The 'natural born citizen' clause has never really been tested
When Sen. Ted Cruz launched his presidential campaign Monday at Liberty University, he began by telling his parents’ stories of immigration from Cuba, on his father’s part, and overcoming the odds at home, on his mother’s part. One much-discussed element of Cruz’s personal story, however, got only a brief nod: “When I was three, my father decided to leave my mother and me,” Cruz told the audience. “We were living in Calgary at the time.”
Calgary, though part of Cruz’s American story, is not in the United States; it’s in Alberta, Canada. Though Cruz was born in Alberta, he only learned as an adult that his birthplace gave him Canadian citizenship, which he officially renounced last summer.
Though it’s a common misconception, being born in Canada does not necessarily exclude Cruz, the child of an American citizen, from the White House. In fact, he’s one of many potential presidents over the years who have been born abroad.
The confusing constitutional clause behind that misconception — “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President,” per Article II — most recently made news with the campaigns of John McCain, who was born in the Panama Canal Zone. As the New York Times laid out during his 2008 campaign, being born to a military officer in a military zone, as McCain was, was seen as largely uncontroversial, even though legal experts still debate whether “natural born” means “born in the U.S.” or merely “not naturalized later in life.” The real issue is that the Supreme Court has never really had to say either way. The natural-born citizen qualification is untested in practice, and it’s not even clear who would have legal standing to challenge a president like McCain or Cruz on that matter.
Further, as TIME explained in a 1962 article about the candidacy of George Romney (Mitt Romney’s father, who was born in Mexico because his grandfather had fled there to avoid U.S. antipolygamy laws), that hypothetical legal challenger would have a tough case:
His Mexican birth has raised some questions about Romney’s constitutional qualifications for the presidency. Article Two of the Constitution specifies that only a “natural-born citizen” is eligible. Some legal authorities say that this means only those born on U.S. soil. But a law enacted by the first Congress in 1790 stipulated that children born of U.S. citizens beyond the boundaries of the country “shall be considered as natural-born citizens of the U.S.”
In theory, that 1790 law could be unconstitutional too, were the natural-born citizen issue to make it to the Supreme Court — but, on this count, Cruz has an even harsher challenger to overcome. Nobody who would have provided the opportunity to put the law to the test has ever actually won the election. Other born-abroad politicians in the Times round-up include a Connecticut Senator born in Paris and FDR’s son Franklin Jr., who was born in Canada.
The closest the country has ever come to having a President not born on its soil (or, alternatively, living there at the time of the founding) was in the late 1800s, with Chester A. Arthur — maybe.
Arthur ended up in the White House in 1881, having served as the Vice-President for James Garfield, who died of complications from wounds sustained during an attempted (and ultimately successful) assassination. Though Arthur’s official biography at the White House lists his birthdate as 1829 and the place as Fairfield, Vt., both the year and the place have been challenged over the years. As the Associated Press explained in a 2009 story about the Chester A. Arthur Historic Site — his purported birthplace — rivals claimed that Arthur was actually born in Canada, where his mother’s family lived.
Records from the 1820s were predictably shoddy, and there has never been any way to prove 100% where Arthur was born. Should Cruz win the race in 2016, he’ll be the first President definitely born in Canada — and the first definite chance, unlikely though it may be, for the Supreme Court to test and define the clause in question.