Perhaps President Obama was waiting for the prime opportunity to describe “birtherism” as a symptom of a broader pathology afflicting the Republican Party. Lucky for him, that moment arrived during a joint press conference this week with Canadian Prime Minister Justin Trudeau, when CBS News reporter Margaret Brennan asked Obama if he bears any responsibility for the polarized politics that brought us “someone as provocative as Donald Trump.”
“I have been blamed by Republicans for a lot of things,” Obama said. “But being blamed for their primaries and who they are selecting for their party is novel . . . I don’t think that I was the one to prompt questions about my birth certificate, for example. I don’t remember saying ‘Hey, why don’t you ask me about that? Why don’t you question whether I’m an American?’”
Obama returned to the theme later that day, when, at a state dinner, he described the United States as a land of extraordinary opportunity. “We see this in our current presidential campaign. Where else could a boy born in Calgary run for president of the United States?”
Revenge is a dish best served cold—and it’s even better when there’s a bemused smile on the face of the server. It was Trump who seized upon fringe claims about Obama’s birthplace, and who even went so far as to hire his own private eye to go to Hawaii to “investigate.” More recently, it was Trump who went full “birther” on Ted Cruz. Trump didn’t come up with the idea that Obama wasn’t a citizen; he just made it his own.
Nor was Trump first in line with questions about Cruz’s U.S. citizenship. When Cruz took his first steps on the road to the presidency shortly after taking his Senate seat in 2013, prospective opponents began to float questions about his place of birth. The Texas senator immediately declared himself a natural-born citizen. Eventually, just to play it safe, he renounced his birthright Canadian citizenship.
At the time, I wrote in The Washington Spectator that Cruz was hoping to inoculate himself for the upcoming presidential race. Though I’m a political consultant and researcher, not an attorney, I concluded that while there is a mountain of reasons to vote against Cruz, claiming he is Canadian is a dead end, because the senator met a “natural born” citizen test.
The Canadian birth question had been almost forgotten—until Trump asked, “Are we so sure about that?” With a bit of help from the media, the discussion came roaring back into the public eye. In fact, the media fell so hard for Trump’s pitch that even The Washington Post’s KidsPost—a news source geared to the middle school set—declared that “a court might have to decide” if Cruz can be president.
Courts are deciding and dismissing lawsuits without ruling on the merits. But the question remains: are there merits?
The short answer is absolutely not. Cruz’s status is no different than Obama’s, McCain’s, Mitt Romney’s—or Mitt’s father George, who, after serving in Nixon’s cabinet, briefly ran for the presidency in 1968 even though he was born in Mexico.
What changed is the arrival of Donald Trump, who’s a genius at manipulating both message and media. Trump has made sure that doubts about Cruz’s citizenship will linger, perhaps peeling off 10,000 votes here or there among voters who buy Trump’s claim, as disingenuous as it is.
How disingenuous? Remember the debate in July, when Trump referenced a Boston Globe op-ed by liberal jurist Laurence Tribe that had “raised serious questions” about Cruz’s citizenship? Tribe had consistently argued that Ted Cruz is not only American, but a “natural born citizen.” Yet Tribe also observed that it is Ted Cruz’s originalist friends who say he can’t be president.
Tribe understands the legal concepts behind “originalism” better than most conservatives. Under Tribe’s (and almost every other legal scholar’s) interpretation of the Constitution, there is no doubt that Cruz is a natural-born American. But as Tribe’s article pointed out, Cruz and the late Justice Antonin Scalia, among others, have professed a devout faith in a “pure originalist doctrine,” which has inspired a lot of angels-on-the-head-of-a-pin arguments over what the founders meant when they invented the term “natural born.” To borrow a phrase from Justice Scalia, conservatives abandoned common sense to argle-bargle a few legal notions to conclude Cruz can’t be president.
If you read the hot mess that is Article II, Section I of the Constitution, it seems incredible that the founders didn’t think all this through. (You can learn more about that here.) But remember—the Constitution was a blueprint for a system of government that didn’t exist yet. So when several delegates demanded language to protect us from foreign threats, the drafters slapped down some confusing legalese they lifted from British legal sources that defined who was a “subject of His Majesty’s Crown.”
Like Trump followers today, a few of the founders had an irrational dread of immigrants, particularly foreigners who might seize the U.S. government. To be fair, foreign leaders seizing countries was a legitimate concern back in the 18th century.
After Tribe’s op-ed, law historian Mary Brigid McManamon concluded in a Washington Post op-ed that while Senator Cruz is unquestionably American through “blood rights,” he is not truly “natural-born.” Rather, he is in a legal hybrid category known as “naturalized at birth.”
Most legal scholars will reject McManamon’s claim on the grounds of equal rights. For centuries England extended “natural born” status on sons born overseas to British fathers. The United States adopted similar laws, granting natural-born status to the sons of overseas American fathers, while sons of mothers married to foreigners could only be “naturalized at birth.”
Which brings us back to George Romney. Born in 1907 in Mexico, Romney’s Mormon father and his three wives (there was a reason the elder Romney fled America) were all natural-born Americans. So, when the issue of George Romney’s birth came up in 1968, legal scholars and even the Congressional Research Service, concluded Romney was a natural-born American.
Ted Cruz is George Romney’s mirror image: if it had been Cruz’s mother who was the naturalized Cuban-American, while his dad was Delaware-born “Ralph Welcome Cross” instead of “Rafael Bienvenido Cruz,” the senator would have automatically made the natural-born club. That is why legal scholars now say that it is impossible to imagine that any federal court would rule that American males would today have more rights than a natural-born American female.
But none of this matters because Cruz’s case will never be heard in court. After dozens of rulings in lawsuits involving both George and Mitt Romney, John McCain, and Barack Obama, the federal courts have effectively declared no citizen has any standing to sue a candidate over presidential eligibility.
Lawsuits challenging Cruz’s eligibility—filed in Florida, New York, Alabama, Illinois, Texas, and Pennsylvania—are going nowhere. The suits in New York, Florida, and Illinois have been tossed out. On March 10, a state judge in Harrisburg heard arguments on a similar case and said he will present his ruling soon.
Not that the Cruz birthers will give it up; it’s part of Trump’s “Real White Americans vs. the Aliens” politics. And he’s learned that it works. Recall that in 2000, Trump briefly ran for the Reform Party nomination, even contesting the California primary, where he lost by almost two to one. Back then the Donald was the opposite of the personality we see today. He wanted voters to support his plans for universal health care and tax reform that cut rates for the middle class while raising them on the wealthy. As part of that effort, Trump made his now notorious appearance on “Meet The Press,” where he declared himself a liberal who supported abortion rights.
Because the Reform Party self-destructed in 2000, most of us never saw “Wonky Trump”—savaged by leftists who split from the Reform Party to back Ralph Nader and outflanked on the right by Pat Buchanan, who received standing ovations declaring White America under attack by hordes of Mexican immigrants and asserting that his first act as president would be to send troops to seal off the Mexican border, with orders to shoot anyone trying to cross.
Trump today is all about “testicular fortitude,” not real policy. His only issue is protecting “us” from the dreaded “them”—to that end, he transformed his chief rival, Ted Cruz, into an alien.