The problem is that Congress doesn’t get the final say on constitutional definitions. The Supreme Court could, theoretically, decide that the term was intended to limit eligibility to those born in the (new) country. There are some weak arguments for that interpretation.
So as a legal matter, it isn’t 100% open-and-shut whether Cruz is eligible, regardless of his or his mother’s residency period. So too with McCain, though his case is further complicated by the fact of his parents residing on a US air base. By contrast, there is no legal doubt that Obama was eligible.
(Note also that when Congress proposed to clarify McCain’s eligibility by legislation, they did so on the basis of his parents’ residency at the air base, and not based on his parents citizenship.)
IF Obama was born outside the US (and he wasn’t, so this scenario only appeals to the crackpot Birthers) his mother’s age can be important as said in other posts. At the time there were age/residency requirements that come into play. It’s not a factor for Obama since he was born in the US, but that is the origin of the Birther’s fantasy.
For Cruz, while technically there is no ruling that specifically says he’s a natural born US citizen there isn’t any obvious way to rule that he isn’t. Under the laws of the time he was a US citizen at birth. He never had a naturalization process. Therefore, there is little or no way to contest his citizenship. Not that someone won’t try, and a law laying it all out would help, but until the SCOTUS rules it would still be hand waving.
There are colorable, if weak, arguments for SCOTUS to interpret the constitution to forbid Cruz from eligibility. So why would it be “hand waving” to support those arguments?
Lots of people support weak legal arguments without being accused of hand waving. I don’t think that’s really it. I think it’s that we all know that approximately 99.9% of the people questioning Cruz’s (or McCain’s) eligibility don’t give two shits about the law. But then there’s no reason to be talking about the legal niceties, which are irrelevant to that judgment about motivations.
This is how I see it 100%. The constitution is the highest law in the land. Congress can’t just go in and redefine this. To the best of my knowledge the phrase “natural born citizen” isn’t used in any other law of substance and there have been no Supreme Court cases dealing with this issue specifically.
While the historical legislative history would likely have some impact in how the Supreme Court would decide - these are nine smart people. Any type of resolution passed is basically (IMHO) crap and mainly for public consumption and would likely be given almost zero weight (but couldn’t hurt).
Up until the McCain issue came up - I had always assumed it meant born in the US. This was mentioned several times in government classes and more than a few times I had met people who were American, but born outside the US - and occasionally it was mentioned “yep I was born in XYZ so i guess I won’t ever get to be president”. Of course my circle of friends and the classes I took have zero legal meaning, but until this century - I would have bet big money it meant you had to been born in the US.
As to why the Birchers don’t care - it’s cause they will use what ever legal options fit whatever result they desire. If some newsletter written by a university professor who once met Lincoln defines “natural born citizen” the way they want it - they will use it. Every fact that supports what they want is used - no matter the quality or level under the law - and everything to the contrary would be ignored.
IMHO - if this ever reaches the Supreme Court - I personally think they would decide:
Everyone who is a citizen that was born on US soil meets that definition
That phrase was used at a time when external influences were considered a more pressing concern than they are today - and at a time of less global travel - when we were a new country. Our democracy has survived. The framers would likely not have intended to make someone born to generations of Americans intelligible to be president - perhaps even conceived in the US - simply due to the location of the mother at the time the baby breathes air for the first time. Anyone who was an American citizen at the time this first breath was taken is eligible to be president.
Of course I have no idea if this would be how they would decide, but neither does anyone else. This is unsettled law - and for either/any side to claim they know what “natural born citizen” means is kinda silly.
This is probably as good of an issue as you will get as an example of the phrase “case of first impression”
This was pretty much the official State Department view at the time we were sorting out our daughter’s paperwork - they actually gave us a boilerplate statement about this, believe it or not, just in case our child ran for president someday. I believe the phrase “unsettled law” was specifically used IIRC.
Hand waving was a poor choice of words on my part. I meant that until the SCOTUS rules on the subject there will always people who will challenge any interpretation, no matter how well supported by logic and established precedent. I’m in agreement with you, I think.
Bingo. Obviously they wouldn’t have gone after Obama had he been a Republican. But, the fact that there is no demand to see Hillary Clinton’s longform birth certificate, and no discussion over the birth site of John Kerry, Joe Biden, Al Gore or any other white Democrat over the past 30 years indicates that the birther controversy around Obama had little to do with his party and everything to do with the fact that he looks different.
True, Congress doesn’t have the last word on interpreting constitutional terms. However, the Constitution gives the Congress the power to determine the rules for citizenship, and for over two centuries, Congress has held that children born to American citizens abroad are entitled to citizenship, either automatically or on conditions based on residence, without the need to apply for naturalization. That consistent approach to citizenship is not binding on the Court if and when it interprets “natural born citizen”, but it is certainly a factor that the Court can take into account: for over two centuries, US citizenship can be inherited from parents.
As well, the Court in the past has paid particular deference to the actions of the First Congress, since it contained many of the drafters of the Constitution, and their actions have been considered to cast light on what they understood the Constitution they had drafted to mean.
So, to the extent Congress’ approach to the issue is relevant to interpreting “natural born citizen”, I would think that practice over the past two centuries supports the argument that a person born abroad to a US citizen and who acquires citizenship on birth is a “natural born citizen.”
I don’t think American courts generally consider a past history of congressional interpretation in deciding whether that interpretation is correct. Lots of unconstitutional interpretations have been around for many years.
Now, the First Congress is arguably a little different. Not because it is Congress, but because it is evidence of how Americans in general understood the term at the time. For guys like Scalia, that’s important.
Huh? According to her Wikipedia article, Elizabeth Warren was born in Oklahoma City. Is there some issue?
I recall reading about a historical Birther situation. It was one of those obscure 19th Century presidents that get briefly mentoined in history class, and then are promptly forgotten. He was born in Vermont to immigrant parents. His opponents claimed that he was actually born in Canada, before his parents came to the US, and thus was not a natural-born citizen. Obviously, he still got elected despite these claims.
McCain’s case is even more “out there”: According to the laws in effect at the time of his birth, he was not a citizen, due to a loophole in the law that was fixed when he was a few years old. Under the law at the time, you could be a citizen at birth by being born in US territory, or you could be a citizen at birth by being born to US citizen parents in an area outside of the US’s jurisdiction. But McCain was born outside of US territory, but within US jurisdiction, which means that neither of those provisions applied to him.
But of course, he’s still a citizen by virtue of the circumstances of his birth, ever since someone noticed that loophole and fixed it.
Whenever I see one of these threads, I never know whether to get pissed or laugh. Your question is either rhetorical in which case you know damned well that the birthers went nuts because Obama is black, and Cruz, being ‘not black’ doesn’t cause the same level of outrage and incredulity that sparked the birther movement, or you truly don’t know, in which case I contend that you must’ve been living under a rock for the past 7 years.
What’s there to get hysterical about? Ted Cruz has never tried to claim he was born in the USA- he’s always acknowledged he was born in Canada!
The only question in SOME minds is whether he’s a natural born citizen. Since his mother was an American citizen, the answer is yes.
That said, I stated on these boards as far back as 2008 that, even if Barack Obama WAS born in Kenya or Indonesia, he’d be a natural born citizen because his mother was. So, it shouldn’t matter where EITHER man was born.