Eligibility questions about Cruz and Rubio

This morning, Senator Ted Cruz (R-Tex.) announced that he was running for President; a similar announcement from Senator Marco Rubio (R-Fla.) is expected soon. 1 During the time in which each man flirted with such a bid, questions of their eligibility to that office were raised. Since 2008, the natural-born citizen requirement of Article II has received renewed attention 2; people forget that “Birtherism” came into being in order to challenge John McCain’s quest for the GOP nomination. (My co-blogger at Stubborn Facts and I debunked that theory in a pair of posts in February 2008. 3) Phillip Berg, a Hillary Clinton supporter, then took the fateful step of applying the notion to Barack Obama, and thus was born a cottage industry of conspiracy. 4 For those who have drunk the “birther” kool-aid, no argument will suffice, but for the rest of us, it is worth a brief analysis. Surprisingly, while Rubio is safe, Cruz presents a more difficult question.

I.

The Constitution of the United States requires that the President be a “natural-born” citizen. 5 As an original matter, Constitutional text draws its content from the original meaning of its language. 6 In particular, when the Constitution uses the argot of the Law of England—”natural-born citizen” is, mutatis mutandis, the cognate of “natural-born subject” under English law—it presumptively incorporates that law and the relevant precepts thereof. 7 And when we want to know the content of that law as it would have been understood by the founding generation as the legal backdrop to their work, we turn first and foremost to the Commentaries of William Blackstone. 8 These bear extended quotation on this point:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. …

. . . .

WHEN I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, 29 Car. II. c. 6., for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects, 7 Rep. 18: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of post-liminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute, [the Status of Children Born Abroad Act, 1350,] 25 Edw. III. st. 2., that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. Cro. Car. 601. Mar. 91. Jenk. Cent. 3. But by several more modern statutes, [the Foreign Protestants Naturalization Act, 1708,] 7 Ann. c. 5. and [the British Nationality Act, 1730,] 4 Geo. II. c. 21, these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. …

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. 12 Wm. III. c. 2. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. 1 Geo. I c. 4. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord’s supper within one month before the bringing in of the bill; and unless the also takes the oaths of allegiance and supremacy in the presence of the parliament. 7 Jac. I. c. 2. 9

The first and most obvious point to take from all this is that a “natural-born” subject is distinct from the “artificial” subject, whether denizenized or naturalized. 10 Another obvious point is that the political rights of the artificial subject were limited. 11 Thus, we should not be surprised by the idea that Article II might expressly distinguish between “natural-born citizen[s]” and “citizen[s]” simpliciter, or that it might withhold a political right from all but a grandfathered subset of the latter.

At the time of the founding, English law on who was a natural-born subject contained various strands. The common law, strictly-understood, 12 that is, judge-made law, seems to have generally required both of the elements that Pat and I discussed in our McCain posts: “There are two Incidents regularly that are necessary to make a subject born; First, that his parents, at the time of his birth, be under the actual obedience of the King; secondly, that the place of his birth be within the King’s dominions.” 13 But the child of an alien in the king’s realm was ordinarily held to be a natural-born subject, which tilts more toward ius solis, and the child of an Englishman was a natural-born subject, even though born outside of the king’s realm, so long as his parents were sent there by the king, which tilts more toward ius sanguinis. Meanwhile, statutory law was tilting decisively toward ius sanguinis: The child of an Englishman in good standing was accounted an Englishman. (Its drift in the eighteenth century was doubtless liberal, but its substance was ancient.) Blackstone appears to frame the organizing concept as a practical one of allegiance. 14 

