From the Los Angeles Times: Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

I want to walk through this article - slowly - my dual credit classes this week and next because it perfectly illustrates what I want you to write about this semester: The conflict over constitutional interpretation.

I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.

- Click here for the article.

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

Update: Harvard scholar: Ted Cruz's citizenship, eligibility for president ‘unsettled’

A noted legal scholar sees merit in the above argument.

From Politico: How McConnell outfoxed Ted Cruz

There have been several articles recently about how Cruz has been contained in the Senate.

- Click here for this one.

Ted Cruz called out Mitch McConnell seven times by name on Monday night. Afterward, the Senate majority leader barely uttered a word about his chief Republican adversary.
Asked about Cruz’s diatribe on the Senate floor, during which the Texas Republican suggested McConnell is a puppet for Democratic leaders and a foe of conservatives, McConnell couldn’t conceal his smile on Tuesday.

“I have tried very hard to stay out of the presidential race, and I think that’s probably a good rule for me,” he said with a chuckle.

McConnell may not like to talk about Cruz, but he and his leadership lieutenants have quietly and methodically worked to isolate the conservative senator and minimize his effect on the critical fall spending debate. The end result, in spite of Cruz’s invective toward Republican leaders, is music to McConnell’s ears: no government shutdown.

“We had to be prepared,” said John Thune of South Dakota, the No. 3 Senate Republican. “He’s running for national office. He’s got a different endgame than we do. There are things we have to do here. We’ve got to fund the government every year.”

From the Hill: Ted Cruz aims to win the West

After starting his campaign with a speech to evangelicals Senator Cruz is making a pitch to residents of the west - especially Nevada - who would like access to the national government's land holding in western states.

- Click here for the article.

Sen. Ted Cruz (R-Texas) is making a play for the West in the 2016 race by touting his opposition to the federal government’s expansive land holdings.

Cruz’s disdain for federal land control is resonating with Westerners whose lives are impacted by land managers, and could help him win over conservatives in Nevada, one of the early nominating states in the presidential contest.

“This is an issue he’s been focused on for quite some time, and it’s one that plays extremely well with the conservative base in the western part of the United States,” said Ford O’Connell, a GOP strategist who advised the 2008 presidential campaign of Sen. John McCain (R-Ariz.)

Nationwide, the government owns nearly 630 million acres, a landmass bigger than Alaska and California combined. Most of that land, managed by agencies like the Bureau of Land Management and Forest Service, is located in states west of the Mississippi River.

Federal control is particularly heavy in Nevada, where the government owns 81 percent of all land, the most of any state.

“This is something that has been a perennial issue in the West since it became part of the United States,” said James McCarthy, a geography professor at Clark University who studies the history of western land. “It’s a staple of western politics to complain about that.”

On Ted Cruz and the recent debt ceiling vote

Out junior Senator is not making many friends in the Senate among his fellow Republicans. A few stories related to the recent debt limit vote:
- After GOP filibuster bid, Senate votes to suspend Treasury’s borrowing limit.

. . . Wednesday turned into a wild ride in the Senate. All the political unrest that has roiled the Republican Party in recent years — the establishment vs. conservative outsiders who threaten incumbent Republicans with primary challenges from the right — was on full display.

As he has for the past year, Sen. Ted Cruz (R-Tex.) placed himself at the center of the day’s action. McConnell and Majority Leader Harry M. Reid (D-Nev.) had sought to allow a simple majority – all Democrats – to approve the suspension of the debt limit until March 2015. But Cruz refused to go along, forcing more complicated procedural moves. That infuriated his Republican colleagues, because it meant that at least five GOP senators would have to vote with the Democrats to end the filibuster.

- The Minority Maker: Ted Cruz hurts his party by forcing a meaningless debt-ceiling vote.

The Senate passed the House debt-limit increase on Wednesday, but not before some needless drama that helps to explain why Republicans remain a minority.

