This story was originally published on FactCheck.org.
One of the final debates before the Feb. 1 Iowa caucuses contained old and new claims alike:
Sen. Ted Cruz, who was born in Canada, said the law was “quite clear” that the “child of a U.S. citizen born abroad is a natural-born citizen” and therefore eligible to be president. Legal consensus is on his side, but the issue isn’t settled and could require a Supreme Court ruling.
Sen. Marco Rubio and Cruz disagreed over whether Cruz’s tax plan, which relies on a 16 percent tax on businesses, was a “value-added tax” or VAT, as Rubio said. Rubio is correct.
New Jersey Gov. Chris Christie repeated his claim that he “didn’t support” Supreme Court Justice Sonia Sotomayor. But in 2009 he said, “I support her appointment,” and he urged the Senate to confirm her, while saying he wouldn’t have nominated her.
Businessman Donald Trump described the Syrian refugees as mostly “strong, powerful men.” But most of the more than 4.6 million refugees registered with the United Nations are women and children.
Cruz repeated his claim that the Senate immigration bill that Rubio cosponsored would have given the president power to admit Syrian refugees “without mandating meaningful background checks.” The bill would have made it easier for members of certain groups to qualify as refugees, but they would still be subject to background checks.
Sen. Marco Rubio claimed that Cruz flipped positions on his support for legalization of immigrants currently living in the U.S. illegally. But that depends on whether or not Cruz was bluffing back in 2013 when he proposed an amendment that would have allowed legalization.
Christie also repeated his claim that “we double tax” U.S. companies with overseas operations. The U.S. tax code provides a foreign tax credit to avoid that.
Christie, Rubio and Ohio Gov. John Kasich all said that the U.S. has the highest corporate tax rate in the world. It’s the highest statutory tax rate among industrialized nations, but not the highest marginal effective tax rate, according to one analysis.
In the earlier debate, former Pennsylvania Sen. Rick Santorum claimed 2 million manufacturing jobs had been lost under Obama. The number is actually 230,000 jobs lost.
Businesswoman Carly Fiorina said of the September 2012 Benghazi attacks: “[W]hen you do not say the United States of America will retaliate for that attack, terrorists assume it’s open season.” The president repeatedly vowed to bring the killers to justice.
Seven GOP candidates met on the main stage on Jan. 14: businessman Donald Trump, retired neurosurgeon Ben Carson, Sen. Marco Rubio, former Florida Gov. Jeb Bush, Sen. Ted Cruz, Ohio Gov. John Kasich and New Jersey Gov. Chris Christie. The earlier undercard debateincluded former Pennsylvania Sen. Rick Santorum, businesswoman Carly Fiorina and former Arkansas Gov. Mike Huckabee. The debate aired on Fox Business Network and was held in North Charleston, South Carolina.
Asked about Trump questioning whether Cruz qualifies as a “natural born citizen” eligible to serve as president, Cruz said “the facts and the law here are really quite clear: under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen.”
When we wrote about the issue in March, we concluded that the legal consensus was on Cruz’s side. But the issue isn’t as settled as Cruz makes out. The Constitution does not define “natural born,” and the Supreme Court has not ruled on its precise meaning. And there are at least some constitutional scholars who believe Cruz is ineligible.
Trump said he is convinced that if Cruz wins the Republican nomination, “I already know the Democrats are going to be bringing a suit. You have a big lawsuit over your head while you’re running. And if you become the nominee, who the hell knows if you can even serve in office? So you should go out, get a declaratory judgment, let the courts decide.”
Cruz’s birth certificate shows he was born in Calgary, Alberta, on Dec. 22, 1970, to an American mother and Cuban father. Cruz, who came to the U.S. at age 4, is a citizen by birthbecause his mother was a U.S. citizen when he was born. But the U.S. Constitution requires a president to be not just a citizen, but a “natural born Citizen.”
Article II, Section 1: 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In 2013, Sarah Helene Duggin, a Catholic University law professor, wrote: “There is a strong argument that anyone who acquires United States citizenship at birth, whether by virtue of the 14th Amendment or by operation of federal statute, qualifies as natural born.”
The nonpartisan Congressional Research Service reached a similar conclusion in 2011.
CRS, Nov. 14, 2011: The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
And Neal Katyal and Paul Clement, two former U.S. solicitors general, writing for the Harvard Law Review, said that Cruz qualifies as a “natural born Citizen.”
But there are other legal scholars who disagree.