These are the materials that must govern decisions on this point. There is no precedent to speak of: Birthers are apt to invoke two cases, Minor v. Happersett and United States v. Wong Kim Ark, but they do so carelessly. While both cases contain dicta about the natural-born citizen clause, neither has an on-point holding. Minor holds that suffrage is not a “privilege” of citizens of the United States for purposes of section one of the Fourteenth Amendment; in dicta, the court noted that “[t]he Constitution does not, in words, say who shall be natural-born citizens” for purposes of the eligibility clause, and that “[r]esort must be had elsewhere to ascertain that,” specifically to English law, and recited essentially what I have quoted from Blackstone. 15 And Wong Kim Ark holds (as is so familiar today as to seem obvious) that the children of aliens born on American soil do obtain citizenship by operation of the Fourteenth Amendment; it, too, has some dicta affirming the place of English law: The clause “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. The language of the Constitution, as has been well said, could not be understood without reference to the common law.” 16

With no binding precedent, and no long-standing tradition to give content to the clause, 17 we are left with the original meaning. And because the adjectival phrase “natural-born” had accumulated meaning as a term-of-art, we do not parse it as natural language, but instead give it the meaning that it would have been understood to bear. 18 A “natural-born” citizen means in the context of Article II,  mutatis mutandis, that which English law apprehended to be a “natural-born” subject. Thus, as I argued in 2008, McCain was a natural-born citizen because he was born on American sovereign territory (as the Panama Canal Zone was, at the time), and even if he wasn’t, as Pat argued, English law at the time of the founding recognized that foreign-born children of Englishmen sent abroad by the king were considered natural-born subjects, and this rule was sufficiently embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born citizens. Either of these foundations alone supported McCain’s natural-born citizenship; both together made it a slam-dunk.

II.

To their credit, the birthers sought to be consistent, and went after Marco Rubio when he became flavor of the month: Rubio was born in Florida, but to non-citizen parents. 19 This, they claimed, would not suffice. Soon thereafter, Rubio was succeeded as flavor-of-the-month by Cruz, remembered fondly by many of us as an advocate at the Supreme Court. 20 Cruz was born in Canada to an American mother and non-American father. 21 No one disputes that each of these men are American citizens; the charge is that they are not natural-born citizens as Article II comprehends that term.

Marco Rubio was born in 1971 in Miami, Florida, to Mario Rubio and Oria Garcia, Cuban citizens who had immigrated to the United States in 1956 and who would become naturalized Americans in 1975. 22 They were not ambassadors, or employees of the Cuban government in any capacity. 23 His case is therefore straightforward. From Blackstone, we know that to the Framers’ understanding, the “children of aliens, born … in England, [we]re, generally speaking, natural-born subjects, and entitled to all the privileges of such,” and so the original understanding of Article II would have been that “children of aliens, born here in [America], are, generally speaking, natural-born [citizens].” Rubio is therefore eligible to be President. 24

Ted Cruz might not be. He was born in 1970 in Calgary, Canada, to Rafael and Eleanor Cruz. Eleanor was an American citizen; Rafael, a Cuban citizen who would become a naturalized American in 2005. 25 They were in Calgary working for an oil company. 26 Certainly, Cruz became a naturalized citizen at birth, 27 but that is not the test; as we have seen, in the law of England at the time of the framing, “naturalized” existed in contrast to “natural-born.” Had Cruz been born south of the border, there is no doubt that he would be a natural-born citizen. But Canada is not part of the United States, the Cruzes were not there on the errand of the United States, and as a result, there is a substantial question as to Cruz’s eligiblity.

If we try to apply Blackstone’s comments to Cruz, problems quickly mount. Had Cruz’s father been the American citizen, and his mother the non-citizen, the question would be easier, but the English statutes that extended that right issue are framed in stubbornly-androcentric terms: Children born on foreign soil “whose fathers were natural-born subjects, are … natural-born subjects themselves.” The foreign-born child of a British man was a natural-born subject, but what of the foreign-born child of an British woman married to an alien? What would the founders have understood English law to say of that child’s citizenship? And what are we to infer from the first Immigration Act, 28 which provided 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”? Does the first clause abolish the patrilineal focus of the English statutes? Does the second restate the understanding that such children were natural-born citizens, or does it imply that they were not (insofar as statutory text is not to be read as a nullity)? Does “as” mean “as if they were” (as it clearly does in the preceding clause of the statute) or “to be”? The answers to these questions are, at best, not obvious.

III.