Democrats had enough votes to pass the increase with a simple majority, which means they would have owned the debt increase. But then Senator Ted Cruz —the same fellow who planned the GOP's shutdown fiasco in October—objected on the floor and insisted on a 60-vote majority. This is exactly what Democratic leader Harry Reid wanted because if the bill failed he would have sent the Senate home on recess and returned later this month to join President Obama in flogging the GOP as the debt-ceiling deadline neared.

The 60-vote threshold was reached only after GOP leaders Mitch McConnell, John Cornyn and 10 others voted to let the final debt-ceiling vote proceed. All 12 then opposed the increase on final passage, but thanks to Mr. Cruz they had to walk the plank with Democrats on a procedural vote.

- Ted Cruz isn’t planning to be in the Senate for very long.

By forcing the Senate to round up 60 votes to end debate and force a final vote on a clean increase of the debt ceiling, Cruz knowingly complicated things for the top two Republicans in the chamber -- Senate Minority Leader Mitch McConnell (Ky.) and Senate Minority Whip John Cornyn (Texas). Both men face primary challenges from their ideological right and neither relished the idea of helping break a filibuster for a debt ceiling increase with no Republican proposals attached.

It's not news that Cruz cares little for Senate tradition. He ran in 2012 on his willingness to shake up the institution, and time and again -- most notably during his nearly 24 hour talk-a-thon to protest Obamacare -- he has been willing (and gleefully so) to be a fly in the ointment. But, this latest gambit by Cruz may well be the most telling because it directly impacts two men who, if Cruz had any thought of sticking around the Senate for any extended period of time, not only could, but would make life very uncomfortable for him.

- High cost of an ego trip.

Cruz’s ego trip had come at a high cost. He had forced McConnell, Sen. John Cornyn of Texas and other Republicans to cast votes that could cause them to lose primaries to weaker general-election candidates, and he had risked getting his party blamed for a default.

The Wall Street Journal’s conservative editorial page dubbed Cruz “the Minority Maker” for making his GOP colleagues “walk the plank” on a “meaningless debt ceiling vote.”

But Cruz doesn’t care about all that. Leaving the chamber, he told reporters McConnell’s fate would be “ultimately a decision . . . for the voters in Kentucky.”

His actions suggest Cruz has put himself before his party and even the nation’s solvency. And in this sense his actions are typical of the 2016 GOP presidential field. Cruz, Sen. Marco Rubio and Sen. Rand Paul are mucking up the gears of government in ways that will earn them favorable attention in the primaries.

Jobs, Growth & Freedom Fund

Also in 2305, we covered campaign finance and discussed the rise of political action committees (PACs) as a response to limits on campaign donation from labor unions and corporations in the

We mentioned a couple different types of PACs - Super PACs and Leadership PACs - and I suggested that our junior Senator Ted Cruz very likely has one set up. I was right - its called the Jobs, Growth & Freedom Fund. Its an indication that the senator intends to build influence over others in Congress. The more he has in his PAC, the more money he raise, the more he can distribute to his allies in Congress. Or potential allies.

As a reminder, here is a definition of a Leadership PAC:

Politicians collect money for their own campaigns — we all know that. But many of them also raise a separate pot of money, commonly called a leadership political action committee, to help other politicians. By making donations to members of their party, ambitious lawmakers can use their leadership PACs to gain clout among their colleagues and boost their bids for leadership posts or committee chairmanships. Politicians also use leadership PACs to lay the groundwork for their own campaigns for higher office. And some use their PACs to hire additional staff—sometimes even their family members—and to travel around the country or eat in some of Washington's finest restaurants. The limits on how a politician can spend leadership PAC money are not especially strict.

The Center for Responsive Politics has detail about the money the PAC has on hand and what it has spent:

Total Receipts	$313,323
Total Spent	$129,786
Begin Cash on Hand	$0
End Cash on Hand	$183,537
Debts	$0
Date of last report	June 30, 2013

Click here for info on Ted Cruz.

For more on the PAC, click on these:

- Cruz gears up fundraising machine
- Ted Cruz raises $1.19 million in third quarter.
- A late invitation to a fundraiser - we missed it, sorry.
- Ted Cruz Joins Freshmen Forming Leadership PACs
- The Ted Cruz Filibuster Paid Off — for Ted Cruz!

