Trump questioning rival Cruz‘s Canadian birth a non-starter, experts say

[Donald Trump, left, responds forcefully to Jeb Bush (not seen) as Ted Cruz looks on during the CNN Republican presidential debate at the Venetian Hotel & Casino on Tuesday, Dec. 15, 2015, in Las Vegas. (AP Photo/John Locher)]

By June Chua

Republican presidential candidate Donald Trump can’t get enough of the issue of citizenship. He’s once again calling into question the suitability of a rival politician’s birth — i.e. Canadian-born Ted Cruz — in relation to the U.S. presidency.

“I’d hate to see something like that get in his way,” Trump told The Washington Post in reference to his opponent Sen. Cruz, who was born in Calgary to an American mother and a Cuban father when the parents worked in Alberta.

“But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”

American law requires that a person must be a natural born U.S. citizen to run for president.

The business magnate went further to say that Cruz could be tied up in court for a few years due to his birthright.

Cruz, who renounced his Canadian citizenship in 2014, shrugged off Trump’s political missile by indicating that candidates should just focus on “issues that matter.”

In fact, Trump waded into the natural-born mire a few years ago by saying that U.S. President Barack Obama was probably born in Kenya. Obama was born in Honolulu; his mother was American and his father was Kenyan.

Cruz says his mother Eleanor is an American citizen from Delaware and his father Rafael is Cuban who became a U.S. citizen in 2005.

In the Cruz and Obama cases — it’s not the question of where but to whom they were born to.

‘No substantial legal argument’

As far as legal experts Neal Katyal and Paul Clement are concerned, the argument against Cruz is a “non-starter.”

Katyal and Clement, who worked for Obama and George W. Bush, respectively, have outlined their case in a Harvard Law Review commentary that was published last March.

The Georgetown University law professors were tired of hearing about it as an issue and decided to delineate what natural born means under American law.

“We wanted to nip it in the bud,” Katyal told Yahoo Canada News. “There is no substantial legal argument in [Trump’s accusations].”

“If it were to become a legal issue, it would be solved rather quickly.”

According to their commentary, there are three basic requirements in being eligible: to be 35 years old, have 14 years of residency in the U.S. and to be a “a natural born citizen.”

Examining “natural born,” the authors reached back into British law that came into force in the 1700s. It was stated that “children born outside of the British Empire to subjects of the Crown were subjects themselves” with the words “natural born” used to describe those children.

In the British statutes though, the father had to be citizen of the British Empire in order for the children to be considered naturally born citizens.

Katyal and Clement say this was enforced in the colonies prior to the Revolution.

They then move onto the Naturalization Act of 1790, which was created just three years after the drafting of the U.S. Constitution.

The act declares that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.” The act, most importantly, extended the idea of U.S. citizenship to include mothers as well as fathers, so either parent could be an American and the child would then be considered natural born to the U.S.

Previous challenges

The law professors conclude that “despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born citizen’ within the meaning of the Constitution.”

The issue keeps cropping up notes Katyal, who calls it an “unfortunate tradition” in American politics.

There were challenges to citizenship against GOP nominee Barry Goldwater in 1964, who was born in Arizona before it was a state, and then again in 1968 against George Romney, father to Mitt Romney. George was born in Mexico.

Sen. John McCain faced the same scrutiny when he ran for president in 2008 because he was born to American citizens in the Panama Canal Zone.

In an unusual move, McCain’s Democratic opponents at the time — then-Sen. Hillary Clinton and Obama — co-sponsored a Senate measure proclaiming McCain a natural born citizen under the U.S. Constitution.