A useful article in the Harvard Law Review by former solicitors-general Neil Katyal and Paul Clement (another rockstar of the conservative legal movement, and one with whom Cruz crossed swords at oral argument in Medellin v. Texas, incidentally) attempts to give answers to some of this. 29 They insist, as I have said above, that the test is what the term “natural-born” meant under English law, but go astray in fixating on the notion that anyone who is a citizen from birth meets this test. That’s problematic both as a matter of English law and Constitutional law. 

As to the former: As we have seen above, at common-law, the natural-born subject was one born within the king’s realm, but statutes had afforded natural-born status to children of Englishmen born beyond the realm if they were there on the king’s errand—ambassadors, for example. Statutes had long extended that privelege: All children born abroad might be counted as natural-born “provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent,” we heard Blackstone say above, and by the time of the framing, as a general matter, all children born abroad might be counted as natural-born provided their “fathers were natural-born subjects….” But Cruz’s situation does not fit squarely within that, because it was his mother who was the natural-born citizen; his father was not even a naturalized citizen by that time. In these politically correct days, we want to dismiss the question as sexist, but that’s anachronistic; how would the Founders have understood English law to deal with gender distinctions of that kind? That is the question here. I don’t know the answer, and if Katyal & Clement do, they don’t tell.

As to the second, I want to suggest two problems with Katyal & Clement’s position. In some circumstances, Congress has provided that certain persons may be made citizens in adulthood; all agree that those people are naturalized citizens. In other circumstances, Congress has provided that certain other persons become citizens at birth; those people, say Katyal & Clement, are not naturalized citizens, but rather natural-born citizens. Only those who must—at some “later time” (how much later?)—go through naturalization are not natural-born. The first problem: What about people who, for example, become citizens by virtue of 8 U.S.C. § 1401(f), which makes citizens of persons “found in” the United States sine parentibus if they are younger than five? Does section 1401(f) make naturalized citizens or natural-born citizens? What if the child is four years old? What if four days? Can the answer be different depending on the age of the child? It seems that it would have to be, according to  Katyal & Clement, but why? And where is the cutoff?

And the second problem: If Congress can make natural-born citizens, it has the power to delete the natural-born requirement. Katyal & Clement’s position is that by making certain people citizens from birth, it has made them not naturalized citizens but natural-born citizens; suppose—and the answer can’t be that the hypothetical is too extreme—that Congress passes a law providing that any person born anywhere shall be an American citizen from birth, with retroactive effect. Is anyone in the world then eligible to be President? If you adhere to Katyal & Clement’s theory, you must say yes. Think smaller. Suppose that there were to be a particularly war-torn small country, Elbonia, perhaps, and, frustrated by the President’s refusal to accept more refugees, Congress passed (over his veto) a law making all Elbonians American citizens from birth, hoping to rescue as much of the population as possible. Are all Elbonians thereby made potentially eligible to be President? If you adhere to Katyal & Clement’s theory, again, you must say yes. But that cannot be the law.

* * *

The reader may be anxious to know how these vexing and intricate questions may be resolved, and will doubtless be frustrated to learn that I do not intend to do so here. For now, it will suffice to say that while Rubio is eligible, all that we can say with certainty about Cruz is that it’s uncertain.

To be clear, my position is not that Cruz is ineligible. Katyal & Clement go some way toward suggesting that he is eligible; their article is pretty good, and it’s certainly using the right materials. But I do think that the question is more difficult than it is being given credit for, and I must admit to being troubled if (as appears to be the case in many quarters) our first reaction to a potential problem is to associate it with some knuckle-dragging simpletons who once pressed similar concerns in a different context. Even a broken clock is right twice every day, and would be quite pathetic if our sole reason for refusing to engage seriously with a serious problem is that eight years ago, a few unserious people made a similar argument about someone else.

