says most scholars think Cruz is eligible, and courts likely wouldn't bar him

Editor's note: Gabriel J. Chin is a professor at the University of California, Davis, School of Law. A graduate of Wesleyan University and the Michigan and Yale law schools, he has written extensively about immigration, citizenship and race and law.

(CNN) -- The Constitution says that only "natural born citizens" are eligible to be president. Is Sen. Ted Cruz of Texas eligible, given that he was born in Canada of a U.S. citizen mother and a Cuban immigrant father?

If Cruz runs, 2016 will be the third consecutive election in which there were questions about the right of a major party candidate to serve. Unfortunately, the Framers left few clues about exactly what a "natural born citizen" is; Congress has not used the phrase in citizenship statutes since 1790.

Indeed, the phrase is so obscure that it has been called the Constitution's worst provision by the dean of the Yale Law School. But it is likely that Cruz is a natural born citizen, because he was a citizen by birth. In any event, even if there were some question, the courts are unlikely to interfere with the decisions of the electorate about who we want as our president.

Gabriel \
Gabriel "Jack" Chin

We have clear rules for who is a citizen by birth, and who can become a citizen after birth by naturalization, but neither the Constitution nor laws passed by Congress define "natural born citizen."

The phrase comes from the English common law, which defined the term as including anyone who, by natural law, owed duties to, and was protected by, the monarch. The sovereign expected obedience from anyone born in the country, other than the child of a foreign diplomat or an enemy soldier. So children born in England, even to parents who were not English themselves, were natural born subjects. As such they were obligated to pay taxes, say, or perform military service, and they had the rights of English people.

The word "natural" was critical. English courts found that some people were naturally subjects if born in the dominion of the sovereign even if Parliament had passed no law making them such. Simply being born naturally created rights and duties.

Politics: Who is eligible to run for president?

The United States had natural citizenship in this same sense; white people born in the United States were always regarded as citizens, even before the Fourteenth Amendment, passed in 1868, put that principle in the Constitution and extended it to African-Americans.

Clearly, those born in the United States are eligible to be president; if they are not, no one is. There is also wide agreement that people who became citizens after birth, such as former governors Arnold Schwarzenegger and Jennifer Granholm, cannot run. Naturalized citizens are ineligible, no matter how able and popular, no matter how loyal and integrated into American society.

The question about eligibility has always been with regard to children of U.S. citizens born overseas, like Ted Cruz, and Republican presidential candidates John McCain and George Romney before him. The Supreme Court has held that foreign-born children are U.S. citizens only to the extent that a law passed by Congress makes them so. As the child of a U.S. citizen mother, Ted Cruz was born a citizen by virtue of the Immigration and Nationality Act. But did that make him a natural born citizen?

The United States has citizens, not subjects; we are a nation of free people, not ruled by a hereditary sovereign. Therefore, the English concept does not translate directly to the American context. Instead, the question is who is a natural member of the political community.

Most immigration and citizenship scholars, including me, believe that the answer is that any person who is a U.S. citizen at birth is naturally a part of the political community and hence eligible to be president. (I argued that John McCain was not eligible, because the statute granting citizenship to people born in the Canal Zone was passed only after he was born; since he was not a citizen at birth, he could not be a natural born citizen.)

There is a far-fetched counterargument, that only those who have citizenship by natural right, those born in the United States -- and perhaps only white people born in the United States -- are truly natural-born because only they are citizens without some law like the Immigration and Nationality Act or a constitutional amendment like the Fourteenth Amendment making them so. All others, who are granted citizenship because of some action by Congress, are mere naturalized citizens.

This argument seems wrong to most scholars. But whatever its merits, it is not likely to be tested in court. Judges appropriately hesitate to overrule the democratic process. If Cruz runs and is challenged, the courts will almost certainly rule that a random voter has no standing to challenge his candidacy. Other candidates are not likely to sue, but rather will focus on trying to win the election.

Judges will recognize that, at bottom, it is hard to find a legitimate reason that Ted Cruz or any other person in his situation should be denied the presidency if the people of the United States want him.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Gabriel "Jack" Chin.

ADVERTISEMENT
Part of complete coverage on
updated 8:37 AM EDT, Tue October 28, 2014
Errol Louis says forced to choose between narrow political advantage and the public good, the governors showed they are willing to take the easy way out over Ebola.
updated 2:03 PM EDT, Mon October 27, 2014
Eric Liu says with our family and friends and neighbors, each one of us must decide what kind of civilization we expect in the United States. It's our responsibility to set tone and standards, with our laws and norms
updated 7:45 AM EDT, Mon October 27, 2014
Sally Kohn says the UNC report highlights how some colleges exploit student athletes while offering little in return
updated 3:04 PM EDT, Sun October 26, 2014
Terrorists don't represent Islam, but Muslims must step up efforts to counter some of the bigotry within the world of Islam, says Fareed Zakaria
updated 9:02 AM EDT, Fri October 24, 2014
Scott Yates says extending Daylight Saving Time could save energy, reduce heart attacks and get you more sleep
updated 8:32 PM EDT, Sun October 26, 2014
Reza Aslan says the interplay between beliefs and actions is a lot more complicated than critics of Islam portray
updated 7:19 AM EDT, Mon October 27, 2014
Julian Zelizer says control of the Senate will be decided by a few close contests
updated 8:12 AM EDT, Fri October 24, 2014
The response of some U.S. institutions that should know better to Ebola has been anything but inspiring, writes Idris Ayodeji Bello.
updated 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 12:30 PM EDT, Fri October 24, 2014
The Swedes will find sitting on the fence to be increasingly uncomfortable with Putin as next door neighbor, writes Gary Schmitt
updated 12:32 PM EDT, Fri October 24, 2014
The Ottawa shooting pre-empted Malala's appearances in Canada, but her message to young people needs to be spread, writes Frida Ghitis
updated 9:48 PM EDT, Sat October 25, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT