Cruz Unsettled

Republican presidential candidate, Sen. Ted Cruz, R-Texas, listens to a question during a campaign event, Thursday, Jan. 7, 2
Republican presidential candidate, Sen. Ted Cruz, R-Texas, listens to a question during a campaign event, Thursday, Jan. 7, 2016, in Webster City, Iowa. (AP Photo/Jae C. Hong)

Texas Senator Ted Cruz's presidential bid has been gaining momentum in the all-important Iowa Caucus scheduled to take place February 1. But now Donald Trump has focused his attention on Cruz's Canadian birth in an effort to undercut the senator's campaign. "Ted Cruz has a problem," Trump told a rally Monday in Windham, New Hampshire. "I mean, he's got a problem."

Trump, in an effort to win in Iowa, is now hammering away at whether Cruz qualifies to be U.S. president under the Constitution. Article II of the Constitution specifies, "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." Central to the question of Cruz's eligibility is the definition of a "natural born citizen."

Up to now Cruz has dismissed the issue as "settled law." The senator admits he was born in Canada to his father, Rafael Cruz, who was a Canadian citizen at the time of his son's birth in 1970, and to his mother, who was born in Delaware. Cruz, a lawyer, says he qualifies because his mother was an American and that he is therefore a natural born citizen.

But Harvard's Laurence Tribe, a leading Constitutional scholar, says the matter is not settled. "There's a huge irony about the way Cruz interprets the Constitution," Tribe said in an email to The Huffington Post. "When it wouldn't hurt him or things he cares deeply about, he insists on interpreting it the way he believes the Founding Generation intended it -- as what people call an 'originalist.' But to a true originalist, as the best scholarship on this topic has shown, a 'natural born citizen' would exclude someone like Ted Cruz because of his Canadian birth."

In an opinion piece in Monday's Boston Globe, Tribe wrote, "When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class -- arguing stridently for sticking with the 'original meaning' against the idea of a more elastic 'living Constitution' whenever such ideas came up." Tribe pointed out, "In truth, the constitutional definition of a 'natural born citizen' is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump's advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty."

Cruz's strongest supporter in Iowa, conservative Congressman Steve King, has been a leading voice in the birther movement that claims President Barack Obama is not a citizen, even though the president's mother was an American. In 2012, Cruz's father was quoted as saying on a video, "We need to send Barack Obama back to Chicago. I'd like to send him back to Kenya, back to Indonesia."

Senator John McCain was born in Panama. To avoid any questions about his citizenship when he ran for president in 2008, the Senate passed "A resolution recognizing that John Sydney McCain, III, is a natural born citizen." Members of the Senate were clearly concerned questions could arise about McCain's qualifications, even though he was born on a U.S. military base to an American father and mother. And, given how Cruz's colleagues view him, it is not likely the Senate will do him the same favor. In fact, Senate Majority Leader Mitch McConnell, a man Cruz has called a liar on the floor of the Senate, has said he does not want to talk about the issue.

Trump told the New Hampshire rally, "Whether you like it or not, Ted has to figure it out. Because we can't be having a nominee -- if he got the nod, I think I'm going to win very solidly, if you want to know the truth -- but, if you get the nomination, you can't have the person who gets the nomination be sued." Sure enough, Florida Representative Alan Grayson told The Huffington Post last week he would sue if officials certified Cruz's eligibility. "All that Cruz has done is wave his hands in the air and claimed that it's settled law when it's not," Grayson said.

Despite his best efforts to brush the issue off, all of this has to be unsettling for Ted Cruz. Perhaps he can reach out to President Obama for some advice. Or perhaps he can simply jump the shark.