It’s unlikely that Ted Cruz is actually legally prohibited from becoming president. Most legal experts have said as much. Though there’s this spectre of his mother possibly having had dual citizenship at some point, and there’s the fact that he only recently gave up his own Canadian citizenship, most agree that those factors don’t impact his eligibility. Part of that is because it’s a reasonable conclusion when parsing the law, part of it’s because the issue hasn’t really been raised in a substantive way in the legal system.
Whatever. I sort of view this whole shouting match as a fool’s errands for progressives. There are way more compelling reasons that man should be kept far away from the Oval Office. Besides, the answer to the eligibility question is of less consequence than the conversations around it.
First off, let’s talk about the hypocrisy of his citizenship defense. While it seems reasonable — his mother was a U.S. citizen, which grants him status as a natural born citizen — it sounds absurd when you consider his espoused legal philosophy. Writing for the Boston Globe, Laurence Tribe, one of his former law professors at Harvard, put it this way:
[T]he kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.
This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power — fears that no longer make sense. But the same could be said of fears that a tyrannical federal army might overrun our state militias. Yet that doesn’t lead Cruz — or, more importantly, the conservative jurists he admires — to discard the Second Amendment’s “right to bear arms” as a historical relic, or to limit that right to arms-bearing by members of today’s “state militias,” the national guard.
I’m not going to get into the gun control debate here, because that’s not the point. What Tribe is getting at is that Cruz’s defense of his citizenship stands at odds with his view of how the judiciary should function on issues of Constitutional interpretation.
But even if we’re willing to forgive that, his his own views on citizenship might have disqualified him had they been around back when. Cruz is on the record, dating back to 2012, as supporting an end to birthright citizenship — the exact idea he uses to claim his own citizenship. On a surface level, super cute, right?
To be fair, his argument has been presented in the context of the immigration debate. When it’s come up, he’s been careful to frame it as an issue of granting citizenship to people who are here illegally. He wants a Constitutional amendment to that end. That’s probably a non-starter, but let’s run with this.
Ending birthright citizenship would raise a pretty important follow up question: how does citizenship get established? Cruz’s comments provide no clear answer. Because of the way he’s framed things, there’s an assumption that he would want verification of a child’s parents’ citizenship before the designation of being an American citizen would be awarded to the child.
There are a lot of problems with such a proposal. As attorney and 2013 MacArthur Foundation Fellow Margaret Stock explained in the New York Times:
America has no national birth registry, no squads of skilled government lawyers who can determine whether a person’s parents hold a particular immigration status at the moment of a baby’s birth. We’d need a whole new government bureaucracy to make birth adjudications. Americans would have to pay for this new bureaucracy, which would be tasked to decide the citizenship of some 4 million babies born in America each year.
Wealthy people would likely have little difficulty getting legal guidance for the process, but most Americans can’t afford such expert help. The current government fee for making such an adjudication when a child derives citizenship through parents is $600 per person; are Americans willing to pay a $600 tax on every baby born in the U.S. each year?
What’s more, eliminating this longstanding constitutional provision would not solve our nation’s immigration problems. Changing the rule would increase the number of undocumented immigrants with each child born here, cost the U.S. taxpayers billions, and reduce our tax base.
Generally speaking, it sounds like a bad idea, right? Utterly, disgustingly classist. But what this discussion also points out is that, had Cruz been born in such a world, he may not have gotten citizenship. His parents struggled to make ends meet at times. Could they have afforded that $600 fee?
Maybe none of that matters. Maybe they could have afforded it and would have coughed up the money and he’d be fine under his own proposal. Maybe he doesn’t think it’s relevant because it just wasn’t how things were done back then. Maybe we can grant him a little leeway on a seemingly conflicted view of how the Constitution ought to be read.
That’s fine. Because the most important element of this conversation isn’t the answer to the question of his eligibility. It’s that the question is being asked at all.
The person leading this charge is none other than Birther-in-Chief Donald Trump. His crusade against Obama was laughable and ill-fated, but it didn’t keep him from banging that drum. He still brings it out for old time’s sake now and then, and his supporters love him for it. For him to bring out this tactic again makes sense, strategically. It’s got appeal to those he’s courting.
As we saw with the Obama birther movement, facts aren’t really relevant to the folks we’re talking about. They make up their own. All Trump had to do was hint at the possibility of Birthergate 2.0, and they would do the rest. They are doing the rest. Cruz is being pushed on the subject again and again — not exactly positive PR as he tries to woo an increasingly rabid GOP base.
Do I really think Cruz is ineligible? I don’t know. Probably not. Whether it hurts him enough to kill his lead in early states like Iowa remains to be seen. I’m not sure that’s likely. But the existence of a question on the subject highlights contradictions in his espoused beliefs and hurts him among people for whom belief trumps (ha!) reality, so it’s always possible. Your best bet is to grab some popcorn and enjoy the fireworks.