Is Ted Cruz constitutionally eligible to be President?

[jimrtex]

While the answer is obviously yes, he isn't by the standards of many birthers, thus creating a bit of a conundrum.

No he's born in Canada

He was born in Canada to an American citizen mother, which makes him a natural-born US citizen. If Obama had been born in Kenya, he would also still be eligible for the same reason.

Not true.  The American-citizen parent must have lived in the United States for at least 5 years after the age of 14.  Obama's mother had not qualified to transmit citizenship to her children.

[jimrtex]

8 USC 1401(g).  At the time Obama was born, for a child born abroad with one alien parent and one citizen parent to be a citizen, the citizen parent had to have resided 10 years in the US with at least 5 years after the age of 14. In 1986, the law was amended to make those limits 5 and 2 respectively, but even assuming that change would have granted him citizenship it wouldn't made him a natural-born citizen as he wouldn't have been a citizen from birth.  Since his mother was only 18 when Obama was born, it would have been impossible for her to meet the 5 year requirement had she given birth abroad.

Thanks for that.

What would have been the rationale behind that? Punishment to people having children too young? Like, what's the policy rationale?

Let's say that you are a foreign student studying in this country, when you give birth to a US Citizen (by the 14th Amendment).  Let's imagine that Barack Obama, Sr. had impregnated a student from Canada, instead of Ann Dunham.  Obama Sr. soon splits to go to Harvard and then moves back to Kenya.  The mother and Obama Jr. move to Montreal.  Obama Jr. moves to France and has a child.  The child doesn't speak a word of English, and thinks of himself as Canadian or French or perhaps Algerian or Malian depending on the mother.  Why should he be considered an American?

And if citizenship could be transmitted indefinitely through birth, the last actual contact with the USA was centuries ago.  Or consider the equivalent - why should I be able to claim British, Swedish, Irish, German, or French citizenship based on descent from persons who left those countries more than a century ago?

Now consider if the Canadian mother moves to Indonesia, but leaves her son with her Canadian parents who are living in Hawaii.  Obama, Jr. experience growing up among Americans.  Even if he later as an adult moves to France the child would at least have a connection with the US.

Note that one time, an American women who moves to a foreign country with her husband was considered to have voluntarily given up her US citizenship.  And at one time, citizenship was only transmitted through the father.

[jimrtex]

8 USC 1401(g).  At the time Obama was born, for a child born abroad with one alien parent and one citizen parent to be a citizen, the citizen parent had to have resided 10 years in the US with at least 5 years after the age of 14. In 1986, the law was amended to make those limits 5 and 2 respectively, but even assuming that change would have granted him citizenship it wouldn't made him a natural-born citizen as he wouldn't have been a citizen from birth.  Since his mother was only 18 when Obama was born, it would have been impossible for her to meet the 5 year requirement had she given birth abroad.

Thanks for that.

What would have been the rationale behind that? Punishment to people having children too young? Like, what's the policy rationale?

Let's say that you are a foreign student studying in this country, when you give birth to a US Citizen (by the 14th Amendment).  Let's imagine that Barack Obama, Sr. had impregnated a student from Canada, instead of Ann Dunham.  Obama Sr. soon splits to go to Harvard and then moves back to Kenya.  The mother and Obama Jr. move to Montreal.  Obama Jr. moves to France and has a child.  The child doesn't speak a word of English, and thinks of himself as Canadian or French or perhaps Algerian or Malian depending on the mother.  Why should he be considered an American?

And if citizenship could be transmitted indefinitely through birth, the last actual contact with the USA was centuries ago.  Or consider the equivalent - why should I be able to claim British, Swedish, Irish, German, or French citizenship based on descent from persons who left those countries more than a century ago?

Now consider if the Canadian mother moves to Indonesia, but leaves her son with her Canadian parents who are living in Hawaii.  Obama, Jr. experience growing up among Americans.  Even if he later as an adult moves to France the child would at least have a connection with the US.

Note that one time, an American women who moves to a foreign country with her husband was considered to have voluntarily given up her US citizenship.  And at one time, citizenship was only transmitted through the father.

That doesn't answer the question, really. Why would it be that, for instance, a pregnant 16 year old US citizen who gives birth prematurely abroad (on a vacation, let's say) would not transmit citizenship to her child? What's the rationale for that?

