Is Cruz eligible to be President?

[Djharkavy]

If you had asked me two weeks ago, I would have said he certainly is, given his parents and their time in the U.S.

But the past week, there has been a lot of discussion, and while I certainly didn't follow all of it, there seems to be at least a decent case that he is not a "natural-born" citizen, depending on how they is defined.

If Cruz gets the nomination, this is going to be a much bigger problem than the Obama birther question, because SCOTUS will almost certainly need to address it.

http://talkingpointsmemo.com/livewire/trevor-potter-cruz-mccain

Trevor Potter -- a former Federal Election Commission chairman who served as Sen. John McCain's (R-AZ) campaign legal counsel in 2008 -- told Bloomberg View that he doesn't think Sen. Ted Cruz (R-TX) has as strong a case for his eligibility to be President as McCain did.

"After conducting our legal analysis of the term 'natural born citizen' we were very comfortable with Senator McCain's eligibility based on multiple factors," Potter said. "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."

McCain's birth to two American citizens on a U.S. military base in the Panama Canal zone -- a U.S.-controlled territory at the time -- received scrutiny during his 2008 campaign for the White House. Now similar concerns -- inflamed by Donald Trump -- are being raised about Cruz, who was born to an American mother in Canada in 1970.

Potter said the campaign took challenges involving McCain's birth seriously, and after looking into it, believed that all the facts in McCain's case would have supported his presidential eligibility in court.

"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 said.

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[Norm dePlume]

If you are a citizen, you are either a naturalized citizen or a natural born citizen. There is no third category. Ted Cruz has not, as far as I know, gone through a naturalization process. No green card; no civics test; no loyalty oath. So if he isn't a natural born citizen, he isn't a citizen. And in that case, he shouldn't be allowed to vote or to be a senator. He would want to deport himself.

[Djharkavy]

If you are a citizen, you are either a naturalized citizen or a natural born citizen. There is no third category. Ted Cruz has not, as far as I know, gone through a naturalization process. No green card; no civics test; no loyalty oath. So if he isn't a natural born citizen, he isn't a citizen. And in that case, he shouldn't be allowed to vote or to be a senator. He would want to deport himself.

The argument is that he is a citizen from birth, but due to naturalization laws, rather than birth in the U.S.

It seems to be based on a variety of lower court decisions about who is a natural-born citizen.

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[Norm dePlume]

The argument is that he is a citizen from birth, but due to naturalization laws, rather than birth in the U.S.

It seems to be based on a variety of lower court decisions about who is a natural-born citizen.

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And I'm saying that argument is an outlandish extension of some technical ambiguities, and the only reason it gets any traction at all is because it's politically useful for certain people.

The common sense interpretation of natural born citizen is any citizen granted citizenship by the circumstances of their birth. The only other route to citizenship is naturalization, which has a well defined process. You have to apply, and fill out forms, and pass a test, and take an oath and all that. This theory seems to postulate a second automatic and invisible process of naturalization that applies to people born in Cruz' situation, to which I say no, if it happens automatically at birth it isn't naturalization. It's natural born. Naturally.

[Norm dePlume]

That is not to say that just because I think it's a silly, non-intuitive, and expedient technicality doesn't mean that it isn't possible to burn up a lot of cash and court time sifting through it. I'm sure it is possible. Maybe even likely.

[80zephyr]

Ted Cruz is my first choice for president. However, if the Constitution somehow precludes him from being president, I would just have to accept that.

Mark

[Michele]

...and this is exactly what Trump meant when he said the left will immediately go after him.

[Celeste Chalfonte]

...and this is exactly what Trump meant when he said the left will immediately go after him.

Elaborate. Go after whom? Trump or Cruz?

[Billy Jingo]

Elaborate. Go after whom? Trump or Cruz?

Cruz.

[Celeste Chalfonte]

OK, so Dan thinks there may be something to this.

Norm says it's all BS.

I think it's BS with a cherry on top.

Is there anyone else here who identifies as leftish?

[Billy Jingo]

OK, so Dan thinks there may be something to this.

Norm says it's all BS.

I think it's BS with a cherry on top.

Is there anyone else here who identifies as leftish?

Trump meant people who matter.

[Celeste Chalfonte]

Trump meant people who matter.

I didn't think anyone on the left would matter to him.

But I was actually responding to Michelle's comment, since Trump doesn't matter to me.

[Norm dePlume]

Trump meant people who matter.

Trump is just having his sleaze and eating it too. He wants to make the argument without owning the argument, so he puts it into a story with left-wing antagonists.

I heard some legal commentary on the news saying that the old codger who filed suit in Texas is almost certain to lack standing. They also said that Trump's suggestion to Cruz to get a declaratory judgment is what we might call "impossible." It turns out that courts are not sitting around waiting to rule on any question someone submits a request for. The only way to get a judgement is for someone with standing to sue someone else. You know who has standing to sue? Donald Trump. If he really wanted a judgement, he could sue a state secretary for putting Cruz on the ballot.

[Djharkavy]

OK, so Dan thinks there may be something to this.

Norm says it's all BS.

I think it's BS with a cherry on top.

Is there anyone else here who identifies as leftish?

Actually, I'm not sure if there is anything to it. But I've seen multiple opinions on it the past few days, do I figured I see what others know, especially lawyers like you and Philly.

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[Adam]

Had dinner with my eldest brother tonight. He's someone who actually is a "Constitutional scholar," though he himself rejects that term for the ludicrousness that it is, because the Constitution is intentionally written in such a fashion that one need not be a scholar at all in order to understand it. Nonetheless, he spent several years in an actual professorship (not some adjunct, place-holder position that was occupied for the sole purpose of putting something on a résumé for future political office) at a highly-regarded law school (Vandy Law). This is, for the record, a child of the '60s who voted for Obama in '08; not sure about '12, but I suspect he voted for Obama then, too.