Earlier this week, the Washington Post published an opinion piece by Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School, in which she made the argument that Cruz is not eligible to be president.
McManamon, Jan. 12: Cruz is, of course, a U.S. citizen. As he was born in Canada, he is not natural-born. His mother, however, is an American, and Congress has provided by statute for the naturalization of children born abroad to citizens. … But Article II of the Constitution expressly adopts the legal status of the natural-born citizen and requires that a president possess that status. However we feel about allowing naturalized immigrants to reach for the stars, the Constitution must be amended before one of them can attain the office of president. Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen. …
When discussing the meaning of a constitutional term, it is important to go beyond secondary sources and look to the law itself. And on this issue, the law is clear: The framers of the Constitution required the president of the United States to be born in the United States.
During the debate, Trump repeatedly referred to another legal scholar, Laurence Tribe, a constitutional law professor at Harvard who once had Cruz as a student.
In an opinion piece penned for the Boston Globe on Jan. 11, Tribe opined that while “no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win,” the kind of “originalist” judges that Cruz has said he would appoint to the Supreme Court are the very ones most likely to conclude he is ineligible.
Tribe, Jan. 11: People are entitled to their own opinions about what the definitionought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive. …
On the other hand, the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.
Cruz described Tribe as “a left-wing judicial activist, Harvard Law professor who was Al Gore’s lawyer in Bush versus Gore. He’s a major Hillary Clinton supporter.” Tribe once argued on Al Gore’s behalf at the Supreme Court about the results of the 2000 presidential election. According to CNN, Tribe is “certainly a voice in liberal politics, though not — at least not yet — a formal backer of Clinton.”
But Tribe didn’t say he thinks Cruz is ineligible, only that he thinks Cruz is “a fair weather originalist” when it comes to interpreting the Constitution’s definition of “natural born.”
Cruz said that “under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen.” Ultimately, the issue might have to go to the Supreme Court. As we wrote in March, even Duggin, who wrote in her 2013 article that “[a] scholarly consensus is emerging … that anyone who acquires citizenship at birth is natural born for purposes of Article II,” acknowledged that the issue may not be settled.
“In the absence of a definitive Supreme Court ruling — or a constitutional amendment — the parameters of the clause remain uncertain,” she wrote.
The VAT Spat
Rubio and Cruz tangled on the Texan’s tax plan, which relies on a 16 percent tax to be paid by businesses. Rubio said Cruz was proposing a “value-added tax” or VAT, of the kind Ronald Reagan opposed.
Rubio: Ronald Reagan opposed the value tax because he said it was a way to blindfold the people, so the true cost of government was not there for them.
Cruz responded by denying that he was proposing a VAT:
Cruz: [T]he business flat tax in my proposal is not a VAT. A VAT is imposed as a sales tax when you buy a good.
As a practical matter, we find Rubio was correct, and Cruz misled when he denied that his proposal amounted to a VAT.
Don’t take our word for it. The nonpartisan, business-funded Tax Foundation has described the Cruz proposal as a “subtraction method value-added tax,” and the conservative National Review also describes it as a VAT, period.
What Cruz proposes is to eliminate both the corporate income tax (which falls on net profits) and the payroll tax, substituting a 16 percent tax on businesses “on revenues minus expenses such as equipment, computers, and other business investments.” Not mentioned is that the Cruz tax would fall on what businesses pay their employees, and would tend to be passed along and paid by consumers in the form of higher prices.
Cruz prefers to call his plan a “Business Flat Tax,” but as the Tax Foundation’s analysis stated, “its base is identical in economic terms to that of the credit-invoice VAT seen in many OECD countries [except that] it is calculated from corporate accounts, not on individual transactions.”
The Tax Foundation said its computer model predicts that the Cruz plan would boost economic growth and wages over the long term. But some conservatives worry that voters won’t know how much they are paying.
“It is the hidden nature of this tax that has traditionally worried conservatives,” the National Review wrote in a Jan. 13 editorial. “Most people would not know what their wages would have bought them if this tax were lower, or if it did not exist.” It was that criticism that Rubio echoed in his debate remarks.
Cruz also exaggerated when he claimed that his tax plan had been called “the best” by Reagan’s “chief economic adviser.”
Cruz: I would note that Art Laffer, Ronald Reagan’s chief economic adviser, has written publicly, that my simple flat tax is the best tax plan of any of the individuals on this stage.
