With all the responses to my post on Ted Cruz and his eligibility for the presidency, I wanted to flag a couple additional issues. One sub-division of birtherism hinges on residency requirements for US citizen mothers giving birth abroad. I’ve almost been ambivalent about this sub-section of birtherism because I’m not certain the laws are actually constitutional. The most stringent of these standards (INA Act 301) holds that if you’re born abroad and have only a single parent who is a US citizen that person must have been “physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.”
Just to be clear, Cruz is totally in the clear on this since his mother meets those requirements.
But what I did not realize that the law differs if you’re parent was the father. TPM Reader JF brings us up to speed on this part of the law …
First, I agree with you entirely that Ted Cruz is a natural born citizen eligible to run for President.
Nonetheless, I think one thing you said in your post today (“Okay, People, Enough”) was sufficiently wrong to be worth clarifying. You wrote, “being born to an American citizen, no matter where you were born, makes you an American citizen.” But actually, this is not true. Ted Cruz should thank his lucky stars that his mother was the citizen and his father the not-yet-citizen, rather than the other way around, and/or that his parents were married. Because he definitely needed at least one of those things to be true.
Current American law says the child of an American MOTHER born abroad is automatically a citizen at birth, period. The child of an American FATHER, though, is treated differently — if the parents are unmarried, the child is not a citizen at birth, but only becomes one later on if the father takes certain affirmative steps. This is true even if the parents stay together, and/or the child is raised by the father who is a citizen, etc.
This can have dire consequences, far beyond creating problems for such a child’s future eligibility to run for President. Just ask Tuan Anh Nguyen. He came to the United States at age 6 and was raised by his American father. Nguyen was not a citizen under our law, just a lawful permanent resident living with his citizen dad in Texas. Nguyen was convicted at age 22 of a serious crime and because he wasn’t a citizen, he was eligible for deportation. After his conviction his father scrambled to take the formal legal steps to make him a citizen, but it was too late. He was deported to Vietnam, a country he barely knew.
If you think the rule that ensnared Nguyen sounds like rank sex discrimination — a law built on hoary old stereotypes of American men, especially American servicemen, spreading their seed indiscriminately around the world and not wanting anything to do with their children — then you agree with Nguyen’s lawyers and with Justice Sandra Day O’Connor, who would have ruled the law unconstitutional (because it discriminates on the basis of sex). However, Justice O’Connor was writing the dissent. The 2001 case went 5-4 the other way, with Justice Kennedy writing for five justices to uphold the law. I recognize that this story is not about Cruz (lucky guy — married parents, citizen mom, he’s all set). But it’s a good occasion for readers to learn about a problematic instance of formal sex discrimination that remains in the U.S. Code in the 21st century.
And on another note, we really ought to amend the Constitution to get rid of the “natural born citizen” clause itself. But that’s a topic for another day.