As is common of our dinners and the like, we got on the topics of the day, and this came up. He had some really interesting points about all of this.

He pointed out that this is almost certainly always going to be a legal circular firing squad that will never actually go anywhere. There were a couple of bigger points to this, and he went into finer detail that would pretty much put everyone to sleep anyway.


First of all, pretty much no court in the land will ever rule that anyone has actual, legal standing to bring about a case regarding Presidential eligibility. With the legal standards of standing in the United States, pretty much anyone and everyone is already circumscribed from legal standing in the first place as far as who actually is the President. Whether any of us like it or not, none of us has "automatic standing" as a rule of law about who is President: it's a virtual guarantee that roughly half of the country will not be happy with the outcome of any given Presidential election, and none of us can demonstrate automatic harm in the same sense that DuPont is harming me by polluting my cattle's water supply or whatever. None of us, not even the candidates for the Presidency, can demonstrate genuine injury or property loss (as defined under the law) as standing for a case: if you just plain lost the election, then then legal answer is "tough shit," unless one can demonstrate some definitive fraud or something like that. In the case of the Presidency, the ultimate authorities of definitive fraud are the Electoral College and the House of Representatives: the first present the collected EC votes to the House for certification, and the House then certifies (or doesn't) the election results, and that's outside the purview of the courts, because the courts cannot realistically order the legislative to do something, other than in the general sense. Ergo, even if there is definitive proof of a fouled election (e.g. "stuffed" ballot boxes), the courts can't necessarily step in, and if they do, then it's the lower courts, not the Supremes. Hence Bush v. Gore: the ultimate ruling revolved around returning the decision to the lower authorities, not the Supremes themselves making the actual decision about who will become President.

Hypothetical presented: Prince Harry runs for, and is elected, POTUS. It's plainly obvious to everyone that he is not qualified to be President, on three counts: he's not going to be considered a "natural-born citizen" by pretty much anyone with two neurons within spark-gap range, he's not yet 35 years old, and he has not, to the best of anyone's knowledge, been a resident of the United States for the past fourteen years. So the guy just flat-out cannot legally be President, right? Well, what happens if he runs for, and wins, the office? If the EC presents him as the winner, and the House certifies him, then the answer is, basically: "Tough shit; get used to President Harry." The only other real remedy would be to modify the actual Constitution, which almost certainly will not happen within the potential eight years of Harry's time in the big chair on Pennsylvania Avenue (or indeed even his lifetime, given how long many Amendments actually take).

This is why pretty much every case that was ever brought by people challenging Obama's qualification to be President was thrown out for a lack of standing. I had not realized before tonight that there were far more than the one or two cases that I knew about (Berg's case in Pennsylvania and Orly Taitz's pointless efforts were the only ones that I really knew about before); there were something like fifty-six different legal actions challenging Obama's qualification to be President and seeking one redress or another, and almost all of them were tossed on the basis of no standing; a few were tossed on just general procedural grounds, but would never have seen the light of day anyway because, once again, of a lack of standing. No case, however, ever got out of the starting blocks.

So, the short answer is that it's sort of a legal black hole that there is basically no one in the country who actually would have legal standing to say that Ted Cruz (or Barack Obama, or indeed damn near anyone else, including Klaatu or Gort, fresh off the spaceship that landed on the National Mall) was not qualified to be President, because they could not demonstrate actual harm solely by virtue of that person (or robot) being President. Their actions as President may be legally harmful, but as President, such a person would have sovereign immunity, and the legal remedy there is to sue for either monetary damages or specific performance (the latter almost certain to never be applied in such a case), and that's basically it, unless that President commits an actual high crime or misdemeanor, which could be grounds for impeachment and subsequent removal from office. Not being legally eligible for holding the Office of President, however, is not, under the law, an actual crime or misdemeanor, so good luck with that one.


Furthermore, the Supremes are exceptionally reticent, historically-speaking, to take up matters that are purely political in nature. That is to say that they don't really like deciding something like the winner or loser of a political race, at least in a prima facie basis. Once again back to Bush v. Gore, they weren't deciding the actual outcome of the election, but instead a Constitutional question of who actually should make the decision. In this case, there is some manner of Constitutional vagary, so they likely would actually refuse to take up the case at all, as strange as that may sound.


Finally, regarding Trump's (and others') suggestion that Cruz go and get some "legal certification" or whatever, that dog don't hunt, either. The only way for that to happen is for someone to bring legal action, with standing, in order for a court to adjudicate the matter. Ted Cruz can't just wander into the nearest U. S. District Court and ask the first available federal judge to just declare him legally eligible for the Presidency. He would have to sue himself, for that to happen, which, outside of the obvious ludicrousness of such an action, would also be tossed because, you guessed it: Ted Cruz cannot demonstrate standing in a suit against himself because he cannot demonstrate any actual harm to himself by his own being elected President.





So, the final answer is: this is all a bunch of stupid hooey that does not matter in the least, but Trump is managing to get some mileage out of it because the Leftist media (but I repeat myself) will blather on about it because they absolutely, positively cannot resist talking about anything and everything that Trump utters or does. In reality, no one who was already going to vote for Cruz will be swayed in the least, and people who would never have voted for Cruz if someone had a scary-looking black rifle pointed at their head will not be swayed to somehow not vote for Cruz even more than they would have not voted for him before.

It's a nothingburger, as Obama would say.