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Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz's eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: "Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue."
The U.S. Constitution requires that the president be a "natural-born citizen" of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.
What would a legal challenge to Cruz's eligibility look like? It's far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire's Ballot Law Commission, for example, has already said that Cruz is eligible - at least until a court says otherwise.
Scenario A: Could someone sue to try to keep Cruz off the ballot? Such challenges are unlikely to succeed. A plaintiff must have standing to sue and must show a specific injury rather than a generalized grievance. Voters can't just complain that someone, somewhere is violating a law - they have to identify an actual harm. Most challenges to candidates' eligibility end here. Federal courts, for example, threw out dozens of birther challenges to Barack Obama's eligibility in 2008 and 2012 because voters sued and failed to identify a concrete injury. So, the courts never had to rule that Obama was actually born in Hawaii.
State courts are not bound by the federal standards and have heard challenges from such voters. But these claims often fail because states are not required to look at a candidate's qualifications. New Hampshire is an outlier: Many states don't look at whether a candidate is eligible to be president before placing him or her on the ballot. They accept the paperwork - and happily accept the filing fee - then list the candidate on the ballot. Socialist Workers Party candidate Róger Calero, for example, appeared on several ballots around the country in 2004 and again in 2008 - despite being a Nicaraguan citizen.
Other challenges fail because courts defer to the political process. In a presidential election, one court concluded in a challenge to Obama's eligibility, it is first left to presidential electors to determine eligibility, and then to Congress when it counts the votes. In addition, candidates may lose elections, which would negate any need for a court to interfere.
Some courts, reluctant to intervene, move particularly slowly and let the election process work itself out.
Scenario B: But what if a state kept Cruz off the primary ballot? What if an election official decided that state law permitted only natural-born citizens to appear on the ballot and concluded that Cruz was ineligible, and thus removed him from the ballot? Or what if a state secretary of state decided to reject votes cast for Cruz in a primary election? Cruz would presumably sue - and he would certainly have standing.
A court may choose to drag its feet and hope that the political process would work itself out. Perhaps, Cruz would drop out of the race before a court reached a decision. But denying voters the chance to vote for an eligible candidate, or refusing to count ballots cast for a candidate, would be a serious harm, and a court would likely weigh in.
A court might simply avoid the harder issue of defining "natural-born citizen" and find reasons to allow him on the ballot. It might conclude that no state law authorizes an election official to scrutinize a candidate's eligibility, as occurred in some challenges to Obama's eligibility. Or a court might conclude that a political primary is not binding on the Republican National Convention - since a brokered convention could sort out any prospective nominees' eligibility questions. A court might also say that this is simply a primary race, not the presidential election itself. So any decisions about his eligibility would be premature.
Accordingly, even if a state left Cruz off the ballot, there are many possible avenues by which a court might order him back on the ballot without addressing whether or not he is a natural-born citizen.
Scenario C: But what if a court does weigh in on Cruz's eligibility? Unlikely as it might seem, given the many contingencies outlined above, it remains a distinct possibility with a less-than-certain outcome.
Two major positions stand out in the effort to define "natural-born citizen." Some have argued that the term can only mean a person born within the United States. They cite early British practice before the American Revolution as the principle codified in the text of the Constitution.
Others - more persuasively, in my view - argue that Congress, like the British parliament at the time of the founding fathers, has the power to define who is a natural- born citizen at birth. British and early U.S. practices help demonstrate this understanding.
In 1952, Congress enacted a law granting citizenship to anyone born to an American mother who met a few conditions of domicile in the United States. Cruz is a citizen under that law. And whether he is natural-born turns on whether Congress has the power to declare him natural-born.
How a court resolves this debate is highly uncertain. As courts have generally shied away from resolving disputes about candidate qualifications, judicial involvement here would be truly unprecedented.
Scenario D: Even after all this, there remains one still more potential outcome: a brokered convention. Trump, or some other candidate, might choose to challenge Cruz's eligibility at the Republican National Convention. Challenges to delegates pledged to support Cruz would claim that such delegates could not vote for an unqualified candidate. And the Republican National Committee would have to sift through these contests, potentially leading to a brokered convention in which no single candidate earned a majority of the delegates' votes on the first ballot.