It really does answer your question.  You asked for a policy rationale.

The policy rationale is that the parent does not have a connection with the US other than their citizenship status.

You appear to be arguing that Congress should never pass laws, because there might be individual cases that do not fit the policy rationale. What if your pregnant 16 year old US citizen, had lived in the US for three years, before she and her parents moved to France. What if she gave birth prematurely in Spain (on holiday, let's say). What is your rationale for an exception?

What if she and her parents had visited the United States on vacation when she was 8 and 11.

[jimrtex]

The rationale is that the law was written before the days of casual tourism. In any case, under 8 USC 1431(a), said kid would be a citizen upon returning stateside, and possibly sooner depending upon whether the citizen parent has a permanent US residence. Depending on how that section is interpreted, the kid might also qualify as a natural born citizen.

This has changed considerably over time. In 1952 it was codified as:

SEC. 320 (INAA)
(a) A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, become a citizen of the United States, when-
   (1) such naturalization takes place while such child is under the age of sixteen years; and
   (2) such child is residing in the United States pursuant to a lawful admission for permanent residence 
        at the time of naturalization or thereafter and begins to reside permanently in the United States
        while under the age of sixteen years.
(b) Subsection (a) of this section shall not apply to an adopted child.

At one time, a US citizen women who married a foreign national male and the couple made a domicile in his home country was considered to have relinquished her US citizenship. The 1952 version of Section 320 bears a trace of that interpretation. If two foreign-born aliens move to the USA with their foreign-born child, and then become naturalized citizens, the child is automatically naturalized (assuming the child is under 18 and living with the parents). In essence, the birth is treated retroactively having occurred abroad to two US citizens.

The 1952 version of Section 320 required the alien parent to become naturalized, such that again the child had two US citizen parents.

Over time, Section 320 was amended to raise the age threshold to eighteen; and later to require the child to be unmarried and under 18, and also include provisions for adopted children.

The current form, which removes the requirement for naturalization by the alien parent was not adopted until 2000, and became effective in 2001. Note that the current version requires legal and physical custody by the US citizen parent.

[jimrtex]

I'm looking at the other side. What if in 1961 a 17 year old gave birth while living with her parents abroad because her father got assigned to a temporary work assignment abroad, and then moved back to the US a month later? Is she less connected to the US than somebody who left at 19, never came back, and had a kid 10 years later?

Was she married?  That would change which rules applied.

The policy rationale is that the child has divided allegiances - to his mother's country, which is somewhat weaker since she is married to an alien, to the country of birth, and to the alien father's country.

[jimrtex]

You're saying in my hypothetical the child of the younger mother has more divided allegiance than the child of the mother who hasn't lived in the US for ten years and has no intention of going back?

You never told me if the 17 YO was married or not.

In general, I don't think the US recognizes renunciations of US citizenship unless the former citizen engages in hostile action against the US. So a law can't really be written that would judge the intent of the 29-YO to return or not.

Her situation is similar to that of Ruth Baker who moved to Kenya and married Barack Obama, Sr.,  They had two sons - Mark now lives in China, and David is deceased. After Obama, Sr. and Baker were divorced, Baker married a Tanzanian named Ndesandjo. They had a son, Joseph. Mark and Joseph Ndesandjo are US citizens by descent through their mother. Ruth Baker Ndesandjo still lives in Kenya. Mark Baker can probably transmit US citizenship to his children, since he graduated from Brown, and attended Stanford, and graduated from Emory.

So I think what you are asking, is: "Can't we have a law that covers all cases?" And the answer is: "No".

[jimrtex]

I'm just asking what the policy rationale was in the early case for the 5 years after age 14 restriction, and one hasn't really been given. Not one that makes any sense.

I am assuming that you will actually read all of these, rather than relying on my interpretation of what they say.

Politifact: Ted Cruz says it's always been that babies born to U.S. citizens abroad are citizens from birth. Mostly true

In August, Jeb Bush apparently claimed that Ted Cruz was a beneficiary of the 14th Amendment.  As you might know, Cruz was born in Canada, to a US-citizen mother and a father who at the time was a Cuban citizen. Cruz's mother was in her late 20's, and had graduated from Rice, and therefore satisfied the 5-years-after-age-14 requirement. So Cruz was a US citizen from birth.