So: In my view, Prof. Sarah Duggin was right to be cautious in an NPR interview cited above. It’s not an open-and-shut case. I suppose that a strong purposivist such as Justice Breyer might say that because the purpose of the clause was to screw Alexander Hamilton, any candidate who isn’t Hamilton is in the clear. 30 But for the rest of us, for those of us benighted FedSoc types who care about constitutional text and originalism, a group that certainly includes brother Cruz, I had thought, 31 there is a serious question hanging over Cruz’s candidacy. And so I want to suggest that the question becomes this: Is Cruz really so good a candidate that we want to license another four to eight years of birtherism? Is he really so good a candidate that we are willing to risk the precipitation by the Democratic party of a constitutional crisis? (Do not suppose for a moment that they are not sufficiently brazen.) These doubts may, alas, end Cruz’s candidacy before it begins.

 

 

Notes:

  1. Nick Corasaniti & Patrick Healy, Ted Cruz Becomes First Major Candidate to Announce Presidential Bid for 2016, The New York Times, March 23, 2015, http://www.nytimes.com/2015/03/24/us/politics/ted-cruz-2016-presidential-race.html?_r=0 (last visited March 23, 2015. As always, I claim “proprietor’s privilege” to post on matters beyond our usual scope.
  2. To the point, in fact, where one of NPR’s first reactions to Cruz’s announcement was to raise the eligibility question. See Robert Siegel, Canadian-Born Cruz Faces Potential Hurdle To Presidential Aspirations, All Things Considered, March 23, 2015, http://www.npr.org/2015/03/23/394906486/canadian-born-cruz-faces-potential-hurdle-to-presidential-aspirations.
  3. See Simon Dodd, McCain’s Eligibility, Stubborn Facts, Feb. 16, 2008, http://stubbornfacts.us/politics/2008_election/mccains_eligibility; Pat HMV, On McCain’s Birth and Eligibility to be President, Stubborn Facts, Feb. 28, 2008, http://stubbornfacts.us/politics/2008_election/on_mccains_birth_and_eligibility_to_be_president.
  4. See, e.g., Chris Danielson, The Color of Politics 172 (2013); cf. Dodd, Establishing eligibility, Stubborn Facts, Jan. 26, 2011, http://stubbornfacts.us/politics/2012_election/establishing_eligibility (collecting cases).
  5. U.S. Const., Art. II, § 1, cl. 5.
  6. See District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008); Dodd, The limits of the Recess Appointment Power, part III, Stubborn Facts, April 26, 2010, http://stubbornfacts.us/law/limits_recess_appointment_powercf. Coleman v. Miller, 307 U.S. 433, 460-1 (opinion of Frankfurter, J.).
  7. See Wilson v. Arkansas, 514 U.S. 927, 931 (1995); Dodd, Eligibility, redux, n.1, Stubborn Facts, May 2, 2008, http://www.stubbornfacts.us/politics/serranos_eligibility; cf. Crawford v. Washington, 541 U.S. 36, 43 (2004); Kyllo v. United States, 533 U.S. 27, 31-32 (2001); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-77 (1856); Dodd, In re Firearms debate, 3 MPA 23, 31 n.2 (2013).
  8. See Washington v. Glucksberg, 521 U.S. 702, 712 (1997); United States v. Wood, 299 U.S. 123, 138 (1936); Schick v. United States, 195 U.S. 65, 69 (1904); accord Rogers v. Tennessee, 532 U.S. 451, 477 (2001) (Scalia, J., dissenting); Neder v. United States, 527 U.S. 1, 30-31 (1999) (Scalia, J., concurring). We habitually refer to what was understood “at common-law,” but truth be told, this is usually a loose synonym for “settled English law”; the technical distinction between statute and common law is not the object in view. Cf. Thomas Wood, An Institute of the Laws of England 10-11 (1754).
  9. 1 William Blackstone, Commentaries on the Law of England 354, 361-62 (1765) (emphases added and some citations omitted).
  10. Cf. Wood, supra, at 23.
  11. Blackstone cites the Act of Settlement 1700, 12 Wm. III. c. 2 § 3: “[N]o person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging, although he be naturalised or made a denizen (except such as are born of English parents), shall be capable to be of the privy council or a member of either House or Parliament or to enjoy any office or place of trust either civil or military or to have any grant of lands, tenements or hereditaments from the Crown to himself or to any other or others in trust for him.”
