And It Begins: First Lawsuit Filed over Cruz’s Eligibility

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Ted Cruz

Shortly after presidential contender Donald Trump said it would happen, a businessman in Texas has filed a lawsuit to challenge Senator Ted Cruz’s eligibility to be placed on the ballot.

Bloomberg News report:

Republican presidential contender Ted Cruz should be disqualified from the race because he isn’t a “natural-born citizen,” a fellow Texan claims in a “birther” challenge filed against the senator in a U.S. court.

The suit seeks a court definition of the term to clarify whether Cruz — who was born in Canada to an American mother — can or can’t serve if elected.

“This 229-year question has never been pled, presented to or finally decided by or resolved by the U.S. Supreme Court,” Houston attorney Newton B. Schwartz Sr. said in his 28-page complaint. “Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.”

This isn’t the first time a lawsuit like this has been filed. The most recent challenges filed stem from John McCain’s run for president. McCain was born in the Panama Canal Zone that was later determined to be U.S. Soil.

Ted Cruz was born in Calgary, Alberta, Canada in 1970 and moved to Texas in 1974. While Cruz’s mother was a United States Citizen (his father was a Cuban citizen), she had to file paperwork at a Canadian embassy to recognize the birth and his citizenship.

Since Ted Cruz was born abroad and had to request the government recognize his citizenship, it is arguable that Cruz is not a “Natural Born Citizen” as the Constitution requires of a president.

The lawsuit and entire “birther” debate has the pro-Cruz camp up in arms.

National Review wrote:

Let’s get the first thing out of the way: Yes, Ted Cruz is eligible to be president. If you’re one of the quarter of Republicans who think that the circumstances of Cruz’s birth are somehow disqualifying, or the 26 percent that haven’t made up your minds, please: Read this. Or this. Or maybe this. Or this. For God’s sake, The Atlantic is clear that this is nonsense. So either the Republican party has several million heterodox constitutional scholars in its midst, or a hefty chunk of the party has devoted itself, with single-minded zeal, to being intentionally, flamboyantly ignorant. Which brings us to Donald Trump. This is, of course, his doing. Because he is unable to engage Cruz (or anyone else on stage) on matters of actual substance, he’s mongered conspiracy under the pretext that Democrats were going to do it anyway. It doesn’t seem to matter to Trump or to his supporters that his legal opinion on the subject was wildly different just four months ago.

While the National Review was quick to redirect readers to a few articles that brush off the controversy, the matter is far from unsettled.

The respected Heritage Foundation has covered this and while they conclude that “a majority of “commentators” argue in favor of the eligibility of Cruz, the argument is “much less certain.”

Here’s the full section from Heritage:

Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President. As early as 1350, the British Parliament approved statutes recognizing the rule of jus sanguinis, under which citizens may pass their citizenship by descent to their children at birth, regardless of place. Similarly, in its first naturalization statute, Congress declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” 1 Stat. 104 (1790). The “natural born” terminology was dropped shortly thereafter. See, e.g., 8 U.S.C. § 1401(c). But the question remains whether the term “natural born Citizen” used in Article II includes the parliamentary rule of jus sanguinis in addition to the common law principle of jus soli. In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of “citizen” in the Fourteenth Amendment as well as the natural-born–citizenship requirement of Article II, and noted that any right to citizenship thoughjus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court’s discussion in Wong Kim Ark, a majority of commentators today argue that the Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968.