A legal scholar is entitled to change his mind over time, of course, but he seemed pretty darned confident about his position when he said this in 2011:
“The Fourteenth Amendment provides for birthright citizenship. I’ve looked at the legal arguments against it and … those arguments are not very good.” Now here he is last night on Fox:
“There’s a debate among legal scholars… I haven’t seen the legal arguments for what the authority would be to do it with an executive order.” (How did Shannon Bream not have the 2011 clip queued up and ready to go?) There’s no contradiction between the first clip and the second in terms of Cruz’s opposition to birthright citizenship as a policy matter, as he explicitly says in the 2011 video that we can’t let our feelings about a particular policy shape our reading of what the Constitution happens to say about it. You can believe birthright citizenship is bad while also believing that the Fourteenth Amendment requires it, alas.
But I’d be eager to hear him describe which legal arguments he’s encountered over the past seven years that have seemingly moved his thinking on the constitutional question from “slam dunk” to “gotta read more about it.” Intellectual humility isn’t a trait he’s known for, particularly in constitutional matters. The chief “legal argument” against his 2011 reading of the Fourteenth Amendment is the fact that the natural-born clause is qualified in Section 1 by the phrase “and subject to the jurisdiction thereof,” raising the possibility that illegals born on U.S. soil nonetheless aren’t American citizens because the federal government never accepted jurisdiction over them. But he must have considered that point in forming his opinion about birthright citizenship as a constitutional mandate before 2011, as it’s been around for ages. So what other “legal arguments” does he have in mind? What sort of “legal argument” might justify the president’s right to deny citizenship by executive fiat?
I’m tempted to say that Bream should try asking him this question against next Wednesday, after he’s been safely reelected, to see if his opinion about the Fourteenth Amendment has suddenly firmed up a bit. But (a) that would be cynical even by Cruz standards and (b) I don’t think you’d get a different answer. It’s not just the wrath of Trump that he’d be worried about in taking the position that the Constitution guarantees birthright citizenship for illegals. He’s worried about the fact that Trump’s position is an increasingly popular position among grassroots righties and has been for awhile, reinforced by arguments from populist heroes like Mark Levin and Ann Coulter. It’d be nice if everyone took Cruz’s 2011 point to heart that it’s fine to disagree about what the law is, independent of the ideological pressure to agree on what it should be, but that’s not how American politics works now. Gotta stay on-message, always.
For the record, though, most of the public is more pessimistic than Cruz is about Trump’s “legal argument” prevailing:
In lieu of an exit question, here are 13 pages from James Ho supporting Cruz’s 2011 position that the Fourteenth Amendment requires birthright citizenship even for illegals. If that name rings a bell, it’s because Ho was recently appointed to the Fifth Circuit by — ta da — Donald Trump. And Ho’s argument isn’t based on the “living Constitution” or whatever claptrap is now in vogue to explain the left’s penchant for substituting its own policy preferences for the constitutional text. It’s an originalist argument. Look at the history of the Fourteenth Amendment, Ho says, and you’ll see that the Framers fully intended for illegals born here to be treated as citizens. If you want to change that, it’ll take an Article V amendment to do it.