It’s true that economist Arthur Laffer coauthored a Nov. 20 Investor’s Business Daily articlenaming the tax plans of Cruz — and the flat-tax plan offered by Kentucky Sen. Rand Paul — as the “best tax proposals.” Since Paul was excluded from the Fox Business News debate, he wasn’t on the stage when Cruz made his claim. So Cruz is technically accurate on that score.
However, Laffer was never Reagan’s “chief” economic adviser, nor was he even a member of Reagan’s White House Council of Economic Advisers. Laffer was instead one of a dozen members of an “Economic Policy Advisory Boar
d” that Reagan named soon after taking office, and which was directed to meet “every 3 or 4 months.”
And by the way, even the Laffer article flatly called the Cruz plan a value-added tax, referring to “the Cruz and Paul VATs .”
Christie’s Sotomayor Denial
Christie repeated the claim that he “didn’t support [Supreme Court Justice] Sonia Sotomayor.” During the confirmation process in 2009, Christie said he wouldn’t have nominated Sotomayor but that “I support her confirmation.” And he urged the Senate to confirm her.
Rubio brought up the subject, saying that Christie had supported Sotomayor’s appointment. This is the second time Christie denied supporting her this week: As we wrote, he said on Sunday’s “Face the Nation” that he “didn’t voice support for Sonia Sotomayor.”
His statement in 2009 — when he was a candidate for governor in New Jersey — might have had a caveat, but it certainly was support. The website PolitickerNJ carried Christie’s statement at the time, which said, “After watching and listening to Judge Sotomayor’s performance at the confirmation hearings this week, I am confident that she is qualified for the position of Associate Justice of the U.S. Supreme Court. … While Judge Sotomayor would not have been my choice, President Obama has used his opportunity to fill a seat on the Supreme Court by choosing a nominee who has more than proven her capability, competence and ability. I support her appointment to the Supreme Court and urge the Senate to keep politics out of the process and confirm her nomination.”
Christie and Rubio also disagreed over whether Christie had ever given a donation to Planned Parenthood. We can’t say whether Christie did or didn’t. Christie was quoted in the Newark Star-Ledger in 1994 as saying he did support the nonprofit “privately with my personal contribution.” He now says he was misquoted.
The 1994 story was written by Brian T. Murray, who is currently the governor’s spokesman. At the time, Christie was a candidate for a county freeholder seat and said he was opposed to restoring funding to Planned Parenthood. “I support Planned Parenthood privately with my personal contribution and that should be the goal of any such agency, to find private donations,” he was quoted as saying.
Christie’s campaign told us there is no record of such a donation, but there wouldn’t be one, since nonprofits are not required to disclose donations.
He told the Washington Post on Jan. 12 that he was “convinced” the 22-year-old comment “was a misquote.”
Trump on Syrian Refugees
Trump painted a distorted picture of the demographics of the Syrian refugees as mostly “strong, powerful men."
Trump was asked about President Obama pointing during his State of the Union address to a Syrian refugee now living near Detroit — a man with a doctorate degree whose wife and daughter were killed by a Syrian government anti-personnel missile.
“When I look at the migration, I looked at the line … where are the women? It looked like very few women. Very few children,” Trump responded. “Strong, powerful men, young and people are looking at that and they’re saying what’s going on?"
As we have written before, most of the more than 4.6 million Syrian refugees registered with the United Nations are women and children. According to the U.N., as of Dec. 31, about half of them (50.7 percent) are women. Another 20 percent are males under the age of 12. Just 21.4 percent are males age 18 to 59.
In November, when we asked the administration for a demographic breakdown of Syrian refugees who are seeking to resettle in the U.S., it provided a chart that shows 23,826 total applicants — 15,937, or 67 percent, of whom are women (of all ages) and male children (age 0 to 11). Men (age 18 and older) accounted for 25.5 percent. That closely mirrors the demographic breakdown of the Syrian refugee population at large.
Cruz said that the Senate immigration bill that Rubio cosponsored “expanded Barack Obama’s power to let in Syrian refugees … without mandating meaningful background checks.” The bill, S. 744, would have made it easier for members of certain groups designated by the president to qualify as refugees, but they would still be subject to the same required screening process as other refugees before they could come to the U.S.
Cruz: It is also the case that that Rubio-Schumer amnesty bill, one of the things it did is it expanded Barack Obama’s power to let in Syrian refugees. It enabled him — the president to certify them en masse without mandating meaningful background checks.
