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@TedCruz and Presidential #Eligibility, Part 2


As a follow up to a previous posting on this site, frankly, not much has changed regarding the question of whether or not Sen. Ted Cruz is fundamentally eligible for the presidency.

And no matter the pontification on the part of legal scholars, other presidential candidates, or talking heads, the bottom line is that nothing has changed since the State Department’s official documentation on presidential eligibility:

Ed. 7 FAM 1131.6-2 Eligibility for Presidency (TL:CON-68; 04-01-1998) a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.

Even a very recent Congressional Research Service memo of January 11, 2016, confirms this fact:

Questions from time to time have arisen concerning whether one who is a U.S. citizen “at birth” because of the operation of federal law, is also a “natural born” citizen for purposes of the presidential eligibility clause. Such questions often concern persons born abroad to parents who are U.S. citizens, or persons born abroad when only one parent is a U.S. citizen who had resided in the United States.  Although such individuals born abroad may clearly be U.S. citizens “at birth” by statute, would such persons also be “natural born Citizens,” or is eligibility to the Presidency limited only to “native born” citizens?Additionally, questions have been recently raised by some as to whether one born “in” the United States of one or more alien parents—and who is thus clearly a U.S. citizen “at birth” by the Fourteenth Amendment, as well as by federal law and common law—was intended to be considered a “natural born” citizen for purposes of the presidential eligibility clause.
The Constitution does not define the term “natural born Citizen,” nor are the notes from the debates at the Constitutional Convention of 1787 instructive as to any specific collective intent of the framers concerning the meaning of the term. Furthermore, the Supreme Court has never needed to address this particular issue within the specific context of a challenge to the eligibility of a candidate under Article II, Section 1, clause 5, the only place in the entire Constitution that the phrase appears, although federal courts have discussed the concept extensively with respect to other issues of citizenship. Consequently, although there are numerous Supreme Court cases, as well as other federal and state case law, discussing the phrase and its meaning from which conclusions may be drawn, there has still been certain speculation on the scope of the language.

Therefore while Sen. Cruz can say that he is eligible, Mr. Trump is at least technically correct in saying that there is the possibility — however remote — that if a party with standing (possessing the correct credentials to bring a case to a court) were to proceed forward with an eligibility case and if that court were to be asked the right question and if that court were to rule a specifically-scoped definition for “natural born citizen” with respect to presidential eligibility, then Sen. Cruz could potentially have an issue.

And therein lies the rub. Since this blog followed the vast majority of judicial attempts to attain President Obama’s legal eligibility, a number of points were learned over the years.

Let’s start with a few (and likely not exhaustive) legal points:

  • A party bringing an issue to a court (typically the plaintiff) must have standing (discussed above)
  • That plaintiff must be able to prove subject matter jurisdiction (does the court in question have the jurisdiction to even hear the case?)
  • The question at hand must be ripe (is the timing to hear the case and have the remedy fulfilled reasonable?)
  • The remedy to resolve the issue at hand must be reasonable (what’s the outcome that the plaintiff desires? Can it be accomplished in a reasonable and timely manner?)
  • The plaintiff must be able to prove particular harm (how, specifically, is the plaintiff being harmed by the question at hand?)

If someone were to successfully overcome all of the above points, there would be other considerations that the judge(s) of a particular court(s) would have to consider:

  • Is this rightfully a political or a legal question? (At the end of the day, a judge could simply rule that the Legislative branch has the authority to make an eligibility determination and throw the question back to, say, the Electoral College or to the major political parties (see this posting from 2008)
  • Will the question being brought before a court actually answer the right question? (Is the question to define citizenship strictly for the purposes of presidential eligibility ?)
  • Would the Supreme Court grant a writ of certiorari? (Will the Supreme Court choose to hear the case? Likely only if multiple circuits have different outcomes and only if they believe there’s a uniform outcome to these differing views — or they could simply vacate the question the grounds of it being Legislative and not Judicial)

Additional points:

  • Will those who challenge Sen. Cruz’s eligibility face the same pejoratives as those who questions President Obama’s? Evidently, to some degree, yes. As recently as the latest GOP Presidential Debate, Sen. Cruz himself used the term, “birthers” (a carry-over pejorative label from those who questioned the President) to describe those who were questioning his eligibility
  • How likely is it that a case could be moved towards the Supreme Court? This would likely be as proportional as the degree to which Sen. Cruz is doing well in the primaries. In his case, a case could pick up some momentum because the GOP establishment has a vested interest in having the Senator declared as ineligible — which begs the presence of a “political question” that many judges are loath to take on

In the absence of a legal definition, it is therefore incumbent upon the American citizen to make their own judgement regarding Sen. Cruz’s presidential eligibility. As we approach the primaries, we’ll see how the political process plays out.

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