Flashback: My 2013 article on Birtherism 2.0 and Canadian-born Ted Cruz’s eligibility to serve as presidentPosted: January 5, 2016
I woke up this morning in Beijing to a tweetstorm fomented by Donald Trump’s new birther conspiracy: raising questions about Ted Cruz’s eligibility to be president. Here is a story I posted on Texas on the Potomac in 2013, when it was growing increasingly likely that the Canadian native would seek the U.S. presidency. In case you’re interested, here is what I wrote:
It seems like an obscure court case from a dusty old law book, but if Canadian-born Texas Sen. Ted Cruz ever decides to run for president, you’re likely to hear a lot about the United States v. Wong Kim Ark.
In that 1898 case, the U.S. Supreme Court voted 6-2 to repudiate the exclusive language of the infamous Dred Scott case and create an expansive definition of the Constitution’s “natural-born citizen” clause.
That’s important because the Constitution requires that the U.S. president be a natural-born citizen –and Cruz was born in Calgary, Alberta, in 1970. Cruz, who is being urged to run for president in 2016 by some conservative activists, argues that he is a natural-born citizen because his mother was an American citizen. His father, now a naturalized American, was born in Cuba.
As the Cruz-for-president talk heats up on the right, some bloggers on the left have argued that the strict interpretation of the Founding Fathers’ words that Cruz claims to worship would disqualify a Canadian-born American from serving as president.
Five years after celebrity billionaire Donald Trump and a motley assortment of conservatives raised questions about a liberal Democratic candidate’s American birthplace, the shoe is on the other foot.
Call it Birtherism 2.0.
“It is ironic that a Tea Party favorite might be blocked from serving as president by one of the Tea Party’s favorite constitutional provisions,” said Democratic strategist Paul Begala.
The question of presidential qualifications has never directly reached the Supreme Court. But there is a wide range of jurisprudence on the issue — which overwhelmingly favors the notion that Cruz is eligible to serve as president.
Ironically, the same legal logic that confirms Cruz’s eligibility would have permitted Barack Obama to serve as president even if he had been born in Kenya, because his mother was a U.S. citizen.
The most comprehensive study of the issue was a 2009 report by the nonpartisan Congressional Research Service, which cited English Common Law principles and American legal scholarship dating back to 1833.
“The weight of scholarly and historical opinion appears to support the notion that ‘natural born citizen’ means one who is entitled under the Constitution or laws of the United States to U.S. citizenship ‘at birth’ or ‘by birth,’ including …those born abroad of one citizen parent who has met U.S. residency requirements,” wrote Jack Maskell, a CRS legislative attorney.
So why the controversy?
Because, as in so many cases, the Constitution’s authors were silent on the meaning of the phrase “natural-born citizen,” leaving it to generations of constitutional scholars to divine their thoughts.
T. Gerald Treece, a professor at South Texas College of Law, said that despite the Founders’ silence on the subject, their intentions are easy to understand.
“The Founding Fathers merely did not want any British or other foreign subjects to become naturalized and, therefore, eligible to become president,” said Treece.
He said legal precedents focus on an individual’s status “at time of birth.”
“Most authorities agree that, if at time of birth, you are born to U.S. citizens — where they reside — then you are a U.S. citizen at time of birth,” Treece added.
But because the Supreme Court has never directly addressed the issue, it has been a subject of argument for centuries.
in 1881, some Democrats contended that Republican Vice President Chester A. Arthur was born in Canada and ineligible to succeed assassinated President James A. Garfield. But Arthur insisted he was born in Vermont, had a birth certificate and was sworn in as president.
in 1964, some critics of Republican nominee Barry Goldwater said he was barred from the presidency because he was born in Arizona before the territory gained statehood. The challenges got nowhere.
Four years later, Michigan Gov. George Romney sought the presidency although he was born in Mexico, where his American parents were living in a Mormon colony. The Mexican constitution in effect at the time of Romney’s birth in 1907 restricted citizenship to the children of Mexican nationals. So there was no issue off dual citizenship to cloud Romney’s campaign.
In 2008, both presidential nominees faced lawsuits to disqualify them based on their place of birth.
