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A Project of The Annenberg Public Policy Center

Cruz on Birthright Citizenship

Marco Rubio, Mike Huckabee and Donald Trump have all wrongly attacked rival Ted Cruz for flip-flopping on birthright citizenship since his run for Senate in 2011. Cruz has consistently opposed the policy.

What has changed is that Cruz questioned the chances of a successful legal challenge to the 14th Amendment — which grants citizenship to anyone born in the U.S. That has been interpreted to apply to those born in the U.S. to parents in the country illegally. Cruz now says Congress should pursue a legal challenge.

Interestingly, Cruz is being attacked by Republican opponents who have opposing views on what to do about birthright citizenship. Trump has said unequivocally that he wants to end it, while Rubio has said he is “not in favor of repealing the 14th Amendment, but I am open to exploring ways of not allowing people who are coming here deliberately for that purpose to acquire citizenship.”

Both say Cruz has flip-flopped on it.

In the Republican debate on Jan. 14, Rubio said to Cruz, “You used to say that you were in favor of birthright citizenship, now you say that you are against it.”

Trump has since taken up that line of attack, tweeting out on Jan. 19 that Cruz has given “conflicting stances on birthright citizenship.” The tweet links to a video from Real Americans 4 Real Presidents, which is not affiliated with the Trump campaign, highlighting two comments. The first is from an interview on Aug. 13, 2011, in which Cruz called it “a mistake for conservatives to be focusing on trying to fight what the Constitution says on birthright citizenship.” The second shows Cruz in an Aug. 22, 2015, interview saying, “I think we need to end birthright citizenship.”

Huckabee has also joined the fray, accusing Cruz of inconsistency on the issue. In a Jan. 19 interview on Fox News, Huckabee said Cruz has “changed his position on a number of things,” including birthright citizenship.

Huckabee, Jan. 19: I think people are beginning to see that, for the guy who bills himself as the consistent conservative, there’s not much consistency, whether it’s immigration, H-1B visa, whether it’s ethanol, whether it’s issues like birthright citizenship. The hits just keep coming.

But a closer examination of Cruz’s comments in 2011 as a Senate candidate and his comments in 2015 as a presidential candidate shows that while Cruz may have become more open to a legal challenge of the 14th Amendment — which states that all people born in the U.S. are citizens —  there is no evidence that he ever supported birthright citizenship, as Rubio claimed in the debate and in other interviews.

What Cruz Said Then

At the heart of the debate about Cruz’s position on birthright citizenship is an interview Cruz, then a candidate for the Senate, gave on Aug. 13, 2011, on the Duke Machado Show, in which he opined that the arguments against the 14th Amendment providing birthright citizenship, even if the parents are in the country illegally, “are not very good.” (The part of the 14th Amendment in question reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”)

Cruz, Aug. 13, 2011: I have spent my professional career defending the Constitution. … The 14th Amendment provides for birthright citizenship. I’ve looked at the legal arguments against it, and I will tell you, as a Supreme Court litigator, those arguments are not very good. As much as someone may dislike the policy of birthright citizenship, it’s in the U.S. Constitution. And I don’t like it when federal judges set aside the Constitution because their policy preferences are different. And so my view, I think it’s a mistake for conservatives to be focusing on trying to fight what the Constitution says on birthright citizenship. I think we are far better off focusing on securing the border, because birthright citizenship wouldn’t be an issue if we didn’t have people coming in illegally.

We scoured mainstream media articles and found only one other instance in which Cruz talked about birthright citizenship while running for the Senate. In an Oct. 17, 2011, report in the National Review, Cruz again dismissed the idea of legal efforts to reinterpret the 14th Amendment.

National Review, Oct. 17, 2011: He [Cruz] reminds opponents of illegal immigration to focus on border security, rather than hope that the Supreme Court will reinterpret the Fourteenth Amendment to deny birthright citizenship to children of illegal immigrants. “I don’t think their argument is consistent with the Constitution, and so even if that outcome might be desirable as a policy outcome, I think we have an obligation to be faithful to the Constitution,” he reasons.

While we could find no other media references to Cruz’s position on birthright citizenship during his run for the Senate, the Cruz campaign did provide us with one critical piece of information — a questionnaire Cruz provided during his Senate run to Numbers USA, a nonprofit group that advocates for stricter limits on immigration. We also obtained a copy of the questionnaire directly from Numbers USA. One question asked, “Should Congress move the U.S. in line with most other nations and stop the policy of giving automatic citizenship at birth to children when both parents are illegal aliens?” Cruz’s response: “Yes.”

