“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump told The Washington Post in an interview published Tuesday night.
Donald Trump is not a lawyer, Ted Cruz is. Senator Cruz, a Harvard graduate cum laude, should no if he is qualified or not. According to the Constitution, the President must be a natural born citizen. Naturalized has not been wholly defined. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.”
The Naturalization Act of 17908×8. Ch. 3, 1 Stat. 103 (repealed 1795). 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”
The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are “natural born Citizens.”
That conclusion about what the drafters meant is based partly on a law passed in 1790 by the first Congress, providing that the children of U.S. citizens born outside the country “shall be considered as natural born citizens.” The law is no longer in effect, but it’s considered evidence of the intent of the founders.
Then, in 1964, the Supreme Court muddied the waters by seeming to say, without deciding, that “natural born” meant born inside the United States.
In an opinion on an unrelated issue, the court observed, “The rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”
But that language is not legally binding, and the Supreme Court has never actually ruled on what “natural born” means.
Writing last year in the Harvard law Review, two former holders of the Justice Department’s top courtroom advocate job — Solicitor General — said Cruz met the qualification.
“All the sources routinely used to interpret the Constitution confirm that the phrase “natural born citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding,” Neal Katyal and Paul Clement wrote.
But until the Supreme Court rules on the issue, or the Constitution is amended, the issue will remain officially unsettled.
St. George Tucker, the editor, says this in a footnote:
Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States. Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2.
In an 1829 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. … [He] who was subsequently born the citizen of a State, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. …. Under our Constitution the question is settled by its express language, and when we are informed that … no person is eligible to the office of President unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.
The issue was examined by the U.S. Supreme Court in the dissenting opinion of J. Curtis (which should be read in combination with the dissenting opinion of J. McLean for a better understanding of the issues in the case) in Dred Scott v. Sandford, 60 U. S. 576 (1856):
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects.
ustice Gray explained in that case:
A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
It was also touched upon in Luria v. United States, 231 U.S. 9 (1913):
Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.
The closest the U.S. Supreme Court has come to addressing eligibility to be president was in Perkins v. Elg, 307 U.S. 325 (1939):
There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States… [citing to Steinkauler’s Case, which was an opinion given by Edwards Pierrepont, who was Attorney General for Ulysses S. Grant].
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