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Engler: Return of the Undead: Ted Cruz and the Birthers


By Robert Klein Engler - 

And so it starts. Ted Cruz is being haunted by the Birther ghosts. Is he a natural born citizen and can he prove it? Will Obama be drawn into this controversy? Maybe a court in Illinois can answer these questions.

“A judge in Illinois…will hear a lawsuit challenging Ted Cruz's eligibility to serve as president, putting questions about the Texas senator's status back into the news the day before the South Carolina primary.”

Lawrence Joyce, an Illinois voter who has objected to Cruz's placement on the Illinois primary ballot next month, will have his case heard in the Circuit Court of Cook County in Chicago. Joyce's previous objection, made to the state's Board of Elections, was dismissed on February 1.”

It’s been a long time coming. “That (Birther) theory first emerged in the spring of 2008, as Clinton supporters circulated an anonymous email questioning Obama’s citizenship.”

Up to now, no birther lawsuit was deemed worthy because whoever bought the lawsuit did not have standing. Now, Trump does have standing and can cite a specific injury. The Illinois case, not filed by Trump, may be thrown out because of lack of standing. If it is, bet on another one being filed somewhere else.

Some who argue that Ted Cruz is a natural born citizen may be doing this to support Barack Obama. As Cindy Simpson writes, “To a certain extent, my friend is right. Cruz, Rubio, and Jindal are eligible. Because as another friend, attorney Monte Kuligowski, explained, the precedent has been set with the election of Barack Obama: a person born a US citizen, even with dual citizenship of another country, is eligible for the presidency. If Obama was eligible, those Republicans, too, are eligible.”

Likewise, the definition of who is natural born citizen may have been broadened over time to protect Barack Obama and to fend off charges of racism. That may be why no court or judge up to this point has accepted a case or granted standing to anyone who questions Obama’s status.

But all that may soon change. “'There is no way we get through this campaign without Donald Trump suing Ted Cruz.’ That's a prediction that MSNBC…host Chris Hayes dropped on his guests…Hayes predicted that Trump's lawsuit would be centered on constitutional eligibility questions…Trump now has cause, he has injury, right?’”

“If he gets the nomination (Cruz), they're going to sue his ass up, (the Democrats)” Trump told a crowd of supporters here on Tuesday.”

The Media and the Documents

The media has been reluctant to investigate the claims of the Birthers. If they have investigated them, the media usually dismiss them as fringe arguments. True, some of the Birthers have not been seen in a positive light because of their own actions. Nevertheless, an insane man can sometimes make a sane argument.

Consider what Bill O’Reilly did during the Obama birth controversy. At the time of that birth certificate controversy, O'Reilly claimed in a segment with Ann Coulter. “As we mentioned, The Factor debunked the whole Birth Certificate deal more than a year ago. It was easy. The state of Hawaii sent us a copy of the document. End of story.’”

We have to wonder, now, as Andrea Shea King wondered then, how Bill O'Reilly can make the claim that, “‘The Factor’ investigated…we found that President Obama was born in Hawaii. We sent (for) the documents….”’

The state of Hawaii maintains Obama’s records are off limits. “The following court decision upheld the statute which restricts access to vital records: Justice v. Fuddy–ICA–April 7, 2011 Concurring opinion by J. Leonard.– denial of request to see President Obama’s birth certificate.”

If it’s the case that Obama’s records are sealed, how could Bill O’Reilly claim, “…we found that President Obama was born in Hawaii. We sent (for) the documents…?”

If O’Reilly can do that for Obama, why can’t he or another member of the media send off to Canada and get a copy of Ted Cruz’s birth certificate?

Ted Cruz didn't renounce his Canadian citizenship until May 14, 2014. Beyond that, as someone wrote on a blog, “Cruz has a big problem…half of his target potential voters are rabid and strict Constitutionalists who are horrified that he has deemed himself an NBC with the MSM and the Republican party backing his ridiculous claim. They will never vote for him.”

The Constitution and the Documents

It’s important to recall there are two issues compacted into one Birther argument. We should unpack those two issues and see how they relate to the Ted Cruz situation. 

The first issue is the meaning of the natural born citizen clause in the US Constitution. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace).

Because SCOTUS has not ruled specifically about the natural born status in regard to Obama or Cruz, their status remains uncertain under the various interpretations of the natural born clause. The interpretation may remain uncertain for a while because of the recent death of justice Scalia.

The second issue in the Birther argument relates to the documents someone shows to prove they are a natural born citizen. In Obama’s case, there is still much dispute about the genuine nature of these documents. Beyond that, some of the documents presented may seem persuasive, but they are not. For example, you cannot present a newspaper article announcing your birth at a State Department office and use only that to get a US passport.

You could be an agnostic when it comes to the evidence Obama has shown so far to establish he is a natural born citizen. It’s like the evidence for the existence of a supreme being. It can go either way.

There are articles in Hawaiian newspapers about Obama’s birth, but then Obama’s former literary agency billed him as “born in Kenya” back in 1991. Many decide one way or the other about who Obama is on faith, not the facts. Be that as it may, right now, the issue is the natural born citizen status of Senator Ted Cruz.