What Cruz Says Now

Cruz has been outspoken on the presidential campaign trail about birthright citizenship: He opposes it.

Here’s a fuller transcript of Cruz’s comments during an Aug. 22, 2015, interview with Curtis Coleman at Americans for Prosperity’s Defending the American Dream Summit, the one featured in the video tweeted by Trump.

Cruz, Aug. 22, 2015: Well, I think we need to end birthright citizenship. As a policy matter, it doesn’t make any sense that we should be incentivizing illegal immigration. There’s no reason that federal law should state that if someone is here illegally, that their children are automatically U.S. citizens. … I’ve had that position for many years, back in 2011 when I was running for the U.S. Senate, I said very explicitly then we should end birthright citizenship and I think that’s still the right position.

In a “Face the Nation” interview that aired on Aug. 23, 2015, Cruz reiterated his opposition to birthright citizenship.

Cruz, Aug. 23, 2015: I think birthright citizenship, as a policy matter, doesn’t make sense. We have right now upwards of 12 million people living here illegally. It doesn’t make any sense that our law automatically grants citizenship to their children, because what it does is, it incentivizes additional illegal immigration.

But the heart of what Donald proposed, and indeed what I have introduced, is we have got to get serious about securing the borders.

CBS host John Dickerson noted that in 2011, Cruz said the legal arguments against the 14th Amendment providing birthright citizenship are “not very good.”

“So, as a legal matter, though, it can’t be touched, right?” Dickerson asked.

“Well, no, that’s not true,” Cruz said, and then he laid out the different means through which some legal scholars say the policy could be changed.

Cruz, Aug. 23: So, there are two different pieces. There’s the policy matter and the legal matter. As a policy matter, I think now, and I thought then, we should end birthright citizenship. And in 2011, in that same conversation, I publicly said we should end birthright citizenship. Indeed, I said so in writing.

Now, there’s a second question, how does one do it? And constitutional scholars differ in terms of the way that it can be effectively done. Some constitutional scholars argue Congress could pass a law defining what the words in the 14th Amendment “subject to the jurisdiction” mean.

Others argue, no, it couldn’t be done by statute. It must be done by constitutional amendment. In my view, there’s good-faith argument on both sides. We should pursue whichever one is effective. But, as a policy matter, we should change the law. But what I also said in that interview — and I think this is important, John — is we’re facing a crisis with the illegal immigration, a law enforcement crisis, a national security crisis. Any change in birthright citizenship, be it a statute or a constitutional amendment, will take many, many years. So, the first priority should be securing the border. And we can do that with a president, unlike President Obama, who will actually enforce the laws and get the job done.

Cruz made similar comments a couple days later in an interview on Fox News, saying that “as a policy matter, it doesn’t make any sense anymore that people who are here illegally, that their children would have automatic citizenship.” He argued that the policy acts as an incentive to further illegal immigration and that “we ought to change that policy.” However, he said,”there is a legal dispute about the best means to do it.”

Cruz, Aug. 25: There are serious scholars who argue that Congress could do it through statute defining what it means to be subject to the jurisdiction, the language of the 14th Amendment. There are other serious constitutional scholars who argue the only way to change it is through a constitutional amendment. My view is, we should pursue either or both, whichever is effective; what matters is that we should change the policy so we are not rewarding and incentivizing and encouraging more illegal immigration.

Cruz was then asked about his comments in 2011 that the legal arguments against the 14th Amendment not granting birthright citizenship are “not very good” and that “I don’t like it when federal judges set aside the Constitution because their policy preferences are different.”

“That’s why I said we should pursue either or both,” Cruz responded. “We should pursue either a constitutional amendment that overcomes any language in the Constitution, or a statute, if the other scholars are right that it’s within Congress’ authority. What matters is the underlying policy.”

We found nothing in Cruz’s 2011 comments that contradicts his claim about consistently opposing birthright citizenship. In fact, the questionnaire for Numbers USA during his Senate run explicitly stated his opposition to it. The question, then, is whether Cruz has changed his mind about how to achieve that policy change. Back in 2011, he said he thought it was “a mistake for conservatives to be focusing on trying to fight what the Constitution says on birthright citizenship.” In his 2015 interviews, Cruz was less dismissive of those efforts, saying that Congress “should pursue either or both” — a statute reinterpreting the 14th Amendment or a constitutional amendment.