GOP nominee John McCain, the son of a Naval officer, was born in the Panama Canal Zone, then a U.S. territory, in 1937, months before Congress approved a law guaranteeing birthright citizenship to children of military personnel serving abroad. To erase any doubt, the U.S. Senate approved a bipartisan resolution confirming McCain’s citizenship, and a legal challenge to his eligibility was rejected.
There was far more fuss over false claims that McCain’s Democratic rival, Barack Obama, was born in Africa. A series of lawsuits were tossed out of court.
None of the anti-Obama “birthers” has stepped forward to challenge Cruz.
“I doubt that birthers will go after Cruz because he is ideologically compatible with them,” said Carleton College political scientist Steven E. Schier.
After the “birther” circus of 2008, friends and foes of Cruz say they’re ready to focus on his political positions, not his birthplace.
“The ‘birther’ issue — whether it’s Barack Obama, John McCain or Ted Cruz — has always been nothing more than a pointless hyperpartisan distraction and remains one,” says Democratic consultant Harold Cook.
Here’s the 2009 CRS document:
I promise that this list of 2015 American political winners and losers — one of dozens of such exercises being published this week — will not mention Donald Trump. (After that one.)
It’s been a long, long year in U.S. politics. It seems like decades ago that John Boehner was House Speaker, Jeb Bush was GOP-nominee-presumptive, Ted Cruz was a marginalized junior senator, Joe Biden was a GOP campaign trail laugh line and Barack Obama was a terrorist-loving, Kenyan-born, Muslim jihadist. (Well, four out of five ain’t bad.)
The list of political losers this year is loooooooooong. The list of political winners is short and subject to change without notice in 2016. (Will the honeymoon end, Speaker Ryan, or will we be talking about President-elect Paul Ryan one leap year from today?)
For what it’s worth, here’s my take, starting with losers:
Nobody went from rising national star to minor-league dud faster than the in-over-his-head Wisconsin governor. He gave one good campaign speech in Iowa and was hailed as the GOP presidential frontrunner by the out-of-touch political media elite. His campaign was a free-spending disaster that was destroyed by one simple thing — a terrible candidate.
Rick Perry, the Scott Walker of 2011, was the Harold Stassen of 2015. Nobody took the former Texas governor seriously as a presidential candidate. He couldn’t get traction, even though he gave the best speech of the Republican campaign — on the sensitive subject of race — at the National Press Club and articulately warned the GOP electorate about the candidate who shall not be named.
In his view: The inmates took over the asylum on Capitol Hill, and the keeper of the keys decided to flee the funny farm. A slightly more jaundiced view: The veteran House speaker and former fire-breathing Republican revolutionary was burned out and unable to reconcile the new generation of irreconcilable nihilists and the establishment majority in his very conservative caucus. After praying with Pope Francis, he chose a quiet glass of chardonnay on the balcony instead of a brass-knuckles brawl in the men’s room.
Remember when Walter Mondale decided not to run for president back in the 1970s because he doubted he had the fire in his belly for a presidential candidate. (You don’t? Well, trust me.) I get the feeling that Jeb Bush is the Walter Mondale of 2016. He acts like he really didn’t want to run for president, but everybody — except his mother — told him it was his duty (to the nation, to the party, to the Bush family) to run. So he ran. Badly, thus far. How bad is it? The incomparable Will Ferrell returned to Saturday Night Live to reprise his famous role as George W. Bush. His big laugh line: Bet you didn’t know I was the smart son.
The Republican political establishment
The GOP establishment — that amorphous, pan-ideological political group that shares a wariness of outsiders — is accustomed to getting its way. Over the past seven decades, only two insurgents (Barry Goldwater and Ronald Reagan) have defeated the candidate favored by a majority of GOP “wise men” and Daddy Warbuckses. Indeed, from 1976 through 2008, there was always someone named Bush or Dole on the Republican ticket. This year, the so-called establishment candidates (Jeb Bush, Chris Christie, John Kasich, Lindsey Graham, Scott Walker, Rick Perry) received less combined support than the first-term firebrand from Texas, Ted Cruz, is polling now. The purported savior of the Republican establishment may end up being Marco Rubio, a Tea Party champion who vanquished the GOP establishment in 2010 when he seized the Florida Senate nomination from a sitting Republican governor. Or Chris Christie, a.k.a. He Who Hugged Obama in 2012.