Jeb Bush appears to confused, or was conflating different issues. The only article I found was in the New York Times, which was sympathetic to Bush, and suggested that his love for his Mexican-born wife colored his views. Ted Cruz responded that it was always true that babies born to U.S. citizens abroad were USA citizens. The Politifact analysis concluded that this was "mostly true" citing the historical exceptions.

The Politifact analysis cited a number of legal articles. Particularly interesting was Derivative Citizenship: Its History, Constitutional Foundation, And Constitutional Limitations.  While not directly addressing the issue you have raised, it does provide a thorough background of derivative citizenship. Derivative citizenship is citizenship derived through the parents.

The article is focused on the level of scrutiny that the SCOTUS should apply to naturalization laws passed by Congress.

I have hypothetically interviewed the hypothetical persons in your example, and determined that the 16-YO gave birth out of wedlock, and the father, if known, is not a US citizen. As it so happens, her twin brother was also involved in a liaison with a foreign women, who gave birth to a child, who the 16-YO brother acknowledged paternity.

When the 16-YO daughter returned to the US, she returned with her US citizen child. Her 16-YO brother also returned with his child (it is complex, but he did have legal custody). But, unlike his cousin, this child under US law is not a US citizen.

The question then is does the 14th Amendment equal protection apply, since US law treats male parents different from female parents in this particular situation. This hinges in part on the basis of Congress legislating derivative citizenship.

The article then goes into a history of citizenship. Covering 14th Amendment birthright citizenship, they provide two footnotes, 24 and 25, to articles arguing that birthright citizenship does not apply to offspring of illegal aliens. Since this article is not focused on birthright citizenship, it does not delve deeply into the issue.

Initially, Congress only provided derivative citizenship through the father, and also required that the father have had been resident in the United States prior to the birth of the child. I think I mentioned this before, but at one time, but a US citizen female, who was married to a foreign male, and domiciled in his country, was deemed to have abandoned her US citizenship (the modern interpretation is that you can not forfeit your US citizenship by non-hostile action, whether voting in foreign elections or marrying a foreigner and living in marriage in a foreign county, but can be stripped of citizenship by becoming an enemy combatant).

In 1934, Congress equalized the law with respect to children born outside the US to one US citizen parent and one alien parent. This appears to have been done in the spirit of the 19th Amendment. Prior to passage of the 19th Amendment, the SCOTUS had ruled that voting was not a constitutional right, and therefore not subject to equal protection, thus necessitating a constitutional amendment to require that women be permitted to vote (if that were the desired policy).

By 1940, the law required that the US citizen parent have been resident in the US, including 5 after age 16. It also required the child to reside in the US for 5 years between the ages of 13 and 21.

It made exceptions if the US citizen parent were a diplomat or otherwise working for the government, or was gainfully employed by an educational, scientific, philanthropic, religious, commercial, or financial organization headquartered in the US. In a sense this was a type of projected US residency (my term).

The article did not explain why there was a residency requirement, but I suspect it had to do with balancing concerns about children having US citizenship without much of a connection to the US, and perhaps avoiding conflict with foreign countries who might consider the US to be interfering in their citizenship laws.

There would be concerns about a child being born in the US, returning with her parents to their home in a foreign country when she was 5, who would begin producing US citizen offspring 15 to 35 years later, having never attended US schools or knowing a word of English.  These offspring might demand entry to the US decades later through the accident of birth.

The residency requirement has gradually been liberalized, but demands at least some exposure to an American education.

The article then discusses the constitutional basis of congressional authority to legislate on the matter.

Three alternatives are:

(1) Naturalization clause (Article 1, Section , one of the enumerated powers of Congress is to provide for naturalization. The initial naturalization act of 1790 provided for a process of naturalization for aliens within the US; and also recognized US citizenship for certain persons born outside the US. The article argues that the two sections of the 1790 act were by different authority. And that if persons born abroad were naturalized, even if at the time of birth, they would not be natural-born citizens - and therefore Ted Cruz could not become president.

(2) Implied power over foreign relations. This is an essential authority of a national government. The author prefers this basis. If this is the basis, the author believes this would make 14th Amendment equal protection apply to the case of children born out of wedlock to one US citizen parent regardless of sex. I don't pretend to understand this.

(3) 14th Amendment. This somehow is based on an interpretation of "born or naturalized in the United States", and how to interpret the word "in".