Donald Trump and Ted Cruz sparring at a Republican debate in December
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Donald Trump (left) and Ted Cruz sparring at a Republican debate in December; a tweet from Trump in January

CREDIT: John Locher/AP Images (debate); Twitter/@realdonaldtrump (tweet)

Who’s Allowed to Be President?

The Constitution is vague about whether Americans born outside the U.S. can be president. Is it time to settle the issue?

The U.S. Constitution declares that the president must be a “natural born citizen.” But what does that mean exactly?

More than two centuries after the Framers established the requirement, it continues to generate both confusion and controversy. The latest involves Senator Ted Cruz, one of the front-runners for the Republican presidential nomination. No one disputes that Cruz is a U.S. citizen because his mother is American; but he was born in Calgary, Canada, and his father, who’s from Cuba, had not yet become an American citizen. Does that disqualify Cruz from the presidency? 

Cruz says absolutely not: “As a legal matter, the question is quite straightforward and settled law.”

 But one of his rivals for the nomination, Donald Trump, sees it as a huge problem. “You can’t have a nominee who’s going to be subject to being thrown out as the nominee,” Trump says. 

The term “natural born citizen” was crafted by the Founding Fathers in 1787, while memories of the Revolutionary War were fresh and leaders of the new nation feared it could fall prey to foreign influence. During the Constitutional Convention, John Jay wrote to George Washington, urging “a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army* shall not be given to nor devolve on, any but a natural born Citizen.”

*Under the Constitution, the president is the commander in chief of the military.

Conflicting Interpretations

Like much of the language in the Constitution, the phrase is vague enough to be interpreted in different ways. And the Supreme Court has never ruled on what it means in practical terms. That has led to conflicting legal interpretations: Some argue that only those born to American parents within the borders of the U.S. can legitimately occupy the Oval Office, but others say anyone born a citizen qualifies.

Cruz isn’t the only presidential candidate to be challenged on this issue. Some have raised questions about Senator Marco Rubio of Florida, another Republican candidate, who was born in the U.S. to two Cuban immigrants who were not yet citizens. He faces at least one lawsuit in Florida claiming that he isn’t a “natural born” citizen. 

Senator John McCain, the Republican nominee in 2008, also had to deal with questions about whether he could hold the office; he was born on a U.S. military installation in the Panama Canal Zone, where his American parents were living because his father was an officer in the U.S. Navy.

There have also been accusations for years that President Barack Obama doesn’t meet the qualifications. A fringe movement known as “birtherism” contends that Obama wasn’t born in the U.S. and is therefore ineligible to be president, despite documentation that he was born in Hawaii to an American mother and a Kenyan father.

Forget About King George?

With these kinds of controversies becoming a regular feature of American politics, demand is mounting for a definitive answer to the modern meaning of “natural born citizen.” Some experts say that the provision has simply outlived its original intent.

“The worry that George III might come over and exert undue Germanic or British influence is no longer a threat,” says Laurence Tribe, a Harvard law professor and constitutional scholar, referring to the British king during the Revolutionary period. “There is no defense now for retaining the clause in the Constitu-tion. It really needs to be removed.”

‘No Person except a natural born Citizen . . . shall be eligible to the Office of President.’
Source: Article II of the U.S. Constitution

The other constitutional requirements to hold the presidency are less controversial: The president must be at least 35 years old and a U.S. resident for at least 14 years. 

But removing or clarifying the “natural born” clause won’t be easy. Changing the Constitution is intentionally challenging: It requires the approval of two-thirds of both the House of Representatives and the Senate, and ratification by three-quarters of state legislatures, or 38 out of 50.  

Tribe says the quickest solution could be provided by a legal case: What if Cruz becomes the Republican nominee but is denied a spot on the ballot in a state with a significant number of electoral votes? Cruz would certainly have motivation to file a lawsuit. And the courts would have incentive to act quickly, possibly resulting in a definitive Supreme Court ruling that would settle the issue.

There are other complications. What about the vice presidency? Senator Michael Bennet of Colorado, who’s been mentioned as a potential Democratic vice presidential candidate, was born in India when his father was serving there as a diplomat. Would Bennet be eligible—when the most important role of the vice president is the ability to assume the presidency if called upon?

Among those hoping for a resolution are some of the 17 current members of Congress who were born outside the U.S. and might one day want to run for higher office. 

“Ambiguity is always a bad thing,” says Congressman Jim Himes, a Democrat from Connecticut who was born in Peru while his American parents lived there, “so of course it would be good to get this straightened out.”

With reporting by Carl Hulse of The New York Times.

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