Bloomberg View: Ted Cruz Has a Real Birther Problem

I asked Trevor Potter, a former Federal Election Commission chairman who was the general counsel of McCain's presidential campaign, about that campaign's research into McCain's eligibility, and what it might tell us about Cruz's situation. McCain is no champion of Cruz. But Potter studied the issue carefully. Bottom line: It's dicier than you might think...  

Potter: We looked carefully into the issue early on. We were aware of the question being raised in earlier presidential campaigns. Barry Goldwater was born in a "territory" of the U.S., and George Romney was born in Mexico to two American-born parents.

We consulted constitutional law professors. As you know, we had an opinion from Ted Olson and Larry Tribe that confirmed our understanding that John McCain's birth -- to two American parents on a U.S. military base in a U.S.-controlled territory -- was as close to the historic English understanding of the term "natural born citizen" as possible...

Potter: Given the results of the research, we were very comfortable that we would win any legal challenge. What was less clear is who would have standing to bring a legal challenge, and at what stage in the process. The campaign actually responded to several suits, and all were dismissed by the courts...

Potter: We believed that Senator McCain's birth made his situation absolutely congruent with English precedents at the time the Constitution was adopted. The founders used the English phrase "natural born citizen," which had that same common meaning. Any divergence from Senator McCain's particular circumstances by definition changes the facts, and takes us further away from the common law meaning circa 1789.

One American parent and one foreign parent; a birth in a foreign country and not on a U.S. base; and not while the parents were in the service of the nation; dual citizenship for an entire adult life -- all of those facts are certainly different from Senator McCain's case...

Potter: After conducting our legal analysis of the term "natural born citizen" we were very comfortable with Senator McCain's eligibility based on multiple factors. Without those specific factors -- two U.S. citizen parents, birth on a U.S. base on U.S.-controlled territory -- our comfort level that the candidate met the constitutional requirement would have declined...

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