Some experts dispute the COPY of the president’s so-called PDF document released by the White House. Sheriff Joe Arpaio claims he has evidence that the Obama document is forged. The sheriff is also a staunch supporter of Donald Trump. Beyond that document, there are Obama’s sealed college transcripts and his disputed Social Security number.

Remember, “…in a radio interview…Arizona Sheriff Joe Arpaio affirmed he is ‘pretty well convinced’ President Obama’s birth certificate, as released by the White House in 2011, is a ‘fraudulent, fake document…I’ve been in law enforcement 55 years,’ stated Arpaio. ‘I think I know a fraudulent, fake document. (how much of this is bombast?)’”

Then, there is the 2010 case of  Lt. Col. Terrence Lakin. He doubted Obama’s qualifications to be commander-in-chief. Regardless of the matter in this case, you’d think that a US president would have released at this time all the necessary documents to prove Lt. Col. Lakin was mistaken, instead of letting him face a court martial. At the very least, we may accept the politics of such a decision, but not the character of a president who made it.

Even after the Lakin case, there is the amount of time Obama has spent postponing the release of documents. Why did it take until April, 2011 for a copy of the birth documents to be given to the press? This is a question Cruz could raise.

Doubt about Obama being a natural born citizen continues. “A New York Times/CBS News poll…showed broad, continued uncertainty about where Obama was born. Fully 45 percent of Republicans and 25 percent of independents in the poll said he was born in another country, with the percentage of Republicans saying that 13 percentage points higher than it was a year ago.”


This kind of doubt, this thick smoke of uncertainty, does not exist about the natural born citizen status of Hillary Clinton. And as we know, usually, when there is smoke, there is fire. Many believe that Clinton started the Birther rumors in the first place. Why can’t she be called to court by Cruz and testify about what she knows about Obama birth?

Of course, all this may not come to a court. With the recent death of justice Scalia, SCOTUS is in chaos. Besides, the RNC may not want to go this route. Thus. Cruz and Rubio may be talked into bowing out of the race.

But what if Cruz and Rubio do not drop out? Let’s assume Cruz does not drop out of the presidential race. Let’s assume he is sued by someone who has standing and the accusation that he is not a natural born citizen goes to court. What defense will Cruz mount? What legal argument can he make that he is indeed a natural born citizen?

The Cruz argument

As some understand it, Senator Cruz’s belief is that the term natural born citizen means born of a mother who is a US citizen. Let’s takes Cruz’s position and see where it leads.

Cruz could probably argue that there is some legal and expert testimony for his position. Nevertheless, it may be better to argue that a precedent has already been set. We now have a sitting US president whose only claim to natural born citizenship is through his mother.

Here is where Obama’s birth documents may come into play. To defend his position Cruz could call into question Obama’s birth documents. I think we know Obama was born of a mother who was a US citizen, but what proof is there that Obama was born in the United States? (Yes, there is the argument that Obama’s mother may not have resided long enough in the US or was old enough to confer citizenship upon him, but that can be set aside for the time being).

The issue Cruz may raise is that if a copy of the birth certificate the White House gave to the press is in fact shown to be a forgery, then what? Senator Cruz could ask the court for all the Obama birth documents and show by expert testimony that these documents are fraudulent, or are not conclusive.

The argument for Cruz being a natural born citizen could be very simple. There is no conclusive proof (beyond a shadow of doubt?) that Obama was born in the USA. We know Cruz wasn’t born in the USA, so Cruz is a natural born citizen only by reason of his mother’s citizenship, just like Obama, whose place of birth remains undocumented. If Obama is a natural born citizen, then so is Cruz.

If Cruz wins in court with this Birther argument, then he may get two birds with one stone. He’s on the ballot as a candidate for US president as a natural born citizen, and he has shown the public that the White House presented false documents to the voters. In defending his qualification to run for office, Cruz could turn the Birther controversy into a document controversy.


  1. What do you mean Obama’s birth in Hawaii “remains undocumented” ? It is doubtful that ANYONE born on US soil has had as much proof of being born on US soil as Obama.
    Obama really was born in Hawaii, as shown by his HAWAII birth certificate and the confirmation of the officials of both parties in Hawaii and the Index Data file and the birth notices sent to the Hawaii newspapers in 1961 (and only the DOH could send birth notices to that section of the newspapers and it only did so for births in Hawaii). Oh, and birther sites LIED when they said that Obama’s Kenyan grandmother said that he was born in Kenya. She really said that he was born IN HAWAII in three interviews of which birther sites showed their readers only part of one, carefully cutting off the tape recordings on their sites just before she was asked where he was born and replied: “In Hawaii, where his father was studying at the time.” (Now I wonder why a birther site would do that?) And there isn’t even proof that Obama’s mother HAD A PASSPORT in 1961, and very very few 18-year-olds did at the time. And EXTREMELY few women traveled abroad during the last few months of pregnancy at the time due to the risk of stillbirths. Yet BOTH of those highly unlikely things would have had to have happened AND the officials of BOTH parties lied AND the Index Data and the birth notices (on microfilm rolls in two libraries) would have had to have been forged for Obama to have been born in a foreign country and not in HAWAII.

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