A campaign speech, not a filibuster

Our Senator's 21 hour speech was technically not a filibuster since there were already enough votes collected to ensure cloture - meaning that a vote on the continuing resolution was guaranteed to occur.

The National Journal explains here.

Rand Paul's speech which held up the nomination of a CIA director and Wendy Davis' which forced the end of a special session of the Texas Legislature both qualified. But it was similar to a speech given by Vermont Senator Bernie Sanders in 2010 - which was also not a filibuster.

A filibuster - according to Wikipedia - is:

a type of parliamentary procedure where debate is extended, allowing one or more members to delay or entirely prevent a vote on a given proposal. It is sometimes referred to as talking out a bill, and characterized as a form of obstruction in a legislature or other decision-making body.

The consensus seems to be that the speech had little to do with defunding Obamacare, and more to do with raising Cruz's viability as a 2016 presidential candidate and gathering campaign contributions.

This might have been the first big speech of the 2016 presidential race.

Scary thought.

Ted Cruz wants to be Mel Gibson

That's what The Dish makes of our senator's effort to defund Obamacare despite the reservations of his party leaders.

Is Ted Cruz burning the bridges that might help him win the presidency?

Our junior senator - Ted Cruz - along with Rand Paul and a few others, have begun their careers in the Senate by violating a number of unpoken rules about how newly elected members are supposed to act. Rather than defer to senior members, build up relationships and spend time learning how the institution runs they have made it a habit of acting out on their own, even against senior members of their own party.

They are up front about not caring about how the institution runs but the conflict he is stirring up might make him a less viable presidential candidate should he choose to run. The Dish flags two stories to that make this argument.

One points out, ironically, that Cruz is violating advice made by one of his predecessors from Texas, Lyndon Johnson.

There was a time when a new senator could not have survived such a controversial start. "The making of a good senator is in some ways similar to the making of a good work of art," William White wrote in 1956 in Citadel: The Story of the U.S. Senate. "There are few shortcuts." Lyndon Johnson gave a copy of the book to freshman senators. It advised that a career rested "upon what is slowly developing and enduring ... rather than what is quick and spectacular. Eminence may be reached by a concentration on frenetic and untypical senatorial activity, but it will never be sustained in that way."

Ted Cruz didn’t read that book, and even if he did, he’s decided to write his own. Though his colleagues have suggested he tone down his hard charging approach, he continues to engage with verve on multiple fronts.

There are at least a couple reasons why. First, the Senate occasionally provides a quick step to the White House, and the quicker the better. Both JFK and Obama made the jump during their first terms, so if Cruz's goal is the White House and not a long Senate career, he better make the jump soon. Older candidates - John McCain, Robert Dole and John Kerry for example - have not been as competitive.

Second, his real constituency is the Tea Party, and he prefers to do their bidding. They provide his support, so he doesn't rick much in the short term. from taking the establishment on. This includes picking fights with the older members of the institution. But this strategy might be more successful - electorally - if all he is interested in is being a long serving member of the Senate. If he wishes to make the jump to the White House, he needs to broaden his appeal:

. . . there are still dangers lurking for Cruz and others in the purity caucus. Though Barack Obama moved through the Senate quickly, he used it as a platform for bipartisan platform building. That’s what you need to do to win a national election in a diverse country. Cruz is pursuing the opposite strategy. It may win him cheers at home, but that puts him on track toward becoming this generation's Phil Gramm, the Texas senator whose effort to build a conservative platform from within the Senate made him unappealing as a national candidate.