That could lead to far greater uncertainty: Who in the party would be able to broker a deal about who should be the Republican nominee? There would also likely be a fresh round of debates on the term "natural-born citizen." This scenario would be extraordinarily unlikely. But in a high-profile contest between Trump and Cruz, perhaps nothing should surprise us.
© (c) Copyright Thomson Reuters 2016.
17 Comments
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katsu78
It doesn't speak well for the US that when it was a black Democrat alleged without evidence to have been born outside the US running for president a big chunk of the populace went apoplectic and raged about their conspiracy theory well into afore-mentioned black Democrat's presidency, well after the allegations had been proven false.
But when it's a white Republican who is known to have been born abroad there is a group of people suddenly saying er, well, let's not be hasty, maybe it's okay after all. And the two groups overlap.
Jeff Huffman
The only thing that could disqualify Cruz is if it was proven that his mother had indeed taken Canadian citizenship and formally renounced her American citizenship before Cruz was born. If this could be proven, then not only is Cruz ineligible to run for president, he would be removed from the Senate as he would not be an American citizen. One can only hope.
lostrune2
https://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories
Prof. Volokh himself had already debunked this years ago. He was in error:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1227910730
So please, nobody re-cite this error anymore.
zurcronium
Whether Cruz is a natural born citizen or not he is a natural born ass. Even his fellow republicans hate him as Bob Dole recently stated. No matter, he is imploding this week under the Trump attack and due to his own stupid slandering of NY.
kcjapan
"Cruz is eligible - at least until a court says otherwise. . . Federal courts, for example, threw out dozens of birther challenges to Barack Obama’s eligibility in 2008 and 2012 because voters sued and failed to identify a concrete injury. So, the courts never had to rule that Obama was actually born in Hawaii."
Whether Cruz is "natural born" or "un-natural born" is irrelevant. Cruz is a religious nutter and that's not being debated. Lucky that.
nath
How about a conviction for having taken unreported campaign contributions from Goldman Sachs and others? Felons can't run for federal office in the US - in many places they can't even vote.
kcjapan
Trump beats the drum slowly, then quickly. . .
"Had I not brought up the subject of illegal immigration, an issue which Ted Cruz is very weak on, nobody would even be talking about it. I will build a great wall, and Mexico will pay for it." - Donald Trump, GOP Front-Runner
Texas Senator Ted Cruz is a no show. Get a closer look at this demagogue. At least greed is a knowable failing Trump exudes.
Cruz's failing is in his hyper-religiosity not his place of birth.
More low hanging fruit for Trump to thump.
Jeff Huffman
turbotsatJAN. 22, 2016 - 02:42PM JST Obama: born to a US mother who hadn't been "five years after the age of 14" and a foreign father at a time when this condition meant the child did not automatically receive citizenship,
President's Obama's mother lived her adult life in the U.S. until he was six years old. She was 25 at the time of their move to Indonesia.
lostrune2
No, it doesn't. Let me read it to you again:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1227910730
And what he said previously about that particular law was in error:
His error was in the reading of the law concerning US citizens' children who are not born in the US:
That law only applies to children not born in the US, so it's not predicated on Obama being born in Hawaii. In fact, it's the opposite - it's predicated on Obama not being born in the US.
Prof. Volokh admitted that if that law had been applied to Obama in that hypothetical scenario where he wasn't born in the US, he made an error in reading that law.
turbotsat
Then there'd be no point of contention.
Please offer more proof she never left the USA until age 25 than your heartfelt, wishful assertion.
Freedom of Information requests, although partially redacted, indicate she had a passport around that time. And passports aren't needed for travel to Hawaii. It was admitted as a state in 1959.
sfjp330
Jeff Huffman JAN. 26, 2016 - 08:00AM JST President's Obama's mother lived her adult life in the U.S. until he was six years old. She was 25 at the time of their move to Indonesia.