The bill, which was also cosponsored by Democratic Sen. Chuck Schumer, did not specifically mention refugees from Syria. Section 3403 authorized the president to declare certain groups with common characteristics as refugees for special humanitarian purposes. In order to qualify for refugee status, individuals would only have to prove that they were a member of the refugee group designated by the president.
That differs from current law, which says that individuals applying to come to the U.S. as refugees must demonstrate that they can’t or won’t return to their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
So, in theory, the president could declare Syrians as a special group eligible for admission to the U.S. as refugees.
However, they would still have to undergo the same security screening process as all other individuals applying to come to the U.S. as refugees. That includes a background check, whether Cruz thinks it is “meaningful” or not.
“Even if they somehow were found to fit the criteria as laid out (including having a specific vulnerability, justified in the national interest, etc.) and be designated as a group, they would still need to go through all of the same security vetting as other refugees,” said Joanne Kelsey, assistant director for advocacy with the Lutheran Immigration and Refugee Service, in an email to FactCheck.org.
Did Cruz Support Legalization?
Rubio revived an attack line from the last Republican debate, claiming that Cruz flipped positions on his support for legalization of immigrants currently living in the U.S. illegally. But as we wrote before, whether that’s true depends on whether one believes Cruz was bluffing back in 2013 when he proposed an amendment that would have allowed legalization.
Rubio addressed Cruz during the most recent debate saying, “You used to support legalizing people that were here illegally, now you say you’re against it.”
During the December debate, Cruz said unequivocally, “I have never supported legalization, and I do not intend to support legalization.”
But Rubio contends that he did in the midst of a contentious Senate battle over comprehensive immigration legislation back in 2013.
In 2013, Cruz offered an amendment to a Senate immigration bill that would have stripped out a proposal for a path to citizenship for those currently in the country illegally. But Cruz’s amendment would have purposefully left intact the bill’s provisions to provide legal status for them. Numerous media outlets described Cruz’s plan as a compromise “middle road” in the immigration debate that he hoped might be palatable to enough legislators in both houses of Congress to actually pass.
Cruz publicly opposed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, because it provided a “path to citizenship” for those currently in the country illegally. Cruz labeled it an “amnesty” bill, and he criticized Rubio for cosponsoring it.
Although Cruz made numerous statements at the time in support of his amendment, Cruz’s campaign told us the amendment was a ploy to expose the real motivations of the bill’s supporters. While those supporters claimed the bill’s aim was to allow 11 million immigrants in the country illegally to come out of the shadows, the Cruz campaign says Cruz was convinced the actual intent was to provide citizenship to those immigrants so they could become future voters. So, the campaign says, Cruz offered the amendment, knowing it would not pass, to show the real priority of supporters. Even if the amendment had been accepted, Cruz still would not have supported the bill, the campaign says, because he opposes legalization.
As we said in December, we’ll leave it up to readers to decide if Cruz once supported legalization as a political compromise, and now disavows it, or if he was merely employing a legislative ploy to expose the motivations of his opponents.
Christie Wrong on Double Taxation
Christie was wrong when he claimed “we double tax” U.S. companies with overseas operations. The fact is, the U.S. tax code provides a foreign tax credit to avoid exactly what Christie claimed is happening.
Christie: They pay tax once overseas. They don’t want to pay 35 percent tax on the way back.
The U.S. statutory corporate tax rate is 35 percent, as Christie said. And the U.S. has what is known as a “worldwide approach,” which as explained by the Congressional Budget Office,taxes all income “regardless of where that income is earned.” But, as the CBO says, the U.S. typically provides a foreign tax credit “to avoid taxing income twice.”
The foreign tax credit is subtracted from taxes that would otherwise be owed, on line 5a of the corporate tax return form 1120. IRS instructions define taxes eligible for a credit as those “paid or accrued during the tax year to any foreign country or U.S. possession.”
“This results in their paying tax at the US rate, not double taxation,” Eric Toder, a co-director of the nonpartisan Tax Policy Center who was the director of research at the IRS from 2001 to 2004, told us when we first wrote about this in June.
Highest Corporate Tax Rate?
Christie, Rubio and Kasich all said that the U.S. has the highest corporate or business tax rate in the world. The highest statutory tax rate among industrialized nations, yes. But perhaps not the highest marginal effective tax rate, according to one analysis.
Kasich: If you cut taxes for corporations, and you cut taxes for individuals, you’re going to make things move, particularly the corporate tax, which is the highest, of course, in the — in the world.