His refusal to create relationships might limit his future goals:

I spoke to Sen. Tom Coburn of Oklahoma this week about a wide variety of topics. He is as principled a conservative as you can find in the Senate, and he is more eloquent than Cruz about the venality of career politicians. But Coburn can also talk about the power of human relationships in politics in a way that seems antithetical to the brand of politics pursued by Cruz. "Relationships are how deals get done," said Coburn, who in this case was talking about President Obama. He's been friendly with Obama since 2005, the year they both arrived in the Senate. This is a constant source of confusion for Coburn’s constituents. "The No. 1 question I get at home is: Why are you friends with Barack Obama?" Coburn's answer, as Obama wrote in his essay about him for Time, is, “How better to influence somebody than to love them?” It's hard to imagine Ted Cruz talking that way.

John Sides makes the same point, and adds a nuance:

Cruz’s problem is that he may want to be president of the United States, reports the National Review’s Robert Costa.  And to be the Republican nominee, he’ll need the support of his Republican colleagues.  The 2012 election once again showed—and despite some skepticism—that it is very hard to win the nomination unless you’re preferred by a substantial chunk, if not the vast majority of, your party’s leaders (as was Romney).  Which is to say, it pays to be nice to your colleagues. 

Here's the nuance. If he really wants to win his party's nomination, much less the presidency itself, he has to tone down his ideology:

. . . many in the party are wary of nominating a strongly ideological candidate—a “severe” conservative, if you will—because they’re afraid that this candidate will lose in the general. And rightly so! See Table 2 of this article (pdf) by John Zaller.

In 2012, as Lynn Vavreck and I show in The Gamble (pdf), only about half of Romney’s supporters were closest to him ideologically. The other half were closer to Gingrich or Santorum—that is, to one of the more conservative candidates. But this other half also tended to believe that Romney was the only candidate who could beat Obama in November. Their vote was about electability, not experience. Of course, Romney didn’t win, but Zaller’s finding suggests that a more conservative candidate would have done worse, other things equal.

Cruz’s path to the presidency—if he decides to run—must consist precisely of convincing “the middle” of the party that he’s electable despite the fact that he may be the most conservative member of the Senate (pdf). To do that, he’ll need the support of his fellow party leaders to send that signal.

I may be wrong, but Carl Levin seems to be looking at Ted Cruz like he's nuts

Now he's a bomb thrower

It looks like Senator Cruz continues to make quite the impression in the Senate. Here's the latest:

“I made promises to the people of Texas that I would come to Washington to shake up the status quo,” he said in e-mailed answers to questions, in lieu of speaking. “That is what I intend to do, and it is what I have done in every way possible in the responsibilities that have been granted to me.”

In a body known for comity, Mr. Cruz is taking confrontational Tea Party sensibilities to new heights — or lows, depending on one’s perspective. Wowed conservatives hail him as a hero, but even some Republican colleagues are growing publicly frustrated with a man who has taken the zeal of the prosecutor and applied it to the decorous quarters of the Senate.

Senator Lindsey Graham, Republican of South Carolina, said that some of the demands Mr. Cruz made of Mr. Hagel were “out of bounds, quite frankly.” Senator John McCain, Republican of Arizona, issued a public rebuke after Mr. Cruz suggested, with no evidence, that Mr. Hagel had accepted honorariums from North Korea.

“All I can say is that the appropriate way to treat Senator Hagel is to be as tough as you want to be, but don’t be disrespectful or malign his character,” Mr. McCain said in an interview.

Democrats were more blunt.

“He basically came out and made the accusation about money from North Korea or money from our enemies, and he just laid out there all of this accusatory verbiage without a shred of evidence,” said Senator Claire McCaskill, Democrat of Missouri. “In this country we had a terrible experience with innuendo and inference when Joe McCarthy hung out in the United States Senate, and I just think we have to be more careful.”

We'll keep tracking these stories as they come. Will these tactics come back to haunt the Senator or is he blazing a new trail for newly elected Senator? Is this proof that the Senate is becoming as divided as the House?

Sen. Cruz is no wallflower

Newly elected Senators are expected to spend the first part of their term of office keeping quiet, deferring to senior members and learning how the Senate operates. Not so our new Senator Ted Cruz. His actions in the Senate add to the suspicion that increased polarization in Congress as a whole is affecting the Senate - which normally is built for compromise.

