Ted Cruz Birther Flap

January 7, 2016 Off By Michael
Imagine in 2017 America with a president who may not be an American citizen. Photo Credit: Daily Kos.com

Imagine in 2017 America with a president who may not be an American citizen.
Photo Credit: Daily Kos.com of Ted Cruz

Ted Cruz is embroiled a Birther flap he wishes would go away.

Four years ago, Senator Ted Cruz (R-Texas) sat back and watched his father, Rafael Cruz, rise in the ranks of the “Birther Movement.” Rafael Cruz regularly urged Republican Tea Party members to challenge President Barack Obama’s qualifications to be President of the United States of America.

The Birther Movement erroneously believed that President Obama was born in Kenya, the birthplace of his father, Dr. Barack Hussein Obama, Sr., an economist from Kenya.

Rafael Cruz’s favorite Birther speech urged President Obama to “go back to Kenya.” Many Birthers, including the father of Ted Cruz, the leading challenger to Donald Trump for the Republican Nomination for President, believed that President Obama was born in Kenya and thus did not meet the federal constitutional requirement to serve as president.

“How could a Black man become president?” White Tea Party members seemed to mutter among themselves beginning in 2008!

The answer could only lie in some unlawful activity. “Obviously, Obama was born in Kenya,” this group insisted, in spite of evidence to the contrary.

See http://www.huffingtonpost.com/2013/10/31/rafael-cruz-birther_n_4181207.html

Karma does not often come around when you want it, but it has impeccable timing. Fast forward four years to the 2016 presidential election. President Obama is not eligible for reelection. He has nearly completed the two terms that he was elected to serve. The Birthers, after all, failed in their attempt to remove Obama from office on constitutional issues.

Now Ted Cruz, who was born in Canada, as an”issue” (legalese  for birth) of a Cuban American mother and a Canadian father, is having the same challenge to his qualifications to serve as President.

Unlike President Obama, it is undisputed that Ted Cruz was born in Canada and brought to the United States of America at age four, where he has lived and presumably paid taxes. What is unclear is whether Cruz ever went through any naturalization process to become a naturalized citizen in accordance with the Fourteenth Amendment to the Constitution  of the United States of America. A process that each year grants citizenship papers to many Latinos like Cruz, once they have demonstrated they have a working knowledge of the government laid out in the US Constitution and other considerations.

There are two constitutional provisions at issue here:

First, ARTICLE II, Section 1, Paragraph 5 of the Constitution states, “No Person except a natural born  Citizen [emphasis added] , or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five years, and been fourteen Years a Resident within the United States.

Keep in mind, this constitution was adopted in 1789. Article II list three categories to determine eligibility for a person to serve as president: (1) It grandfathered eligibility to any Person who was a Citizen of the USA at the time the constitution was adopted; (2) it restricted those who were citizens at the time of adoption of the constitution, who had not been a Resident within the USA for fourteen years [This rule was included over concerns that a person loyal to the interest of a foreign power may seek  the office to make the USA a puppet of a foreign government. Also, many constitutional scholars contend that this rule was to prevent Alexander Hamilton from meeting the eligibility requirements); and (3) going forward, it limited the Office of the President to persons who were born in the USA.

If we went no further than Article II, Ted Cruz is not eligible to serve as President. Cruz contends because he is the son of an American citizen, the place where he was born does not matter. This argument is not supported by the Constitution. In 2008, Senator John McCain met the eligibility requirements in spite of the fact he was born in Panama, because he was born to American citizens on a United States military facility in Panama.

However, the nasty fight at the Constitutional Convention over what to do about the “Negro Question” may give Cruz some relief. During the Constitutional Convention, the northern states fearing they would be outvoted if they outlawed enslavement, opted to designate the enslaved population as property of any white person, citizen or otherwise, who had papers on them.

Since, the Negro Question was punted down the road for some other American generation to deal with,  like a raw sore it festered; until slave owners and abolitionist took up arms against each other. Following this civil war, Congress acted to amend the Constitution to bestow citizenship upon the heretofore enslaved population of the USA.

The second constitutional provision at issue is found in the Fourteenth Amendment to the Constitution, Section 1. This amendment re-conferred citizenship on persons born on American soil and opened a second pathway to citizenship by providing for a naturalization process.

The pertinent points of the Fourteenth Amendment reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”

Leading constitutional scholars, all of whom attended more prestigious law schools than the one this writer attended, are of the opinion that the constitution should be broadly construed to confer citizenship upon any person born as an issue of an American mother no matter where in the world that person is born. See: http://abcnews.go.com/Politics/constitutional-scholars-explain-ted-cruz-eligible-president/story?id=36127821 and http://news.yahoo.com/mccain-says-concerns-over-cruz-citizenship-legitimate-153210544–election.html

However, a strict construction of the two constitutional provisions cited above makes it pretty clear, Ted Cruz, absence naturalization papers, does not meet the constitutional requirements to serve in the Office of President.

In the 227 years the US Constitution has been a living, breathing document, this questions has never been raised before the US Supreme Court. Donald Trump has called upon Cruz to file a Declaratory Judgment action in Federal Court to get a legal interpretation of these constitutional provisions before the Republicans meet to select their nominee in Cleveland in July.

Ironies in the Cruz Birther flap abounds, while the Tea Party and others spent enormous time and financial resources to challenge President Obama’s citizenship, media and legal scholars are seeking a quick resolution of this challenge to Cruz’s citizenship. A quick resolution in spite of the fact the Cruz matter poses a legitimate constitutional question. Unlike the Obama citizenship challenge, which simply came down to disbelief in the minds of a few Americans, that a black person could squeak through the presidential election process.

Should Cruz fail in his quest to become president, he should pray that Trump does not win, because with a Trump presidency, it is not a question of whether Cruz, to paraphrase his father, “should go back to Canada,” because as a Latino immigrant without papers,Trump would “round him up and send him back; then seal the border so he could not return.”

Karma, oh sweet karma!

Harold Michael Harvey is an American novelist and essayist, the author of Paper puzzle and Justice in the Round. He can be contacted at haroldmichaelharvey.com.