  12. Compare, e.g., entry Common law in Giles Jacob, A new law-dictionary containing the interpretation and definition of words and terms used in the law etc (1729) (“the Law of this Kingdom, simply, without any other Laws; for such Laws as were generally holden before any Statute was enacted in Parliament to alter them”), with entry Statute, in ibid.
  13. Entry Alien, in ibid.
  14. Cf. United States v. Wong Kim Ark, 169 U.S. 649, 655 ff. (1898)
  15. Minor v. Happersett, 88 U.S. 162, 167-68 (1875).
  16. Wong Kim Ark, supra, 169 U.S. at 654-55 (citations deleted).
  17. Cf. Marsh v. Chambers, 463 U.S. 783,786-87 (1983); Rutan v. Republican Party of Illinois, 497 U.S. 62, 95 (1990) (Scalia, J., dissenting).
  18. “The touchstone of Constitutional interpretation ‘is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.'” The Limits of the Recess Appointment Power, supra, part III.A.1 (quoting Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010)); see generally ibid., n.5.
  19. See, e.g., Javier Manjarres, Is Rubio Eligible to be President, Breitbart, April 22, 2013, http://www.breitbart.com/InstaBlog/2013/04/22/Is-Rubio-Eligible-to-be-President-of-the-U-S .
  20. See http://www.oyez.org/advocates/c/r/r_ted_cruz. I rather like him; like Chris Christy, he is a brawler, and one should not wish to see him as a model for the next generation of politicians, but as an exception he has a certain charm.
  21. See David Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S., The Atlantic, May 1, 2013, http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/ ; Aaron Blake, Cruz will renounce Canadian citizenship, Post Politics, Aug. 19, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-citizenship .
  22. See Wikipedia, https://en.wikipedia.org/wiki/Marco_Rubio; Manuel Roig-Franzia, The Rise of Marco Rubio 24 ff. (2012).
  23. See id.; Becky Bowers, Sen. Marco Rubio said his parents ‘came to America following Fidel Castro’s takeover’ of Cuba, Politifact, Oct. 21, 2011, http://www.politifact.com/florida/statements/2011/oct/21/marco-rubio/sen-marco-rubio-said-his-parents-came-america-foll.
  24. The contrary claim that he ineligible insists that a child of resident aliens is not natural-born, perhaps because overreading dicta in Minor. See Minor, supra, at 167-68 (“it was never doubted [at common-law] that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens…. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first”). It suffices to say that whatever the merits of this as a statement of fact, the authority on which the Framers relied, Blackstone, was not among the doubters, as we have seen.
  25. See Ted Cruz, Wikipedia, http://en.wikipedia.org/wiki/Ted_Cruz#Early_life (visited Aug. 20, 2013).
  26. Robert Costa, The Rise of Rafael Cruz, National Review, http://www.nationalreview.com/article/356934/rise-rafael-cruz-robert-costa (“Cruz [Sr.] decided to move to New Orleans to take a new job, which is where he met his second wife, Eleanor Darragh, a computer programmer from Delaware, who was also working for an oil company. They married, moved to Calgary, Alberta, and in late 1970 had their first and only child, Rafael Edward Cruz. They weren’t in Canada long, choosing to move to Houston, where they continued to work for oil companies”); Kate Zernike, A Test for the Tea Party in Texas Senate Race, Nov. 17, 2011, http://www.nytimes.com/2011/11/18/us/politics/ted-cruz-is-a-test-for-the-tea-party-in-texas-race.html?_r=2&
  27. See 8 U.S.C. § 1401(e).
  28. 1 Stat. 103 (1790).
  29. See Katyal & Clement, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. F. 161 (2015), available at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen.
  30. But see Garrett Eps, American Epic 40-41 (2013) (noting that this enduring myth of American politics is dubious at best).
  31. See http://www.fed-soc.org/experts/detail/r-ted-cruz.