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@TedCruz and Presidential #Eligibility

Courtesy: Andrew Harnik/AP

Earlier this month, I had posted on what Professor William Jacobson at had tweeted regarding considering presidential eligibility for 2016’s slate of GOP White House hopefuls. And while I still believe that his 2013 posting is quite salient to the discussion at hand, it obviously (and admittedly) did not absolutely answer the question, especially pertaining to today’s announced candidacy by Sen. Ted Cruz for the presidency.

Just as Prof. Jacobson has created an excellent legal posting on eligibility, Stephen Tonchen has consistently kept an excellent, informal “primer” updated on the topic — as well as the pejoratively-termed “birthers” — at his Presidential Eligibility Tutorial.

Once you’ve loaded up on both the legal and court of public opinion aspects of presidential eligibility, head on over to PolitiFact’s analysis, where they link to Sen. Cruz’s birth certificate (whose legal name is Rafael Edward Cruz).

With all of the above in mind, the real question continues to be, is Sen. Ted Cruz eligible for the presidency? Can the person whom Alan Dershowitz considered to be one of his smartest students even provide an absolute answer?

Legally, no, there isn’t a 100% absolutely certain answer as to Sen. Cruz’s presidential eligibility, and the reason is that there has never been a court case nor constitutionally-altering legislation that has actually defined what it means — from the standpoint of being President — to be a “natural born citizen.”

And therein lies the rub. Individuals from all over the political spectrum certainly have their views (I’ve cataloged many of them over the years on this blog), but that’s just what they are — views, whether anyone disagrees with them or not.

In fact, I’d go a step further and raise the issue that nobody can even determine the timing or ripeness of when it means that someone must be a natural born citizen. In other words, if legislation were to say that someone born outside American borders but to a natural born citizen mother or father is a natural born citizen, and all that the Constitution says is that a President must be of same characterization, could that mean that they simply had to be a natural born citizen by the time they became President? Strictly-speaking, I bet someone could make that kind of case in court.

For me, as of this posting, I don’t have a proverbial dog in this race. While I see Sen. Cruz as an exceptionally appealing candidate (and believe that he could rhetorically handle a Hillary Clinton Democratic nominee without issue), we still have yet to see others such as Sen. Rand Paul enter the ring, at which point I think we could have some epic debates over major issues — in other words, it would be time to queue the popcorn.

But more seriously, I’d have no problems with someone raising the question yet again through the court system if they so chose. The challenge with this route is that I don’t see the Judiciary actually creating a definition in such a case (after all, wouldn’t that be what right-leaning Americans would define as “legislating from the bench?”). Instead, the far better route would be to have the Legislative branch actually come up with such a definition and, even better, cobble together enough support to create a constitutional amendment to once-and-for-all define what the term, “natural born citizen” means for the purposes of the presidency.

Clearly, the above would be quite a lengthy process and would just as likely not even complete in time to conclude the 2016 presidential election. Further, based on past eligibility court cases, justices could reasonably throw these cases out for a number of reasons, not the least of which would be simply over the fact that there is no such definition that currently exists, and refer to the Legislative to come up with one (after all, how can you obtain a remedy for an injury if there’s no objective law against which to validate such an injury?).

On the flip side, the court of public opinion certainly has its tinge of hypocrisy. With only his first day of declared candidacy under his belt, the American mainstream media has wasted no time in bringing up the “birther” issue against the Senator, in spite of the fact that the same media took a decidedly antagonistic attitude towards those who questioned President Obama’s own eligibility not that long ago.

The good news in all of this is that a presidential campaign is exactly the opportunity that we the People have in properly vetting our candidates — whether strictly from a legal perspective or simply from a general, “can they actually handle themselves on the job” perspective. Either way, specific and general eligibility is ultimately decided by the People.


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