The Republican party
The GOP now has a presidential frontrunner who cannot win in the general election and could hand the House and Senate back to the Democrats in a Goldwater-style replay. (Goodbye, Illinois, Wisconsin, Ohio, Pennsylvania, New Hampshire Senate seats.) The GOP now has a second-running candidate who would be a very tough sell to general election swing voters. The “establishment” candidates who are running ahead of Hillary Clinton in general election match-ups seem to be long shots and getting longer by the week. (One of them, Marco Rubio, has been in a holiday slump and has compensated for his declining poll numbers by taking more time off of the campaign trail.)
The establishment media
The Pundit Elite told you that a certain billionaire real estate and gambling tycoon was not a serious candidate for president. The Huffington Post relegated him to the entertainment section. They said he would fade when he questioned John McCain’s patriotism. They said he would fade when he said Mexico was sending rapists across the border to violate American … sovereignty. They said he would fade when he announced a plan to prohibit Muslim visitors from entering the United States. The big “they” have been wrong, wrong, wrong. They were wrong about Rick Perry. Time Magazine once asked. “Can Anyone Stop Rick Perry in 2016?” Duh, yes. They were wrong about Scott Walker. US News declared, “Walker Launches 2016 Campaign as GOP Frontrunner.” Chris Matthews was wrong when he declared that Rand Paul would be the 2016 nominee. (“You watch. This is what I do for a living.”) And the pundits were most definitely wrong about Jeb Bush, the one-time “Mister Inevitable” of the 2016 campaign. So what were they right about? The inevitable Hillary Clinton victory? OK, that seems likely, although the first vote has still not been counted. Here’s my final warning about pundit predictions: Beware all pundits who predict the general election with absolute certainty before Labor Day 2016.
Having lit the match of the Tea Party revolution in 2009, Fox News saw the wildfire scorch the Republican Party in 2015. Populism trumped past favorite “isms” of Fox News: compassionate conservatism, neo-conservatism, Bush-Cheney-ism and O’Reilly-ism. A former Democrat who gave money to oodles of Democrats and praised both Clintons to the high heavens is now the favorite of the populist right. Rupert Murdoch despises the candidate who shall not be named. He’s shared his opinion with the world — repeatedly — through social media. But there’s seemingly nothing he or his TV network can do about it.
Dick “Darth Vader” Cheney
“I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion, goes against everything we stand for and believe in. I mean, religious freedom has been a very important part of our history and where we came from. A lot of people, my ancestors got here, because they were Puritans.” This was not some lefty civil libertarian talking. This was Mister Waterboarding himself, Richard Cheney, talking to conservative radio host Hugh Hewitt. The former vice president, who embraces his “Darth Vader” image with Dickensian good cheer, thinks that the candidate who shall not be named has gone beyond the bounds of decency. But that certain candidate doesn’t care what Dick Cheney or George W. Bush or any of their neocon friends think. He says they screwed up Iraq and Afghanistan and the entirety of Southwest Asia with ill-considered invasions. When he talks like that, the billionaire tycoon sounds a lot like Bernie Sanders.
With all the big losers in 2015, I’d like to end my list with the year’s most insignificant loser. Aaron Schock. Once the youngest member of Congress, he showed off his “six-pack abs” on the cover of Men’s Health magazine. Turns out that the emperor had no clothes at all. The fourth-term congressman was snared in a series of scandals involving his accumulation of personal wealth through the aid of political donors and his alleged use of taxpayer money to fund a celebrity lifestyle. “Politics shouldn’t be a ticket to a celebrity lifestyle on the public’s dime,” Charles C.W. Cooke wrote in National Review. “For a man who has enjoyed such a short and undistinguished career, Illinois’s Representative Aaron Schock (R) has sure packed in a lot of corruption.” With no friends and no sympathy, the era of Shock and Awe ended abruptly on March 17 when he quit his day job.
And now the winners …
In 2004, when George W. Bush made same-sex marriage one of the key wedge issues in his re-election bid against Democrat John Kerry, 60 percent of Americans opposed gay marriage and just 31 percent supported it. The past decade has seem a seismic shift in public opinion. Not only did the U.S. Supreme Court legalize what is now known as “marriage equality” this year, but the public overwhelmingly supports it, 55 percent to 39 percent, according to the most recent Pew Research Center survey.
