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Legal Academics Weigh in on Ted Cruz's Presidential Eligibility

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By Casey C. Sullivan, Esq. on February 08, 2016 2:58 PM

U.S. Senator from Texas and current presidential hopeful, Ted Cruz, was born in Canada. Normally, that wouldn't matter much. Cruz's Canadian roots haven't made him politer, more boring, or any better at hockey.

But, those roots might make it harder for him to become president, for the U.S. Constitution reserves the role of commander in chief for "natural born citizens." Now, many legal academics are weighing in on whether Cruz's birth in the nation to our north could keep him from leading the United States. Here's what they're saying.

Sorry, Cannuck

First things first: aside from a fluke of geography and timing, Cruz isn't really much of a Canadian. His mother was an American citizen and his father was Cuban. They were both up north for a very Yankee reason: operating an oil business. Cruz left Canada when he was four, traveling south to Texas.

Under U.S. immigration law -- and the good, ol' doctrine of jus sanguinis -- Cruz is a U.S. citizen. But is he a "natural born" citizen?

A growing number of conservative legal scholars are saying no.

Harvard's Laurence Tribe was the first high profile academic to join the so-called "Cruz birthers." He told The Guardian in early January that a judge of the type Cruz "would appoint to the Supreme Court" -- that is, an originalist -- would find Cruz ineligible "because the legal principles that prevailed in the 1780s and 90s required that someone be born on U.S. soil to be a 'natural born' citizen."

Still, Tribe equivocated. The questions were "murky" and "unsettled," he noted.

Other scholars have been less hesitant to cast doubt over Cruz's eligibility. Eric Posner, law professor at the University of Chicago and son of famed Seventh Circuit Judge Richard Posner, followed Tribe's logic to a similar and less equivocal conclusion:

A natural born citizen cannot be a foreigner. Foreigners are not citizens. A natural born citizen cannot be a person who was naturalized. Those people are not born citizens; they're born aliens. Most important for the purposes of the Cruz question, a natural born citizen cannot be someone whose birth entitled him to citizenship because of a statute--in this case a statute that confers citizenship on a person born abroad to an American parent...

The natural way to obtain citizenship, then, was (and is) by being born in this country. Because Cruz was not "natural born"--not born in the United States--he is ineligible for the presidency, under the most plausible interpretation of the Constitution.

Other academics who've questioned Cruz's constitutional qualifications include law professors Mary Brigid McManamon of Widener University and Thomas Lee of Fordham. Their arguments are similar: under an originalist reading of the Constitution, illuminated in part by U.S. and English common law from the time, Cruz is out.

Will the Real Legal Scholars Weigh In?

Of course, at this point, the academics' opinions are just that: opinions. Originalism is far from the only way to interpret the Constitution. And it remains to be seen if they'll have any influence an eventual legal interpretation on the Natural Born Citizen Clause by U.S. courts.

A Texas man wants to get such an opinion, sooner rather than later. Newton B. Schwartz, a Sanders-supporting lawyer form the Lone Star State, sued Cruz in mid-January, seeking a declaratory judgment on whether Cruz is eligible for the presidency or not. As the suit notes:

No previous case has been presented or decided on this issue by the U.S. Supreme Court, including because in fact none arose, as here to being a case or controversy ripe for decisions as here is presented.

Of course, Schwartz might have some problems with a pesky Constitutional clause of his own: the Case or Controversy Clause, which will most likely prevent federal courts from handing down the sort of pre-election advisory opinion Cruz birthers seek.

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