January 16, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

Cross-posted from PrawfsBlawg.

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject' means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.