As Justice Anthony Kennedy wrote in his landmark majority opinion:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
There have been 353 documented mass shootings in the United States this year, almost one per day. Gun and ammo sales have spiked with each of the largest mass murders. In Washington, all attempts to pass gun-control measures have been resoundingly rejected on Capitol Hill. Score two for the National Rifle Association.
Yes, I know, gasoline pump prices are down. That makes American consumers a winner but Big Oil companies a loser. But Big Oil is still having a very Merry Christmas after getting a very nice holiday gift from Congress and President Obama: an end to the four-decade-old domestic oil export ban. As recounted by my former colleague Jennifer Dlouhy, now with Bloomberg News:
Sensing they had momentum, oil industry lobbyists stepped up a social media campaign targeting possible supporters by placing ads on Facebook and elsewhere. Companies printed anti-ban messages on royalty checks. And in the end, supporters of retaining the ban were outmatched on the Hill, where at least 34 groups and companies were lobbying to allow exports compared to seven lobbying against.
“It moved quickly,” ConocoPhillips CEO Ryan Lance told Jennifer. “A lot quicker than industry thought it would.”
Megyn Kelly and Hugh Hewitt
Two conservative media personalities gained wide respect across the political spectrum by their tough but fair questioning of presidential candidates in nationally televised debates. For her professionalism, Kelly has faced sexist and misogynistic barbs from the candidate who shall not be named. Hewitt, one of the American media’s leading experts on foreign policy, asks specific and significant questions that cannot be dismissed as liberal propaganda.
Après Boehner, le déluge? Pas de tout.
Paul Ryan, the 2012 GOP VP nominee, maneuvered flawlessly into the position that Republicans from center, right and far right were all begging him to accept the job that Boehner suddenly vacated. The bizarre courtship process has given Ryan a lot of political capital, and he has used it wisely, cutting a conservative deal to keep the U.S. government operating that won the approval of a majority of Republicans and Democrats alike. It’s always hard to predict when the honeymoon might end, but Paul Ryan has led a charmed political life in 2015.
John McCain dismissed him as one of the wacko birds. His Texas colleague, John Cornyn, called him out after he accused Senate Republican Leader Mitch McConnell of telling a “flat-out lie.” His Senate colleagues have ridiculed and repudiated him repeatedly. To most officeholders, this would be a political kiss of death. But to Texas Sen. Ted Cruz, it is a kiss of life. Running for president as the sworn enemy of the “Washington Cartel,” Cruz has risen from low single digits in early polling to challenging for first place in national polls. He is a darling of right-wing radio, and he has rolled out dozens of endorsements from famous names in the conservative movement. His presidential campaign has been as disciplined as it has been cold-blooded in his attacks on President Obama and Democratic frontrunner Hillary Clinton. The Texas Tornado capped off the year by releasing a light-hearted Christmas video poking fun at himself and people who take themselves too seriously.
Well, Mitch McConnell isn’t happy that Ted Cruz might become his party’s presidential nominee. But that’s 2016. In 2015, he pretty much outmaneuvered both the Cruz wing of the Senate GOP and Harry Reid’s Democratic minority. While the Senate Majority Leader is not a particularly big fan of Barack Obama, he has proven time and again that he can work with him to cut a deal. Cruz calls him a card-carrying “cartel” member. In the olden days, he would have been called a “legislator.”
Through his grief at the loss of his son Beau, Joe Biden’s humanity shined. He embodied a word that has almost ceased to exist in American politics: “authentic.” As 2015 dawned, Republican presidential candidates regularly made Biden the butt of jokes. As the year is coming to a close, those jokes have been discarded.
If Joe Biden showed grace under pressure, most of the political world showed that America has lots to fear from fear itself. A fear of Muslim terrorists and Latino immigrants has convinced a majority of Republicans that it’s time to seal America’s borders. Presidential candidates have called for internet censorship and routine government surveillance power to peruse our private emails in search of potential terrorists. Ratings-challenged cable news networks have nurtured the nation’s paranoia with sensationalistic coverage.