Christie: If you reform the corporate tax system in this country, which, as was mentioned before, is the highest rate in the world.
Rubio: It begins with tax reform. Let’s not have the most expensive business tax rate in the world. Let’s allow companies to immediately expense.
Neither Christie, Kasich or Rubio specified which corporate tax rate they were talking about. There are different measurements.
The U.S. has the highest statutory rate, 39.1 percent, among the 34 industrialized nations in the Organisation for Economic Co-operation and Development, according to the nonpartisan, pro-business Tax Foundation.
The nonpartisan Tax Policy Center defines the statutory rate as the “rate that is imposed on taxable income of corporations, which is equal to corporate receipts less deductions for labor costs, materials, and depreciation of capital assets.”
Chad (40 percent) and the United Arab Emirates (55 percent), two non-OECD member nations, actually have higher rates than the U.S., according to the Tax Foundation.
But the Tax Policy Center says that the marginal effective tax rate, which assesses how much the corporate tax reduces the rate of return on new investment, “is consequently the best measure of how taxes affect a firm’s incentive to invest.”
And the U.S. marginal effective tax rate is 35.3 percent, according to the most recent Tax Foundation analysis. That is second to France’s rate of 36 percent, among OECD nations. And it puts the U.S. in sixth place, behind Argentina (43.5 percent), Chad (37.2 percent), Uzbekistan (37.1 percent), Colombia (36.6 percent) and France, among 95 nations reviewed for the Tax Foundation study.
Santorum Inflates Manufacturing Job Losses
In the earlier debate, former Pennsylvania Sen. Rick Santorum claimed that the U.S. has lost 2 million manufacturing jobs under President Obama. That’s way off. The net loss of manufacturing jobs, as of December, was 230,000.
Santorum twice used the 2 million figure, including a second time when challenged by debate moderator Sandra Smith.
Smith: Sen. Santorum, I want to stay with you on this, moving to jobs and the economy. In his State of the Union address the other night, President Obama touted his record on jobs, citing more than 14 million new jobs and boasted of nearly 900,000 manufacturing jobs added in the past six years. Do you dispute his track record of creating jobs?
Santorum: Well, the numbers just don’t add up. I mean, they have not added manufacturing jobs. Manufacturing jobs have been lost in this country, 2 million of them. The bottom line is that this president has done more to take jobs away from the hard-working people who are struggling the most.
As we said in our story on Obama’s State of the Union address, Obama was largely correct in saying the U.S. has created nearly 900,000 jobs in the last six years. But that ignores the earlier job losses during his time in office. There has been a net loss of 230,000 over the entire seven years of his presidency, dropping from 12,561,000 jobs in January 2009 to 12,331,000 in December 2015, according to the Bureau of Labor Statistics.
But Santorum’s numbers don’t add up at all.
At its lowest point, the number of manufacturing jobs under Obama stood at 11,453,000 in February 2010 — 1.1 million off the peak in January 2009. That’s nearly half as many as Santorum claimed and most — but not all — of those jobs have been recovered.
Fiorina’s Benghazi Falsehood
Also in the undercard debate, Fiorina criticized the Obama administration’s response to the attacks on a U.S. diplomatic facility in Benghazi that resulted in four deaths, including that of U.S. Ambassador Christopher Stevens.
“[W]hen you do not say the United States of America will retaliate for that attack, terrorists assume it’s open season,” Fiorina said.
The fact is, the president repeatedly vowed to bring the killers to justice in a Rose Garden speech on the morning after the Sept. 11, 2012, attack.
“And make no mistake, we will work with the Libyan government to bring to justice the killers who attacked our people,” Obama said at one point.
Later in his speech, he also said: “We will not waver in our commitment to see that justice is done for this terrible act. And make no mistake, justice will be done.”
Similarly, that same day, Secretary of State Hillary Clinton spoke at the State Department and vowed that the U.S. would not “rest until those responsible for these attacks are found and brought to justice.”
Two days later, Obama spoke at a ceremony at Andrews Air Force Base when the remains of the Benghazi victims were returned to the U.S. In that speech, Obama said: “To you — their families and colleagues — to all Americans, know this: Their sacrifice will never be forgotten. We will bring to justice those who took them from us.”
For sources for this story, go to FactCheck.org.
Correction, Jan. 15: We originally said that this was the final debate before the Feb. 1 Iowa caucuses, but there is another one on Jan. 28.
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