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Question Ted Cruz should ask: Can a foreign-born American be president?

Birther II: Ted Cruz really was born in a foreign country

Sen. Ted Cruz is getting close to announcing his candidacy for the Republican presidential nomination. The Texan is spending almost as much time in Iowa and New Hampshire as he does on Fox News; he's hired a staff and collected a long list of fiercely conservative supporters.

There's at least one hitch: Ted Cruz was born in Calgary, in the Canadian province of Alberta. His mother was a U.S. citizen, born in Delaware; his father, a Cuban refugee working in Canada's oil fields. Thanks to his mother, Cruz was a U.S. citizen at birth.

But that doesn't clear up a legal muddle that's as old as the Constitution: Is a U.S. citizen born abroad qualified to serve as president?

I don't agree with Cruz on most issues. He wants to repeal Obamacare, abolish the Internal Revenue Service and pass a constitutional amendment allowing states to outlaw gay marriage, just to take the top of his list. But I still hope he runs — because it's high time we established the right of Canadian-born Americans to serve as president.

Canadian Americans are perhaps our most underappreciated minority. Their contributions to U.S. culture range from hockey to comedy to, well, hockey. It's an impressive list: Wayne Gretzky, William Shatner, Lorne Michaels, Jim Carrey, Pamela Anderson, Alex Trebek. And now Ted Cruz.

At this point I should confess a personal stake: My oldest daughter was born in Toronto. Like Ted Cruz, she inherited U.S. citizenship through one of her parents. But we assured her that she could grow up to be president of the United States. (Proud of her dual citizenship, she says she'd like to serve as prime minister of Canada too.)

Canada is a wonderful country — wilderness on top, oil and gas underneath, plus universal healthcare and sensible gun control laws. All those good things, alas, are not an argument for a Cruz presidency. He has promised not to import any Canadian virtues to the U.S. homeland (except, perhaps, more Alberta oil) if he is elected to the White House.

"Canadians are so polite, mild-mannered, modest, unassuming, open-minded," Cruz joked last year. "Thank God my family fled that oppressive influence before it could change me."

Cruz hasn't simply renounced Canadian moderation; last year, he formally renounced the Canadian half of his dual citizenship.

But even that doesn't settle the constitutional issue — at least not to the satisfaction of some of the "birthers" who charged that President Obama was born outside the United States. "Clearly there is an issue of eligibility," chief birther Orly Taitz told U.S. News a while ago. "It's basically the same issue as Obama."

Except that in Cruz's case, he really was born in a foreign country.

Surprisingly, some legal scholars agree — not that Cruz is unqualified, but that the question isn't a slam-dunk. The Constitution says only a "natural born citizen" can serve as president, but it isn't clear whether the Founding Fathers intended that to include U.S. citizens born abroad.

"The consensus [among constitutional lawyers] is that it means citizens at birth," said Gabriel Chin, a professor at UC Davis. "But people are not 1000% confident."

"In my view, it does merit a test," agreed Sarah Helene Duggin, a professor at the Catholic University of America. Indeed, she argued, if Cruz were to win the Republican nomination, it would be in the nation's interest to get the question settled early.

"If we ever get to the point where we have a presidential candidate with this issue, we will need a clarification," she said. "If the candidate were elected and then disqualified, that would be a serious constitutional crisis."

Sen. John McCain (R-Ariz.) faced a similar issue in 2008 but argued that his birthplace, the Panama Canal Zone, was U.S. territory at the time he was born; the U.S. Senate passed a bipartisan resolution endorsing his eligibility.

It won't be easy to get a once and for all decision. Somebody has to get the question into the courts through a lawsuit. But as the birthers discovered in 2008, most judges don't think voters have legal standing to sue over a candidate's qualifications. (To have standing, a plaintiff has to show that he or she is suffering concrete injury from a defendant's conduct.)

One of Cruz's competitors in the race could sue, but that might not play well as a campaign issue. That leaves the matter in Cruz's hands. As an "originalist" who believes in the literal meaning of the Constitution, he ought to be the first to want that murky phrase in Article II cleared up.

"The Constitution matters — all of the Constitution," Cruz said in 2013. "It's not pick and choose. It's not take what part you like and get rid of the parts you don't like."

If Cruz runs, he should ask a friendly state official to challenge his candidacy. Most legal scholars think he'd win, or at least not lose. (The courts might leave it to the voters to decide.) Win or lose, he would have the satisfaction of making constitutional history. Besides, my daughter wants to know if she can start thinking about 2024.

doyle.mcmanus@latimes.com

Twitter: @DoyleMcManus

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