Democratic Congressman Vows Legal Challenge On Ted Cruz And The 'Natural Born Citizen' Question

Wait, does Donald Trump actually have a point?
Tom Williams via Getty Images

Sen. Ted Cruz (R-Texas) has shrugged off questions about his eligibility for the presidency, contending he is "natural born citizen" because U.S. citizenship was available to him at birth.

But Cruz's interpretation isn't the only one. Donald Trump, self-servingly, seems to have stumbled upon a different interpretation, skeptically asking conservative voters in recent weeks whether Cruz is actually eligible. And Trump might have found an unlikely ally: Rep. Alan Grayson (D-Fla.), one of the most liberal members of Congress.

Should Cruz become the Republican nominee, Grayson has promised to challenge Cruz's candidacy -- and Grayson believes Cruz hasn't exactly been honest with voters when he tells them the law is "simple and straightforward."

"All that Cruz has done is wave his hands in the air and claimed that it's settled law when it's not," Grayson told The Huffington Post on Friday.

Grayson -- who, like Cruz, is a Harvard Law graduate -- said he would sue election officials if they certified Cruz's eligibility, and he thinks it's a legitimate question whether Cruz is a natural born citizen.

The Constitution lays out three criteria to be president: The commander in chief must be 35 years old, a U.S. resident for at least 14 years, and a "natural born citizen."

The questions is, what does that last requirement mean?

“It’s never come up in the context that the Constitution contemplates, which is somebody running for president and attempting to take the oath of office," Grayson said. "Natural born citizen in the context of citizenship is one thing; natural born citizen in the context of a presidential candidacy may be another thing -- that’s for the court to decide.”

Cruz and many others contend that "natural born citizen" simply means a citizen at birth, someone who doesn't need to go through a naturalization process later. But the Supreme Court hasn't actually ruled on that.

Some contend that it means to be born on U.S. soil. Others say it means to have two parents who are citizens. Others, mostly to bring up the seeming ridiculousness of the debate, argue that anyone born from C-section is ineligible for the office. (Lookin' at you, President Warren G. Harding.)

Cruz's case, however, isn't such a laughing matter.

As Cruz readily notes, he was born in Canada, and his father, Rafael Cruz, was a Canadian citizen at the time of his birth in 1970. And while the Cruz campaign finally released Cruz's mother's Delaware birth certificate just a few days ago, his mother was on a 1974 Canadian voter list, which Cruz birthers suggest could mean she became a Canadian citizen, thus renouncing her U.S. citizenship and further calling into question Cruz's eligibility.

“The answer is, it’s his burden of proof," Grayson said. "He certainly hasn’t met it. He’s not being honest when he says it’s settled law.”

While this may seem like a debate on the far-right -- thank you for that, Donald Trump -- it's also one playing out among constitutional scholars.

Cruz's interpretation, which brings in the question of English Common Law, may be at odds with a number of "originalist" understandings of the Constitution. In fact, Harvard Law Professor Laurence Tribe told HuffPost on Monday that he believes Cruz would nominate a justice for the Supreme Court that would not side with Cruz on the issue.

"There’s a huge irony about the way Cruz interprets the Constitution," Tribe said in an email to HuffPost. "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."

"That would have been the understanding of those who wrote and read the language in 1787-89," Tribe continued. "They would’ve said, had they been around when Ted was born in Canada in 1970, that he’s a 'natural born' Canadian, and not a 'natural born' American."

Tribe acknowledged that "from time to time," Congress had enacted laws making children born to two American parents, even outside of the United States, "naturalized" citizens.

"But even if Congress had said before 1970 that being born to an American mother in a foreign land automatically made someone a U.S. citizen 'at birth,' thus making it unnecessary for that person to go through a naturalization process -- something that I don’t believe it actually said -- that wouldn’t matter to a constitutional originalist," said Tribe, who has been a Harvard Law professor since 1968.

He added that a genuine originalist would argue that the point of the natural born citizen clause was to ensure loyalty to the United States above any other country.

"That’s a quaint notion today, and not one that a 'living constitutionalist' would likely credit," Tribe said. "Such a jurist would probably conclude that Cruz is indeed eligible to run for, and serve as, the President. But Cruz has long pooh-poohed living constitutionalism as much too amorphous and unconstrained for a democratic republic to tolerate in its judges. Unless, it seems, that kind of constitutionalism is required to smooth Cruz’s path to the highest office in the land."

Cruz's campaign did not respond to multiple requests for comment.

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