What does it matter? Obama has less than a year to go. Nobody kicked him out from legal stance. Move on.
turbotsat
Your paste of Volokh's retraction clearly shows it's based on the predicate that Obama was born in Hawaii. It has nothing to do with his original point, that due the quirky laws in effect at that time, if Obama was born in Kenya, technically he would not be a citizen.
Pretending there's nothing to doubt is just denialism. If you deny or ignore enough datapoints you'll get to the conclusion you want, that doesn't mean it's valid.
Jim McBride
Even in the United States it was only the racist right wingers who were the 'birthers' with Donald Trump leading the way, I can't believe that anyone outside that insular group of mental defectives bought into that crap.
nath
Doesn't work that way - it's up to you to prove that she did leave the USA before age 25.
turbotsat
The question is, was there any smoke? The implication is, if there wasn't, birthers are just paranoid, frothing-at-the-mouth, anti-Obama maniacs. They'd be right if there wasn't any basis, but commonly you see
For example, the Hawaiian newspaper's editorial poking fun at the idea that Obama's elders would go to all the trouble to fake citizenship for him just so he could be president one day. That WOULD be a ridiculous idea, but who's claiming it besides the Hawaiian newspaper, and various 'fact-checkers'? There couldn't be any other reason to seek citizenship, could there be?
turbotsat
Nice. Only a "racist right winger" could have any doubt as to whether Obama and his elders ever tried to game the citizenship system or not.
Sorry, you're right, I misread what you typed. However, I don't know how to read Volokh's retraction other than as a attempt to wiggle out of the news of his original position by tossing in discussion of modification of a proviso that was modified after Obama was born and made retroactive but that only granted leniency to children of Armed Services members and so never applied to Obama or his parents anyway.
Because this text in the modification to the proviso, "This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date", does not refer to or modify the non-proviso portion of the law, which WAS in effect when Obama was born.
Here is the original text of the 1952 that DID apply to Obama, (June 27, 1952, ch. 477, title III, ch. 1, §301, 66 Stat. 235). Volokh's retraction appears to be based only on text of the Armed Services proviso.
https://www.gpo.gov/fdsys/pkg/STATUTE-66/pdf/STATUTE-66-Pg163.pdf - (pp. 73-74 of the PDF)
And there are 83 comments added to Volokh's link, including:
and
turbotsat
Obama: born to a US mother who hadn't been "five years after the age of 14" and a foreign father at a time when this condition meant the child did not automatically receive citizenship, purportedly in Hawaii (which would give him birthright citizenship), but maybe not, maybe the records were faked, but folks can't imagine why anyone would try to fake birthright citizenship for their kid or grandkid, after all the Hawaii newspaper ran an editorial wondering why anyone would be dumb enough to fake citizenship for their kid just so they could run for president 35 years later, and Obama dragged it out a long time, ... (bunch of stuff in the link) .... finally releasing a scan of a copy of his long-form cert, which ALSO could have been faked, thus more dragging out .... for a long time .... then a Hawaii functionary looked at the original records, and said yea, verily, nothing to be seen here ... (but why believe her sole testimony and especially as she's probably not a document expert of any kind?) .... and thus more dragging-out .... or something to that effect. And lots more details, see link below. I mean, hey, even Sun-Yat Sen had a Hawaiian birth certificate, and he was born nowhere near Hawaii. Probably. And not so long ago (and well after Obama's birth) faked affidavits of local birth were commonly used to get birth certificates for babies brought over the southwest US border. And maybe still are. I'm not saying it'd be right to deny Obama citizenship based on all that, but it's not like there's nothing there. I mean, presumably Obama's family has got loads of polaroids from the days immediately after his birth, taken in HAWAII not KENYA. Why hasn't he shut the opposition up with those, unless they were taken in Kenya?
On the other hand ...
McCain: born in Panama but to non-minor US parents and so not subject to the above rule.
Cruz: born in Canada but to a non-minor US mother and so not subject to the above rule even though his father was foreign.
So what else ya got?
https://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories