There is some question as to whether Cruz would be allowed to run for president. Will buzz about Cruz end at birth?

Ted Cruz may have the aura of a future presidential contender, but is he even eligible to run?

The newly sworn-in Texas senator and rising Republican star was born in Canada, to a mother who was born in Delaware and Cuban father. That’s triggered a debate about whether he’s eligible for the nation’s highest office — nevermind that he’s been in Congress less than a week.


While there’s no legal precedent for Cruz’s situation, most constitutional scholars surveyed by POLITICO believe the 42-year-old tea party sensation would be OK. But there’s just enough gray area to stoke controversy, as Cruz learned during his campaign for Senate last year.

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The U.S. Constitution states: “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…”

“The question ultimately is, What do we mean by a natural born citizen?” asked Yale law professor Bruce Ackerman.

“The problem is, no one knows what a natural born citizen is,” agreed University of California, Davis law professor Gabriel Chin, who argued in 2008 that Sen. John McCain was not eligible to be president.

The discussion may seem premature: Cruz is still learning his way around the Senate, his first elected office. Yet his appeal to activist and establishment types — and his Latino roots in a party desperately seeking to expand its reach — make for a rare combination in the GOP.

And his arrival on the Washington scene hasn’t exactly been unassuming: On Sunday, Cruz accused gun control advocates of exploiting the Connecticut school massacre and said Barack Obama’s expected choice of former Republican Sen. Chuck Hagel for secretary of defense suggests the president is “high on reelection.”

So, early or not, the Cruz-in-2016 speculation is under way.

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Advisers to Cruz — a Harvard Law-educated appellate lawyer who has argued dozens of cases before the U.S. Supreme Court and knows a thing or two about constitutional law — say that because his mother had U.S. citizenship at the time of his birth, it transferred to him on foreign soil.

“Ted is a U.S. citizen by birth, having been born in Calgary to an American-born mother,” said Cruz spokesman Sean Rushton, who declined to elaborate on the matter, saying his boss is focused on his work ahead in the Senate.

Temple University law professor Peter Spiro said Cruz has a “very strong argument” that he is indeed natural born.

While the 14th Amendment to the Constitution grants citizenship to anyone born inside the U.S., children born to American citizens outside the country attain citizenship through a law passed by Congress, according to Spiro.

“It shouldn’t matter he has citizenship at birth because of a statute rather than the 14th Amendment,” he explained.

“He’s a birthright citizen but his birthright citizenship derives from his parents, and the question is, does that fit with the definition of natural born citizen?” added University of Pennsylvania law professor Kermit Roosevelt. “I think it does.”

Chin, who authored a lengthy analysis on McCain’s citizenship, agreed that Cruz most likely is eligible.

Even though only Cruz’s mother was a citizen, there shouldn’t be a problem because it appears she had lived in the United States for at least 10 years, Chin said.

“It looks like the answer is yes, but there’s nothing definitive legally,” he said. “You have had some very good scholars conclude that a natural born citizen is a citizen at birth under the law, but it’s impossible to say with absolute certainty the Framers would have come to that same conclusion.”

Chin noted that McCain’s situation was different because his birth in the Panama Canal Zone to American parents came a year before the 1937 law was passed, dealing with children of parents serving abroad.

“The problem with McCain was the hiatus in the law. The Canal Zone was covered, but only retroactively. You can’t retroactively be made a natural born citizen by an act of Congress. If they could, they could make Arnold Schwarzenegger a citizen,” he said.

The question of McCain’s eligibility was ultimately resolved not by a court but by his colleagues: The Senate approved a bipartisan resolution giving him the OK.

In 1968, Republican George Romney, who was born in Mexico, was ensnared in a controversy about his own qualifications to run for president. Several Democratic congressmen at the time expressed “serious doubts” about the former Michigan governor’s eligibility. Scholars said a New York Law Journal article pointing out that Romney’s parents were U.S. citizens finally put critics’ claims to rest.

Even Barry Goldwater faced scrutiny over the issue because he was born in Arizona when it was still a territory.

None of these situations have ever stopped a candidate from running, and it’s unlikely that Cruz would be the first.

Courts have shown no interest in broaching the issue, leaving it to be debated in the political sphere.

“It’s a pretty significant step for the courts to say, ‘Hey America, you want this person to be president, we’re going to stop that,’” Roosevelt said.

That doesn’t mean there won’t be skeptics or opponents eager to exploit any shred of doubt.

In his primary campaign for Senate last year, Republican Lt. Gov. David Dewhurst mentioned Cruz’s birthplace in a Web ad. Democrat Paul Sadler, Cruz’s general election opponent, was more explicit.

“Rafael Cruz — ‘Ted’, that’s what he goes by, his real name is Rafael — was born in Canada, educated at Harvard,” Sadler told local Dallas affiliate WFAA.

Laurence Tribe, a constitutional law professor at Harvard Law School and an adviser to Obama, said Cruz would be smart to prepare a more thorough explanation to put the issue to rest, much like the brief he prepared with Ted Olson that affirmed McCain’s eligibility.

“I’d need to know more, but it certainly doesn’t sound like a sufficient explanation,” Tribe said. “The status of [McCain’s] parents as members of the U.S. military stationed in the Canal Zone at the time was deemed sufficient.”

And for those still not convinced by legal briefings, constitutional scholars or bipartisan congressional resolutions, Roosevelt had another suggestion.

“Anyone who thinks he’s constitutionally ineligible,” he said, “can simply not vote for him.”