He has been in office for barely six weeks, but already the senator from Texas, a favorite of the conservative Tea Party movement, has shown a provocative, in-your-face style that has won him criticism and praise.

Cruz, 42, has been chided by Democrats and even fellow Republicans who say he trampled Senate etiquette during contentious hearings in which he went after former Republican Senator Chuck Hagel, Democratic President Barack Obama's nominee for defense secretary.

While some Republican leaders have sought to broaden the party's appeal with a more moderate tone on a range of issues, Cruz has unabashedly - and often dramatically - cast himself as a hard-line conservative with a distaste for compromise.

The question is whether this behavior will limit his effectiveness in the long run:

But some analysts said Cruz's confrontational approach also put him at risk of being marginalized and portrayed as a political bomb thrower in a gridlocked Congress.

"He talks about issues from an ideological perspective. But has shown no sign of being someone who could sit down and work out a solution to a complicated problem," said political scientist Cal Jillson of Southern Methodist University in Dallas.

Norm Ornstein, a congressional analyst at the American Enterprise Institute, said Cruz had been pushing the limits on standards of behavior in the tradition-bound Senate.

But the story points out how Cruz began his carreer and suggests that this helps explain his unusual influence within the chamber - at least among Republicans:

. . . Cruz, a Harvard Law School graduate who was a clerk for former Supreme Court Chief Justice William Rehnquist and served as Texas solicitor general, has also built bridges with more established Republicans eager to court the party's conservative wing and promote a rising Hispanic star.

Party leaders gave him a plum speaking slot at last year's national convention, and sought-after appointments to the Senate Judiciary and Armed Services committees once he was elected. They also made him vice chairman of the Senate Republican campaign arm, which will recruit and back candidates in the 2014 elections.

The top two Senate Republicans, Mitch McConnell of Kentucky and John Cornyn of Texas, both hope to avoid primary challenges from conservatives next year and have sought to strengthen their relationships with Cruz.

Cruz accompanied McConnell on a congressional visit to Israel and Afghanistan last month and won an admirer in the process. McConnell told the National Review Online afterward that Cruz was "ready for prime time on day one, which is pretty unusual for somebody who just got sworn in."

Meaning that he already has connections with the establishment and Tea Party wings of the party and is a broker between the two. The fact that two senior Republicans feel the need to cozy up to him suggests that he can help determine whether they will face a Tea Party Challenger in the primaries next year. So he may be calling some shots in the party This is clever.

Ted Cruz and Scott McCown Debate Health Care Law and the Tenth Amendment

A couple of smart guys (Texans!) come to opposite conclusions regarding what the Tenth Amendment means and whether the Affordable Health Care Act is constitutional.

- Scott McCown - yes its constitutional.
- Ted Cruz - no its not.

Who is Scott McCown?
Who is Ted Cruz? He wants be your next Senator.

Suprem Court Clerk Cashes In

On its corporate website, Morgan-Lewis--an established Philadelphia law firm with offices world wide, announces that its Houston office has just hired Ted Cruz, an ex Supreme Court clerk who recently served as Texas' Solicitor General.

The announcement specifically states that the company wishes to increase its "Supreme Court and national appellate practice." Hiring Cruz is a great was to do it. After graduating Harvard Law he clerked for both Michael Luttig in the Fourth Circuit and William Rehnquist on the Supreme Court. After working on the Bush-Cheney transition team in 2000 as a legal adviser, and as a deputy attorney in the Justice Department he became Texas' Solicitor General and ran up a solid record as a litigant before the Supreme Court:

He has authored more than 70 U.S. Supreme Court briefs and presented 31 oral arguments, including eight in the U.S. Supreme Court. For four consecutive years, Mr. Cruz won the Best Brief Award from the National Association of Attorneys General (NAAG), for U.S. Supreme Court briefs authored in 2003, 2004, 2005, and 2006. As a litigator, he has amassed a lifetime record in decided cases that he has argued of 23 wins and 4 losses.

Not bad, and not a bad hiring decision for a firm wanting to expand its practice.