Revised and updated: January 18 at 10:50 am

A leading constitutional lawyer, Floyd Abrams, has supported Ted Cruz' position that he is a "natural born" US citizen within the meaning of the Constitution.

Abrams stated that because of his American mother, Canadian-born Cruz would not have to go through any special proceeding, such as naturalization, to become an American citizen, but would be considered a US citizen by birth.


The more carefully one looks at the law applicable to Cruz' citizenship claim, the more apparent it becomes that this is a non-issue, on a par with Trump's groundless "birther" claims about President Obama's US citizenship, his false and inflammatory attempts to smear all Latino immigrants as "criminals" and "rapists", and more than a billion Muslims around the world as terrorists; in keeping with the well-known strategy of the "Big Lie" which did so much to extinguish democracy in Europe in the 1930's.

It is true, that as Trump himself has not hesitated to point out, Harvard Law Professor Laurence Tribe, who is unquestionably one of America's foremost authorities on Constitutional law (having taught this subject to both Cruz and President Obama), has stated that the constitutional issues concerning whether Cruz is a "natural born citizen" within the meaning of the presidential qualifications clause are "murky and unsettled".

But on closer examination of Tribe's statements on this issue, it appears that he believes that there would be doubts about Cruz "natural born" citizenship only if this question were to be decided by an "originalist" judge - one who looks only to the meaning that a given term had at the time the constitution was adopted. Ironically, Tribe points out that that this is the kind of judge whom Cruz himself has said he would appoint if he becomes president.

According to Tribe, the legal principles in effect at the time the Constitution was adopted were that one had to be born in the US in order to be a "natural born" citizen. As I will show in Part 2 of this series, this proposition is by no means beyond dispute, as the English Common Law, which all the framers of the Constitution looked to as a basis for American law, recognized foreign birth to at least one British parent as conferring British citizenship at birth upon the child.

Moreover, Tribe himself rejects such a "narrow and strict a definition" and has stated that a "living constitutionalist" judge would also reject it, according to The Guardian.

It is clear from the above that while an "originalist" Supreme Court Justice such as Anronin Scalia might adhere to such a narrow view, it is highly unlikely that a majority of the Supreme Court would do so. This is even if the Supreme Court were willing to be involved in this controversy, something that Floyd Abrams, mentioned above, doubts.

Therefore despite Tribe's statements about the purported uncertainty surrounding Cruz' natural-born US citizenship, there is little if any likelihood that a court challenge, such as the one that has just been filed in Texas, could be successful, or even taken seriously.

Nor, with all due respect to Professor Tribe, would it be correct to say that the Supreme Court has never addressed this issue. In the landmark 1898 Supreme Court citizenship case of U.S. v. Wong Kim Ark, (169 U.S. 649) the Court stated that the term "natural born citizen" means anyone who is a US citizen at birth without having to go through "naturalization".

This is, in essence, the same argument that Abrams and the two former US Solicitor Generals in their Harvard Law Review Forum article mentioned in my previous post have made. It is one that is difficult to argue against by anyone who believes in a rational, common-sense interpretation of the Constitution and in the power of Congress to determine the right to US citizenship consistent with our democracy.

It is true that, as will be discussed in Part. 2, the Wong Kim Ark decision puts forth a highly idiosyncratic and, arguably, quite questionable definition of what "naturalization" means in the above context. The Court's statement is also clearly dictum, since the person whose US citizenship was at issue in that case, unlike Senator Cruz, was born in the United States.

My original post appears below:

In my
January 12 post, I discussed Donald Trump's attack on Senator Ted Cruz' eligibility to become president under the "natural born citizen" clause of the US Constitution by reason of his birth in Canada to a US citizen mother.

I also cited a Harvard Law Review Forum article by two distinguished former US Solicitor Generals showing that there was no merit whatsoever to Trump's charge.

However, lack of merit to Trump's charge (which appears to have been made in retaliation to a far more justified charge by Cruz that Trump advocates using "jack boots" and "police state" tactics in order to carry out the mass deportation of 11 million mainly Latino unauthorized immigrants which both of these presidential candidates support in principle), has not deterred a private Texas lawyer, 85-year old Newton Boris Schwartz Sr. from filing a lawsuit in federal district court asking for a declaratory judgment that Cruz is not a "natural born" US citizen and is therefor ineligible to become president.

Schwartz's 28 page complaint is a confusing, rambling, barely coherent, mishmash of allegations to the effect that the US citizenship status of persons born to one or both US citizen parents outside the United States is not yet "settled", and that as a result, Cruz somehow fails to qualify as a "natural-born" US citizen. In support of his contention, Schwartz cites everything from comments by that noted legal authority and constitutional scholar, Donald Trump, to a rehash of the "birther" controversy involving President Obama's citizenship, which has nothing whatever to do with Cruz's case, since Obama was clearly born in the US and Cruz was not.

While it is difficult to make any sense of Schwartz's complaint's hodgepodge of campaign speeches and news briefs, mixed in with occasional references to an actual statute, law review article or court decision, I will proceed to take a look at the complaint in order to see if there is any possible logic or reason behind it.

The case is called: Newton Boris Schwartz Sr., Individually And/Or As Class Representative And/Or On Behalf Of All Eligible Texas And Nationally Registered US Eligible And/Or Qualified Voters vs. Ted Cruz a/k/a Rafael Edward Cruz Individually

It was filed in the US District Court for the Southern Division of Texas, Houston Division, on January 14.

To begin with an analysis of the complaint, the first actual statute that Schwartz cites, on page 7, after 5 or 6 meaningless introductory pages devoted to legal "authorities" such a rehash of the "birther" nonsense about President Obama and references to some anonymous callers who questioned Cruz' US citizenship during a C-Span TV show, is 8 U.S.C Section 1401(g).

This section expressly provides that people born outside the US having one US citizen parent are "naturals and citizens" of the US at the time of birth, as long as the US citizen parent has resided in the US for a certain period of time defined in the statute prior to birth.

Not even Donald Trump has challenged the fact that Cruz' US citizen mother had resided in the US for the required period of time according to the above statute.

Since no one can make a serious argument that there is any meaningful difference between "naturals and citizens" as used in the above statute and a "natural born citizen" as used in the presidential qualifications cause of the Constitution, that should be the end of the discussion about this topic. And indeed, this is, in effect, what the two former US Solicitor General authors of the Harvard Law Review Forum article cited in my January 12 comment maintain.

Therefore, if the Federal District Court Judge were to stop reading at the end of page 7 and then dismiss the complaint for failure to state a cause of action, without even bothering to read the remaining 21 pages, he or she would not be making any error.

The only argument against this conclusion would be that, in some manner, Congress does not have the authority to define who shall be considered as "naturals and citizens", or "natural born citizens" of the United States for the purpose of eligibility to occupy the office of president. If the Constitution had its own definition of either of these terms, there would be a valid argument to that effect.

But the Constitution does not define who is a "natural born citizen" of the US. Therefore, any argument that Congress does not have the power to define this term is extremely weak.

I will examine the arguments that have been made to this effect in Part 2 of this two-part series. They will be shown to be without foundation.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different countries and ethnic/religious backgrounds obtain work visas and green cards.

Roger's email address is

To be continued.